Reported Decision : 59 NSWLR 596 145 A Crim R 453 New South Wales Court of Criminal Appeal CITATION : Regina v Ohar [2004] NSWCCA 83 HEARING DATE(S) : 22/03/04 JUDGMENT DATE : 23 April 2004 JUDGMENT OF : Studdert J at 1; James J at 2; Dunford J at 89 DECISION : (1) Crown appeal dismissed (2) Prisoner's application for leave to appeal - leave to appeal granted but appeal dismissed CATCHWORDS : Criminal law - sentencing- principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal - delay in instituting Crown appeal - statutory non-parole periods Crimes Act Crimes (Sentencing Procedure) Act LEGISLATION CITED : Criminal Appeal Act Criminal Appeal Rules Drug Court Act House v The King (1936) 55 CLR 499 Johnson v The Queen [2004] HCA 15 (30 March 2004) Pearce v The Queen (1998) 194 CLR 610 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 R v Baker [2000] NSWCCA 85 CASES CITED : R v El-Hamid [2000] NSWCCA 497 R v Giam (No. 2) (1999) 109 A Crim R 348 R v Hallocoglu (1992) NSWLR 67 R v Hammoud (2000) 118 A Crim R 66 R v Hernando [2002] NSWCCA 489 R v Itamua [2000] NSWCCA 502 R v Wong & Leung (1999) 108 A Crim R 531 PARTIES : Regina v Adam OHAR FILE NUMBER(S) : CCA 60451/03 COUNSEL : H Dhanji - Applicant G Rowling - Respondent SOLICITORS : S O'Connor - Applicant S Kavanagh - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 2000/0337 FILE NUMBER(S) : LOWER COURT Milson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60451/03 STUDDERT J JAMES J DUNFORD J Friday 23 April 2004 REGINA v Adam OHAR Judgment 1 STUDDERT J : I agree with James J 2 JAMES J In this matter Adam Ohar (who I will refer to as "the offender") appealed or applied for leave to appeal, and the Crown appealed, against sentences imposed on the offender on 14 April 2003 by his Honour Judge Milson in the Parramatta Drug Court for various offences, to all of which the offender had pleaded guilty. 3 The offences for which Judge Milson sentenced the offender can be divided into three groups. 4 The first group consisted of nine offences, namely:- one offence of breaking, entering and stealing committed in 1995 in respect of which a recognisance had been entered, which was later breached; four offences of goods in custody; one offence of being carried in a conveyance without the consent of the owner; one offence of breaking, entering and stealing committed on 10 July 2000; one offence of possessing a house breaking implement; and one offence of maliciously damaging property. In sentencing the offender for the offences in this group Judge Milson was exercising jurisdiction under s 12 in Pt 2 of the Drug Court Act 1998. 5 The second group of offences for which Judge Milson sentenced the offender, all of which were committed on 9 October 2002, consisted of an offence of aggravated car-jacking, being an offence under s 154C(2) of the Crimes Act , the circumstances of aggravation being the malicious inflicting of actual bodily harm, for which the maximum penalty is imprisonment for fourteen years; and two offences of using an offensive weapon to prevent lawful apprehension, being offences under s 33B of the Crimes Act , for which the maximum penalty is imprisonment for twelve years. In sentencing the offender for the offences in this second group, Judge Milson was exercising jurisdiction under s 24(1)(a) in Pt 3 of the Drug Court Act , which confers on the Drug Court the criminal jurisdiction of the District Court. 6 The third group of offences for which Judge Milson sentenced the offender were two summary offences, being offences of larceny and driving in a dangerous manner, also committed on 9 October 2002. In sentencing the offender for these offences Judge Milson was exercising jurisdiction under s 24(1)(b) in Pt 3 of the Drug Court Act , which confers on the Drug Court the criminal jurisdiction of the Local Court. 7 The sentences imposed by Judge Milson on 14 April 2003 were as follows. For all of the offences in the first group of offences, except for the offence of being carried in a conveyance without the consent of the owner, the offence of breaking, entering and stealing committed on 10 July 2000 and the offence of possessing a house breaking implement, the offender was sentenced simply to the rising of the court on 14 April 2003. For each of the offences of being carried in a conveyance without the consent of the owner, breaking, entering and stealing on 10 July 2000 and possessing a house breaking implement, the offender was sentenced to a term of imprisonment for nine months commencing on 9 October 2002, which was the date on which the offender had been arrested and taken into custody after committing the offences of 9 October 2002. 8 As regards the second group of offences, for the offence of aggravated car-jacking the offender was sentenced to a fixed term of imprisonment of four years to commence on 9 July 2003, that is to be served cumulatively on the sentences of nine months imposed for three of the offences in the first group of offences, and for each offence of using an offensive weapon to prevent lawful apprehension the offender was sentenced to a term of imprisonment of two years to commence on 9 July 2007, that is to be served concurrently with each other but cumulatively on the sentence for aggravated car-jacking. His Honour set a non-parole period of three months for each of these two sentences. 9 For each of the offences in the third group of offences the offender was sentenced to a fixed term of imprisonment of nine months commencing on 9 October 2002, that is to be served fully concurrently with the sentences for three of the offences in the first group of offences. HISTORY OF OFFENCES AND EVENTS 10 The history of the offences committed by the offender and the events which have occurred in relation to those offences is complicated and it is convenient to set out a summary of this history. 11 The offences in the first group of offences were committed between 1995 and 11 July 2000. These offences were summarised in the Crown's written submissions, in a way which was not the subject of any criticism before this Court, as follows:- "(a) On 27 March 1999 at Cabramatta, he had in his custody property, namely certain electronic equipment and jewellery, reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to the provisions of section 527C(1)(a) of the Crimes Act, 1900; (b) On 12 May 1999 at Campbelltown he breached a recognisance imposed upon him at Grafton Local Court on 7 October 1997 for the offence of breaking, entering and stealing committed in 1995, contrary to the provisions of section 112 of that Act, by failing to accept the supervision of the Probation and Parole Service; (c) On 3 June 1999 at Ingleburn, he had in his custody property, namely coffee jars, reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to the provisions of section 527C(1)(a) of the Crimes Act .; (d) Between 12 June 1999 and 14 June 1999 at Oyster Bay, he allowed himself to be carried in a conveyance, Daihatsu Charade sedan registered number SMR-650 knowing that it was taken without the consent of William Fenner, the owner of it, contrary to the provisions of section 154A(1)(b) of the Crimes Act ; (e) On 10 July 2000 at Artarmon, he broke and entered the residential dwelling unit of Karen Eldrige situated at unit 2, 10-16 Parkes Road, and then in the unit stole property of Karen Eldrige, contrary to the provisions of section 112(1) of the Crimes Act ; (f) On 10 July 2000 at Artarmon, he had in his custody a Centrelink pension card and Entertainment card in the name of Simon Puzckowski, reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to the provisions of s 527(1)(a) of the Crimes Act . (g) On 10 July 2000 at Artarmon, he had in his custody a bracelet reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to the provisions of section 527(1)(a) of the Crimes Act ; (h) On 10 July 2000 at Artarmon, without lawful cause he had in his possession an implement of housebreaking, contrary to the provisions of section 114(1)(b) of the Crimes Act ; and (i) On 11 July 2000 at Hornsby, he maliciously damaged property of the New South Wales Police Service, contrary to the provisions of section 195(a) of the Crimes Act ". 12 On 10 July 2000 the offender was arrested and was refused bail. The offence of maliciously damaging property was committed after the offender had been taken into custody. The offender remained in custody between 10 July 2000 and 14 December 2000, a period of five months four days. On 14 December 2000 he was released on bail, entering a residential rehabilitation institution. 13 On 15 January 2001 the offender came before his Honour Judge Barnett in the Parramatta Drug Court. The Court of Criminal Appeal has been furnished with a copy of the transcript of the hearing of the proceedings on 15 January 2001 but has not been furnished with a copy of Judge Barnett's remarks on sentence. However, other documents in the appeal papers sufficiently disclose the decisions and orders made by Judge Barnett on 15 January 2001. 14 On 15 January 2001 Judge Barnett dealt with the offender in accordance with s 7 of Drug Court Act . In accordance with s 7(2A) of the Act Judge Barnett sentenced the offender for the nine offences in the first group of offences. In accordance with s 7(3) of the Act his Honour imposed the conditions of a drug program which the offender had accepted and made an order suspending the execution of the sentences for the duration of the drug program. 15 The sentences which were imposed, and then suspended, by Judge Barnett, which I will refer to as "the initial sentences", were as follows. For the four offences of goods in custody, the offence of breaking, entering and stealing in respect of which a recognisance had been entered and the offence of maliciously damaging property, his Honour imposed concurrent sentences of two months, commencing on 15 January 2001. For the offences of allowing himself to be carried in a conveyance without the consent of the owner, breaking, entering and stealing committed on 10 July 2000 and having in his possession a housebreaking implement his Honour imposed concurrent sentences of twelve months three weeks, also commencing on 15 January 2001. In imposing sentences of twelve months three weeks Judge Barnett took into account the period of five months four days the offender had spent in pre-sentence custody and deducted this period from the sentences of eighteen months he would otherwise have imposed. 16 The offender entered into the drug program. His participation in the drug program was described by Judge Milson in his remarks on sentence of 14 April 2003 as follows:- "Initially he went to a residential rehabilitation centre where he remained there for about one month and a week. He discharged himself from the centre following some drug use which was not permitted in that rehabilitation centre. He remained in custody both serving sanctions for breaching his program and while a new treatment plan could be found until he was able to go to the WHOS Rehabilitation Centre where he remained for twenty-five days. Her subsequently surrendered himself to the Court and went to a community based program where he remained for a relatively short space of time from early May 2001. He came to Court on 15 May and was not seen thereafter". 17 While the offender was on the program he spent thirty-seven days in custody and a period of about one month in full-time residential rehabilitation. 18 In his remarks on sentence of 14 April 2003 Judge Milson referred to a report from Dr Nilsson, Corrective Services psychiatrist, which included a history, which his Honour apparently accepted, of what had happened to the offender between his appearance in court on 15 May 2001 and his being arrested on 9 October 2002. According to this history, the offender resumed cohabiting with a female friend and began using illicit drugs again. The female friend fell pregnant and she and the offender decided to go to Queensland to make a fresh start with their lives. In February 2002 the offender entered into a methadone programme conducted by an Alcohol and Drug service of a Queensland hospital. However, the offender subsequently resumed using heroin. 19 In September 2001 the Drug Court terminated the offender's drug program pursuant to s 10 of the Drug Court Act . 20 On 9 October 2002 the prisoner committed five offences, consisting of the aggravated car-jacking, the two offences of using an offensive weapon to prevent lawful apprehension, the offence of larceny which was dealt with summarily and the offence of driving a motor vehicle in a dangerous manner. In his remarks on sentence of 14 April 2003 Judge Milson stated the facts of these further offences committed on 9 October 2002 as follows. "On that occasion, Mr Beckhouse, the owner of the motor vehicle drove his family into the car park of the McDonald's Restaurant at South Grafton soon after midday. Mrs Beckhouse and a daughter entered the restaurant to place an order while Mr Beckhouse and his two sons remained near the car. When one of those children left the vehicle and ran after his mother, his father told the other child who was in the vehicle to stay there while he went to retrieve the younger son. He left the car with the ignition key in and the radio on, ran to the top of the stairs to take hold of his younger son, and turned around to find that his motor vehicle was missing. The accused had entered the motor vehicle, started it and driven out. It is said that whilst exiting the car park he realised that the child, Luke, who was aged at that stage seven years, was seated in the rear of the car. He continued to drive north at high speed along Spring Street, South Grafton, and turned left onto the Pacific Highway. Approximately 200 metres along he left the road and the vehicle jumped a deep culvert landing in a cleared paddock. He stopped the vehicle and he pushed the child from the car and then sped off at high speed across the paddock leaving the child unattended beside the Pacific Highway. The statement describes first of all what happened to the child in the car. The boy's statement describes him protesting in these words, 'Oi, get out of my dad's car' and crawling over the front seat. (The child continued to protest), 'It's not your car, it's my dad's car. The car was stopped and the man said, 'Get out of the car'. (The child just sat there). He leaned over and opened my mum's door. He grabbed my shirt near my neck and chucked me out of the car and I grabbed onto the door handle. My arm was in the car. He shut the door on my arm. I pulled my arm out and then he shut the door' (and then the child describes how the vehicle drove off)'. A doctor's report describes the physical injuries to the child. The very brief report describes a bruised and swollen radial aspect of the left wrist. An x-ray was conducted and there was no breakage. In respect of that behaviour he is charged with that offence of taking and driving the vehicle without consent of the owner in those circumstances of aggravation in that the child was in the car and he inflicted maliciously actual bodily harm to the child. A passer-by found the child running near the road, after hearing him screaming and crying. This lady went to the child's assistance and took him back to where his parents were. They were reunited and subsequently the child was taken care of and given appropriate medical attention. After leaving where the child was, the offender continued north along the Pacific Highway at high speed. At a point south of the Maclean turn off he sighted the police, who engaged in a pursuit, and he continued north well in excess of the 100 kilometres hour speed limit. He turned off the highway losing control on a grass strip, careered back across the highway into the south lane of the clover leaf and he was pursued by the police with all warning devices activated. He again lost control under the Harwood Bridge on Yamba Road coming to stop, facing pursuing motor vehicles. He then accelerated his vehicle and it collided with the front of a police vehicle causing extensive damage and then he continued on. At about 2.19 that same afternoon the vehicle was seen by other police in an unmarked vehicle, travelling near Tindale. A further pursuit followed when he drove at speeds as high as 140k.p.h. Then he caused the vehicle to stop suddenly at Tindale. The police vehicle stopped about five metres behind. The police left their vehicle and ordered him to get out. He then reversed the vehicle quickly into the front of the police vehicle causing considerable damage and sped off. There was a further pursuit. He lost control of the vehicle, he gathered some items from the back of it and then left and ran into bushland. He was arrested soon after. As a result of that behaviour he has been charged on two occasions of using the motor vehicle as a weapon to prevent his apprehension, and the summary offences are those of driving in a manner dangerous to the public and larceny of the property taken from the motor vehicle which consisted of a laptop computer, mobile phone, camera and other things". 21 After the offender was arrested on 9 October 2002 he remained in custody until he was sentenced by Judge Milson on 14 April 2003. 22 Earlier in this judgment I observed that in sentencing the offender for the first group of offences Judge Milson was exercising jurisdiction under s 12 in Pt 2 of the Drug Court Act . It is convenient to set out the provisions of s 12 of the Drug Court Act . "12 Imposition of final sentence (1) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence. (2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration: (a) the nature of the drug offender's participation in his or her program, and (b) any sanctions that have been imposed on the drug offender during the program, and (c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment: (i) under the sentence, or (ii) under the condition of the program arising under section 8A. (3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence: (a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or (b) by making an order confirming the initial sentence. (4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence. (5) (Repealed)" 23 In sentencing the offender for the first group of offences Judge Milson was reconsidering the initial sentences imposed by Judge Barnett and determining the final sentences which should be imposed for those offences. In exercising this jurisdiction under s 12 of the Drug Court Act Judge Milson was obliged to comply with the provisions of s 12 and in particular subs (2) and subs (4) and, because he was exercising the jurisdiction of the Local Court to deal with those offences summarily, his Honour could not impose sentences which exceeded the maximum penalties which could be imposed in the Local Court and could not accumulate sentences beyond the limits permitted in the Local Court. 24 In sentencing the offender for the second group of offences Judge Milson was exercising the jurisdiction of the District Court pursuant to s 24(1)(a) in Pt 3 of the Drug Court Act and was not subject to the provisions of s 12 in Pt 2 of the Drug Court Act and was not subject to any of the restrictions which apply in the Local Court to the sentencing of offenders. 25 In sentencing the offender for the third group of offences Judge Milson was exercising the jurisdiction of the Local Court pursuant to s 24(1)(b) in Pt 3 of the Drug Court Act . In sentencing the offender for those offences his Honour was not subject to the provisions of s 12 in Pt 2 of the Drug Court Act but was subject to the restrictions which apply in the Local Court to the sentencing of offenders. 26 In his remarks on sentence of 14 April 2003 Judge Milson referred to a number of matters, including the following. 27 As regards the offence of aggravated car-jacking, his Honour noted in his remarks on sentence that the offence itself was an aggravated form of the offence of car-jacking. His Honour considered that further circumstances of aggravation included the vulnerability of the child victim and that the offence had been committed while the offender was on conditional liberty, having absconded from a rehabilitation program being supervised by a court. Notwithstanding the absence of any report from an expert, his Honour was satisfied that, in addition to his physical injury, the offence had had an ongoing disturbing psychological impact on the child victim. 28 Judge Milson found as a mitigating circumstance that the offender, when he entered the vehicle, was unaware of the presence of the child in the vehicle and believed that the vehicle was unoccupied. However, having become aware of the presence of the child, the offender had acted "with fairly significant disregard for the safety of a seven year old child" and had proceeded to use the motor vehicle "not only to secure his escape but as a weapon in a very dangerous fashion". 29 In his remarks on sentence Judge Milson referred to the offender's long history of drug dependency, as outlined in Dr Nilsson's report. The offender, who was born on 18 June 1969, had started abusing alcohol in his early teens, had begun using cannabis at the age of sixteen and heroin at the age of twenty-one and immediately before commencing the drug program had been using cocaine. The offender had a substantial criminal history, which Judge Barnett in January 1991 had described as "appalling". Judge Milson also noted in his remarks on sentence that, while in custody, the prisoner had been assaulted twice and that he would serve his sentences in some form of protective custody. 30 After Judge Milson sentenced the offender on 14 April 2003, no step was taken for several months by either the offender or the Crown to appeal against any of the sentences. On 3 November 2003 a document was filed on behalf of the offender, which was described as a "notice of appeal or notice of application for leave to appeal" and which referred to all the offences. 31 On 7 November 2003 the Crown filed a notice of appeal which referred to all the offences, except for the offences of larceny and driving in a dangerous manner. 32 On 24 February 2004 the Crown filed an amended notice of appeal, which extended the Crown appeal to the offences of larceny and driving in a dangerous manner. However, during the course of the hearing before this Court, the Court was informed by counsel for the Crown that the Crown appeal against the sentences imposed for the offences of larceny and driving in a dangerous manner was withdrawn. COMPETENCY AND CONSTITUTION OF THE COURT OF CRIMINAL APPEAL 33 A question which arose at the hearing, as to both the offender's appeal or application for leave to appeal and the Crown appeal, was whether it was a fully competent appeal (or application) to the Court of Criminal Appeal and, to the extent to which it was competent, whether it could be heard and determined by a bench of the Court of Criminal Appeal consisting of three judges or whether it had to be heard and determined by a single judge as constituting the Court of Criminal Appeal. In order to determine this question, it is necessary to refer to certain provisions of the Criminal Appeal Act . 34 Section 3(1) of the Criminal Appeal Act provides:- " The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct ". 35 Section 5(1)(c) provides:- " A person convicted on indictment may appeal under this Act to the Court . . . . . . . . . . (c) with the leave of the Court against the sentence passed on the person's conviction". 36 Section 5AF of the Criminal Appeal Act provides:- " (1) Section 5AA applies to and in respect of a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Part 2 of the Drug Court Act 1998 (in relation only to a final sentence determined by the Court under section 12 of that Act) in the same way as it applies to a person referred to in section 5AA (1). (2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court. (3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct". 37 Section 5AA(1) provides:- "A person (a) convicted of an offence . . . . . . . . . . . . . by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order". 38 As regards each of the offences in the first group of offences, the offender was a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Pt 2 of the Drug Court Act for whom a final sentence had been determined by the Drug Court under s 12 of the Drug Court Act and, hence, the offender was a person to whom s 5AA applied in the same way as it applies to a person referred to in s 5AA. Section 5AA provides that a person convicted of an offence by the Supreme Court in its summary jurisdiction may appeal to the Court of Criminal Appeal against the conviction (including any sentence). Accordingly, by the combined effect of s 5AF and s 5AA, the offender could appeal to the Court of Criminal Appeal against the final sentences determined by Judge Milson under s 12 of the Drug Court Act . However, by virtue of s 5AF(3) the power of the Court of Criminal Appeal to hear and determine the offender's appeal is to be exercised by a single judge and not by a bench of three judges. Accordingly, the appeal by the offender against the final sentences determined by Judge Milson is competent but cannot be heard by the present bench of three judges. 39 As regards the second group of offences, the appeal (or rather application for leave to appeal) by the offender against the sentences imposed by Judge Milson exercising the jurisdiction of the District Court under s 24(1)(a) in Pt 3 of the Drug Court Act is not an appeal under s 5AF but simply an application for leave to appeal under s 5(1)(c). This application for leave to appeal is competent and can be heard and determined by a Court of Criminal Appeal constituted by three judges. 40 As regards the third group of offences, the purported appeal against the sentences imposed by Judge Milson in exercising the jurisdiction of the Local Court under s 24(1)(b) in Pt 3 of the Drug Court Act is not an appeal within s 5AF and is not an application for leave to appeal under s 5(1)(c), which applies only to a person "convicted on indictment". Hence, the purported appeal against the sentences imposed for the offences in the third group of offences is incompetent. 41 The Crown appeal against the sentences imposed for the offences in the first group of offences is not an appeal within s 5AF, which applies only to an appeal by a person who has been convicted, but an appeal pursuant to s 5D of the Criminal Appeal Act . This part of the appeal is competent and can be heard and determined by a Court of Criminal Appeal constituted by three judges. Likewise, the Crown appeal against the sentences imposed for the offences in the second group of offences is an appeal pursuant to s 5D of the Criminal Appeal Act and hence the appeal is competent and can be heard and determined by a Court of Criminal Appeal constituted by three judges. As previously indicated, the Crown appeal against the sentences imposed for the offences in the third group of offences was withdrawn, so that it became unnecessary to determine whether, as to those offences, the Crown appeal was competent. 42 The result of this consideration of the questions of competency and constitution of the Court of Criminal Appeal is that this Court constituted by three judges can hear and determine the Crown appeal against the sentences for offences in the first two groups of offences and the offender's application for leave to appeal against the sentences for offences in the second group of offences. THE CROWN APPEAL 43 At the hearing the Court decided that it would first hear and determine the Crown appeal. After hearing argument, the Court announced that it had decided to dismiss the Crown appeal, but did not then give reasons for its decision. I will now proceed to discuss the Crown appeal and give reasons for dismissing it. 44 It was submitted by counsel for the Crown in support of the Crown appeal that the offences for which the offender had been sentenced, and particularly the offence of aggravated car-jacking, were objectively serious and the seriousness of the second group of offences was aggravated by reason of their having been committed whilst the offender was on conditional liberty. It was submitted that Judge Milson was required to impose sentences which property reflected the objective seriousness of the offences, that his Honour had failed to do so and that the sentences his Honour had imposed were manifestly inadequate. 45 It was further submitted by the Crown that, by making so many of the sentences he had imposed fully concurrent with each other, particularly the sentences for the two offences of using an offensive weapon to prevent apprehension, his Honour had erred in not complying with the principles of sentencing laid down in Pearce v The Queen (1998) 194 CLR 610 especially at 624(45) per McHugh, Hayne and Callinan JJ and in R v Hammoud (2000) 118 A Crim R 66 especially at 67-68 (8-10) per Simpson J, Mason P agreeing. It was submitted that Judge Milson, in contravention of those principles of sentencing, had failed to fix an appropriate sentence for each offence and then to consider questions of cumulation, concurrence and totality. 46 It was submitted by counsel for the offender in opposing the Crown appeal that r 3B of the Criminal Appeal Rules applied to the Crown, the Crown's notice of appeal had been filed after the period permitted by r 3B for the filing of a notice of appeal had expired, and that, although the Court had power to extend that period, the power should not, in the circumstances of the present case, be exercised. 47 Alternatively, it was submitted that, even if r 3B did not apply to the Crown, the Crown appeal should be dismissed in the exercise of the Court's discretion because of the long delay in the Crown filing a notice of appeal. 48 As the merits of the Crown appeal, it was disputed by counsel for the offender that the sentences imposed by Judge Milson were manifestly inadequate. In imposing final sentences for the first group of offences Judge Milson had had to comply with s 12 of the Drug Court Act and had been subject to the restrictions on sentencing which apply in the Local Court. It was submitted that the sentences Judge Milson had imposed for the offence of aggravated car-jacking and the two offences of using an offensive weapon to prevent apprehension, so far from being manifestly inadequate, were severe. 49 It was submitted by counsel for the offender that Judge Milson had sufficiently complied with the principles of sentencing enunciated in Pearce and Hammoud . Judge Milson had made the sentence for the offence of aggravated car-jacking fully cumulative on the final sentences for the first group of offences. His Honour had then made the sentences for the two offences of using an offensive weapon to prevent apprehension fully cumulative on the sentence for aggravated car-jacking. It was submitted that his Honour had been entitled to make the two sentences for the offences of using an offensive weapon to prevent apprehension fully concurrent with each other, because the two offences had been committed in the same course of conduct. 50 Counsel for the offender referred to R v Baker [2000] NSWCCA 85 in which Spigelman CJ said, with respect to Crown appeals against sentence:- "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred". 51 As I have already indicated, it was submitted by counsel for the offender that the Crown had not filed its notice of appeal within the period permitted by r 3B of the Criminal Appeal Rules and that this Court should not extend the period within which the Crown's notice of appeal could be filed. In reply to these submissions, counsel for the Crown submitted that the Crown was not bound by r 3B of the Criminal Appeal Rules . 52 In R v Wong & Leung (1999) 108 A Crim R 531 especially at 559 and R v Giam (No 2) (1999) 109 A Crim R 348 especially at 352 it was held that s 10(1) of the Criminal Appeal Act , as then in force, applied only to appeals by convicted persons and did not apply to appeals by the Crown. Section 10(1) of the Criminal Appeal Act , as then in force provided:- "(1) Any person convicted on indictment desiring to appeal to the court, or to obtain the leave of the court to appeal from any conviction, or sentence, shall give notice of appeal or notice of application for leave to appeal, in such manner as may be prescribed, within 28 days of the date of such conviction or sentence". 53 It was, accordingly, quite clear from the terms of s 10(1) of the Criminal Appeal Act , as in force at the time Wong and Giam were decided, that it applied only to a convicted person who desired to appeal and did not apply to the Crown. 54 Subsequently s 10 of the Criminal Appeal Act was amended and as from 1 July 2002 s 10(1) provided:- "(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence: (a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court. (c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include: (i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application, and (ii) provision with respect to the timely institution and prosecution of the appeal or application, and (iii) provision with respect to the period during which the notice under paragraph (a) has effect." 55 The only subsequent amendment to s 10(1) has been to add the words "or, if the rules of court so permit, dispense with the requirement for such a notice" at the end of par (b) of subs (1). 56 In my opinion, it is clear that s 10(1), as amended, applies only to an appeal or an application for leave to appeal by a person who has been convicted or sentenced and does not apply to the Crown. 57 Rule 3B of the Criminal Appeal Rules which came into effect on 1 July 2002 provides:- "(1) A notice of appeal, or a notice of application for leave to appeal, in respect of a conviction or sentence may only be given: (a) if a notice of intention to appeal or notice of intention to apply for leave to appeal has been given with respect to the conviction or sentence—within the period during which that notice of intention has effect, or (b) if a notice of intention to appeal or a notice of intention to apply for leave to appeal has not been given with respect to the conviction or sentence—within the period of 3 months after the conviction or sentence. (2) The period of 3 months referred to in subrule (1) (b) may be extended by the Court before or after the expiry of the period". 58 In my opinion, r 3B was made pursuant to the rule making power conferred by s 10(1)(c) and s 28 of the Criminal Appeal Act and applies only to notices of intention to appeal or notices of appeal or notices of application for leave to appeal by persons who fall within s 10 of the Act. Accordingly, r 3B would not apply to the Crown and there is no need for the Crown to apply for an extension of time in which to file its notice of appeal. 59 It was submitted by counsel for the offender that, even if the Crown was not bound by r 3B of Criminal Appeal Rules , the Crown appeal should be dismissed because of the Crown's delay in filing its appeal. 60 At the hearing before this Court counsel for the Crown confirmed that it was not coincidental that the Crown appeal had been filed so soon after the offender had filed his notice. Counsel for the Crown informed the Court that, prior to the offender filing his notice, the Crown, although it considered that some of the sentences imposed by Judge Milson were inadequate, had been prepared to accept the overall effect of the sentences by Judge Milson. However, the offender's notice having been filed, the Crown appeal had been filed "as a defensive measure", in case the offender's appeal succeeded with respect to some of the sentences, with the consequence that the overall effect of the sentences imposed by Judge Milson became inadequate. It was submitted by counsel for the Crown that, if the Crown had not filed the Crown appeal, the Crown would not have been able to challenge individual sentences imposed by Judge Milson which the Crown regarded as inadequate. Counsel for the Crown referred to the decision of this Court in R v Itamua [2000] NSWCCA 502, in which it was held that there was then no provision in the Criminal Appeal Act which would enable the Court of Criminal Appeal, when it considered that on an appeal by a person sentenced there was an excessive sentence for one offence and that therefore the appeal against that sentence should be allowed, to vary upwards an inadequate sentence for another offence in respect of which no appeal had been brought by either the person sentenced or the Crown. It was submitted by counsel for the Crown that, although s 7(1A) had subsequently been inserted in the Criminal Appeal Act in consequence of the decision in Itamua , s 7(1A) could not be invoked by the Crown in the present case, unless the Crown filed a notice of appeal pursuant to s 5D of the Criminal Appeal Act , because s 7(1A) by its terms does not apply on an appeal against sentence under s 5AF and s 5AA of the Criminal Appeal Act . 61 I do not find the Crown's explanation for the delay which occurred in the filing of its notice of appeal a satisfactory explanation. It became apparent during the hearing of the appeal that the Crown appeal was focused on the sentences for aggravated car-jacking and for using an offensive weapon to prevent lawful apprehension. If the Crown had considered that any of these major sentences was manifestly inadequate or otherwise disclosed some error of sentencing principle, the Crown should have filed a notice of appeal promptly after the offender was sentenced. Furthermore, the offender's "appeal" against these sentences is actually an application for leave to appeal under s 5(1), and not an appeal under s 5AF and s 5AA, so that s 7(1A) would be applicable on a hearing of the offender's application, without any need for the Crown to file a Crown appeal. 62 Delay by the Crown in instituting a Crown appeal against sentence can be a factor in determining whether the Crown appeal should be allowed or dismissed. Delay by the Crown in instituting a Crown appeal against sentence has been referred to in many decisions of this Court, including R v Wong & Leung . Although an appeal to the High Court from the decision of the Court of Criminal Appeal was allowed ( Wong v The Queen ; Leung v The Queen (2001) 207 CLR 584), the discussion by Spigelman CJ at pars 170-173 of his Honour's judgment, with which the other four members of the Court of Criminal Appeal concurred, is unaffected by the High Court's decision. At pars 170-173 Spigelman CJ said:- "170 The question of delay in the institution of a Crown appeal arises only with respect to the exercise by the Court of a discretion. In this regard delay must be weighed in the balance with other discretionary considerations. The contrast between the absence of any time stipulations in s5D, and the express provision in s10 of the Criminal Appeal Act , indicates that s5D cannot be read as containing an implied stipulation that an appeal should be lodged within a reasonable time. (See eg R v Porter (1953) 53 SR(NSW) 97 at 98). 171 Of particular significance in assessing the weight to be given to delay in the exercise of the discretion is the circumstance which sometimes occurs that the convicted person has served the whole or a substantial proportion of the sentence, particularly in the case where the effect of a successful appeal would be to return a person to prison. (See eg R v Carngham (1978) 140 CLR 487, especially at 494; R v Pham (1991) 55 ACrimR 128 at 135-136; R v Hallocoglu (1991) 29 NSWLR 67 at 80). However, this consideration is not the only circumstance which could justify the Court exercising its discretion to reject the Crown appeal on the basis of delay. 172 In R v Pham , Gleeson CJ said: 'Where there has been any delay on the part of the Crown in instituting an appeal in a matter of this kind the question of delay is a relevant and sometimes a decisive discretionary consideration. However, its weight and significance will ordinarily depend on all the circumstances of the case. One of those circumstances may be the view which the Court takes on the matter of the extent of the inadequacy of the sentence under appeal.' (at 138) 173 Another such consideration is the relationship between the extent of delay and the prison term to be served. …" 63 In R v Hernando [2002] NSWCCA 489 Heydon JA, with whose judgment the other members of the Court agreed, referred with approval to what Hunt CJ at CL had said in R v Hallocoglu (1992) 29 NSWLR 67 at 79-80 about delays in instituting Crown appeals. In Hallocoglu Hunt CJ at CL said inter alia:- "This Court has often exercised its discretion not to interfere with a manifestly inadequate sentence by reason of such delay…" 64 However, Hunt CJ at CL added:- "A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: R v Cuc Thanh Pham (1991) 55 A Crim R 128 at 136, 138. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice: R v Carngham (1978) 140 CLR 487 at 494; R v Morris (Court of Criminal Appeal, 10 March 1989, unreported) at 8" . 65 In the present case the delay in instituting the Crown appeal was substantial and is not, in my opinion, satisfactorily explained. However, I do not consider that the Crown appeal should be dismissed simply because of the delay and it is necessary to undertake a consideration of the merits of the Crown appeal. 66 In my opinion, it is clear that the Crown appeal, insofar as it relates to the sentences imposed for the first group of offences, should be dismissed. In determining those sentences Judge Milson was subject to the requirements of s 12 of the Drug Court Act . Accordingly, Judge Milson was required to take into account in favour of the offender the matters set out in subs (2) of s 12 and by virtue of subs (4) of s 12 Judge Milson could not impose any greater sentence for any offence than the initial sentence which had been imposed for that offence by Judge Barnett. In determining those sentences Judge Milson was also subject to the constraints on sentencing which apply when an offender is sentenced summarily in a Local Court. 67 When these matters are taken into account, I do not consider that it can be said that any of the sentences imposed for the offences in the first group of offences were manifestly inadequate. Furthermore, by the time the Crown appeal was filed, the offender had completed serving all of the sentences for these offences, so that, with respect to these offences, the Crown's delay in filing its notice of appeal is a discretionary factor of real weight in favour of dismissing the Crown appeal. 68 I turn to the Crown appeal, insofar as it relates to the second group of offences. Because of the greater objective seriousness of these offences and the length of the sentences imposed for these offences, the delay by the Crown in instituting its appeal is of less weight with respect to these offences. 69 In my opinion, the sentence of a fixed term of imprisonment for four years for the offence of aggravated car-jacking was not manifestly inadequate. Judge Milson found as a mitigating circumstance that the offender was unaware, when he entered the vehicle, of the presence of the child in the vehicle. I accept a submission made by counsel for the offender that the sentence of a fixed term of imprisonment of four years after an early plea of guilty, would be roughly equivalent, so far as the time which would have to be served in custody, to a sentence of seven years imposed after a trial, containing a parole period being the usual proportion of the total sentence. The sentence, apparently because the victim was a child, would have to be served on protection in more than usually onerous conditions of custody. In fixing the sentence for the offence of aggravated car-jacking Judge Milson had to take into account that he was sentencing the offender for a large number of offences, that the sentence for aggravated car-jacking would be served cumulatively on other sentences and that still other sentences would be served cumulatively on the sentence for aggravated car-jacking. 70 In sentencing the offender for the offence of aggravated car-jacking Judge Milson complied with the sentencing principles in Pearce and Hammoud by fixing an appropriate sentence for the offence and by making the sentence not concurrent, in whole or in part, with any other sentence. In any event, the High Court has recently decided in Johnson v The Queen [2004] HCA 15 (30 March 2004) that Pearce does not decree that a sentencing judge, when sentencing for a number of offences, may never lower each individual sentence in order to take into account the sentencing principle of totality. 71 The sentences of two years for the offences of using an offensive weapon to prevent lawful apprehension were not, in my opinion, manifestly inadequate, particularly when regard is had to the requirements of the sentencing principle of totality, in circumstances where the sentences were to be served cumulatively on two sets of prior sentences. 72 It was strongly urged by the Crown that Judge Milson had erred in making the two sentences for using an offensive weapon to prevent lawful apprehension fully concurrent with each other. In my opinion, it was within his Honour's sentencing discretion to make the two sentences fully concurrent. The two offences were offences of the same kind committed within a short time of each other in the same criminal episode. Before Pearce and Hammoud this would have been regarded as a strong reason for making the two sentences concurrent and, even after Pearce and Hammoud , it remains a factor in favour of making the two sentences concurrent. 73 The appeal by the Crown against the sentences for the first two groups of offences should be dismissed. THE OFFENDER'S APPLICATION FOR LEAVE TO APPEAL 74 I will now proceed to consider the offender's application for leave to appeal against sentence. As I have previously held, the offender's application for leave to appeal, so far as it is to be determined by the present Court of Criminal Appeal consisting of three judges, is limited to the sentences imposed for the second group of offences. 75 Although r 3B of the Criminal Appeal Rules does not apply to the Crown, it clearly applies to a convicted person who wishes to appeal. The offender's application for leave to appeal was filed on 3 November 2003, that is after the period permitted by r 3B had expired and the offender has to apply for an extension of time in which to file the application for leave to appeal. In deciding whether an extension of time should be granted, this Court should consider whether any of the grounds of appeal relied on would be likely to succeed, if an extension of time was granted. A number of grounds of appeal were relied on in counsel for the offender's submissions and I will deal with these grounds of appeal in turn. 1. The sentencing judge erred in failing to give effect to his finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act . This ground of appeal is based on the following paragraphs in Judge Milson's remarks on sentence:- "52. I turn my mind then to the appropriate parole period that should apply to those sentences. I accept that the offender has demonstrated an ill conceived desire to deal with his ongoing drug addiction and that he has sought to do it by his own means and turned his back on help that was available to him. One can only contemplate what the consequences to his whole life might have been had he not made that decision to turn away from the rehabilitation program that was available through the Court. 53. Because those sentences are of themselves accumulated sentences there are in any event special circumstances which the Court should take into consideration". 76 It was submitted by counsel for the offender that in these paragraphs of his remarks on sentence Judge Milson had made a finding of special circumstances on two bases (1) that the offender had demonstrated a desire to deal with his drug addiction (2) that Judge Milson had decided that some of the sentences he would impose would be served cumulatively and the accumulating of sentences of itself would amount to special circumstances. It was submitted that Judge Milson, in setting a parole period of one year nine months had given effect to the second basis on which his Honour had found special circumstances but had not given effect to the first basis on which his Honour had found special circumstances. 77 In my opinion, the first ground of appeal should not be upheld. On my reading of the relevant paragraphs in his Honour's remarks on sentence his Honour did not make a finding of special circumstances on the first basis suggested by counsel for the offender. His Honour accepted that the offender had demonstrated a desire to deal with his drug addiction. However, his Honour immediately qualified this acceptance by describing this desire as "ill conceived" and by noting that the offender had "turned his back" on help that had been available to him. His Honour went on to observe that because sentences were to be accumulated there were "in any event" special circumstances. 2. The sentencing judge erred in failing to give reasons for imposing fixed terms of imprisonment in relation to sentences for which no non-parole period was specified 78 Because of the limited extent to which the offender's application for leave to appeal is before this Court of Criminal Appeal, this ground of appeal is limited to the imposition of a fixed term of imprisonment for the offence of aggravated car-jacking. 79 Counsel for the offender submitted that the sentencing judge had failed to comply with s 45(2) of the Crimes (Sentencing Procedure) Act, which provides that if a court declines to set a non-parole period for a sentence of imprisonment it must make a record of its reason for doing so. 80 It is clear that the sentencing judge did not comply with s 45(2). However, s 45(4) of the Act expressly provides that the failure of a court to comply with the requirements of subs (2) with respect to a sentence does not invalidate the sentence. 81 Although not stated by his Honour in his remarks on sentence, the reason for his Honour imposing a fixed term of imprisonment for the offence of aggravated car-jacking is obvious. His Honour had decided to impose sentences for the two offences of using an offensive weapon to prevent lawful apprehension, which would be served cumulatively on the sentence for aggravated car-jacking, and, if his Honour had set a non-parole period and a parole period in the sentence for aggravated car-jacking, the parole period would have been completely subsumed in the later sentences. 82 I would reject the second ground of appeal. 3. The sentencing judge erred by having regard to the standard non-parole period in relation to an offence under s 154C(2) in circumstances where Division 1A of Pt 4 of the Crimes (Sentencing Procure) Act , which makes provision for statutory non-parole periods, had not yet come into force 83 In par 46 of his remarks on sentence Judge Milson said:- "I can find no guidance from the decisions of other courts as to the appropriate penalty for this offence of aggravated taking and driving the motor vehicle and inflicting actual bodily harm. Some guidance can be found in recent legislation relating to standard non-parole periods. I stress, of course, that the Court is not at this stage bound by the provisions of Division 1A of part 4 of the Crimes (Sentencing Procedure) Act 1999 but I note that the Parliament has provided that the standard non-parole period for an offence of this nature is five years imprisonment". 84 It was submitted by counsel for the offender that, even though Judge Milson recognised that he was "not bound" by the provisions of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act , which provide (so far as is relevant) that the statutory non-parole period for an offence of aggravated car-jacking committed on or after 1 February 2003 is five years, his Honour had regard to the provisions of Div 1A of Pt 4 and the statutory non-parole period for an offence of aggravated car-jacking as providing "some guidance" in the sentencing of the offender. It was submitted that Div 1A of Pt 4 of the Act has no application to offences committed before 1 February 2003 and that by regarding Div 1A of Pt 4 as affording "some guidance", his Honour had regard to an irrelevant consideration and, consequently, the exercise of his Honour's sentencing discretion had miscarried. House v The King (1936) 55 CLR 499 especially at 504-505. 85 In my opinion, this ground of appeal must be upheld. The Crown did not contend otherwise. Div 1A of Pt 4 applies only to offences committed on or after 1 February 2003 and, in my opinion, it should not be taken into account, even as a relevant consideration, in sentencing for offences committed before 1 February 2003. 86 A further ground of appeal which counsel for the offender relied on in written submissions related only to the final sentences for the first group of offences and is not relevant to the application for leave to appeal against the second group of offences. 87 I have found that Judge Milson did err in referring to the statutory non-parole period for the offence of aggravated car-jacking. However, before the offender's appeal can succeed, this Court would have to be satisfied that a less severe sentence for the offence of aggravated car-jacking was warranted in law. I would not allow the offender's appeal. In my opinion, having regard to the objective facts of the offence and the subjective features of the offender, no less severe sentence would be warranted in law. 88 In my opinion, while the offender should be granted an extension of time in which to bring his application for leave to appeal and the offender should be granted leave to appeal against the second group of sentences imposed by Judge Milson on 14 April 2003, the offender's appeal against those sentences should be dismissed. 89 DUNFORD J : In this matter I have had the opportunity of reading in draft the judgment of James J. I agree with the orders which he proposes and his reasons for such orders. I only wish to refer to two additional matters. 90 In my opinion, a further reason why the Crown is not bound by the time limits imposed by s 10(1)(a) of the Criminal Appeal Act 1912 and consequently by Rule 3B appears from the terms of the section itself. The introductory words of the subsection refer to an appeal, etc against a "person's" conviction or sentence, which can only refer to the "person" who has been convicted or sentenced, as the Crown is neither convicted nor sentenced. Then paragraph (a) of the subsection states that the "person" must give the requisite notice within 28 days. The use of the word "person" must, in my view, have the same meaning as in the introductory words of the subsection, namely the person who has been convicted or sentenced, and does not, as a matter of construction, include the Crown or the Director of Public Prosecutions acting on behalf of the Crown. 91 I also refer to my decision, sitting as a single judge of the Court of Criminal Appeal in R v El-Hamid [2000] NSWCCA 497. That was an appeal by an appellant against penalties and orders imposed by the Drug Court for various traffic matters dealt with by the Drug Court pursuant to s 8 of the Drug Court Act 1998 because although he was dealt with under s 7 in relation to other matters, the traffic matters were not suitable to be dealt with by way of a program under that section. I held that an appeal against such penalties and orders lay to this Court constituted by a single judge pursuant to s 5AF Criminal Appeal Act 1912 , and the words in brackets in s 5AF(1) only had the effect of excluding appeals against "initial" sentences imposed pursuant to ss 7 or 8AB. 92 In the light of the more extensive argument which has been presented in the present case, it is apparent that the correctness of my reasoning in El-Hamid will need to be re-considered if and when the question directly arises. The second and third groups of offences in the present case were not dealt with under s 8, but under s 24. However, I must say that I still have difficulty with the concept of an appeal in a matter dealt with under s 24(1)(b) from the Drug Court constituted by a District Court Judge to the District Court constituted by another District Court Judge. This concept strikes me as very much akin to "an appeal from Caesar to Caesar". ********** Last Modified: 04/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.