Citation: R v Smith, Hookey and Dates [2009] NSWDC 215
Court: NSW District Court
Date: 23 June 2009
Judge(s): Nicholson SC DCJ
Background
Yetta Dhinnakkal is a minimum security correctional facility located 65 kilometres from Brewarrina in remote north-western NSW. The facility operates without a security fence and runs therapeutic programs focused on practical skills. Its inmates are predominantly young Aboriginal men, often first-time prisoners.
In November 2008, three prisoners at Yetta Dhinnakkal broke into a key cabinet and drove off in a Department of Corrective Services utility vehicle with its lights off. None of the three had applied to be placed at the facility, and none had been asked whether they wished to go there. All three had been serving sentences for unrelated offences at the time of the escape.
Police apprehended one of the three, Hookey, within hours at Walgett after a pursuit. The other two, Smith and Dates, evaded recapture and committed further offences, including stealing a second motor vehicle. Both Smith and Dates were at large for no more than 36 hours before being arrested and returned to custody.
Legal Issues
- What was the appropriate objective assessment of the criminality involved in an escape from minimum security custody, where the period at large was brief?
- What weight should be given to personal circumstances, including remoteness from family, substance abuse histories, and the rejection of a request to attend a parent's funeral?
- How should parity between co-offenders be approached, given their different periods at large and different conduct while at liberty?
- Whether special circumstances existed to justify adjusting the ratio between the non-parole period and the balance of term.
- What discount applied for guilty pleas and cooperation?
Decision
The court assessed the objective criminality of the escape as sitting at the lower end of the range for offences of this kind. The prisoners had not been at large for any significant period, the escape was from a minimum security facility with no perimeter fence, and the harm caused was relatively minor. That said, the court recognised that escapes from minimum security create systemic pressure on prison authorities to tighten admission criteria, and that each offender would now carry an "E" classification denying access to therapeutic rehabilitation programs.
The court considered personal circumstances for each offender carefully. All three were Aboriginal men with histories of drug abuse. Their placement at a remote facility, far from family, was a factor the court acknowledged as relevant context, though it did not excuse the conduct. Dates held resentment toward the Department following the rejection of his application to attend his father's funeral in Brisbane, a factor the court explored at some length.
In applying the parity principle, the court tailored sentences to reflect differences in conduct. Hookey, who surrendered quickly and was at large for less than twelve hours, received a marginally shorter total sentence than the other two. Smith and Dates, both of whom committed further offences while at liberty, received slightly longer terms. A 25 percent discount for guilty pleas was applied across all three sentences.
The court found special circumstances in each case, adjusting the non-parole periods downward to reflect the need for extended supervision on release, given clouded rehabilitation prospects and ongoing substance abuse issues. The court also made a recommendation to the Department of Corrective Services that each offender be housed at a facility closer to their family.
Orders Made
- Leigh Smith: convicted of escape from lawful custody; sentenced to 12 months imprisonment with a non-parole period of 3 months.
- Darren Hookey: convicted of escape from lawful custody; sentenced to 11 months and 1 week imprisonment with a non-parole period of 3 months.
- Steven Dates: convicted of escape from lawful custody; sentenced to 12 months imprisonment with a non-parole period of 3 months; additionally disqualified from driving (period not fully captured in the provided text); two days added to his non-parole period to account for time unlawfully at large.
- The court recommended that Dates be considered for placement at Windsor Detention Centre, and that Smith and Hookey be placed in Sydney, closer to their families.
Key Takeaways
- Escaping from minimum security custody is an offence against the proper administration of criminal justice; the District Court confirmed that even short-duration escapes carry genuine sentencing consequences, including a new "E" classification that restricts access to rehabilitation programs.
- Where an escape is from a facility with no security fence and the offenders are recaptured within 36 hours or less, those facts bear on the objective criminality and may place the conduct toward the lower end of the range for offences of this kind.
- A brief period at large does not neutralise aggravating conduct committed during that period; the court distinguished between the offender recaptured within hours without further offending and those who stole a second vehicle and drove dangerously.
- Parity between co-offenders requires calibration to individual conduct: identical circumstances among co-offenders are rarely present, and differences in time at large and offences committed during an escape can properly produce different sentences.
- Placement of prisoners at remote facilities, far from family, without their consent was treated as a contextual factor relevant to personal circumstances, though the court did not hold that it operated as mitigation in the orthodox sense.
Legislation and Cases Referenced
Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 (slip rule, applied to correct sentences post-delivery)