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Court of Criminal Appeal 6 December 2000

Regina v Friedemann

[2000] NSWCCA 516

Public order & justice offences
SENTENCING SEVERITY APPEAL STRONG SUBJECTIVE CIRCUMSTANCES

Citation: Regina v Friedemann [2000] NSWCCA 516
Court: NSW Court of Criminal Appeal
Date: 6 December 2000
Judge(s): Simpson J; Carruthers AJ

Background

The applicant, a man aged 63 at the time of the appeal, had been serving a sentence for drug offences at a NSW correctional centre. In November 1994, while working unsupervised in the grounds of the John Maroney Correctional Centre, he walked away. He did so because he believed he was not receiving adequate medical treatment for a range of serious health conditions and felt that leaving was the only way to obtain proper care.

He travelled to Victoria, where he was hospitalised on six occasions. While there, he committed further drug offences and was sentenced by the Melbourne County Court to 20 months imprisonment. His presence in Victoria only came to the attention of NSW authorities through his arrest and subsequent Victorian sentence. He was extradited back to NSW in March 1999.

The District Court sentenced him to a fixed term of 12 months imprisonment for the escape, to commence upon completion of his adjusted NSW sentence. The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge erred by failing to comply with the requirements of section 6(3) of the Sentencing Act 1989, specifically by imposing a fixed term without providing the reasons that provision requires.
  • Whether, on a fresh sentencing exercise, the sentence of 12 months was excessive having regard to the circumstances of the escape and the applicant's serious medical conditions.

Decision

The Court found that the sentencing judge had overlooked the obligation under section 6(3) of the Sentencing Act 1989 to provide reasons when imposing a fixed term rather than a sentence with a non-parole period. Relying on Roos v Director of Public Prosecutions (1994) 34 NSWLR 254, the Court held that the failure to comply with this provision was not merely a technical irregularity but a failure to perform the required legal function. The Crown accepted that the sentence had to be set aside and the applicant re-sentenced afresh.

On re-sentencing, the Court accepted the applicant's account that he escaped primarily out of concern for his health, not for any other improper purpose. The medical evidence before the Court was extensive and showed multiple serious conditions, including kidney disease, type II diabetes, coronary artery disease, peripheral vascular disease, hypertension, and gout, managed through 12 different medications.

The Court acknowledged that escape from a correctional facility is consistently treated as a serious offence. However, it found that the objective circumstances of this particular escape were far from the worst of their kind, and that the subjective circumstances, principally the applicant's health, were highly persuasive. Having regard also to Judicial Commission sentencing statistics, the Court reduced the sentence to a fixed term of six months.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by Judge Puckeridge DCJ set aside.
  • In lieu, a fixed term of six months imprisonment imposed for the escape, commencing 4 November 2001 and expiring 3 May 2002.
  • Noted that the applicant would be entitled to apply for parole on 3 May 2002.

Key Takeaways

  • Under section 6(3) of the Sentencing Act 1989, a sentencing judge who imposes a fixed term must provide reasons for doing so; failure to give those reasons is not a minor omission but a failure to perform the legal duty, requiring the sentence to be set aside and re-determined.
  • The Court of Criminal Appeal confirmed that escape from lawful custody is treated consistently as a serious offence, reinforced by the authorities cited including Regina v Aslett.
  • Where the objective circumstances of an escape are at the less serious end of the spectrum and the offender's subjective circumstances are compelling, a significant reduction from the original sentence may be warranted on re-sentencing.
  • Serious ongoing medical conditions can constitute strong subjective circumstances in sentencing for escape, particularly where the escape was motivated by the offender's inability to obtain adequate treatment in custody.
  • Judicial Commission sentencing statistics are a legitimate reference point for the Court of Criminal Appeal when conducting a de novo sentencing exercise.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 6(3)
- Correctional Centres Act 1952 (NSW), s 34(1)

Cases
- Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
- Regina v Aslett (NSW Court of Criminal Appeal, unreported, 16 October 1998)