FEDERAL COURT OF AUSTRALIA Marsden v The Queen [2002] FCAFC 229 CRIMINAL LAW – applications for extension of time within which to appeal against sentence – applications filed five months after sentences imposed – whether "special reasons" for extending time – consideration of merits of proposed grounds of appeal – whether any question of miscarriage of justice – whether primary judged failed to give sufficient weight to prospects of rehabilitation – whether primary judge correctly applied principles of parity Federal Court Rules, Order 52 r15 Parker v The Queen [2002] FCAFC 133, referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, referred to Jess v Scott (1986) 12 FCR 187, referred to Zocchi v R (2000) 116 A Crim R 245, referred to R v Williams (2000) 119 A Crim R 490, referred to R v Lawrence [1980] 1 NSWLR 122, referred to House v The King (1936) 55 CLR 499, referred to R v Tait and Bartley (1979) 24 ALR 473, referred to Dinsdale v The Queen (2000) 202 CLR 321, referred to DOUGLAS JOHN MARSDEN v THE QUEEN A10 of 2002 JASON PAUL HAWKINS v THE QUEEN A13 of 2002 MILES, MADGWICK AND WEINBERG JJ 12 AUGUST 2002 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A10 of 2002 DISTRICT REGISTRY BETWEEN: DOUGLAS JOHN MARSDEN APPLICANT AND: THE QUEEN RESPONDENT A13 of 2002 BETWEEN: JASON PAUL HAWKINS APPLICANT AND: THE QUEEN RESPONDENT JUDGES: MILES, MADGWICK AND WEINBERG JJ DATE OF ORDER: 12 AUGUST 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. Each application for an extension of time within which to appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A10 of 2002 DISTRICT REGISTRY ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DOUGLAS JOHN MARSDEN APPLICANT AND: THE QUEEN RESPONDENT A13 of 2002 BETWEEN: JASON PAUL HAWKINS APPLICANT AND: THE QUEEN RESPONDENT JUDGES: MILES, MADGWICK AND WEINBERG JJ DATE: 12 AUGUST 2002 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 Douglas John Marsden and Jason Paul Hawkins have each applied for an extension of time in which to file and serve a notice of appeal from sentences imposed upon them by Higgins J, in the Supreme Court of the Australian Capital Territory, on 5 October 2001. MR MARSDEN 2 On 6 July 2001, Mr Marsden pleaded guilty in the Australian Capital Territory Magistrates Court to one count of theft, three counts of burglary (though one was described as "trespass with intent to steal"), and one count of possessing stolen property. He was committed for sentence to the Supreme Court of the Australian Capital Territory. 3 The offence of theft contrary to s 99 (now s 89) of the Crimes Act 1900 carries a maximum penalty of ten years' imprisonment. The offence of burglary contrary to s 102(1)(a) (now s 93(1)(5)) carries a maximum penalty of fourteen years' imprisonment as does the offence of possessing stolen property contrary to s 113(1)(b) (now s 105(1)(b)). 4 On 5 October 2001, Mr Marsden adhered to his pleas of guilty in the Supreme Court. Two further offences, unlawful possession, and breach of community service order, were taken into account on a Sixth Schedule (see s 357 of the Crimes Act 1900). He was sentenced as follows: · on the first count of burglary (CC2001/2371)- two years' imprisonment; · on the count of theft (CC2372)– six months' imprisonment, concurrent with the first sentence; · on the second count of burglary (CC2001/2956) – two years' imprisonment, cumulative on the previous sentences; · on the third count of burglary (CC2001/2958) – two years' imprisonment, cumulative on the third sentence to the extent of twelve months; and · on the count of possessing stolen property (CC2001/2806) – six months' imprisonment, concurrent with the previous sentences. 5 His Honour, in imposing these sentences, took into account the scheduled offences. 6 The effect of these sentences was that Mr Marsden was required to serve a head sentence of five years' imprisonment, to commence on 1 March 2001. A non-parole period of two years, to commence on the same date, was fixed. 7 On 25 March 2001 Mr Marsden filed an application for an extension of time, together with a draft notice of appeal, in this Court. That draft notice contained the following grounds: · misrepresentation by solicitor; · misleading facts by prosecutor; · non-comparative sentences; · excessive length of parole; · non-consideration of rehabilitation program; and · mitigating issues in Magistrates Court. MR HAWKINS 8 On 4 July 2001 Mr Hawkins pleaded guilty in the Australian Capital Territory Magistrates Court to two counts of theft and four counts of burglary. He was committed for sentence to the Supreme Court of the Australian Capital Territory. 9 On 5 October 2001 he adhered to his pleas of guilty in the Supreme Court. Five further offences were taken into account, in accordance with the Schedule. He was sentenced as follows: · on the first count of burglary (CC2001/2372) - two years' imprisonment; · on the first count of theft (CC2374) – six months' imprisonment, concurrent with the first sentence; · on the second count of burglary (CC2001/2964) – two years' imprisonment, cumulative on the first two sentences; · on the third count of burglary (CC2001/2807) – twelve months' imprisonment, concurrent with the third sentence; · on the fourth count of burglary (CC2001/2808) – two years' imprisonment, cumulative on the third sentence to the extent of twelve months; and · on the second count of theft (CC2001/2809) – nine months' imprisonment, concurrent with the fifth sentence. 10 His Honour, in imposing these sentences, took into account the scheduled offences. 11 The effect of these sentences was that Mr Hawkins was required to serve a head sentence of five years' imprisonment, to commence on 26 May 2001. A non-parole period of eighteen months, to commence on the same date, was fixed. 12 On 27 March 2001 Mr Hawkins filed an application for an extension of time, together with a draft notice of appeal, in this Court. That draft notice contained the following grounds: · misrepresentation by legal counsel; and · remand time not taken into consideration, co-offender had full credit for remand time. THE FACTUAL BASIS OF THE OFFENCES 13 There was no issue before this Court concerning the factual basis of the offences. They fell into two distinct categories, those committed jointly by both applicants, and those committed by them separately. 14 In relation to the offences committed jointly, these arose out of two incidents. The first occurred on 16 February 2001. The applicants entered the premises of Bells Drycleaners in Griffith via a smashed front window. They stole a safe which contained $590 that was bolted to the floor. The second occurred in the early hours of 1 March 2001. The applicants broke into the Windfall Kiosk at Southland Shopping Centre, Mawson and stole various tobacco products valued at $6,600. These included 500 packets of assorted cigarettes, 20 cartoons of cigarettes, 20 packets of tobacco, and 3 glass tobacco pipes. 15 The first of the offences committed by Mr Marsden in the absence of Mr Hawkins, occurred on either 15 or 16 February 2001. He broke into First Choice Drycleaners, in Kingston, and stole a wall safe containing $415. The second of those offences occurred on 1 March 2001 when a search warrant was executed upon his vehicle, and police located a grey steel safe. That safe was later identified as having been stolen from the "Brew Your Own Home" Shop at Kambah between 10 and 11 February 2001. 16 Police also searched Mr Marsden's home on 1 March 2001. They located six cameras which they suspected of being stolen. This formed the basis of one of the scheduled charges which were taken into account. The other arose out of the breach of a community service order imposed on 3 November 2000 for an assault occasioning actual bodily harm. Prior to his arrest on 1 March 2001, Mr Marsden had completed 47 out of 208 hours of unpaid community work under that community service order, but had failed to attend on a number of occasions. 17 In relation to the offences committed by Mr Hawkins in the absence of Mr Marsden, these consisted firstly of a burglary at the Dickson Denture Clinic on 22 June 2000 in the course of which nothing was taken, and secondly, a burglary and theft at the premises of Aboriginal Hostels Limited, Phillip on 10 July 2000 in the course of which property to the value of $8,531.15 was stolen. The scheduled offences taken into account included driving an unregistered and uninsured vehicle, unlicensed driving, and cultivation of a small quantity of cannabis. EACH APPLICATION FOR AN EXTENSION OF TIME 18 The principles which govern an application for an extension of time within which to file a notice of appeal are not in doubt. They were most recently set out in Parker v The Queen [2002] FCAFC 133. The Federal Court Rules provide that an appeal must be instituted within 21 days of the recording of the sentence imposed. However, they contain a provision for an extension of time in appropriate circumstances. Order 52 r 15(2) provides that "... the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal". 19 In the civil jurisdiction the matters required to be considered when dealing with an application to extend time were dealt with by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. In Jess v Scott (1986) 70 ALR 185 a Full Court of this Court accepted the correctness of his Honour's analysis and observed that the expression "special reasons", in O52 r15, was intended to distinguish the case from the usual course according to which the time is 21 days. In Zocchi v R (2000) 116 A Crim R 245 at 246, Jess v Scott was cited as authority for the proposition that the Court's power to extend time was a flexible one, designed to enable substantial justice to prevail over technical default, see too R v Williams (2000) 199 A Crim R 490. 20 In Parker a Full Court comprising Spender, O'Loughlin and Dowsett JJ said that what the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal (in that case against a conviction which had led to a term of imprisonment) is satisfaction that there has not been, and will not be a miscarriage of justice if leave is refused. There Honours referred to R v Lawrence [1980] 1 NSWLR 122 at 165-6 as authority for that proposition. 21 Mr Refshauge SC, the Director of Public Prosecutions, submitted to this Court that neither appeal had any prospect of success and leave should, for that reason, not be granted. He did not otherwise oppose either application to appeal out of time. It is necessary, having regard to the principles which govern the grant of an extension, to consider the merits of each appeal before determining whether or not to grant leave. THE PRINCIPLES GOVERNING APPEALS AGAINST SENTENCE 22 The principles upon which an appellate court will interfere with a sentence imposed by a sentencing judge are well established. They are set out in House v The King (1936) 55 CLR 499 at 505 and R v Tait and Bartley (1979) 46 FLR 386 at 388. They were recently restated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears many similarities to the making of a discretionary decision. As with any such decision, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. An appellant must point to error on the part of the primary judge, whether that be the adoption of an incorrect principle, giving weight to some extraneous matter, failing to give appropriate weight to material considerations, or a mistake as to the facts. MR MARSDEN'S GROUNDS OF APPEAL 23 The complaint that Mr Marsden's solicitor failed to represent him competently before the learned sentencing judge was faintly pressed on the appeal. Essentially, Mr Marsden argued that his solicitor had failed to emphasise sufficiently certain aspects of his background. It was suggested that had he done so, his Honour may have been persuaded that Mr Marsden's prospects for rehabilitation were rather better than his Honour ultimately found them to be. 24 In our opinion there is no substance in this ground. The sentencing judge had before him detailed pre-sentence reports dated 23 May 2001 and 10 August 2001, together with an undated report of the Parole Board of the Australian Capital Territory which provided a comprehensive assessment of Mr Marsden's prospects of rehabilitation. It is fair to say that the Parole Board was not unimpressed with the efforts which he had made to rid himself of his problems with drugs, and his attempts at rehabilitation. Nonetheless, it noted, as did the Probation and Parole Officer who prepared the pre-sentence reports, that his criminal record, which was substantial, as well as his past failures on parole and community service made it difficult to have any confidence in his capacity to adhere to his assertions of good intent. Although he was now in a relationship with a woman who had two children aged eight and four respectively, the fact that she was in difficult circumstances was regarded as possibly placing additional pressure upon him, thereby increasing the risk of his re-offending. 25 Mr Marsden conceded that he had previously expressed a strong desire to refrain from committing offences, but had failed in that endeavour. He argued that had his solicitor presented his case more forcefully, the sentencing judge may have imposed a slightly shorter non-parole period. As indicated above, we are not persuaded by that submission. 26 The only remaining ground of appeal which was pressed complained of undue disparity between the non-parole period imposed upon Mr Marsden, and that imposed upon Mr Hawkins. 27 It is true that Mr Marsden received a non-parole period of two years, while Mr Hawkins received a non-parole period of only eighteen months. However, it must be borne in mind that Mr Marsden's sentence and non-parole period were both backdated to 1 March 2001, while Mr Hawkin's sentence and non-parole period were only backdated to 26 May 2001. That led to a complaint on the part of Mr Hawkins that, if anything, he had been treated unfairly. For present purposes, it is sufficient to note that each applicant had different subjective features which made the task of achieving parity somewhat difficult. 28 Mr Marsden had a long history of criminal offences, and had previously breached parole. He had served a lengthy gaol term for robbery. He was several years older than Mr Hawkins. The pre-sentence reports were both prepared by the same Probation and Parole Officer, within days of each other. They favoured Mr Hawkins. It was said "some confidence" could be placed in his stated good intentions and that his risk of re-offending was "medium". 29 In our opinion, Mr Marsden can have no justifiable sense of grievance arising from the fact that he will not be eligible for parole until some months after Mr Hawkins. There is no merit whatever in Mr Marsden's contention that the length of his non-parole period was excessive. Relative to the head sentence, it was lenient. 30 One matter which occasioned concern was the question of when precisely Mr Marsden would be eligible for parole. It appears that he was sentenced to a term of imprisonment in Western Australia, prior to being transferred, on parole, to the Australian Capital Territory. As we understand it, his non-parole period had expired in 2000. However, the balance of the sentence imposed upon him in Western Australia was not scheduled to be completed until December 2003. 31 There was some uncertainty on Mr Marsden's part as to whether the effect of the sentence imposed by Higgins J was that he would be eligible for parole on 1 March 2003, or that would not occur until December 2003. It is plain that his Honour intended that Mr Marsden should be eligible for parole on 1 March 2003, and that he might then go into a residential rehabilitation program if the parole authorities thought his progress satisfactory. 32 Mr Refshauge submitted that the effect of the orders made by his Honour was that Mr Marsden would be eligible for parole on 1 March 2003, and that the December 2003 date could effectively be disregarded. We have noted that concession, and assume that the parole authorities in the Australian Capital Territory will apply the relevant principles in the manner described above. MR HAWKIN'S GROUNDS OF APPEAL 33 Mr Hawkins raised essentially one ground of appeal in argument before this Court. He contended that he ought to have received some benefit from the sentencing judge by way of a reduced non-parole period because two of the counts upon which he was sentenced involved offences committed in June and July 2000. However, although the police had overwhelming evidence of his involvement in those offences as far back as September 2000, they had held back from charging him. According to Mr Hawkins, had he been charged in a timely manner, he would almost certainly have been imprisoned, rather than being given periodic detention, as he was, in November 2000. 34 In substance, Mr Hawkins complained that had he been imprisoned, as he ought to have been, had the police conducted themselves diligently, he would not have been in a position to commit the offences which he did, in company with Mr Marsden, in February and March 2001. 35 In our opinion, there is no merit in this ground. It is true that there is no explanation as to why the police did not charge Mr Hawkins with the offences committed in June and July 2000 until after he was arrested for the subsequent offences. Nonetheless, in that regard, he must be considered the author of his own misfortune. There is no principle which holds that a person who commits an offence can complain that, had the police arrested him for earlier offences, he would not have been in a position to commit the later offence, and is therefore to be accorded leniency. CONCLUSION 36 In our opinion, there is no substance in any of the grounds of appeal set out in each of the draft notices of appeal. It follows that each application for an extension of time within which to appeal should be dismissed. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court. Associate: Dated: 12 August 2002 Each Applicant appeared in person. Counsel for the Respondent: Mr Refshauge, SC Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 12 August 2002 Date of Judgment: 12 August 2002