Citation: Regina v Peter Blanch [1999] NSWCCA 389
Court: New South Wales Court of Criminal Appeal
Date: 23 November 1999
Judge(s): Sully J, Hulme J, Sperling J
Background
The applicant was one of three prisoners who escaped from a correctional facility in Broken Hill on 26 October 1995. After the escape, the three men gained entry to the motel room of a State public servant and subjected him to a serious physical assault. The applicant's co-offender, Taylor, stabbed the victim multiple times.
The applicant pleaded guilty in the Supreme Court to malicious wounding with intent to do grievous bodily harm, escape from lawful custody, and theft of a motor vehicle. Smart J sentenced him to a total of six years in fixed or minimum terms, with an additional term of three years. The applicant appeared before the Court of Criminal Appeal in person, out of time, seeking leave to appeal against that sentence.
Legal Issues
- Whether the applicant's sentence was manifestly excessive compared with those imposed on his co-offenders, giving rise to a justifiable sense of grievance on parity grounds
- Whether an extension of time should be granted to permit the application to be considered on its merits
Decision
The Court granted the extension of time and leave to appeal, but dismissed the appeal on its merits. Sully J found no appealable error in Smart J's approach to sentencing.
On the parity argument, Sully J applied the established principle that a co-offender complaining of parity must demonstrate not merely a personal grievance, but a justifiable sense of grievance. Given the applicant's significant role in the escape, including manufacturing keys, cutting razor wire, and constructing the means of descent from the prison wall, Sully J found no reasonable basis for the applicant to feel aggrieved by the comparative sentences imposed.
Hulme J agreed with the proposed orders and added that, in his view, the applicant was fortunate not to have received a substantially heavier penalty. Hulme J noted that the malicious wounding sentence of four years represented a small fraction of the twenty-five year maximum, and that this was at least the applicant's sixth offence involving assault or robbery. Hulme J also observed that this was the applicant's third escape from custody, and remarked that courts must at some point consider imposing the full ten-year maximum for that offence in cases of persistent escape. Sperling J agreed with Sully J's reasons and orders without further elaboration.
Orders Made
- Extension of time for applying for leave to appeal against sentence granted to and including 23 November 1999
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A parity ground of appeal requires a justifiable sense of grievance, not merely a subjective feeling of unfairness. Where the applicant's own conduct was central to the offending, differential sentences among co-offenders will not necessarily constitute appealable error.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence well below the statutory maximum does not, without more, establish manifest excess, particularly where the offender has a serious criminal history.
- Hulme J's remarks signal judicial concern about recidivist escapees: persistent escape from custody may, in appropriate cases, warrant imposition of the statutory maximum of ten years.
- No error was established on the sentencing judge's approach to totality or parity across the three co-offenders, despite the differently structured sentences each received.
- Where an applicant appears in person and out of time, the Court of Criminal Appeal may still grant an extension and leave to appeal if the interests of justice warrant it, even where the substantive appeal ultimately fails.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 27 (wounding with intent to murder), s 33 (malicious wounding with intent to cause grievous bodily harm), s 97 (robbery in company), s 154A (theft of motor vehicle)
- Prisons Act 1952 (NSW), s 34 (escape from lawful custody)
Cases cited: No specific cases were cited in the portions of the judgment provided.