Regina v Ian Hall Saxon [2000] NSWCCA 268

New South Wales Court of Criminal Appeal

CITATION : Regina v Ian Hall Saxon [2000] NSWCCA 268 FILE NUMBER(S) : CCA 60334 of 1999 HEARING DATE(S) : 14 July 2000 JUDGMENT DATE : 14 July 2000

PARTIES : Regina v Ian Hall Saxon JUDGMENT OF : Meagher JA at 22; Grove J at 23; Bergin J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0137 LOWER COURT JUDICIAL Judge Viney QC OFFICER :

COUNSEL : R Sutherland Crown L Johnson (Solicitor) Appellant SOLICITORS : Commonwealth DPP Leigh Johnson Lawyers CATCHWORDS : Escape from lawful custody - appeal against sentence - appeal on two principal grounds: (1) that his Honour erred in his finding of fact that the escape was well planned - (2) that his Honour failed to give sufficient weight to the applicant's assistance to authorities. LEGISLATION CITED : Crimes Act 1914 (Cth) CASES CITED: R v Thomson (CCA (NSW) 21 May, 1986, unreported) DECISION : Appeal dismissed.

- IN THE COURT OF CRIMINAL APPEAL

060334/99 MEAGHER JA GROVE J BERGIN J

FRIDAY 14 JULY 2000 REGINA v IAN HALL SAXON

JUDGMENT

1 MEAGHER JA: The Court is in a position to give judgment. I will ask Bergin J to give the first judgment. 2 BERGIN J: This is an appeal by Ian Hall Saxon, against the sentence imposed by His Honour Judge Viney QC in the District Court on 30 April 1999, for an offence under s 47 of the Crimes Act 1914 (Cth), for which the penalty is imprisonment for five years. 3 The appeal is on two grounds, firstly, that His Honour erred in his finding of the fact that the escape was well planned. Secondly, that his Honour failed to give sufficient weight to the applicant's assistance to authorities. 4 The appellant was born on 19 January 1943. His first conviction was in 1977 in California, for possession of more than an ounce of concentrated cannabis, for which he was fined. In September 1980, he was convicted in Tahiti of importing 2kg of cocaine and importing goods without declaring them. He was sentenced to imprisonment for four years. In the late 1980's he and others, were involved in the importation of ten tons of cannabis resin into Australia. On 26 January 1990, he was arrested on a number of charges, including importing a commercial quantity of cannabis resin, supplying a commercial quantity of cannabis resin and engaging in money laundering. A committal hearing took place between October 1990 and September 1991. He was committed for trial on those charges. 5 On 2 March 1993, whilst still awaiting trial, he escaped from Long Bay Correctional Centre at Malabar. Just over two years later, on 21 April 1995, he was arrested in Carlsbad, California, in the United States of America, by officers from the FBI and the Drug Enforcement Agency. Also present was at least one officer of the Australian National Crime Authority. He was returned to Australia on 16 June 1995. 6 On 21 February 1996, he pleaded guilty to the charges upon which he had been committed and on 1 August 1996 Dunford J sentenced him on those charges to 24 years imprisonment and a non-parole period of 16 years. This meant that he was not eligible for parole until 31 March 2008, by which time he will be 65 years of age. 7 Between 19 May 1997 and 30 May 1997 he went to trial on the charge of escape from lawful custody but the jury were unable to agree upon a verdict. On 31 October 1997, this Court dismissed his appeal from the judgment of Dunford J. On 2 November 1998, he pleaded guilty to the charge of escape from lawful custody. On 30 April 1999, Judge Viney sentenced him to two years imprisonment, with a non-parole period of eight months. The structure of the sentence was such as to increase by eight months, the period before which the appellant was eligible for parole, from 3 March 2008 to 30 November 2008 and to increase the head sentence by one year and four months, with an expiry date from 1 April 2016 to 31 July 2017. 8 There were four agreed facts placed before Judge Viney on sentence. Firstly, that the prisoner was in custody on remand at Long Bay, between 1 February 1990 and March 1993. Secondly, that on 2 March he escaped. Thirdly and I summarise, on 21 April he was arrested in the United States and taken into custody and fourthly, that he was returned to Australia in June 1995. 9 At the sentencing hearing, the Crown conceded that the appellant's escape was an unremarkable escape, a phrase adopted by Street CJ in R v Thomson (CCA (NSW) 21 May 1986, unreported). The Crown also conceded that the "tariff" under State law was two years imprisonment for such an offence. 10 The concession by the Crown before his Honour, was based on the fact that it had no evidence as to how the appellant made his getaway. One day he was accounted for as an inmate and at the next muster, he was missing and turned up two years later. At the time of sentence the full detail, or really any details of his escape, remained a mystery. It is submitted that his Honour fell into error in finding that the escape was well planned and thus infected the sentencing process. 11 It is accepted that the Belgian passport which was in evidence before his Honour, although dated February 1993, some months before the appellant's escape, is a false document and one in relation to which there was a contest as to it having been created prior to the prisoner's escape. There is no doubt that the material upon which his Honour relied, in respect of his finding that the escape was well planned, was material contained in Mr Sutherland's statement, which included the false passport. 12 The other material included false identification, false passports, other than the Belgian passport and details as to international travel movements during the period that the appellant was at large. Notwithstanding the difference between the date on the Belgian passport and the position this Court is to take in respect of it, it seems to me that his Honour was justified in reaching a conclusion that this escape was well planned.