Mou a ee re NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. ACT G 2 of 1986 JUDGE MAKING ORDER BETWEEN : MICHAEL EDWARD DEERING Applicant AND: THE QUEEN Respondent MINUTE OF ORDER Neaves d. DATE OF ORDER : WHERE! MADE 27 June 1986 : Canberra THE COURT ORDERS THAT: The application for leave to file and serve a notice of appeal against the convictions recorded against Michael Edward Deering by the Supreme Court of the Australian Capital Territory on 17 September 1985 and against the severity of the sentences imposed consequent upon those convictions is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Pa 4 ~/ NY aa it ad AY _\ D> Na on Spent A . \ = SsOsuNisgs) Yee 7 dese, ha} Ta ' Jee ON a ae aw > . ye ey . we = ont-s _ PAPERS abt IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 2 of 1986 DISTRICT REGISTRY GENERAL DIVISTON BETWEEN: MICHAEL EDWARD DEERING Applicant AND: THE QUEEN Respondent CORAM: Neaves J. DATE: 27 June 1986 REASONS FOR JUDGMENT This application is made pursuant to Order 52, sub-rule 15(2) of the Federal Court Rules. Michael Edward Deering ("the applicant") seeks leave to file and serve a notice of appeal against the convictions for five offences under s.112 of the Crimes Act, 1900 of the State of New South Wales in its application to the Australian Capital Territory of breaking, entering and stealing recorded against him by the Supreme Court of the Australian Capital Territory on 17 September 1985 and against the severity of the sentences imposed by the Court consequent upon those convictions. Order 52, sub-rule 15(1) prescribes the time within which a notice of appeal is to be filed and served. In the present case that time expired 21 days after the date when the convictions were | a | we Cadel et eee ee ie; recorded and the sentences pronounced. Order 52, sub-rule 15(2) provides: ""(2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." On 21 August 1985 the applicant was arraigned before a judge of the Supreme Court of the Australian Capital Territory (Kelly 9.) and a jury upon an indictment containing nine counts, five alleging offences of breaking, entering and stealing and four alleging offences of recciving stolen property knowing the same to have been stolen. Those four counts were alternative to four of the counts of breaking, entering and stealing. To each count in the indictment the applicant pleaded not guilty. The Crown applied to amend the particulars of the goods said to have been stolen or received as set out ina number of the counts of the indictment. This application, which was consented to by counsel for the applicant, was granted and the applicant arraigned on the amended counts. To each of these he pleaded not guilty. The application to amend the particulars arose in this way. The Crown's case was that the applicant had broken and entered the following premises - eee wee eA Ti toy eee. eu = Fee (a) The shop of NCA Marine Pty. Ltd., 5 Kembla Street, Fyshwick between 12 and 15 July 1982; (b) The shop of Robert George Maidment and William Cape being Shops 5 and 6 Hawker Shopping Centre, Hawker between 3 and 6 November 1982; (c) The lastmentioned premises between 14 and 17 December 1982; (d) The shop of Peter Evans and Beverley Evans being Shop 5 Ainsworth Street, Mawson between 20 and 21 April 1983; and (e) The shop of Electricland Pty. Ltd., 28 Townsend Street, Phillip on or about 3 August 1983, and had on each occasion stolen various goods. Those goods included pre-recorded video cassettes and video recording machines. The applicant was apprehended at Bateman's Bay by members of the New South Wales police and was found to have in his possession 14 pre-recorded video cassettes and 3 video recording machines. In respect of the possession of those goods a charge was laid in New South Wales against the applicant under s.189A of the Crimes Act, 1900 (N.S.W.). The charge alleged possession of goods' stolen outside the State knowing the same to have been stolen. To that charge he pleaded guilty and on 30 August 1983 was sentenced to imprisonment for two years with hard labour. A non~-parole period of 9 months was fixed. The amendments to the particulars set out in the indictment upon which the accused was arraigned before the Supremc Court of the Australian Capital Territory were designed to remove any reference, or any S ae oe a a specific reference, in the relevant counts to the goods which had been the subject of the criminal charge in New South Wales. During the course of discussing the amendments to the particulars the trial judge raised with counsel for the applicant whether the applicant proposed to enter a plea of autrefois convict based upon the circumstances to which reference has been made. Counsel for the applicant stated that the applicant did not raise that plea. The trial proceeded and on 23 August 1985 the jury found the applicant guilty on the five counts of breaking, entering and stealing. No verdict appears to have been returned on the alternative counts of receiving. On 17 September 1985 the trial judge imposed sentences of imprisonment 1m respect of each of the offences of which the applicant had been found guilty. Relating the sentences imposed to the offences identified in paragraphs (a) to (e) above, they were respectively 6 years, 4 years, 4 years, 5 years and 4 years. The sentences were directed to he served concurrently and to date from 23 August 1985. The applicant was thus effectively sentenced to imprisonment for a term of 6 years. The periogG within which the applicant was not to be eligible for parole was fixed at 3 years 6 months. In sentencing the applicant the trial judge took into account, at the applicant's request, seven other offences of dishonesty committed between 30 November 1982 and 4 August 1983. ert woes ae a sen - es ao bd a 8 yee In explanation of the failure of the applicant to institute an appeal within the time prescribed and of the delay of some four months in filing the application under Order 52, sub-rule 15(2), reliance was placed on facts deposed to on information and belicf by John Dominic Burns, Solicitor, in affidavits sworn respectively on 29 January 1986 and 4 February 1986. According to those affidavits and certain annexures to them, being letters written by the applicant and dated respectively 5 November 1985 and 19 January 1986, the applicant was advised by his counsel on 17 September 1985 that he had little reason to lodge an appeal on sentence and no reason to lodge an appeal against the convictions recorded against him. Notwithstanding this advice, the applicant is said to have completed on 2 October 1985 what is variously referred to as an application to appeal", an application for leave to appeal" and an "application of notice of appeal". The completed document is said to remain on the applicant's personal file at Goulburn Gaol, the applicant being informed, so it is said, that an appeal could not be lodged except by his legal representative. The document referred to, whatever be its form, is not before the Court. By the letter dated 5 November 1985 the applicant requested Messrs Gallens, Solicitors, to examine the papers in order to ascertain whether there were any grounds which would justify an appeal. Thereafter, the solicitors obtained a - ee ae sO Meet as RR 6. transcript of the proceedings and sought legal aid for the applicant which was granted. Subsequently, advice of counsel was sought as to the prospects of success of an appeal following which the application at present before the Court was filed on 15 January 1986. If all that were necessary to sustain the present application were the giving of a satisfactory explanation for the failure of the applicant to institute an appeal within the prescribed time and for the delay in making the application under Order 52, sub-rule 15(2), I would regard the applicant as having satisfied that requirement. However, the applicant must establish that there are "special reasons" why leave to file and serve a notice of appeal out of time should be given. This aspect requires a consideration of the proposed grounds of appeal. The principal ground of appeal on which the applicant would seek to rely in the event of the present application being successful is that certain of the counts upon which the applicant was found guilty, that is to say counts alleging offences of breaking, entering and stealing, should have been taken from the jury ona plea of autrefois convict and this notwithstanding that that plea was not entered at the trial. "me Bod te ee me ete ee trio 2 7. The conviction upon which it was submitted the applicant could have relied as founding a plea of autrefois convict is the conviction in New South Wales on 30 August 1983 for the offence under s.189A of the Crimes Act, 1900 (N.S.W.). The elements of that offence were that the applicant, without lawful excuse and knowing the same to have been stolen, had in his possession in New South Wales certain goods, namely 14 pre-recorded video cassettes and 3 video recording machines, stolen outside the State. In support of the submission that that conviction was a bar to the conviction of the applicant for certain of the offences of breaking, entering and stealing, counsel referred to the following passage in the judgment of Wells J. in The Queen v. O'Loughlin; Ex parte Ralphs (1971) 1 5.A.5.R. 219 at pp. 266-7: "For the plea to be upheld it must clearly appear from the formal legal ingredients of the two offences and the structure of the factual issues related to those ingredients, that the prosecution is seeking two penal sanctions for, and with respect to, almost identical conduct forming part of the one incident or transaction (whether brief or prolonged)." I am unable to see any basis upon which it could be contended with any reasonable prospect of success that the present casc falls within the principle so stated. The formal 8. legal ingredients of the offence of breaking, entering and stealing differ markedly from those of the offence of which the applicant was convicted in New South Wales. So far as the evidence necessary to establish the two offences is concerned, the only relevant connection is that the charges arose out of what may, speaking generally, be referred to as the same set of circumstances namely the theft of the goods in the Australian Capital Territory and the possession of those goods in New South Wales. That connection is clearly not enough to found a plea of autrefois convict. In the end, I think, counsel for the applicant conceded that the conviction under s.189A of the Crimes Act, 1900 (N.S.W.) was not a bar to the convictions for breaking, entering and stealing. Other grounds of appeal upon which the applicant would rely are - (a) that certain evidence should not have been admitted, being evidence of admissions made by the applicant upon his apprehension in New South Wales to officers of police of that State; and (b) that the Crown should not have been allowed to reopen its case. The first of the suggested grounds appears to relate to evidence given by Sergeant Christopher John Ingram of the New South Wales police. He gave evidence of having searched, 9. pursuant to a warrant, certain premises at Batehaven, New South Wales on 11 August 1983 and of having there taken possession of certain goods. He aiso gave evidence of having taken possession of certain other articles from a green Mazda sedan motor car with ACT registration plates. Subsequently, Detective Bellis, in the presence of Sgt. Ingram, interviewed the applicant and Sgt. Ingram gave evidence of what was said at that interview. No objection to the admissibility of the evidence was taken at the trial but it is submitted that it should not have been received as it related principally to goods which, as the result of the amendments to the indictment to which reference has been made, were not specifically referred to in the relevant counts of the indictment. The second of the two suggested grounds referred to above relates to the recalling of Detective Senior Constable Cootes after the close of the case for the defence in circumstances which are sufficiently indicated in the following statement which his Honour addressed to the jury: "Ladies and gentlemen of the jury, an unusual circumstance has arisen in this case. It arises from the fact that the evidence which was led in respect of the breaking and entering of the premises of Electricland Proprietary Ltd showed that break and enter to have occurred on 3 August 1982. I only noticed i1t last night when I was going through the material, and the indictment says OR ee 1 ee ee EY eS cad EE 10. 3 August 1983. I have inquired of counsel what the situation is and in the circumstances I propose to allow a most unusual course and that is the Crown to re-open its case to give evidence concerning the actual date, so that there is evidence upon which you can act in the case concerning the date of the breaking in at that time." In my opinion there is no substance in either of the suggested grounds of appeal. They do not provide any warrant for acceding to the present application. In relation to the severity of the sentences imposed, the applicant wishes to contend that the trial judge erred in the exercise of his discretion in giving no, or no sufficient, weight to the fact that the applicant had served a term of imprisonment in New South Wales in relation to the offence under s.189A of the Crimes Act, 1900 (N.S.W.) of which he was convicted. A further suggested ground of appeal is that his Honour gave insufficient weight to subjective factors in favour of the applicant. A perusal of the lengthy and very detailed reasons which his Honour gave when sentencing the applicant - reasons which are not reproduced in full in the transcript of the proceedings of 17 September 1985 but are recorded separately and to which counsel for the applicant had apparently not had access when the present application was heard - demonstrates we ee ee ee wer ae a We Oe LT "ft FPP ek Bs Re ee" a ll. that his Honour gave careful consideration to the subjective factors urged upon him on behalf of the applicant. His Honour also expressly said that he had taken into account "that he has received some punishment in respect of the theft of some of the goods", and this can, I think, only be read as a reference to the term of imprisonment served by the applicant in respect of the offence against s.189A of the Crimes Act, 1900 (N.S5.W.) to which reference was made earlier in his Honour's reasons. The principles on which this Court will interfere with the oxercise of a sentencing judge's discretion have been examined and enunciated on many occasions: see, for example, Kovac v. R. (1977) 15 A.L.R. 637; R. v. Tait & Bartley (1979) 24 A.L.R. 473 at p.476; and R. v. Hall (1979) 28 A.L.R. 107 at pp.113, 120. The Court will not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It will interfere only if it be shown that the sentencing judge was in error in acting ona wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. With those principles in mind and having regard to the applicant's extensive criminal record and the other matters to which the trial judge adverted zn passing sentence, no substantial ground has been' shown to support a contention that the sentencing discretion miscarried. ae oe 12. In my opinion, the applicant has failed to demonstrate that there are "special reasons" justifying the Court exercising in his favour the discretion which is conferred upon it by Order 52, sub-rule 15(2) of the Federal Court Rules. The application is, therefore, dismissed. I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. :Associate Dated: 27 June 1986