Citation: [2017] NSWDC 402
Court: District Court of New South Wales
Date: 20 October 2017
Judge(s): King SC DCJ
Background
Two inmates at Ivanhoe Corrections Facility in regional New South Wales were sentenced following an escape from custody and a series of related offences committed over several days in July 2016. One offender (referred to here as the first offender) was in segregation at the time of the escape; the other (the second offender) was in the general prison population.
The escape was coordinated: the second offender climbed into a restricted area, both men assaulted a correctional officer, and they scaled two perimeter fences topped with barbed wire. Over the following days, they evaded police, broke into a caravan to steal a vehicle and other property, and were ultimately intercepted by police while driving at speed in a stolen utility. The second offender failed to stop, reaching approximately 120 kilometres per hour before police terminated the pursuit due to safety concerns. Both men were arrested about a month later in Warrawong, roughly 900 kilometres from the prison.
Each offender pleaded guilty at the earliest opportunity and was committed for sentence from the Broken Hill Local Court in May 2017.
Legal Issues
- What aggregate sentences were appropriate for each offender, having regard to the nature and number of offences?
- How should the sentencing court apply sections 56 and 57 of the Crimes (Sentencing Procedure) Act 1999, which govern the relationship between aggregate sentences and indicative sentences, and the statutory non-parole period ratio?
- When should a sentence for escape from custody commence, and specifically whether it must follow the expiration of the non-parole period for other offences being sentenced at the same time?
- What weight should be given to each offender's plea of guilty (including the 25% discount for utilit of plea) and other subjective factors?
- How should the court balance the need for adequate parole supervision against the effect of lengthy pre-existing sentences on the statutory relationship between non-parole period and balance of sentence?
Decision
Both offenders received a 25% discount on their sentences reflecting the utilit of their early guilty pleas, consistent with the approach in R v Thomson and Houlton. The court proceeded by way of indicative sentences for each individual offence before arriving at an aggregate sentence for each offender, as required under the Crimes (Sentencing Procedure) Act 1999.
A question arose mid-judgment, raised by counsel, about the proper commencement date for the escape custody offence. The court accepted the submission that a sentence for inmate escape must commence at the expiration of the non-parole period of any other sentence being imposed at the same time, rather than running concurrently from an earlier date.
The court acknowledged that, because each offender was already serving substantial sentences for unrelated matters, the statutory relationship between non-parole period and balance of term (generally 75% to 25%) could not be re-established without imposing sentences that would inadequately reflect the seriousness of the offending. The court made adjustments to ensure a minimum of 18 months of parole supervision for each offender to assist rehabilitation, while noting this necessarily altered the statutory ratio.
Orders Made
Second offender (Ohlsen):
- Indicative sentence for inmate escape (including Form 1 matters): 3 years imprisonment
- Indicative sentence for assault officer: 6 months imprisonment
- Indicative sentence for break, enter and steal: 3 years imprisonment
- Indicative sentence for police pursuit, drive dangerously (second offence, including Form 1 matters): 2 years imprisonment
- Aggregate sentence: non-parole period of 4 years, commencing 4 January 2018; first eligible for parole 3 January 2022; balance of term 18 months; total term 5 years and 6 months, expiring 3 July 2023
First offender (Fieldsend):
- Indicative sentence for inmate escape (including Form 1 matters): 2 years and 6 months imprisonment
- Indicative sentence for assault officer: 6 months imprisonment
- Indicative sentence for knowingly being carried in a stolen conveyance: 18 months imprisonment
- Aggregate sentence: non-parole period of 2 years, commencing 4 January 2018; first eligible for parole 3 January 2020; balance of term 18 months; total term 3 years and 6 months, expiring 3 July 2021
Key Takeaways
- A sentence for inmate escape from custody must commence at the expiration of the non-parole period of other sentences being imposed at the same sentencing hearing, rather than running from an earlier date.
- Under sections 56 and 57 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must set indicative sentences for individual offences before arriving at an aggregate sentence, even where the statutory non-parole period ratio cannot be maintained due to the offender's existing custodial obligations.
- Where an offender is already serving a lengthy unrelated sentence, the mechanical application of the 75:25 non-parole to balance-of-term ratio may be impossible to achieve while still imposing a sentence that adequately reflects the gravity of the new offending.
- An early guilty plea at the first available opportunity attracts a 25% discount for the utilit of that plea, consistent with the principles established in R v Thomson and Houlton.
- The District Court expressly adjusted non-parole periods to ensure at least 18 months of post-release supervision, treating rehabilitation through parole oversight as a legitimate sentencing consideration even where it further disturbed the statutory ratio.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 60A(1), 112(1), 154A(1)(a) and (b), 195(1)(a), 310C(a), 310D(a), 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 32, 56, 57
- Summary Offences Act 1988 (NSW): s 27DA(1)
Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383