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Court of Criminal Appeal 25 May 2010

Mihail v R

[2010] NSWCCA 104

Public order & justice offences
CRIMINAL LAW SENTENCE APPEAL ESCAPE FROM CUSTODY

Citation: Mihail v R [2010] NSWCCA 104
Court: New South Wales Court of Criminal Appeal
Date: 25 May 2010
Judge(s): Allsop P, Grove J, Hislop J

Background

The appellant was an inmate at Long Bay Correctional Facility serving a sentence imposed in September 2008. On 26 November 2008, while performing work duties as a welder in the minimum security area, he escaped by scaling internal and outer perimeter fences. He was located and arrested without incident approximately eleven days later.

The appellant pleaded guilty to escaping from lawful custody under the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. On 25 September 2009, the District Court sentenced him to a non-parole period of eighteen months commencing 14 March 2009, with a balance of term of six months. A 15 percent discount was applied for the guilty plea.

The appellant sought leave to appeal against the sentence on two grounds: that the sentencing judge failed to account for remorse and assistance to authorities, and that fresh medical evidence concerning his ill health warranted a reduction in sentence.

  • Whether the sentencing judge erred by failing to find remorse or contrition on the appellant's part, including from statements made during a recorded interview with Corrective Services officers.
  • Whether the appellant's video walkthrough showing investigators how he had escaped constituted "assistance" to law enforcement authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999, entitling him to a sentencing discount.
  • Whether fresh medical evidence about the extent of the appellant's ill health provided a basis for reducing the sentence.

Decision

On the remorse and assistance ground, Hislop J found no error. The appellant had not expressed remorse at the sentencing hearing and his counsel had made no submission to that effect. The Court of Criminal Appeal examined the recorded interview passage now relied upon and concluded that, read in context, it did not demonstrate genuine remorse or contrition. Critically, the submissions concerning assistance under s 23 had never been raised before the sentencing judge, meaning no formal evaluation of that assistance could be conducted by authorities as the legislation contemplates. The Court found that even accepting the walkthrough as a form of assistance, it had not been demonstrated that this would justify a lesser sentence, particularly given the appellant declined to name those who had harboured him during his time at liberty.

On the fresh evidence ground, the appellant sought to rely on new medical reports from a prison health physician describing his conditions, including hepatitis C, chronic liver disease, prostate cancer, heart condition, gall bladder disease, and depression. The sentencing judge had already been critical of the lack of corroborative medical evidence at first instance. The Court of Criminal Appeal applied the well-established principle from R v Smith (1987) 44 SASR 587, as recently confirmed in MJ v R [2010] NSWCCA 52, that ill health mitigates sentence only where imprisonment will be a greater burden on the offender by reason of their health, or where there is a serious risk of imprisonment having a gravely adverse effect on their health. The fresh expert evidence did not establish either condition. One medical report explicitly stated that incarceration would neither accelerate nor exacerbate the appellant's condition, and that appropriate care remained accessible.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A bare apology made during a post-offence interview with investigating officers, without any submission or evidence of genuine contrition at the sentencing hearing, does not constitute remorse sufficient to attract a sentencing discount.
  • Arguments about remorse and assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999 must be raised at the sentencing hearing to allow proper assessment. Raising them for the first time on appeal, without a formal evaluation by authorities, is unlikely to succeed.
  • Under the principle in R v Smith, ill health mitigates sentence only where imprisonment imposes a greater burden on the offender by reason of their health, or creates a serious risk of gravely adverse health consequences. General evidence of multiple health conditions does not automatically satisfy this threshold.
  • No error was established merely because the sentencing judge imposed a sentence without a specific discount for assistance, where the alleged assistance consisted of a walkthrough explaining escape methodology and the appellant refused to identify those who had aided him.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's assessment of objective seriousness, placing the offence in the lower range, did not itself amount to a ground for further reducing the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 310D(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- MJ v R [2010] NSWCCA 52
- R v Smith (1987) 44 SASR 587