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. 13 The appellant was incarcerated in a secure correctional services institution and there was nothing before his Honour, to suggest that it was not well planned and it seems, on the facts, it was well within his Honour's capacity and it was appropriate, to make a finding that it was well planned. 14 Although the Court of Criminal Appeal, in 1986 in R v Thomson was intending to give sentencing judges some guidance as to an approximate sentence for the offence of escape from lawful custody, the epithet "unremarkable", may not be an appropriate one to attach to any escape, when it is obvious that the system has at its core, a deprivation of liberty. 15 Miss Johnson submitted today, that it was the finding that the escape was well planned, which in fact, took the matter outside the conceded and agreed character into which it fell, of an unremarkable escape. It seems to me that that is not so. His Honour did not reject the conceded character of the escape as unremarkable at all. Indeed, he went further to describe what he understood the unremarkable nature of it was for the purpose of his sentence. He said: "To characterise it as an unremarkable escape, only means in this case, that there was no violent over-throwing of the guards, nor any other aggravating feature. Nor did he then set about committing other crimes." His Honour compared the escape of the appellant, to that of Mr Thomson, from which the epithet sprung. Mr Thomson's escape was described in this way; "It was an escape in circumstances of minimum supervision, whilst the offender was working in an outside work muster at Cessnock Corrective Services Institution." 16 His Honour analysed with clarity, the circumstances, as best he could, of the escape on the documents that he had and quite legitimately reached the conclusion that it was a well planned escape and thus, a more serious but still unremarkable escape. I am not satisfied that an error of fact has emerged and I reject this ground of the appellant's case. 17 The second ground was that in dealing with the assistance provided by the appellant to the authorities, his Honour failed to take it into account in a proper manner. His Honour found that the assistance provided by the appellant, in the context of the matter, was only of marginal benefit. There is no doubt, having regard to the material that was before his Honour, that such a finding was open to his Honour. 18 No error has been exposed in his Honour's conclusion, that the assistance provided, both as to content and to extent was of marginal benefit, was in error. His Honour had been asked specifically by counsel for the appellant, to pay no regard and give no consideration to any future assistance. 19 Miss Johnson highlighted again the feature of the appellant's confinement, referring to it as solitary confinement and once again, referred to the fact that the representative of the Crown on the sentencing hearing conceded that the confinement was onerous and it was uncertain how long the onerous period would last. The concession was that he would spend the rest of his custodial time in protective custody. His Honour was well aware of that at the time. 20 A further attack has been made upon his Honour's reasoning with a submission that his Honour failed to address the totality principle. It seems to me that such ground cannot be made out. His Honour, on p 14 of the his remarks said: "Upon an assessment of all the objective and subjective material in this case, including his plea of guilty, his assistance to the authorities and the hardship in which he is serving his sentence and the principle of totality..." and thereafter he pronounced sentence. 21 I can find no error in the approach that his Honour took to the sentence of the appellant and in the circumstances, I would dismiss the appeal. 22 MEAGHER JA: I agree with Bergin J and I only need to add one thing which is this. In the course of her submissions, Miss Leigh Johnson, Mr Saxon's solicitor, asserted that she was not permitted to visit her client by the prison authorities. This matter really has nothing to do with the present appeal but is nonetheless, gravely disturbing. To my mind, if such a prohibition exists, then the sooner it is revoked the better. I trust my remarks will be conveyed to the prison authorities. 23 GROVE J: I agree with Bergin J. I would also seek to endorse the additional remarks of Meagher JA. 24 MEAGHER JA: The order of the Court therefore, is the order proposed by Bergin J. **************** 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.