R v Regina [2000] NSWCCA 100

New South Wales Court of Criminal Appeal

CITATION : R v Regina [2000] NSWCCA 100 FILE NUMBER(S) : CCA 60222/99 HEARING DATE(S) : 20/03/00 JUDGMENT DATE : 20 March 1999

PARTIES : Regina v Josef Richard Regina JUDGMENT OF : Abadee J; James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0024 LOWER COURT JUDICIAL Coleman DCJ OFFICER :

COUNSEL : R Burgess - Applicant MC Marien - Crown SOLICITORS : TA Murphy - Applicant SE O'Connor - Crown

DECISION : Leave to appeal granted - appeal against sentence dismissed

IN THE COURT OF

CRIMINAL APPEAL 060222/99 ABADEE J JAMES J Monday 20 March 2000 REGINA (NSW) v JOSEF RICHARD REGINA JUDGMENT

1 JAMES J: Joseph Richard Regina has applied for leave to appeal against a sentence imposed on him in the District Court on 22 April 1999 by his Honour Judge Coleman, after he had pleaded guilty to one charge of escaping from lawful custody, an offence under s 34 (1) of the Correctional Centres Act for which the maximum penalty is penal servitude for 10 years. Judge Coleman imposed a sentence of penal servitude for three years consisting of a minimum term of two years to date from 28 April 2001 and an additional term of one year. 2 The series of events leading up to the imposition of this sentence was somewhat involved. 3 On 14 April 1992 the applicant was sentenced in the Lismore District Court on two charges of break, entering and stealing, one charge of cultivating prohibited plants and one charge of supplying a prohibited drug. The applicant appealed against those sentences to the Court of Criminal Appeal. 4 On 2 March 1993 his appeal to the Court of Criminal Appeal was allowed and, in lieu of the sentences which had been imposed in the District Court, the applicant was sentenced on the two charges of break, entering and stealing to concurrent fixed terms of penal servitude of two years six months to date from 27 March 1991 and on the charges of cultivating prohibited plants and supplying a prohibited drug to concurrent sentences of penal servitude of four years two months, each consisting of a minimum term of two years six months commencing on 27 September 1993 and an additional term of one year eight months. 5 After the appeal had been determined, the applicant was transferred to the Grafton Correctional Centre. He gave evidence in the proceedings on sentence before Judge Coleman that in the Grafton Correctional Centre another prisoner with whom he was sharing a cell and with whom he had become friendly was seriously assaulted by other prisoners. 6 On or about 10 December 1993 the applicant was transferred to a minimum security correctional centre at Glen Innes. Before he was transferred there, the applicant signed an undertaking that if he was transferred to a minimum security correctional centre he would not escape or attempt to escape. The undertaking contained an acknowledgment by the applicant, that if he escaped or attempted to escape, he could be prosecuted and he would also attract a classification as a prisoner, such that he could be required to serve any further term of imprisonment in a maximum security correctional centre. 7 On 13 December 1993 the applicant escaped from the Glen Innes Correctional Centre by simply walking out of the Correctional Centre. He succeeded in hitchhiking to Queensland. 8 In evidence given in the proceedings on sentence, the applicant said that he had escaped from the Glen Innes Correctional Centre, because some of the prisoners who had assaulted the applicant's cell mate at Grafton, had also been transferred to the Glen Innes Correctional Centre and had made threats against the applicant. The applicant did not inform the authorities of the threats which had allegedly been made against him and did not seek to go on protection. 9 At some time after he had escaped, the applicant went from Queensland to the Northern Territory. Whilst he was at large in the Northern Territory he committed an offence of cultivating a commercial quantity of cannabis, for which he was arrested. On 16 September 1994 the applicant was sentenced in the Supreme Court of the Northern Territory to a sentence of imprisonment for two years from 8 June 1994. I infer that 8 June 1994 was the date on which the applicant had been taken into custody. The applicant served this sentence, the sentence being reduced by one third by reason of remissions which were allowed. 10 After the applicant had completed serving this sentence in the Northern Territory he was not extradited to New South Wales, notwithstanding that he was an escapee from a correctional centre in New South Wales and notwithstanding that warrants had been issued for his arrest. 11 The applicant claimed in evidence given in the proceedings on sentence before Judge Coleman that before he was released in the Northern Territory, the Northern Territory authorities had communicated by telephone with New South Wales Police and were told that "nobody wanted to come and pick me up". The sentencing judge said in his remarks on sentence that he did not accept this evidence by the applicant. However, his Honour did find that "as a result of some kind of technical glitch no attempt was made to extradite him from the Northern Territory". 12 The applicant was released from custody in the Northern Territory in October 1995. The applicant was finally extradited to New South Wales after he had been arrested in Queensland on or about 11 January 1999 and charged with offences of possessing a dangerous drug and possessing tainted property. For each of those offences he was fined in a Queensland Magistrates Court. A check of his fingerprints revealed that he was an escapee from a correctional centre in New South Wales and he was extradited to New South Wales. 13 On 15 January 1999 the sentences which had been imposed by the Court of Criminal Appeal on 2 March 1993 were adjusted to allow for the applicant's escape, in a way which has not been the subject of challenge either before Judge Coleman or this Court, so that the minimum terms of two years six months under the cumulative sentences do not expire until 27 April 2001. It was because the minimum terms of those sentences, as adjusted, do not expire until 27 April 2001 that Judge Coleman made the sentence he imposed for the offence of escaping from lawful custody commence from 28 April 2001. 14 I turn to the subjective circumstances of the applicant. The applicant was born in Czechoslovakia in March 1942. He was accordingly 51 years old at the time of committing the offence of escaping and 57 years old at the time he was sentenced. He came to Australia in 1970. He had a criminal history in New South Wales, Queensland, and the Northern Territory. The sentencing judge described his criminal history in Queensland as "appalling". 15 In his remarks on sentence, Judge Coleman set out the series of events which I have already summarised and referred to the subjective circumstances of the applicant. His Honour then referred to the time the applicant had been at large after the escape. His Honour said that the amount of time the applicant had been at large after he had escaped was an important factor. His Honour added:- "The fact that he was not taken into custody and extradited to New South Wales from the Northern Territory was not a matter which I consider bears on the amount of time he has been at large since his escape, even though part of that was spent serving a sentence".