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Court of Criminal Appeal 1 March 2001

R v Stokes

[2001] NSWCCA 82

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ESCAPING FROM UNLAWFUL CUSTODY SPECIAL CIRUCMTANCES.

Citation: Stokes v R [2001] NSWCCA 82
Court: New South Wales Court of Criminal Appeal
Date: 1 March 2001
Judge(s): Simpson J, Ipp AJA, Carruthers AJ

Background

The applicant, a prisoner serving lengthy fixed-term sentences imposed in 1989 for serious violent offences including malicious infliction of grievous bodily harm, escaped from the minimum security section of Grafton Gaol in early 1998. He had secreted bolt cutters, a file, and a hacksaw blade the day before, cut through the perimeter fence, and was collected by his wife in a stolen vehicle. He remained at large for nearly a year before being stopped by police at Noosa in January 1999.

At sentencing in the District Court following a guilty plea, Ducker DCJ imposed a sentence of three years and one day, with a non-parole period of one year. The sentence was structured to commence on 10 January 2005, reflecting that the applicant's escape had deferred his otherwise fixed release date to that point.

The applicant sought leave to appeal against the severity of the sentence, arguing it disclosed error and was manifestly excessive.

  • Whether the sentence imposed by Ducker DCJ disclosed appealable error or was manifestly excessive
  • Whether the unusual length of the total term (three years and one day) was justified
  • Whether special circumstances existed to justify a non-parole period of less than three-quarters of the total term, as required under the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal found that the total term of three years and one day was excessive when considered in the context of the applicant's overall custodial circumstances. By the time the escape sentence was set to expire, the applicant would have been incarcerated for close to twenty years. The Court characterised the case as, at minimum, highly unusual, and Carruthers AJ described it as exceptional.

The Court accepted several mitigating features. The applicant had demonstrated impressive rehabilitation progress before the escape, supported by favourable reports from psychologists, a counsellor, and a clinical nurse consultant. His wife, whom he had married while in prison, had placed significant pressure on him after her release, and she subsequently died of a drug overdose while the applicant was at large. He committed no further offences during his time as an escapee, aside from possessing a firearm for which licences were likely absent, though the Court noted that the principle in R v De Simoni prevented that inference from being used in sentencing.

The Court also noted that the applicant's underlying sentence was a fixed term with no supervisory parole period attached. This made the question of special circumstances particularly significant, as structured support upon release would otherwise be absent entirely.

Special circumstances were found to exist, drawing on the reasons given by the primary judge and supplementing them with the extraordinary length of the applicant's total time in custody and his clear need for post-release supervision. The Court re-sentenced the applicant to a total term of two years with a non-parole period of eight months, to commence on 10 January 2005, with a direction that he be released on parole at the end of the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • Applicant sentenced to a total term of imprisonment of two years with a non-parole period of eight months, commencing 10 January 2005
  • Applicant to be released at the end of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must not tailor a sentence for a discrete offence to remedy perceived deficiencies in earlier, unrelated sentences, but may legitimately take account of the total period of incarceration when assessing proportionality.
  • Special circumstances justifying a non-parole period below the statutory three-quarters threshold can be established by a combination of factors, including an extraordinary total period in custody, demonstrated rehabilitation, and the absence of any supervisory mechanism upon release from the existing sentence.
  • Where facts presented to a sentencing judge are partly derived from a statement reconstructed from memory after a tape recording proved indecipherable, and those facts were admitted without objection, care must be taken in drawing contested factual conclusions without explicit findings by the sentencing judge.
  • Under s 34 of the Correctional Centres Act 1952, a sentence for escaping from lawful custody carries a maximum of ten years and must be accumulated upon the sentence being served at the time of the escape.
  • Mitigating circumstances such as spousal pressure, demonstrated progress toward rehabilitation, and the commission of no further offences while at large are relevant to the severity of a sentence for escape, even where a degree of planning is evident.

Legislation and Cases Referenced

Legislation
- Correctional Centres Act 1952 (NSW), s 34
- Sentencing Act 1989 (NSW), s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 50

Cases
- R v De Simoni (1981) 147 CLR 383
- R v Thomson (unreported, 21 May 1986)
- R v Mackenroth (NSWCCA, unreported, 19 May 1998)
- R v Simonds (6 May 1991)