Regina v Barco [2005] NSWCCA 176

New South Wales Court of Criminal Appeal

CITATION: Regina v Barco [2005] NSWCCA 176

HEARING DATE(S): 4 May 2005

JUDGMENT DATE: 6 May 2005

JUDGMENT OF: Grove J at 1; Hulme J at 38; Simpson J at 39

DECISION: APPLICATION DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - EXTENSION OF TIME FOR APPEAL - GROSS DELAY EXCEEDING FOUR YEARS - INSUFFICIENT EXPLANATION FOR DELAY - NO APPARENT MERIT IN GROUNDS SOUGHT TO BE ADVANCED IN CHALLENGE TO SENTENCE - EXTENSION SHOULD BE REFUSED

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Justices Act 1902

R v Griffiths [2001] NSWCCA 130 CASES CITED: R v O'Hara [2005] NSWCCA 97 R v Vachalec 1981 1 NSWLR 351

PARTIES: Regina v Robert John Barco

FILE NUMBER(S): CCA 2005/93

J. Girdham (Crown) COUNSEL: Self represented (Applicant)

SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0663

LOWER COURT JUDICIAL OFFICER: Blanch CDCJ

IN THE COURT OF CRIMINAL APPEAL 2005/93

GROVE J HULME J SIMPSON J

6 May 2005 REGINA v ROBERT JOHN BARCO Judgment

1 GROVE J: The initial issue before the Court is an application for an extension of time for lodging an application for leave to appeal against severity of sentence. The applicant is proceeding without the assistance of a lawyer and the documentation in support of the application has been prepared by him. He has also contacted the Registry and indicated that it is his desire not to attend court in support of his appeal but is content to have it dealt with on the documents. He is pursuing education and transfer from his present location to Sydney for the purpose of the appeal hearing would apparently disrupt his progress. 2 In response to the material submitted by the applicant, the Crown has filed written submissions. The applicant was, of course, supplied with a copy and he raised some matters concerning what was written by letter sent directly to the Crown Prosecutor who had signed the submissions. These were passed to the Court when the appeal was listed and the content read. Where appropriate reference will be made to the letter which will be referred to as a submission in reply by the applicant. 3 The applicant appeared before Chief Judge Blanch in the District Court after being committed for sentence following pleas of guilty before a magistrate to a charge of escaping from lawful custody and a charge of robbery whilst armed with an offensive weapon. In addition the sentencing judge was asked to take into account pursuant to the Form 2 (now Form 1) procedure, a charge of breaking, entering and stealing and a charge of detaining a person for advantage. 4 The applicant has a considerable criminal record. It is necessary to recount some details of his custody. 5 In 1993 the applicant was sentenced for offences at Newcastle District Court to effective imprisonment amounting to a minimum term of seven years with an additional term of five years commencing on 3 April 1993. In 1994 at the same Court he was sentenced for further matters to imprisonment effectively consisting of a minimum term of three years commencing on 2 April 2000 together with an additional term of two years. While serving these sentences he escaped from custody on 11 May 1999. It might be observed that this was not the applicant's first escape. While serving other sentences he had escaped twice previously, in November 1984 and September 1986. Including that presently under consideration the applicant has escaped three times over a span of thirteen years. In his reply, the applicant noted that the span of six years mentioned in the Crown submission was inaccurate, however the occasions are correctly recorded. 6 By May 1999 he had progressed to minimum security and the learned sentencing judge found that he escaped when he saw an opportunity of simply walking away from a minimum security establishment and, in taking that opportunity he did not consider the consequences. 7 Other offences occurred two days later when he walked into a store at Newtown and threatened a salesman with a syringe. The salesman fled and the applicant took a mobile telephone and ran away. He was pursued and to avoid apprehension he got into the front passenger seat of a passing car and held the syringe towards a woman who was driving the car. She was instructed to take the applicant to Redfern Railway Station which she did, as she feared not only for her own safety but for that of her daughter and granddaughter who were in the car. At Redfern the applicant departed saying that he hoped that he had not traumatized the victim. 8 The final offence occurred on 3 September 1999 when the applicant broke into premises at Caringbah and removed a number of electrical, jewellery and food items. 9 For the offence of escaping his Honour sentenced the applicant to a fixed term of imprisonment for six months commencing on 1 August 2003 which was his earliest parole date in respect of the sentences which he was serving when he escaped. The accumulation was required by statute. On the charge of robbery and taking into account the other two offences the applicant was sentenced to a minimum term of four years commencing on 1 February 2004 and expiring on 31 January 2008 together with an additional term of three years. 10 I return to the issue of extension of time. The applicant has submitted: "I was unable to appeal against the severity of sentence within the specified time allocation due to the Department of Corrective Services guidelines policy, which does not allow an inmate classed as a serious offender to apply for a reduction in classification to a minimum security until the inmate has four years or less to serve". 11 The delay amounts to something in the order of four years and nine months in contrast to the period of twenty eight days specified in the Rules of Court. Whilst it may be that on previous occasions the applicant had the assistance of a lawyer, in respect of other offences he has twice previously instituted appeal proceedings to this Court. There is no bar created by the Corrective Services classification system to an applicant instituting proceedings in this Court. 12 The Crown points out that solicitors from the Legal Aid Commission provide a prisoners legal service and regularly attend correctional facilities. A prisoner is able to make an appointment with them. I accept that delay may occur so that the period of twenty eight days may expire but I cannot accept that, if he chose, the applicant could not have obtained legal advice concerning time for bringing appeal during a span of time exceeding four years. 13 It is, however, the practice of this Court not to allow the time constraints to stand in the way of relief where an appeal can be seen to have substance. Accordingly, I should advert to the grounds which the applicant raises. 14 It has recently been reiterated that where there has been gross delay, and I would include the present in that description, it should not be assumed that the Court will regard application for extension of time as a matter of formality or no great moment: see R v O'Hara [2005] NSWCCA 97. 15 However, for the reason that I have indicated, I turn to the grounds of appeal upon which the applicant seeks to rely. 16 The first ground complains that the applicant has been refused reduction in classification (by Corrective Services authority) on two occasions. The judge did not refer to the applicant having to serve his sentences in maximum security. 17 The initial classification of the applicant upon return to custody can readily be inferred to have been a result of his own escape and the offences committed whilst at large. There is no reason to think that his Honour did not appreciate that the applicant's conduct would have jeopardized his minimum security classification. 18 The ground misunderstands the function of the Court of Criminal Appeal and it is apt to recollect the remarks of Street CJ in R v Vachalec 1981 1 NSWLR 351: "But, as an appeal court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power, it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitance of sentences or to bring about total or qualified release of persons in custody". 19 The next ground asserts that psychiatric clinic assessment was not tendered to the Court. The applicant has forwarded a number of documents including a clinical record from the Corrections Health Service. The recorder has noted differential diagnoses and there are indications for possible provision of drugs, for example, Prozac and Ritalin. I note however that the recorder has also placed a proviso upon the supply of such drugs, that there should be corroboration from the applicant's mother before Prozac is provided, and corroboration of attention deficit disorder before Ritalin is provided. 20 With his reply the applicant has forwarded a report dated 20 March 1995 of Dr Karl Koller, psychiatrist and some clinical notes of the same date. The report is obviously an elaboration of what was sketched in the notes. It was observed that, whilst in prison, the applicant was (then) being given appropriate medication and, for the future, with supervision and "most probably" medication, the prognosis was reasonable. 21 It is impossible to contemplate that this information, if put before his Honour could have made any difference to his assessment. His Honour was not an investigator and it was not part of his function to acquire material which the applicant wished to put before the Court. I note that he was represented at the sentence hearing and indeed he gave evidence to his Honour. 22 The next ground asserts that the applicant's commitment to rehabilitation was not given sufficient weight. The documentation which has been forwarded relates to matters which have occurred since conviction. It is well established that events occurring post conviction, subject to special and limited exception which are not present in regard to the matter now raised, are not the province of this Court when it exercises its appellate judicial power: R v Griffiths [2001] NSWCCA 130. 23 The fourth ground refers to what is claimed to be the effects of excessive methadone dose. In fact his Honour observed that as a result of the applicant's escape he distanced himself from available supply of methadone with which he was being treated whilst in custody. 24 Insofar as the applicant had a drug addiction, the sentencing judge accepted in his favour, to the extent that it was relevant, that the offences were committed after the escape in order to support addiction. 25 In the reply the applicant referred to some evidence apparently given by Dr Westmore in another case and continued: "My submission is the level of intoxication that 200 mgs methadone 40 mgs Zoloft/Prozac had upon me prior to and upon escape and the effect upon me upon acute cessation of both". 26 These particular details do not demonstrate error in the approach or conclusions of the judge. 27 The next ground complains that no weight was given to the principle of totality. To the contrary his Honour expressed his considerable concern about the very long period of custody which the applicant would serve before being eligible for release, having regard to prior sentences and the sentences which his Honour had to impose. He was conscious of the risk of institutionalization and he varied the statutory proportion between what was then minimum and additional terms in favour of the applicant in order to enable a reasonable opportunity for the applicant to be reintegrated within the community. 28 The next ground is expressed in terms "act of contrition not considered separately in discounting sentence". It is not entirely clear to what this refers. The Crown has suggested that it may refer to the remark passed by the applicant when he departed the car at Redfern that he hoped he had not traumatized the driver. 29 If it is intended to refer to this, it needs to be observed that that gesture pales somewhat into insignificance as against the seriousness of threatening a woman with a syringe, who was lawfully proceeding in a motorcar along a public street with her daughter and granddaughter as passengers. 30 The applicant clarified this matter in his reply and said that it related to his remorse, evidenced by his confession when (he asserted) there was no evidence to convict him. This was a submission by Mr West who appeared for the applicant in the District Court (Transcript 7 February 2000 p 7). His Honour said of this (Remarks on Sentence p 5): "….. there is a degree of strength in the submission made by Mr West that if he had not volunteered these matters to the police there was no other identification evidence ……" 31 In that regard the value of the plea of guilty was taken to be enhanced beyond mere utilitarian value and to be an expression of remorse. Hence, his Honour did what the applicant seeks. 32 Next the applicant complains that "special circumstances" were not given sufficient weight. I have already indicated that his Honour found special circumstances for the purpose of dividing the minimum and additional term of the total sentence favourably to the applicant. A simple complaint of the absence of sufficient weight is not ordinarily a ground which can be successfully advanced in this Court. This is a court of error and what must be demonstrated is that his Honour's conclusion lay outside the range of the sound exercise of judicial discretion. Manifestly his Honour's conclusion was well within that range. 33 The next ground asserts that the non parole period was more than three quarters of the total sentence. In advancing this ground the applicant is referring to an accumulation of sentences other than those imposed by his Honour. There was no requirement for his Honour to factor into his assessments the sentences which the applicant was already serving. As the recitation of the sentences imposed shows, the division of terms in the sentences by his Honour favoured the applicant. 34 The next ground makes reference to s 51A of the Crimes (Sentencing Procedure) Act 1999. There is in fact a provision of that number in the statute mentioned but it relates to conditions of parole as to non association and place restriction. The reference to s 51A by his Honour was to the Justices Act 1902. That provision has since been repealed (although replicated in new legislation) and it simply provided that a person who pleaded guilty before a magistrate could be committed for sentence to the Supreme or District Court as appropriate. The applicant apparently has the impression that the reference to the section in some way provided additional harshness to the sentence. This was not so. Had the applicant chosen to enquire it is certain that his legal representative could have explained the misunderstanding which he apparently now harbours. 35 The final ground advanced by the applicant asserts that his Honour did not give sufficient weight to s 21A of the Crimes (Sentencing Procedure) Act 1999. That provision sets out what has been described as a litany or checklist of various matters which can aggravate or mitigate offences. The provision also contains restrictions to avoid "double counting" so that where what is described as an aggravating feature, for example, is an ingredient of the crime charged it cannot also be taken into account as a matter of aggravation. There is also express statutory preservation of the law as it exists otherwise. 36 There is no demonstrable error in the assessment by Chief Judge Blanch. 37 None of the submissions advanced by the applicant has legal merit and no matter of substance is demonstrated. In that circumstance, and having regard to the gross delay, I would refuse the application for extension of time and accordingly dismiss the application. 38 HULME J: I agree with the orders proposed by Grove J for the reasons which he has given. 39 SIMPSON J: I agree with Grove J. **********