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Court of Criminal Appeal 16 March 2004

Smith v R

[2004] NSWCCA 69

Public order & justice offences

Citation: R v Smith [2004] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 16 March 2004
Judge(s): Studdert J (principal judgment), McColl JA, Howie J (both agreeing)

Background

The appellant, a prisoner at Goulburn Correctional Centre, escaped from his cell on the night of 24 July 2001. Using tools he had fashioned in the prison's metal shop, he forced open his cell window bars, climbed down a rope to the ground, and scaled a barbed-wire fence. He had been planning the escape for over twelve months and left a note for the Governor apologising for any inconvenience. He was arrested four days later at a church in Moss Vale.

The appellant had been serving a sentence of six years and four months imposed in March 2001 for serious offences, including entering a dwelling with intent to kidnap and possession of a shortened firearm. Those offences arose from a prolonged 27-hour hostage situation involving his adult son and the son's partner, during which the appellant had pointed a sawn-off shotgun at the victims throughout. A prior appeal against that conviction and sentence had been dismissed by the Court of Criminal Appeal in March 2003.

The appellant pleaded guilty to escape from lawful custody in the Local Court and maintained that plea in the District Court. Phelan DCJ sentenced him to two years imprisonment, commencing 31 January 2004 (consecutive to the sentence he was already serving), with a non-parole period of eighteen months. The appellant, appearing unrepresented, then appealed against both his conviction and his sentence.

  • Whether the conviction for escape from lawful custody should stand, given the appellant's complaints about the circumstances of his original sentence.
  • Whether Phelan DCJ erred in finding that the escape had been planned for over twelve months.
  • Whether the two-year sentence with an eighteen-month non-parole period was manifestly excessive for the offence of escape from lawful custody.

Decision

The Court of Criminal Appeal dismissed the appeal against conviction. The appellant's grievances centred largely on his underlying sentence, but those matters had already been resolved adversely to him in earlier proceedings. The court found nothing to disturb the conviction on the escape charge.

On the sentencing ground, the court considered the benchmark established in R v Thomson (unreported, NSWCCA, 21 May 1986), where Street CJ described an "ordinary" or unremarkable escape as attracting approximately two years imprisonment. That benchmark was set when the maximum penalty for the offence was seven years; the maximum is now ten years under s 310D of the Crimes Act.

The court noted that the Crown did not press Thomson as establishing a minimum tariff, and acknowledged that lesser sentences are appropriate in some cases. However, the court found that the sentence imposed by Phelan DCJ was well within the range of sound sentencing discretion, particularly given the element of planning involved in this escape and the importance of general deterrence. The appellant failed to establish that the sentence was manifestly excessive.

The court also rejected the appellant's finding that Phelan DCJ erred in concluding the escape had been planned for over twelve months, noting that finding was plainly open on the evidence, including the police record of interview.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but appeal against sentence dismissed.

Key Takeaways

  • Under s 310D of the Crimes Act, escape from lawful custody carries a maximum penalty of ten years imprisonment.
  • The Court of Criminal Appeal confirmed the Thomson benchmark: an "ordinary" escape from custody will generally attract a head sentence of around two years, and sentencing courts should apply that range to bring regularity to the treatment of the offence and reflect the importance of general deterrence.
  • In dismissing the sentence appeal, the court reaffirmed that an appellant must establish manifest excess; a sentence within the range of sound sentencing discretion will not be disturbed simply because comparable cases produced shorter terms.
  • Where planning and premeditation are evident in an escape, those circumstances are legitimately taken into account at sentencing and support a sentence at or near the benchmark range.
  • A convicted person's dissatisfaction with an underlying sentence does not provide grounds to challenge a conviction or sentence for a separate escape offence, particularly where the prior appeal has already been determined.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 113, 310D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases
- R v Smith [2003] NSWCCA 53
- R v Thomson (unreported, NSWCCA, 21 May 1986)
- Ho v DPP (1995) 37 NSWLR 393