McDonald v R [2014] NSWCCA 127

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v R [2014] NSWCCA 127 Hearing dates: 4/07/2014 Decision date: 14 July 2014 Before: Hoeben CJ at CL at [1]; Price at [2]; Fullerton J at [3] Decision: Application for leave to appeal out of time refused. Catchwords: CRIMINAL LAW - appeal against sentence - specially aggravated break and enter and commit serious indictable offence - applicant subject to parole for armed robbery at time of offending - whether retribution relevant as motive for offending - whether psychologist's report admissible as fresh or new evidence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Miles v R [2014] NSWCCA 72 R v Speechley [2012] NSWCCA 130 Category: Principal judgment Parties: Nicole Joyce McDonald (Applicant) The Crown (Respondent) Representation: Counsel: L Goodsell (Applicant) S Dowling SC (Crown) Solicitors: J Griffin (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/363259 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-13 00:00:00 Before: Sides DCJ File Number(s): 2011/363259

Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2PRICE J: I agree with Fullerton J. 3FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Sides DCJ on 13 March 2013 following a plea of guilty to one count of specially aggravated break and enter and commit a serious indictable offence, contrary to 112(3) of the Crimes Act 1900 (NSW). That offence attracts a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. 4At the time of the offending the applicant was subject to parole for armed robbery together with a number of other matters which were taken into account on a Form 1. A sentence of 4 years and 6 months with a non-parole period of 2 years was imposed in August 2009. Her parole was revoked on her arrest on 14 November 2011. The balance of parole of 1 year and 3 months and 25 days expired three days before the date of sentence. The sentence was backdated to commence on 14 August 2012. 5After applying a discount of 25 per cent for the early plea of guilty a sentence of 6 years and 9 months was imposed. A non-parole period of 3 years and 3 months was imposed which reflected a finding of special circumstances as a result of an order for partial accumulation on the sentence for the previous armed robbery. 6The applicant relies upon two grounds of appeal: Ground 1: There was an important error of fact in respect of the evidence given by the offender. Sides DCJ noted incorrectly that the offender said that she had been sexually assaulted on only one occasion. The evidence of the offender was that she had been sexually assaulted twice and on the second occasion by the male victim of the offence for which she was being sentenced. Ground 2: The appellant has recently been diagnosed with a serious psychiatric disorder that existed at the time of offending and sentence. 7The second ground of appeal was the subject of amended grounds of appeal filed within days of the hearing. 8The notice of intention to apply for leave to appeal was filed on 26 April 2013 exceeding 28 days from the date of sentence imposed under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) by 16 days. On the same day an application for an extension of time was filed. On 27 February 2014 a second notice of intention to appeal and extension application was filed with a supporting affidavit from the applicant's solicitor seeking to explain the further delay because of difficulties in obtaining transcripts of the sentencing proceedings (ordered on 31 May 2013 but not received until 21 November 2013) and issues with regard to obtaining a grant of legal aid to obtain the final report of Tim Watson-Munro (requested on 5 August 2013 but not granted until 25 September 2013). 9The Crown accepted that there is an adequate explanation for the delay in prosecuting the appeal and no relevant prejudice to the victims or the administration of justice despite the delay (see Miles v R [2014] NSWCCA 72 at [55]) but submitted that the application for an extension of time should be refused because the application for leave to appeal the sentence is without merit. For the reasons which follow, I am persuaded that submission is made out.