Citation: [1999] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judge(s): Simpson J, Smart AJ
Background
The applicant appeared in the District Court at Parramatta in March 1998 for sentencing on two charges of robbery in company, one charge of escaping lawful custody, and eleven additional offences (obtaining advantage by deception) taken into account on a schedule. He did not challenge the sentences imposed for the robbery offences, but sought leave to appeal the sentence imposed for the escape charge.
The escape itself occurred in March 1997. While the applicant was being transported in a police van after receiving a five-month sentence for stealing, the van stopped at the Darlinghurst cell complex. The applicant got out of the van, ran a short distance while handcuffed, injured himself, and was quickly recaptured. At the time of the escape, the applicant had been prescribed medication by prison authorities to assist with heroin withdrawal.
Two factual matters were never properly explored before the sentencing judge: first, the circumstances in which the applicant was able to open the locked van door; and second, the possible effect of prescribed medication on his judgment at the time. Both issues were overlooked at the original sentencing hearing, apparently because attention was focused on the more serious robbery charges.
Legal Issues
- Whether the sentencing judge erred by proceeding on an unresolved and contested factual basis regarding how the applicant escaped from the van.
- Whether the applicant's impaired judgment, caused by lawfully prescribed medication, was a relevant mitigating circumstance that should have been considered at sentencing.
- Whether, in light of those matters, the sentence of six months fixed term for the escape offence should be reduced on appeal.
Decision
The Court found that the sentencing judge had proceeded on the basis that the applicant manipulated a secured lock to escape from the van, despite that factual finding not being capable of being made beyond reasonable doubt on the evidence before him. The reason the issue was never resolved was simply that neither the applicant's legal representatives nor the Crown drew it to the judge's attention. The Court held this constituted error in the sentencing process, sufficient to warrant intervention.
The Court also accepted that the effect of legally prescribed heroin withdrawal medication on the applicant's judgment at the time of the escape was a significant factor that had been overlooked. The applicant had admitted the offence impulsively, saying the door opened and he simply ran, and his account was consistent with impaired decision-making rather than deliberate planning.
On the question of appropriate sentence, the Court noted the Crown's reference to a 1986 decision suggesting an ordinary, unremarkable escape would attract approximately two years' imprisonment, acknowledging that the maximum penalty had since increased. However, the Court regarded this as a highly unusual case and concluded a substantially lesser sentence was warranted, having regard to the unresolved factual issues, the circumstances of the escape, and the applicant's demonstrated efforts toward rehabilitation while in prison.
Orders Made
- Leave to appeal in relation to the escape from lawful custody charge was granted.
- The sentence of six months fixed term imposed by the District Court was quashed.
- In substitution, the applicant was sentenced to a fixed term of four and a half months imprisonment, commencing 10 July 1999 and expiring 25 November 1999.
Key Takeaways
- Where a sentencing judge proceeds on a contested factual basis that was not properly put in issue at the hearing, and that basis could not have been established beyond reasonable doubt on the available evidence, the Court of Criminal Appeal may identify that as error warranting resentencing.
- The effect of lawfully prescribed medication on an offender's judgment at the time of an offence is a potentially significant mitigating circumstance in the sentencing exercise.
- A finding of guilt for escape remains appropriate even where the offender was quickly recaptured and never fully left the court complex, and the sentence applicable to an attempt is the same as for a completed offence.
- Rehabilitation efforts made by an applicant between the original sentencing and a resentencing hearing may be placed before the Court of Criminal Appeal and taken into account when the Court proceeds to resentence.
- The "ordinary" sentencing range for an escape offence, identified in earlier authority as around two years for an unremarkable case, does not preclude a substantially lesser sentence where the circumstances are sufficiently unusual.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 21 (taking additional offences into account on schedule)
Cases
- R v Thomson, unreported, 21 May 1986 (NSW Court of Criminal Appeal, discussing the ordinary sentencing range for escape offences)