Citation: Regina v R [2000] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 20 March 2000
Judge(s): Abadee J; James J
Background
The applicant pleaded guilty in the District Court to one charge of escaping from lawful custody under s 34(1) of the Correctional Centres Act, which carries a maximum penalty of ten years penal servitude. The escape occurred on 13 December 1993, when the applicant walked out of a minimum security correctional centre at Glen Innes, New South Wales. He had signed an undertaking before being transferred to that facility acknowledging that escape could lead to prosecution and reclassification to maximum security.
The applicant remained at large for over five years. During that time he was sentenced in the Northern Territory Supreme Court for a drug offence and served that sentence, but was not extradited to New South Wales after his release despite outstanding warrants. He was ultimately arrested in Queensland in January 1999, at which point his fingerprints revealed his escapee status and he was returned to New South Wales.
Judge Coleman of the District Court sentenced the applicant to three years penal servitude, comprising a minimum term of two years commencing 28 April 2001 (cumulative on existing sentences) and an additional term of one year. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by failing to treat the escape as an "unremarkable" escape attracting a two-year sentence in line with the guideline in R v Thomson
- Whether the extended period the applicant spent at liberty following his escape was correctly treated as an aggravating factor
- Whether the sentencing judge gave adequate weight to the applicant's asserted reason for escaping, namely threats made against him by other prisoners
- Whether the additional term of the sentence should have been further extended under s 5(2) of the Sentencing Act by reason of special circumstances
Decision
The Court of Criminal Appeal upheld the District Court sentence and dismissed the appeal, though it granted leave to appeal. James J, with whom Abadee J agreed, found that the length of time the applicant had been at liberty was itself a sufficient basis to remove the escape from the category of "unremarkable" escapes. The two-year benchmark established in R v Thomson was not intended to apply where an offender remained at large for an extended period.
On the question of the applicant's stated reason for escaping, the court accepted that threats from other prisoners could constitute a mitigating factor. However, it noted that the applicant had not informed the prison authorities of the alleged threats and had not sought to go on protection before deciding to leave. The court also found that some degree of premeditation was evident, reinforcing the view that this was not an impulsive escape.
The court considered sentencing statistics from the Judicial Commission and concluded that, while the sentence was a severe one, it fell within the range of a proper exercise of sentencing discretion. On the special circumstances question, the court rejected the submission that the additional term should have been further extended. The applicant had been at liberty for more than three years and appeared to have coped effectively, giving no particular indication of a heightened need for supervision under parole.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- An escape will not be treated as "unremarkable" attracting the R v Thomson two-year benchmark where the offender remained at large for a substantial period after escaping.
- The R v Thomson guideline of two years was established when the maximum penalty for escape was seven years; the increase in the maximum to ten years is a relevant consideration in sentencing.
- Where a prisoner claims threats from other inmates as justification for escaping, the failure to report those threats to prison authorities or to seek protection is a factor that reduces the weight of that explanation in mitigation.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a cumulative sentence commencing after existing minimum terms had expired, and requiring service in maximum security, constituted special circumstances justifying an additional term exceeding one third of the minimum term.
- Judicial Commission sentencing statistics may indicate that a sentence is severe without establishing that it falls outside the proper exercise of sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Correctional Centres Act (NSW), s 34(1) (offence of escaping from lawful custody)
- Sentencing Act (NSW), s 5(2) (special circumstances allowing adjustment of additional term)
Cases:
- R v Thomson (NSW CCA, 12 May 1986, per Street CJ)
- R v Garget (NSW CCA, 20 July 1990, per Wood J)
- R v Ertl (NSW CCA, 7 May 1997)