CATCHWORDS Criminal Law - Appeal,against severity of sentence for common law offence of escape - Consideration of maximum prescribed sentence for similar statutory offence. Remand Centres Ordinance 1976 (A.C.T.) BORKO MILADINOVIC v. THE QUEEN No. A.C.T. G10 of 1983 Fox, McGregor and Gallop JJ. 22 March 1983 Canberra. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G10 of 1983 DISTRICT REGISTRY we GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: BORKO MILADINOVIC Appellant AND: THE QUEEN Respondent ORDER JUDGES: Fox, McGregor and Gallop JJ. DATE OF ORDER: 22 March 1983 WHERE MADE: Canberra THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The sentence be set aside. 3. In lieu thereof the appellant be imprisoned for a period of ten months from the date of the order made below. The appellant be released on 31 March 1983 upon his entering into a recognizance in the sum of two hundred and fifty dollars ($250) to be of good behaviour for a periad of twelve months from that date and during that period to accept the supervision on probation of an officer appointed by, or by arrangement with, the Director of Welfare, and to obey his reasonable instructions. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. A.C.T. G10 of 1983 eNews SS GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : BORKO MILADINOVIC Appellant AND: THE QUEEN Respondent CORAM: Fox, McGregor and Gallop JJ. REASONS FOR JUDGMENT FOX, MCGREGOR and GALLOP JJ. (ex tempore) The reasons and judgment which I am about to deliver are those of the Court. This is an appeal by Borko Miladinovic, the appellant, against the severity of a sentence of imprisonment for eighteen months with a non-parole period of nine months imposed upon him on 18 February 1983 by the Chief Justice of the Supreme Court of the Australian Capital Territory for the common law offence of escaping from lawful custody. The appellant 1s a single man, born in Yugoslavia on 14 May 1963 and therefore now aged almost twenty years. His family, including four children of whom he was the youngest, immigrated to Australia in July 1971, moving eventually to Queanbeyan in New South Wales, then to the suburb of Flynn in the Australian Capital Territory, where the family resided at the time of the hearing in the first instance. The appellant has received primary and secondary education. He remained at school up to fourth form, obtaining what is described as his tenth level certificate, thereafter leaving school, then being of the age of sixteen years. He has worked as a cleaner, as a barman, assistant barman and then as assistant to a fitter. In the last position he remained for about six months, thereafter moving to the Sunshine Coast in Queensland where he worked in casual employment as a builder's labourer for some months. He then returned to Canberra, again working as a cleaner for some four or five months until he gave up that employment. Since that time he has been unemployed. The appellant has a criminal record for offences involving dishonesty, assault, including assaulting the police, and in respect of driving. It could be argued that no one of these offences would be described as serious, yet the first one recorded was almost five years ago and Lhere as discernible in them a disregard for authority. On 28 September 1982, the offence the subject of this appeal was committed. On that occasion the appellant, having been remanded in custody by a magistrate, 1t was proposed to take him to the Belconnen Remand Centre whence he had come. That Remand Centre operates under the provisions of the Remand Centres Ordinance 1976 of this Territory. He was being escorted in the precincts of the court building. He broke away, ran off and contact with him was lost somewhere near the Civic Centre. On 22 October 1982, accompanied by his solicitor, he surrendered himself to the Canberra Court of Petty Sessions, so he had remained at large for a little more than three weeks. He has been in custody since, having, as we have said, been sentenced on 18 February 1983. At that date he had been in custody for approximately five months, though at least in part this is referable to other offences to which we need not make detailed reference. It is to be noticed in respect of the offence, the subject of this appeal, that no one was threatened or injured in the process of his escape, that he himself surrendered himself voluntarily and that he has pleaded guilty to that offence. He was described by counsel who appeared for him at bp first instance as, at the time of that offence, being a young man whose tolerance of authority was very, very low indeed and as one who had extreme difficulty in conforming to the regime that exists. ' It is well recognised that a judge, when sentencing for a criminal offence is exercising a judicial discretion and that, to an appellate court asked to overrule or vary his order, it must be made to appear that some error in exercising it has been made. Even though that error may not be apparent, if the sentence is unreasonable or plainly unjust, the appellate court May infer that in some way there has been a failure properly to exercise the discretion imposed in the court of first instance. See House v. The King (1936) 55 C.L.R. 499, 504-505. This discretion has been referred to by this Court on a number of occasions. See Kovac v. R. (1977) 15 A.L.R. 637; Channon v. R. (1978) 20 A.L.R. 1; R. v. Prindable (1979) 23 A.L.R. 665; R. v.- Tait_and_ Bartley (1979) 24 BA.L.R. 473 at 476; R. v. Hall (1979) 28 A.L.R. 107; R. v. Valentini and Garvie (1980) 2 A.Crim.R. 170 and R. v. Davey (1980) 2 A.Crim.R. 254 and, most recently, The Queen v. dg. unreported, 10 November 1982, a decision of Mr. Justice Toohey, Mr. Justice Gallop and Mr. Justice Davies dissenting. Some of the considerations which might be mentioned by the court concerned with the appropriate level of sentencing and escape from custody after sentence are referred to in Reg. v. Payne (1976) 2 N.S.W.L.R. 446; Regina v. Williams, 28 September 1978 New South Wales Court of Criminal Appeal, unreported, discussed in (1979) 3 Criminal Law Journal at p.155. ' In a case where leniency was thought appropriate, R. v. Astill, 29 July 1977 unreported, New South Wales Court of Criminal Appeal, a sentence of six months imprisonment was imposed. In this case we are of the view that the sentence imposed was excessive, to the extent that we should interpose. The principal consideration is that the period of eighteen months imprisonment exceeds the maximum of one year which, under the Ordinance of 1976, can be imposed for escape from the Remand Centre itself. There are redeeming features, some of which were referred to by the learned Judge, some of which we have already touched on. The appellant's youth is a consideration but there are also aspects of the particular offence. The act of breaking free was not accompanied by violence, and seems to have been done rather on the spur of the moment than otherwise. He did not commit an offence when at large, and he surrendered voluntarily. We respectfully agree with the learned Judge that the offence should not be regarded lightly, but we are of the view that when he was being escorted back to the Remand Centre, account should he taken of the maximum penalty provided under recent legislation for an escape from that institution. We also note that there was a period of over five months during which he was in the Remand Centre, much of it while awaiting committal on the trial for the offence of which he was acquitted. The situation is, in our opinion, most satisfactorily met by substantially shortening the head sentence and by having a lengthened period of probation. We therefore order that the appeal be allowed and the sentence set aside. In lieu thereof it is ordered that the appellant be imprisoned for a period of ten months, and we direct that he be released on 31 March next upon his entering into a recognizance in the sum of §250 to be of good behaviour for a period of twelve months from that date and during that period to accept the supervision on probation of an officer appointed by, or by arrangement with, the Director of Welfare and to obey his reasonable directions. In case there should be doubt, I say that the ten months imprisonment dates from the date of the order that was made below. We order that the matter be remitted to the Supreme Court for execution by that Court. t hainial —- . , t I certify that this and the fue (s) i preceding pages are a true copy of the j Reasons for Judgment herein of his Honour fur, Justice Foc Ais Homo Me, Seoshee ht Gregor ancl kita Hone Mr, Secahee | Gallopr. Ud * Associate . ., fo foxy. Dated oe Ail 19a ,