Jones v Regina [2006] NSWCCA 385

New South Wales Court of Criminal Appeal

CITATION: Jones v Regina [2006] NSWCCA 385

HEARING DATE(S): 14/11/2006

JUDGMENT DATE: 4 December 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Hislop J at 27

DECISION: Leave to appeal granted; appeal dismissed

CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - Commonwealth charges of escaping from lawful custody, causing harm to a public official - proportion of recognizance release order to head sentence - whether sentences manifestly excessive

LEGISLATION CITED: Crimes Act 1914 Criminal Code 1995

R v Robinson [2000] NSWCCA 182 R v Crombie [1999] NSWCCA 297 CASES CITED: Merzahi v Wilkinson [2002] WASCA 124 R v Paterson [2004] WASCA 63 R v Bernier (1998) 102 A Crim R 44

PARTIES: Diane Margaret Jones (applicant) Regina (respondent)

FILE NUMBER(S): CCA 2006/1841

COUNSEL: S McNaughton (applicant) P Roberts SC (Crown)

SOLICITORS: Legal Aid Commission (applicant) Commonwealth Director of Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: English DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/1841

McClellan CJ at CL Hidden J Hislop J

Monday 4 December 2006 Diane Margaret JONES v REGINA Judgment 1 MCCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: The applicant, Diane Margaret Jones, seeks leave to appeal against sentences imposed upon her in the District Court for the following offences: (1) Escaping from lawful custody, an offence under s47 of the Crimes Act 1914 (C'th), carrying a maximum sentence of imprisonment for five years; (2) Causing harm to a Commonwealth public official, an offence under s147.1 of the Criminal Code 1995 (C'th), carrying in this case a maximum sentence of imprisonment for 13 years; (3) Hindering a Commonwealth public official, an offence under s149.1 of the Criminal Code , carrying a maximum sentence of imprisonment for two years. 3 Before setting out the sentences which were imposed, it is convenient to summarise the facts briefly. On 20 September 2002 the applicant appeared at Penrith District Court before Viney DCJ for sentence on a charge of defrauding the Commonwealth. She is a diabetic. After his Honour had indicated that he intended to impose a full-time custodial sentence, she stood up from where she was seated, grabbed her side and said, "I need my insulin". She then left the courtroom. She did not return and was unable to be found in the court complex or at a nearby medical centre. This conduct gave rise to the charge of escaping from lawful custody. 4 On the same day warrants for her arrest were issued in respect of the offence of defrauding the Commonwealth and the charge of escape. They were not executed until 15 November 2002, when three federal agents arrested her at her home in South Penrith. It is not necessary to recite in detail the process of that arrest. It is sufficient to say that she sought to evade capture and that, at one stage, she swung a piece of timber at the head of one of the agents. He placed his hands above his head for protection and was struck by the piece of wood on the left little finger. This gave rise to the charge of causing harm to a Commonwealth public official. A little later she struggled, particularly with another of the agents, before she was restrained and taken into custody. This led to the charge of hindering a Commonwealth public official. 5 The proceedings in respect of these charges were protracted, for reasons which need not be elaborated. On 18 November 2002 she was sentenced in respect of the charge of defrauding the Commonwealth to a term of imprisonment which has since expired. That sentence was backdated to 20 September 2002, the day on which she escaped, the sentencing judge noting that the period for which she had been at liberty could be taken into account when she was dealt with for the escape. She was released in accordance with the recognizance release order made in respect of that sentence. The present charges were adjourned in the District Court on a number of occasions, and on some of those occasions she failed to appear. She was finally arrested on 10 August 2005, and has been in custody since that date. 6 She was sentenced in respect of these matters on 21 June 2006. On the charge of escaping from lawful custody, she was sentenced to imprisonment for 12 months, commencing on 5 October 2005. Although she had been in custody since 10 August 2005, her Honour fixed a later commencement date to take account of the one month and 26 days she had been at large after her escape: cf s48A of the Crimes Act. On the charge of causing harm to a Commonwealth public official, she was sentenced to imprisonment for 18 months from 9 February 2006, with an order that she be released on recognizance after 13 months and two weeks. (Her Honour expressed this period as a "non-parole period".) On the charge of hindering a Commonwealth public official, she was sentenced to imprisonment for six months, also commencing 9 February 2006. 7 It will be seen that the sentences on the second and the third charges were concurrent, but were partly accumulated upon the sentence for the escape. Calculating from 10 August 2005, when she was returned to custody, the overall sentence is imprisonment for just under two years with a period of almost one year and eight months before she can be released on recognizance. 8 The applicant was 40 years old at the time of the offences and is now 45. She has a long record, mainly for offences of dishonesty, some of them visited with custodial sentences. There are entries for assaulting police and resisting arrest, although none of them is recent. At the time of the present offences she was on a bond for an offence of dishonesty. 9 On the evidence, her personal background as a child and as an adult is complex. The detail of it need not be recounted. She was involved in an abusive relationship for some years, which produced a daughter. She was later involved in another relationship which was positive, but which came to an end when her partner died in 2004. The report of a psychologist portrayed a long standing psychological profile of impaired cognitive functioning, depression, panic attacks and social phobia. 10 The sentencing judge took these psychological deficits into account, recognising that they moderated considerations of deterrence. Nevertheless, her Honour concluded that that moderation need not be great and that, in the light of applicant's criminal history and her response to a variety of non-custodial dispositions, her prospects of rehabilitation were poor.