Citation: R v Hookey; Cooper and Dates [2009] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 30 September 2009
Judge(s): McClellan CJ at CL, Buddin J, Hall J
Background
Three respondents were inmates at the Yetta Dhinnakkal Correctional Facility, a minimum-security facility without perimeter fencing located near Brewarrina in regional New South Wales. Shortly after 10pm on 2 November 2008, they broke into a secured office, took a key from a locked cabinet, and drove away in a Department of Corrective Services utility. Police eventually stopped the vehicle near Walgett, but two of the three respondents evaded capture. Those two then stole a second vehicle and led police on a dangerous pursuit at excessive speeds through two small townships before being apprehended when the vehicle ran out of fuel.
Each respondent was charged with escaping from lawful custody (maximum penalty 10 years imprisonment on indictment) along with related offences involving the stolen vehicles. All three were already serving custodial sentences for prior unrelated offences at the time of the escape.
The Crown appealed against sentences imposed by Nicholson SC DCJ in the District Court, arguing that the sentences for the escape offences were manifestly inadequate, particularly in light of the short non-parole periods set.
Legal Issues
- Whether the sentences imposed for the escape offences were manifestly inadequate, having regard to established sentencing principles for escapes from minimum-security facilities
- Whether the sentencing judge erred in finding "special circumstances" justifying a departure from the standard ratio between the non-parole period and the balance of the term
- Whether the manner in which the sentences were structured, when viewed alongside pre-existing sentences and related offences dealt with on a section 166 certificate, properly gave effect to the totality principle
Decision
The Court of Criminal Appeal dismissed all three Crown appeals. Buddin J, with whom McClellan CJ at CL and Hall J agreed, acknowledged that the sentences, and particularly the non-parole periods, appeared lenient when viewed in isolation. The Court noted the established sentencing principle that escapes from minimum-security facilities place those facilities in potential jeopardy, and observed that none of the respondents had demonstrated any particular basis for leniency given their prior records.
However, the Court found it neither possible nor appropriate to consider the escape sentences in isolation. When the sentences were viewed alongside the pre-existing custodial terms and the related offences dealt with on the section 166 certificate, the structure of the non-parole periods reflected the sentencing judge's obligation to apply the totality principle rather than any error of discretion.
On the question of special circumstances, the Crown conceded that a finding of special circumstances remained within the sentencing judge's discretion despite the respondents' limited rehabilitation prospects. The Crown also accepted in oral argument that, before adjustment for special circumstances, a non-parole period in the order of nine months would have been the appropriate starting point. Once that concession was factored in, the Court found it was not open to criticise the length of the non-parole period actually imposed, particularly in the context of a Crown appeal, which requires a high threshold to succeed.
The Court concluded that the Crown had not demonstrated manifest inadequacy. It expressly noted that the sentences provided no guidance on appropriate sentencing levels for escape offences, given the extent to which the totality principle had driven their structure.
Orders Made
- The Crown appeal in each instance is dismissed.
Key Takeaways
- In dismissing all three Crown appeals, the Court of Criminal Appeal confirmed that sentences for individual offences cannot be assessed for manifest inadequacy without reference to the overall sentencing regime, including pre-existing terms and related offences sentenced concurrently.
- A finding of "special circumstances" (justifying a longer parole period relative to the non-parole period) remains within a sentencing judge's discretion even where a respondent's prospects of rehabilitation are described as extremely limited.
- The totality principle requires a sentencing court to structure non-parole periods in a way that reflects the cumulative effect of all sentences, and compliance with that obligation does not constitute error.
- Crown appeals carry a high threshold: where the Crown's own concessions on starting points, adjusted for legitimate discretionary factors, effectively reproduce the result reached below, the Crown cannot demonstrate that the sentence was manifestly inadequate.
- The Court noted that, because the sentences were so heavily shaped by totality considerations, they were unsuitable as a benchmark for appropriate sentencing in escape-from-custody cases generally.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A(1) and s 166
Cases:
- Arnaout v R [2008] NSWCCA 278
- Clare v R (2008) 181 A Crim R 450
- Johnson v the Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Close (1992) 65 A Crim R 55
- R v Horne [2004] NSWCCA 8
- R v Pham [2005] NSWCCA 94
- R v Robinson [2000] NSWCCA 182
- R v Simpson (1992) 61 A Crim R 58
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson (NSWCCA, unreported, 21 May 1986)