The Court of Appeal has granted Christopher Black an extension of time to lodge a notice of appeal against his sentence. The decision gives him an opportunity to bring a sentence appeal; it does not decide whether the sentence should be changed.
In an ex tempore judgment delivered on 5 February 2019, Ms Justice Baker said the court considered Black’s application under the criminal-case test of where the interests of justice lay. The court noted that he was seven months late, but found that he had expressed an intention to appeal within an hour or less of sentencing.
Black said there had been confusion between him and his solicitors. He said he instructed them to appeal, while he believed they would lodge the notice. His solicitors, he said, thought he would use a system available to prisoners to lodge an appeal directly. The court took his explanation at its highest for the application. It also noted that papers submitted towards the end of July 2018 were not in order, and treated the application as if they had been lodged on 27 July; the proper papers were lodged in October.
Black had pleaded guilty and was sentenced on 6 December 2017. The court described the total sentence as four and a half years, arising from sentences for two robberies and a concurrent sentence for possession of drugs for sale or supply.
The possible ground for appeal concerned whether the sentencing judge had sufficiently considered backdating the sentence to when Black was first in custody, in February 2017. The court said the period at issue was about ten months and could be significant in proportion to the overall sentence. It described the point as at least arguable, while noting it did not know whether the sentencing judge had already considered backdating.
The court also weighed the public interest in avoiding unmeritorious appeals and the need to notify the victims of the two robberies that a sentence appeal was intended. It said future applications with a similar explanation should generally include an affidavit from the solicitor, and that the parties should establish what was said at the sentencing hearing. The court considered Black’s documents too generic and vague, but did not impose those standards in his case because they had not been apparent in earlier judgments. It therefore granted the extension.