Citation: Mattar v R [2012] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 17 May 2012
Judge(s): Beazley JA, Harrison J, McCallum J
Background
The appellant was serving a term of imprisonment at Long Bay Correctional Centre when he was transferred to Prince of Wales Hospital for treatment of a long-standing heart condition. On 28 April 2009, he left the hospital without permission from the Corrective Services officers guarding him, hailing a cab to depart. He was subsequently charged with escaping lawful custody under s 310D(a) of the Crimes Act 1900.
Following a judge alone trial in the District Court, Syme DCJ convicted the appellant and sentenced him to 2 years imprisonment with a non-parole period of 18 months. The sentence was ordered to accumulate on the non-parole period of the sentence he was already serving for drug supply offences.
The appellant challenged both the conviction and the sentence on appeal. On conviction, he argued the trial judge's reasoning was flawed and failed to properly address the standard of proof. On sentence, he argued the judge erred by declining to find special circumstances, which had left him with a disproportionately long non-parole period relative to the time he would spend on parole.
Legal Issues
- Whether the trial judge's reasons adequately engaged with the standard of proof and the elements of the offence, including the defence of necessity
- Whether, even if the reasons were deficient, a substantial miscarriage of justice had actually occurred
- Whether the trial judge erred by failing to find special circumstances when imposing a sentence that accumulated on an existing sentence
- Whether the accumulation of the new sentence effectively eradicated the appellant's remaining parole period, warranting a reduction in sentence
Decision
Conviction appeal: The Court acknowledged the trial judge's enunciation of her reasons was "less than ideal," particularly in that she made no reference to the criminal standard of proof. However, the appellant's own counsel conceded during the hearing that there was sufficient evidence to support a conviction, and was unable to argue otherwise. The Court was satisfied beyond reasonable doubt that the evidence supported the guilty verdict, and that no substantial miscarriage of justice had actually occurred. The conviction appeal was dismissed.
On the necessity defence specifically, the trial judge had rejected the appellant's evidence that he held a reasonable belief he was in imminent peril at the time of the escape. At the time he left the hospital, no decision had been made to return him to the general prison population, and he had been offered the alternatives of protection or transfer to another facility. Those findings were plainly open on the evidence.
Sentence appeal: The Court found the trial judge erred in refusing to make a finding of special circumstances. The only reason given by the judge for that refusal was that the appellant's existing non-parole periods should adequately address rehabilitation. This reasoning overlooked the significant effect of the mandated accumulation: the new non-parole period effectively consumed virtually the entirety of the balance of the appellant's original sentence, leaving him with almost no parole supervision at all. The Court held this was a relevant factor that should have been considered when structuring the sentence.
The Court allowed the sentence appeal and substituted a fixed term of 12 months, commencing 31 May 2011. This reflected the special circumstances arising from the accumulation and the consequent near-elimination of any meaningful parole period.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; sentence appeal allowed
- Sentence imposed by Syme DCJ on 27 August 2010 quashed
- Substituted sentence of a fixed term of 12 months imprisonment commencing 31 May 2011
- Liberty to apply granted in respect of any necessary amendment to the commencing date of the sentence
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal applied the proviso that no substantial miscarriage of justice had occurred, even where a trial judge's reasons were poorly expressed and omitted reference to the criminal standard of proof, because the evidence clearly supported the verdict.
- The three-limbed necessity defence (as set out in R v Loughnan) requires that the accused honestly believed on reasonable grounds that escape was necessary to avoid imminent death or serious injury, and that the response was not disproportionate to the peril. A prisoner's rejection of available protective alternatives is a material factor in assessing those elements.
- Where a sentence for escape from custody is mandatorily accumulated on an existing sentence, the sentencing court must take into account the effect of that accumulation when considering whether special circumstances exist under the Crimes (Sentencing Procedure) Act 1999.
- Sufficient evidence existed to support conviction even where the trial judge's reasons were less than clear, provided the appellate court is satisfied the evidence would itself sustain a finding of guilt beyond reasonable doubt.
- A failure to consider the impact of mandated accumulation on the overall structure of parole supervision constitutes an identifiable error that can enliven appellate intervention and justify a lesser sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 310D(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 57(2)
Cases:
- Taiapa v R [2009] HCA 53; (2009) 240 CLR 95
- R v Loughnan [1981] VR 443
- R v Rogers (1986) 86 A Crim R 542
- R v Cotterill [2012] NSWSC 89
- R v Novakovic [2004] NSWCCA 437
- Nguyen v R [2008] NSWCCA 163