R v Smith [2004] NSWCCA 69

New South Wales Court of Criminal Appeal

CITATION : R v Smith [2004] NSWCCA 69 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 16 March 2004

JUDGMENT OF : McColl JA at 49; Studdert J at 1; Howie J at 50 DECISION : Appeal against conviction dismissed; leave to appeal against sentence granted but appeal dismissed.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act, s 43 Crimes Act, ss 113, 310D Ho v DPP (1995) 37 NSWLR 393 CASES CITED : R v Smith [2003] NSWCCA 53 R v Thomson (unreported, NSWCCA 21 May 1986 PARTIES : Regina v Kevin John Smith FILE NUMBER(S) : CCA 60433/03 COUNSEL : D. Arnott (Crown) In person SOLICITORS : C.K. Smith (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/41/0211 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60433/03

McCOLL JA STUDDERT J HOWIE J

Tuesday 16 March 2004 REGINA v KEVIN JOHN SMITH Judgment 1 STUDDERT J: The appellant, Kevin John Smith, pleaded guilty in the Local Court, Goulburn, to a charge of escape from lawful custody. The appellant adhered to that plea when he came before Phelan DCJ in the District Court at Wollongong. 2 The first occasion on which he came before his Honour was 4 April 2002. At that time the appellant had an appeal pending to the Court of Criminal Appeal and I shall refer further to this shortly, and because of that pending appeal Phelan DCJ adjourned the matter before him until 13 March 2003. 3 The appellant appeared unrepresented before his Honour on both those occasions. Having heard the appellant, the judge reserved his decision, proceeding to sentence the appellant on 6 June 2003. The sentence then imposed was a sentence of two years imprisonment to commence on 30 January 2004, and to expire on 29 January 2006. His Honour fixed a non-parole period of eighteen months to expire on 30 July 2005. The commencement date was later altered to 31 January 2004, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. 4 The reason for the commencement date of the sentence was that at the time of being sentenced the appellant was serving a term of imprisonment of six years four months, which term commenced on 27 January 2000, with a non-parole period expiring on 26 January 2004. That expiry date was, of course, postponed to account for the period that the appellant was at liberty following his escape from custody. 5 It is clear, having heard all the appellant has had to say in his submissions to this Court, that the appellant entertains a sense of grievance about that earlier sentence, and I shall return to consider it when addressing the grounds of appeal presented by the appellant to this Court. 6 The appellant now appeals against his conviction and seeks leave to appeal against the sentence imposed by Phelan DCJ. I observe that the offence for which he was sentenced is one for which s 310D of the Crimes Act provides for a maximum penalty of imprisonment for ten years. 7 The appellant escaped from his cell at the Goulburn Correctional Centre on 24 July 2001 at about 10.30 pm. His cell was on the second floor. He escaped by forcing open bars of the cell window and he forced those cell bars by using a crude metal device he had fashioned in the metal shop. Having forced open the window, the appellant climbed down to the ground, using a rope. Having reached the ground, he then scaled a chain wire fence with barbed wire at the top of it. 8 From a bucket handle he had fashioned some hooks in the metal shop and he used those hooks to draw the barbed wire at the top of the fence out of harm's way for him. So it was that there was an element of planning in this escape. The appellant left a note for the Governor, in which he apologised for any inconvenience that he had caused, and in which he expressed an assurance that no prison officers or inmates knew of his escape plans. 9 The appellant made his way to the railway line and spent some time walking north along the course of it, sleeping in the bush at night. On the last night he found shelter in an hotel at Bundanoon and then proceeded on, this time by train, to Moss Vale, where he entered a church. There he was arrested on 29 July 2001. 10 Phelan DCJ noted that the appellant said he had been planning to escape for over twelve months and that he intended to use his freedom to buy a computer and set himself up in a unit somewhere, and to make representations protesting his innocence in respect of the offences for which he had been sent to prison. 11 One of the matters about which the appellant here complains is that his Honour was wrong to determine that the appellant had been planning his escape for twelve months, but, having regard to the material before the sentencing judge, including the record of interview conducted by police officers with the appellant, that finding by his Honour was one that was well open to him on all the evidence. 12 At this point it is necessary to say something further about the crimes for which the appellant had been sentenced to imprisonment at Goulburn District Court on 7 March 2001. In his discontent with what then occurred lies the explanation for what has transpired since. The first of those offences was entering a dwelling with intent to commit a serious indictable offence, namely, kidnapping, contrary to s 113(3) of the Crimes Act. 13 The court was asked to take into account a number of matters on a Form 1. The Form 1 charges were two charges of detain for advantage, a charge of possess a prohibited weapon, a charge of possess ammunition without a licence and a charge of contravening an apprehended domestic violence order. 14 The second offence for which he was sentenced was that on 27 January 2000 he was in possession of a shortened firearm. The sentence for that offence expired on 26 July 2001. 15 Having entered a plea of guilty when first brought before the District Court for these offences, at a later hearing the appellant sought to change his plea. Knight DCJ, the sentencing judge, refused that application and proceeded to pass sentence on 7 March 2001. 16 The appellant appealed to this court against that conviction and those sentences, and that appeal was heard on 6 March 2003, the Court of Criminal Appeal having refused an adjournment application on that date. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. (R v Smith [2003] NSWCCA 53). 17 In his judgment, with which the other members of the court agreed, Dowd J recorded these background facts: "The appellant and his wife were married in 1967 and had six children. The marriage involved many years of violence towards Mrs Smith by the appellant. In 1997 the appellant's wife left him, moving to a secret location. The appellant attempted to gain information as to her location from the six children and several apprehended violence orders were obtained by the children against him because of the violence offered towards them. One of his children, Duncan, and his girlfriend Madelyne Doolan, were obliged to move out of their Tarago property because of the appellant's actions. On 16 January 2000 Duncan Smith and Ms Doolan went to do work on the Tarago property. In the late afternoon the appellant drove his vehicle to the premises, producing a sawn-off shotgun, which he levelled at his son, who ran into the house to warn Ms Doolan. Duncan Smith leant against a door to keep out the appellant who pushed the barrel of the gun through the partly opened door, and pushed his way in. He directed the terrified young couple to lay on the floor. The appellant said: 'No-one is going anywhere until I see her'. When Duncan told his father that he did not have his mother's contact details the appellant said: 'Well, you had better think of something because no-one's going anywhere until I see her.' This continued for some 27 hours during which time the appellant kept the sawn-of shotgun pointed at the hostages and made threatening remarks about the use of the gun. The hostages had no food and were not permitted to leave to get food. They did not eat during the period and Ms Doolan could only go to the toilet with the door partly open. After the appellant arranged for the reconnection of the farm telephone, the appellant directed his son to telephone his sister Vicky to obtain the appellant's wife's telephone number. As the son had the gun pointed at him, he could not tell his sister the true circumstances, but his sister realised something was wrong, gave him the number and said to eat the paper so the appellant couldn't get it. Duncan Smith then rang his mother and spoke to her in the presence of the appellant. During this call the appellant forced Ms Doolan to say that she was 'okay' loudly enough for Mrs Smith to hear. Mrs Smith apprehended that there was a dangerous situation from her son's manner of speaking and agreed to meet her husband to defuse the situation. The appellant then unloaded the gun and left on the night of 17 January 2000. Neither Duncan Smith and Ms Doolan nor Mrs Smith contacted the police because of their fear of the appellant. Mr Long, a clinical nurse, proposed that he act as mediator for a meeting between the appellant and his wife, which was arranged for 27 January 2000 at Cadia House in Orange, which is a community clinic for people with psychiatric illnesses. The appellant had engaged a private investigator to follow Mrs Smith to ascertain her whereabouts and lifestyle. He told the investigator that he needed to serve the wife with Family Law Court papers. On 27 January 2000 the appellant was stopped by State protection officers and was arrested. The officers found a sawn-off shotgun and shotgun ammunition, two knives and two sets of handcuffs. They also found a brown balaclava, a last will and testament and a roll of duct tape. The appellant wrote a letter to his wife in which he said that he would be killed by her actions. This letter breached the apprehended violence order." 18 It emerges from the consideration of Dowd J's judgment that in the proceedings before Knight DCJ the appellant contended that he had been wrongly advised by his counsel to plead guilty, and Knight DCJ had to assess conflicting evidence as to this from the barrister concerned. It was noted that Knight DCJ clearly accepted the evidence of the barrister, and commented that where there was a conflict between the two versions of events, he preferred the evidence of the barrister. 19 Having reviewed the principles governing applications for withdrawal of a plea, Dowd J concluded that Knight DCJ had made no error in declining the application to withdraw the plea, and further, that his Honour had made no error in relation to the conviction or the sentences imposed. The other members of the court agreed with Dowd J, and hence the appeal was dismissed. 20 Whilst the appellant is dissatisfied with that decision, the present appeal does not afford the appellant with an opportunity to revisit the earlier appeal to this court in the sense of rearguing it. This Court must proceed upon the basis that the appellant had been duly convicted and sentenced and that he escaped whilst serving a sentence properly imposed. 21 I now turn to consider the grounds of appeal. The appellant has stated twenty-three grounds of appeal in his notice of appeal. I do not say this critically but by way of observation that there is much repetition in the expression of those grounds. Four of those grounds, at least, return to the decision of the Court of Criminal Appeal, and the conviction which led to that appeal. 22 I refer to grounds A, B, 17 and 20. These grounds were the subject of argument on the earlier appeal and had been finally dealt with in that appeal. 23 The appellant, in what is identified as ground 2, has sought to argue that he pleaded guilty to escaping custody, or rather, removing himself from custody and not escaping from lawful custody. There is, of course, no offence of escape custody. The offence is one under s 310D of escape, or attempting to escape from lawful custody. The offence to which he pleaded guilty before the magistrate is described on the charge sheet as escaping from lawful custody, and the transcript of proceedings on the first occasion that the appellant appeared before Phelan DCJ on 4 April 2002 records that his Honour was informed that the appellant had appeared in Goulburn court on 17 October 2001 "for the offence of escape from lawful custody". 24 It is clear that the appellant pleaded guilty in the Local Court to an offence under s 310D of the Crimes Act and that he adhered to this plea on the occasions that he appeared before Phelan DCJ. 25 In ground 23 the appellant asserted that he had never been convicted of the original charges. Once again, this ground relates back to the subject matter of the appeal entertained by this court on 6 March 2003. That appeal proceeded upon the basis that there had been a conviction concerning the offences charged, and in relation to which Knight DCJ had proceeded to sentence the appellant. 26 These present proceedings do not afford the appellant the opportunity of seeking to argue that Knight DCJ had not convicted him before he sentenced him. There is, to my mind, no substance whatsoever in the appeal against conviction presently being entertained by this Court. 27 All the remaining grounds, as I read them, appear to be directed to the length of the sentence imposed, and can fairly be regarded as amounting to a contention that the sentence imposed by Phelan DCJ was manifestly excessive. The appellant has addressed further oral submissions to the Court this afternoon to the effect that the sentence was manifestly excessive. 28 The sentencing judge, to my mind, conducted a careful review of the subjective features of this case. 29 The appellant, who was born on 6 November 1948, had some matters on his criminal record before he was sentenced in the District Court in March 2001, but his Honour reviewed that record and observed, to my mind correctly, that apart from the serious matters for which he was sentenced by Knight DCJ, there was not much at all by way of criminal history. 30 Phelan DCJ had a pre-sentence report available to him, to which he referred. It was noted that the appellant had caring and supportive parents and a brother in Queensland with whom he maintained contact. The appellant had worked successfully in a business in New South Wales and had raised cattle and sheep over a period of some twenty-five years. His marital history was addressed by Phelan DCJ, who extracted from the judgment of Dowd J, details of the marriage and the events of 26 and 27 January 2000, to which I have made reference. 31 His Honour took account in his favour the appellant's plea of guilty to the charge at an early opportunity, and the frank admissions made when the appellant was interviewed by police at Bowral Police Station on 29 July 2001. 32 His Honour considered expressly the appellant's activities during the period of the escape from custody. One of the matters that the appellant has mentioned this afternoon in his oral submissions is that he committed no crime during the period of his escape. That was a circumstance to which Phelan DCJ was alert. 33 His Honour did refer to the appellant's history of chronic fatigue syndrome and of depression, and his Honour made reference to a report from Dr McClure, consulting psychiatrist, bearing date 12 February 2000. In that doctor's opinion the appellant had a longstanding personality disorder, and the sentencing judge referred to Dr McClure's opinion to that effect. 34 The appellant has also referred this Court to a report from Dr Bruce Westmore, psychiatrist, and the appellant has informed the Court that that report was also provided for Phelan DCJ's consideration. It is not altogether clear that this was so, but assuming for present purposes that this material was available to his Honour, and that the judge did not refer to it, I observe that there does not appear to be anything in that report which would have influenced the sentence which was imposed. 35 Dr Westmore opined that from a diagnostic perspective it is likely that the appellant had had a disturbance of his mood state but not one that would qualify for a mental illness defence. Dr Westmore considered that when he examined the appellant, the appellant was more settled than he had been earlier, and, in Dr Westmore's opinion, the appellant did not have an antisocial personality disorder and did not, at the time of assessment, suffer any major psychiatric problems. 36 He did, however, have a history of being depressed in the past and, from a prognostic perspective, Dr Westmore found it difficult to advise the Court precisely what the appellant's behavioural potential would be in the future. 37 The appellant in his stated grounds of appeal, and in the grounds upon which he has addressed the Court this afternoon, has not, to my mind, identified any errors in the judge's approach to sentence, and my reading of the careful remarks on sentence discloses no errors of fact or principle in those remarks. 38 One matter now raised by the appellant is that his Honour should have deferred passing sentence until the appellant had had the opportunity of pursuing a petition to have an inquiry into his earlier sentence and conviction. No such application was made to Phelan DCJ, as the appellant frankly acknowledged, and it cannot be held that his Honour was in error in failing to grant that which was not sought. In any event, it would have been inappropriate, to my mind, for the judge to have deferred indefinitely the passing of sentence on the matters that were before him. 39 There is one other matter to which I should make specific reference, touched upon in substance in the various written grounds of the appellant. On 2 October 2003 Phelan DCJ re-opened the proceedings under s 43 of the Crimes (Sentencing Procedure) Act 1999 to amend the commencement date of the sentence by one day, so that it was to date from 31 January 2004. 40 The appellant endeavoured then, unsuccessfully, to persuade his Honour to make a review of the sentence that had been imposed. His Honour correctly declined to do so. I accept the submission made by the Crown that s 43 is not a vehicle for a rehearing on the merits. (See Ho v DPP (1995) 37 NSWLR 393, in particular the judgment of Kirby P, as he then was, at p 403). 41 The Crown in its written submissions made reference to a decision of the Court of Criminal Appeal in R v Thomson (unreported) NSWCCA 21 May 1986. Street CJ, with whom the other members of the court agreed, said in that case: "The ordinary level of sentence for what might be called an unremarkable escape could be expected to approximate two years. This ordinary expectation is to be recognised and observed by sentencing judges in order both to bring regularity into the treating by criminal courts of this offence, and also in order to mark the importance of general deterrence." 42 In that particular case the head sentence imposed was one of two years imprisonment and that at the time when the maximum penalty for the offence was seven years and not ten years, as it is at present. 43 The Crown made plain in its submission before this Court that it did not ask this Court to approach Thomson as laying down a minimum tariff for the offence of escape from lawful custody. Certainly there are cases in which a lesser sentence would be appropriate. 44 The appellant has referred to two cases, although not to the detail of them, in which lesser sentences were imposed. One of those sentences though was by a judge of the Drug Court, and there is a different regime there. 45 There was another sentence, to which reference was made, imposed by Coolahan DCJ, with a head sentence of fifteen months and a non-parole period of nine months. The details, as I say, of those two sentences are not before the Court. 46 This Court is not approaching this sentence as on a hearing de novo. What the appellant must establish is error in the sentence that was imposed. It is for the appellant to persuade this Court that the sentence imposed by Phelan DCJ was manifestly excessive. In my opinion the appellant has failed in that task. To my mind the sentence imposed was a proper sentence, well within the range of sound sentencing discretion, having regard, in particular, to all the circumstances of this case and to the importance of general deterrence. 47 The appellant did seek an adjournment during the course of his submissions but, to my mind, no good reason was advanced for the grant of that adjournment. 48 In my opinion the appellant's submission that his sentence was excessive has not been substantiated. Accordingly, I propose the following orders: