Citation: Regina v Schrei [1999] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 9 April 1999
Judge(s): Stein JA; Bell J; Smart AJ
Background
The appellant, an Austrian national, was serving a Commonwealth sentence for importing heroin into Australia when he escaped from the Long Bay Correctional Centre in November 1995. He had been approved to work outside the prison perimeter and had signed an undertaking not to escape. Three days after the Court of Criminal Appeal reduced his original sentence, he and a fellow prisoner cut through a perimeter fence and made their way, over several months, to Thailand, where his Thai wife and two young children lived.
Thai immigration officers arrested the appellant in Bangkok in June 1996, and he was subsequently detained pending an Australian extradition request. Complications arose because the Thai authorities required the application to be made under a 1911 treaty between the King of Thailand and the King of England, rather than a more recent arrangement, necessitating an entirely fresh application. The extradition was not finalised until August 1997, and the appellant was returned to Australia in November 1997, having spent approximately 17 months in custody in Thailand.
In the District Court, the sentencing judge imposed a fixed term of six months for the escape, taking into account the time served in Thailand but not explicitly addressing the harsh conditions of Thai imprisonment. The appellant sought leave to appeal against the severity of that sentence.
Legal Issues
- Whether the sentencing judge gave sufficient weight to the conditions of imprisonment in Thailand, including the harsher physical conditions the appellant experienced there
- Whether the sentencing judge properly applied the principle of proportionality between the sentence imposed and the five-year maximum under s 47 of the Crimes Act (Cth)
- Whether the period spent in custody in Thailand, including approximately 13.5 months attributable to the extradition process, warranted greater allowance in the overall sentence calculation
- Whether the original non-parole period required adjustment to account for the time the appellant spent at large following his escape
Decision
The Court of Criminal Appeal accepted that the sentencing judge had taken the Thai custody period into account but had not explicitly addressed the harsh conditions of that imprisonment, including the appellant being chained and suffering serious foot infections. While the court accepted that some additional allowance was warranted for those conditions, it also noted the appellant's own concession that being in Thailand was, in one respect, a "bonus" because he could see his family regularly there.
Smart AJ emphasised that no rigid mathematical formula could be applied in weighing foreign imprisonment conditions against an Australian sentence. The appellant had taken a calculated gamble in escaping, having signed an undertaking acknowledging the consequences, and he had not expected to be pursued. The court found the six-month fixed term was not manifestly excessive as a standalone matter, but identified an error in how the non-parole period had been calculated. The overall sentence structure required adjustment to account for the 703 days the appellant had been absent from custody as a result of the escape.
Stein JA agreed that the original sentence fell within the sentencing judge's discretion and disclosed no error of principle, but concurred that the non-parole period needed to be recalculated. The delay in the extradition proceedings did not appear to have been caused by the appellant, but this factor, while unfortunate, did not alter the court's assessment of the escape sentence itself.
Orders Made
The full text of the final orders was not set out in the provided extract, but the court indicated the following proposed orders from Smart AJ before standing the matter down for counsel to confirm the precise form:
- Leave to appeal granted
- The sentence and non-parole period for the escape offence to be varied
- A fresh non-parole period of four years set in respect of both offences, with the appellant becoming eligible for release on parole on 6 September 2000 (calculated from the starting date of 2 October 1994, with an allowance of 703 days absent from custody by escape)
- The finishing date for the overall sentence set at 1 September 2000 (as adjusted)
- Counsel given leave to address the precise form of the orders, including whether an additional order was required to extend the overall sentence by six months
Key Takeaways
- Conditions of imprisonment in a foreign gaol are a relevant sentencing consideration when calculating the effective weight of time spent in custody abroad, but no fixed formula determines how much additional allowance is appropriate.
- A prisoner's own acknowledgment that foreign imprisonment carried personal benefits, such as family contact, may reduce the weight given to the harsher aspects of that custody.
- The Court of Criminal Appeal confirmed that, under s 47 of the Crimes Act (Cth), the maximum penalty for escape is five years (not ten, as stated in the undertaking the appellant signed), and proportionality between the imposed sentence and that maximum must be maintained.
- Where a prisoner has been absent from custody following an escape, the non-parole period for the underlying sentence must be adjusted to reflect the days spent at large, not simply the period served in foreign custody.
- Delays in extradition proceedings that are not attributable to the prisoner's own conduct remain a relevant background circumstance, even where they do not directly affect the sentence imposed for the escape itself.
Legislation and Cases Referenced
Legislation:
- s 47, Crimes Act (Cth) (escape from lawful custody; maximum penalty five years)
- s 19AD(2)(e), Crimes Act 1914 (Cth) (sentencing provisions relevant to non-parole periods)
- 1911 Treaty between the King of Thailand and the King of England (extradition)
Cases: No cases were cited in the text of the judgment.