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". His Honour continued:- "The amount of time and the circumstances of the escape do not in my mind make this an unremarkable escape of the type which was referred to in R v Thomson , (NSW CCA, 12 May 1986 per Street CJ) where it was laid down that the penalty for an unremarkable escape would be two years". 16 His Honour then immediately referred to R v Garget, (unreported CCA 20 July 1990), where Wood J, as his Honour then was, said that in R v Thomson: "the period of two years was intended by Street CJ to apply to the total sentence." 17 Judge Coleman also observed that R v Thomson had been decided at a time when the maximum penalty for an escape from lawful custody was penal servitude for only seven years. His Honour referred to the decision of this Court in R v Ertl, (unreported 7 May 1997). 18 In his remarks on sentence Judge Coleman then referred to the need to have regard to general deterrence in sentencing escapees from minimum security correctional centres, which applies even to escapees who may have had strong personal reasons for escaping. 19 His Honour found that there were special circumstances under s 5(2) of the Sentencing Act, in that the sentence his Honour would be imposing for the escape would be cumulative on the minimum terms of the sentences the applicant was already serving and that the applicant would be serving the sentence his Honour imposed in a maximum security correctional centre. 20 The first ground of appeal argued by counsel for the applicant was that his Honour erred in having regard to the decision in R v Thomson, without having regard to the fact that the sentencing in that matter occurred prior to the introduction of the Sentencing Act 1989. 21 I do not consider that the sentencing judge made the error which is alleged in this ground of appeal. The decision of the Court of Criminal Appeal in R v Thomson and particularly the remarks by Street CJ about the length of an appropriate sentence for an unremarkable escape have been frequently referred to in cases decided since the coming into force of the Sentencing Act. Appeals which have been heard by this Court against sentences imposed for offences of escaping committed after the commencement of the Sentencing Act include such cases as R v Prasad, (unreported 1 September 1993), R v Kennedy (unreported 22 July 1994), R v Ertl, and R v Mackenroth (unreported 19 May 1998). In all of these cases members of this Court referred in their judgments to what had been said by Street CJ in R v Thomson. In Mackenroth Simpson J, who delivered the leading judgment, said at p 4 of her judgment: "The starting point in considering the appropriate range of penalties is the decision of this Court in R v Thomson". 22 Apart from the coming into force of the Sentencing Act, another change which has occurred since Thomson was decided has been the increase in the maximum penalty for the offence of escaping from lawful custody from penal servitude for seven years to penal servitude for ten years by an amendment to the Correctional Centre Act, then called the Prisons Act, which came into force in November 1991. 23 In his remarks on sentence, Judge Coleman expressly referred to the decisions of this Court in Thomson, Garget and Ertl noting the dates on which each decision had been given. His Honour pointed out that Thomson had been decided at a time when the maximum penalty for the offence was lower. His Honour's remarks indicate in my opinion, that his Honour was familiar with the judgments of Wood J in Garget and Bruce J in Ertl, the latter being a case decided after the introduction of the Sentencing Act. I would not find that his Honour made the error alleged in the first ground of appeal of failing to have regard to the fact that the sentence in Thomson had been imposed prior to the introduction of the Sentencing Act, whereas the sentence to be imposed by his Honour would be subject to the Sentencing Act. 24 The second ground of appeal against sentence was that the total sentence of three years, including the minimum term of two years, was manifestly excessive. I have already referred to the passage in his Honour's remarks on sentence in which his Honour said, "the amount of time and the circumstances of the escape do not … make this an unremarkable escape of the type referred to in R v Thomson". I would understand his Honour to be saying in this part of his Honour's remarks that, because of the amount of time the applicant had been at liberty after escaping and because of the circumstances of the escape, the applicant's escape was not an unremarkable escape. 25 It was not disputed by counsel for the applicant that the amount of time an escapee was at liberty after he escaped and before he was taken back into custody can be a circumstance of aggravation. I am of the opinion that, not only can it be a circumstance of aggravation, but it can also have the effect of removing an escape from the class of cases consisting of "unremarkable" escapes (see R v Kennedy, especially at p 7, where Levine J noted that in that case, "the applicant had been at liberty just over three years"). 26 It was submitted by counsel for the applicant that the applicant had been at liberty only for about six months before he was arrested in the Northern Territory, that he should not be regarded as having been at liberty during the period he was in custody in the Northern Territory and that the applicant should not be prejudiced by the failure of the New South Wales authorities to have him extradited to New South Wales after he had completed serving his sentence in the Northern Territory. 27 I would accept that the applicant should not be regarded as having been at liberty during the period of time he was actually in custody in the Northern Territory, even though his custody in the Northern Territory was for unrelated offences. 28 However, I would not accept that the time the applicant was at liberty, after he was released from custody in the Northern Territory, should not be taken into account, because of the failure of the New South Wales authorities to have him extradited. During this period, from October 1995 to January 1999, the applicant was, in fact, at liberty, enjoying the privileges and benefits of being at liberty. During this period, the applicant was aware that he was an escapee, he remained outside New South Wales and he took no step to surrender himself to the New South Wales authorities. There was no evidence to suggest that during this period (in which he had committed offences in the Northern Territory and in Queensland) the applicant had made such progress towards rehabilitation or had otherwise entered into such a situation that considerations of fairness required leniency to be extended to him. Cf R v Todd (1982) 2 NSWLR 517. 29 Accordingly, I would find that, even disregarding the period of one year four months during which the applicant was in custody in the Northern Territory, the applicant was at liberty, between escaping and being taken back into custody, for a period of more than three and a half years. In my view, his Honour was entitled to regard the amount of time during which the applicant had been at liberty as being a circumstance of aggravation and as being of itself sufficient to remove the case from the class of "unremarkable" escapes. 30 As regards the second matter referred to by his Honour, his Honour did not expressly state in that part of his remarks on sentence what were "the circumstances of the escape" which prevented or helped to prevent the escape being an unremarkable escape. 31 It was submitted by counsel for the applicant that the circumstances of the escape were quite unremarkable. It was submitted that, if his Honour had regarded the circumstance that the escape had been from a minimum security correctional centre as being a circumstance which prevented the escape from being an unremarkable escape, then his Honour was in error. It was pointed out that in R v Thomson itself, the appellant had escaped from a minimum security correctional centre and Street CJ had expressly stated in his judgment that the escape was "of an unremarkable character". 32 I would accept that the circumstance that an escape was from a minimum security correctional centre does not of itself render an escape a "remarkable" escape, that is does not of itself take an escape out of the class of "unremarkable" escapes. It seems to me that so much must follow from the judgment of Street CJ in R v Thomson. 33 However, when Judge Coleman's remarks on sentence are read as a whole, I consider that his Honour was entitled to find that there were some circumstances tending to remove the escape from the class of unremarkable escapes. Matters which are referred to by his Honour at different places in his remarks on sentence include that the escape had occurred just three days after the applicant had signed an undertaking not to escape and that the applicant, assuming he had received threats, had not, unlike the escapees in some other cases which have come before the court, informed the prison authorities of the threats which had been made against him or gone into protection, before making a decision to escape from the correctional centre. I also consider, notwithstanding a submission put by counsel for the applicant, that his Honour should be taken as having made a finding that there had been some premeditation and that the escape had not been an impulsive, spur of the moment, escape. In any event, as I have held earlier in this judgment, I am of the view that the length of time the applicant had been at liberty was of itself sufficient to remove the present escape from the class of unremarkable escapes. 34 We were referred by counsel for the applicant to statistics of sentences for escaping kept by the Judicial Commission. In my opinion, these statistics indicate that, while the sentence imposed by his Honour was a severe sentence, it was not outside the range falling within a proper exercise of his Honour's sentencing discretion. 35 It was submitted by counsel for the applicant that the sentencing judge should have further extended the additional term of the sentence, in relation to the minimum term of the sentence. 36 As I have already stated, his Honour found that there were special circumstances, because the sentence his Honour would be imposing for the escape would be cumulative on the sentences the applicant was already serving. His Honour, accordingly, made the additional term of the sentence for escaping exceed one third of the minimum term of the sentence for escaping. It does not seem to me that his Honour can be said to have erred in not further extending the additional term. The sentences the applicant had to serve before commencing to serve the sentence for escape were not, comparatively speaking, long sentences. The applicant, up to the time he was taken back into custody in January 1999, had been at liberty for more than three years and he would appear to have been able to cope quite effectively while at large and would not appear to have any special need for supervision by the parole service. I would, accordingly, reject the submission based on s 5(2) of the Sentencing Act. 37 The orders I would propose would be that, while leave to appeal against sentence be granted, the appeal against sentence be dismissed. 38 ABADEE J: I agree with the reasons that have been delivered by James J. The orders of the court are the orders as proposed by his Honour. ********** 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.