New South Wales Court of Criminal Appeal CITATION : Regina v Schrei [1999] NSWCCA 74 FILE NUMBER(S) : CCA 60127/98 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 9 April 1999 PARTIES : Regina (Commonwealth) (Respondent) Johann Schrei (Appellant) JUDGMENT OF : Stein JA; Bell J; Smart AJ LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0975 LOWER COURT JUDICIAL OFFICER : His Honour Judge Rummery COUNSEL : Mr T Molomby (Appellant) Mr M. Ierace (Respondent - Cwth Crown)) SOLICITORS : Legal Aid Commission (Appellant) Commonwealth Director of Public Prosecutions CATCHWORDS : Escape - Conditions in foreign gaol 1911 Treaty King of Thailand & King of England ACTS CITED : s47 Crimes Act (Cth) s19AD(2)(e) Crimes Act 1914 DECISION : Leave to appeal granted. Sentences and non-parole dates varied. IN THE COURT OF CRIMINAL APPEAL 60127/98 STEIN JA BELL J SMART AJ Friday, 9 April 1999 REGINA (COMMONWEALTH) v JOHANN SCHREI JUDGMENT 1 STEIN JA : I will ask Mr Justice Smart to give the first judgment. 2 SMART AJ : Johann Schrei seeks leave to appeal against the severity of a sentence of six months imprisonment for escaping from lawful custody on 27 November 1995. At that time the applicant was serving a five-year sentence with a non-parole period of three years, six months commencing 2 October 1994, the date of his arrest for the offence of importing not less than a traffickable quantity of heroin. Within his body he had about twenty-five grams of impure heroin which was equivalent to about 18.4 grams of heroin. 3 On 10 October 1995 approval was granted for the applicant to be employed manufacturing timber furniture in the Industrial Training Centre's Corfurn Business Unit. This was approval to work beyond the precincts of the prison at the Training Centre Long Bay Correctional Centre. 4 The applicant, who enjoyed a C1 classification, signed an undertaking not to escape and that he was aware that if he did escape he would be liable to be sentenced to a term not exceeding ten years to be served after the expiration of any sentence he may be serving at the time of the escape. As it was a Commonwealth offence 10 years should have read 5 years. 5 In cross-examination the applicant remarked that everybody has to sign an undertaking before they can work outside the prison. The applicant relied on his family situation and being separated from them and the angst that caused for escaping. 6 On 24 November 1995 the Court of Criminal Appeal ameliorated the sentence of the applicant to that earlier mentioned. Three days later the applicant and a fellow Austrian prisoner escaped by cutting a hole in a perimeter fence. A pair of tin snips and prison clothing were left nearby. The two escapees made their way into the city and left by bus, eventually arriving at Darwin. The fellow prisoner purchased a boat which they learned to sail. Repairs had to be effected. After leaving in the boat they encountered a cyclone and made an emergency landing in Indonesia. Travel documents were obtained for a price and they flew to Singapore. From there the applicant travelled by bus to Thailand and joined his wife, a Thai national, and two young children. The journey from Sydney to Thailand took some months. 7 On 6 June 1996 the applicant was arrested in Bangkok by Thai Immigration officers for immigration offences. On 14 September 1996 the applicant was arrested by the Thai authorities on a provisional warrant pending Australia's formal request for his extradition to Australia. 8 On 16 October 1996 Mr Schrei appeared in the Central Criminal Court at Bangkok. The judge remanded Mr Schrei in custody for sixty days from 16 October 1996 pending receipt of a formal application for his extradition from the Australian Government. The judge ordered that if no such application was received within that period, Mr Schrei was to be released. 9 On 3 December 1996 Australia's request for the applicant's extradition was made to the Thai Ministry of Foreign Affairs. We have been told from the Bar table, without objection, that the Thai authorities preferred that the extradition application be made not under the 1994 arrangement between Australia and Thailand, but under a treaty signed in 1911 between the King of Thailand and the King of England. 10 Consequently the Australian authorities had to prepare a fresh extradition application under the 1911 Treaty. That was lodged with the Thai Ministry of Foreign Affairs towards the end of January 1997. We were told from the Bar table that the matter was listed before the Thai Court on 26 June 1997 for hearing, that Mr Schrei was represented by lawyers, and that at some stage there had been a contest. Counsel for the Crown informed us that it may not have been open to Mr Schrei to consent to his extradition but no doubt a lack of opposition or consent would probably facilitate the hearing. 11 On 26 August 1997 a judge of the Thai Central Criminal Court found that the applicant was extraditable to Australia. 12 On 1 November 1997 members of the Australian Federal Police extradited the applicant from Thailand to Australia. He has remained in custody in Australia since that date. It is unfortunate that it took so long to finalise the extradition proceedings in Thailand but we do not have complete details as to why the delay occurred. There is, in truth, no adequate explanation. 13 One matter that perhaps ought to be noted is that it appears that at some stage the applicant was anxious to serve the balance of his sentence in Austria, he being an Austrian national. There was some contact between Australian and Austrian officials in Thailand. 14 The applicant was imprisoned in Thailand for approximately seventeen months in total. On the materials we have about thirteen and a half months relate to the extradition. 15 The applicant was born on 13 October 1957. He said that at the time of the offence he had lived in Thailand for many years. He asserted that he and his wife ran a restaurant. Since his arrest she has struggled to run the restaurant and raise the children. It can be appreciated that the applicant was, as he claims, homesick while in Australia and in an Australian prison. He was cut off from his family and lonely. They could not visit him. Telephone contact was short, infrequent, expensive and unsatisfactory. The applicant described the conditions in the Thai gaol as harsh. He was chained, suffered foot infection and lost skin off his feet. He said that while conditions were very hard in the Thai gaol it was better for him to serve his sentence there because he saw his wife and children. They visited him. The applicant said that his family struggled to earn enough money to make ends meet without his assistance. 16 In 1995 the applicant must have been aware of the conditions in Thai gaols and he must have been aware that he ran the risk of being apprehended if he escaped and returned to Thailand. It is apparent from the applicant's evidence that he did not think that the Australian authorities would pursue him. He thought that they would be glad to be rid of him. He was surprised when he was arrested. In short, he took a calculated gamble on being recaptured and lost. 17 In imposing the fixed term of six months the judge took into account the time served in gaol in Thailand. Counsel has complained that while the judge mentioned the duration of the period served in gaol in Thailand, he did not refer to the conditions of incarceration. The sentence here was short and he must have been aware of them as they had been discussed that day before him. The judge did not think much turned on any difference in the different reasons for or status of, part of the time that the applicant spent in prison. The applicant submitted that when the seventeen months spent in prison in Thailand is added to the six months fixed term and a fair allowance is made for the more severe imprisonment in Thailand, the effect of the sentence is substantially more than two years in an Australian prison. Indeed, Mr Molomby submitted that twelve months in a Thai prison ought to be equated to at least two years in an Australian prison and it would be proper to make an even greater allowance. 18 Counsel for the applicant stressed that the judge had not made sufficient allowance for the conditions in the Thailand gaol. 19 Counsel secondly correctly submitted that it must be remembered that under s.47 of the Crimes Act (Cth) the maximum penalty is five years and that there must be due proportion between the sentence imposed and the maximum. 20 While it is correct to note the conditions in the Thai gaol and to take them into account, the applicant did concede, very frankly, that it was a bonus to be in Thailand because of the contact he could have with his family. 21 This is not a case where any rigid formula can be applied. The judge did not approach the matter in a mathematical way but took an overall view of the situation, taking into account the time spent in the Thai Gaol. 22 This was an escape which resulted in extradition proceedings and considerable expense to the Australian community. It was an escape which, on any view required a substantial sentence. I have formed the view that in all the circumstances of this case a sentence of six months was within the permissible range appropriate. 23 The sentencing judge referred to the good use the applicant had made of his time while in custody by doing courses and developing his skills and proficiency and material has been placed before us on this appeal that that has continued. 24 The Crown drew attention to the form of the orders made by the Judge and s 19AD(2)(e) of the Crimes Act 1914 (Cth). It contended that this provision required the setting of a fresh non-parole period of four years. I think that this is correct. 25 On checking the arithmetical calculations, a further adjustment needs to be made. The applicant was at large from 27 November 1995 to 1 November 1997, some 703 days. When the sentence for the drug offence is adjusted to take this period into account, the finishing date becomes 5 September 2001 and the applicant would become eligible for release on parole on 6 March 2000. When a further six months is added to the non-parole period, the date on which the applicant becomes eligible for release on parole is 6 September 2000. 26 I would propose the following orders: 1. Leave to appeal granted. 2. Note that by reason of the escape of the applicant and his absence from custody for 703 days, the revised finishing date of the sentence of five years imposed for importing not less than a traffickable quantity of heroin is 5 September 2001 and the revised date on which he first becomes eligible for release on parole for that offence is 6 March 2000. 3. Appeal against sentence on escape charge allowed by varying the starting and finishing dates of the term of six months by deleting the date specified by the judge and substituting 6 March 2000 as the starting date and 5 September 2000 as the finishing date. 4. Set a fresh non-parole period of four years in respect of both offences with the applicant becoming eligible for release on parole on 6 September 2000. (The starting date was 2 October 1994 but allowance has been made for 703 days absent from custody by escape.) In view of the complexity of the Commonwealth legislation as to sentence, I would propose that counsel be given leave to speak to the terms of the orders and the form of the orders. I would like counsel particularly to direct their minds to the question whether any additional order is required in relation to extending the length of the overall sentence, that is, adding six months on to the period of five years. 27. STEIN JA : I agree with Justice Smart with his reasons and proposed orders. It is clear from the judge's reasons on sentence that he took account of the period spent by the applicant in custody in Thailand although he did not expand upon it nor mention the conditions which the applicant underwent and which he had mentioned in his evidence. 28. It is unfortunate that the extradition proceedings took as long as they did and the delay does not appear to have been contributed to by the applicant. However, subject to the error referred to by Justice Smart, it seems to me that the sentence imposed on the applicant for his escape was within the judge's discretion, involved no error of principle, nor was it manifestly excessive. 29. Accordingly, I agree with the orders proposed by Justice Smart and that the matter be stood down so counsel can consider the precise form of orders to be made by the Court and mention the matter later in the day at a convenient time. 30. BELL J : I also agree with the reasons and orders proposed by Justice Smart. 31. STEIN JA : I will not make any orders at this point of time. We will stand the matter down and perhaps you might both come back at a convenient time later in the day once you have had the opportunity to consider the proposed orders. 32. BELL J : I also agree with the reasons and orders proposed by Justice Smart. 33. STEIN JA: I will not make any orders at this point of time. We will stand the matter down and perhaps you might both come back at a convenient time later in the day once you have had the opportunity to consider the proposed orders. 34. STEIN JA : I will make the orders as announced earlier by Smart J, with the exception of the exclusion in paragraph 4 of the orders of the words, "in respect of both offences". ------------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.