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. The Application 11 Counsel for the applicant, Ms McNaughton, submitted that the sentences for the first two charges, that is, escaping from lawful custody and causing harm to a Commonwealth public official, are manifestly excessive and that the period before release on recognizance in respect of the second charge is an unduly high proportion of the head sentence. As to the first charge, she argued that an excessive sentence was the result of a series of specific errors in her Honour's approach. 12 In relation to the escape charge, Ms McNaughton referred to R v Robinson [2000] NSWCCA 182, a decision involving an offence of escaping from lawful custody under s34 of the Correctional Centres Act 1952 (NSW). On a Crown appeal, the court declined to interfere with a sentence of imprisonment for six months for that offence. Ms McNaughton noted that the offence carried a maximum sentence of seven years, whereas the Commonwealth provision sets a maximum of five years. In delivering the leading judgment, Foster AJA observed at [24] that there had been no evidence of planning or premeditation. His Honour also noted at [29] that sentencing statistics showed that it was not unusual for sentences as low as six months to be imposed for the offence. He expressed the view at [30] that it was appropriate for the sentencing judge to take into account that the matter could have been dealt with in the Local Court, referring to R v Crombie [1999] NSWCCA 297. 13 Ms McNaughton pointed out that in the present case her Honour made no reference to the fact, which is common ground, that the applicant's escape was spontaneous, rather than planned or premeditated. Nor did her Honour refer to the fact that the offence could have been dealt with summarily, with the consent of the prosecutor and the applicant, in which case the maximum sentence would have been imprisonment for 12 months: s4J(1) and (3)(a) of the Crimes Act. From her Honour's failure to mention either of these things, Ms McNaughton argued, it might be inferred that she did not have regard to them. 14 In addition, Ms McNaughton submitted, her Honour had doubly punished the applicant for the escape because of her behaviour at the time of her recapture. Ms McNaughton argued that this is apparent from the length of the sentence itself, but she also relied upon a passage in her Honour's remarks in which reference was made to factors which might aggravate an offence of escape. What her Honour said was this: The length of time an escapee is at liberty following an escape can be a circumstance of aggravation…The way in which an offender makes good his or her escape is a matter of significance also. So too are the circumstances of the offender's eventual arrest. Here of course the offender did not give herself up willingly but rather chose to put at risk the safety of the Federal police attempting to arrest her, although care needs to be taken when assessing the objective seriousness of the offence, because the matters of aggravation envisaged are the subject of charges themselves. 15 Ms McNaughton's argument was that her Honour had treated the circumstances of the applicant's arrest as a matter in aggravation of the sentence for the escape even though that behaviour had been the subject of the charges of causing harm to a Commonwealth public official and hindering a Commonwealth public official, for which separate and significant sentences had been imposed. However, it is clear enough from the concluding words of the passage from the remarks on sentence which I have quoted that her Honour was aware of the risk of double punishment and was careful to avoid it. What her Honour was saying, as I understand it, is that the circumstances of an escapee's arrest might point to a heavier sentence for an offence of escape but that they did not in the present case because of the other charges. 16 Immediately before that quoted passage her Honour referred to Robinson, noting what Foster AJA had to say about the pattern of sentence for escape under the NSW provision. It is reasonable to infer that she was also conscious of the other matters in his Honour's judgment upon which Ms McNaughton relied. That her Honour did not refer to the fact that the escape was unplanned (which was obvious) does not mean that she did not take it into account. As to the provision for summary disposal of the charge, the Crown prosecutor in this Court pointed out that that course would have required the consent of the prosecution, which had not been forthcoming. However that may be, it is not clear whether her Honour was aware of the possibility of summary disposal. It does not appear that either party raised it. 17 The relevant passage in Crombie dealing with the relevance to sentence of provision for summary disposal is in the judgment of Wood CJ at CL at [15]-[16]: This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan , Court of Criminal Appeal 14 December 1989, Jason Clyde Smith , Court of Criminal Appeal 11 September 1991, and Shepherd (1991) New South Wales Court of Criminal Appeal 162. None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal. 18 The relevant question in the present case is whether, if the fact that the escape charge could have been dealt with summarily was overlooked, that has affected the sentence in such a way as to call for this Court's intervention. I am not persuaded that it has. Nor am I persuaded that the twelve month sentence is, in any event, manifestly excessive. The prosecutor in the District Court supplied her Honour with a table of cases under the Commonwealth provision involving sentences ranging from three months to two years. It is clear from what Foster AJA said in Robinson at [29] that a sentence of six months, although not unusual, is low in the range. Indeed, although the Court dismissed the Crown appeal against a six month sentence in that case, his Honour described it at [31] as "demonstrably low". Those observations are relevant to the present case even though Robinson was concerned with the State offence, which carries a higher maximum sentence. 19 As her Honour said, the length of time the applicant was at liberty following the escape is a relevant matter. It was the best part of two months. In many cases of prison escape, commonly from minimum security institutions, the escapee is at large only for a matter of days or weeks. I note in passing that in Robinson the offender was at large for less than three weeks: see the judgment of Foster AJA at [11]. It is also appropriate to bear in mind, as a practical matter, that her Honour structured the applicant's sentences in such a way that only six months of the overall sentence is exclusively referable to the escape. I would not disturb the sentence on that charge. 20 I turn, then, to the sentence on the second charge, causing harm to a Commonwealth public official. It would appear that this is a charge not commonly encountered. The prosecutor in the Local Court supplied her Honour with details of only two cases under the provision, both of them unreported decisions of the Supreme Court of Western Australia. 21 In Merzahi v Wilkinson [2002] WASCA 124, an immigration detainee had been involved in a protest. He saw that an officer of Australasian Correctional Management was videotaping the protest. He wrestled with the employee, seizing the camera, and during the incident the employee's finger was harmed by becoming caught in the strap of the camera. He was dealt with in the Local Court and sentenced to imprisonment for two years, which was the maximum sentence on summary disposition. On appeal to the Supreme Court, the sentence was reduced to twelve months. 22 In R v Paterson [2004] WASCA 63, the offender drove a motor vehicle towards an Australian federal police officer, who was trying to apprehend him, or, at least, to speak to him. The officer quickly moved away from the path of the vehicle and was unharmed. The offender had previous convictions for violence, including for assaulting a police officer. Dealt with in the Supreme Court, he was sentenced to imprisonment for two years, to be released on recognizance after ten months. 23 It is not possible to divine any range of sentence for offences of this kind from those two cases. Nor could a comparison of the facts of those cases with those of the present case be a fruitful exercise. Ms McNaughton relied upon the fact that the federal agent suffered no significant injury and that, as her Honour recognised, the applicant's psychological problems entitled her to a measure of leniency. However, this Court is left to assess a sentence of eighteen months against a statutory maximum of thirteen years, unassisted by any established sentencing pattern. It may well have been open to her Honour to have passed a lesser sentence but, while recognising the matters to which Ms McNaughton referred, there is no basis upon which it could be said that the sentence she did pass is manifestly excessive. 24 The period the applicant must serve before release on recognizance, thirteen months and two weeks, is 73 per cent of the head sentence. As Ms McNaughton correctly observed, that is a high proportion. She referred to authority to the effect that the normal proportion of a non parole period to a head sentence for Commonwealth offences is about two thirds. In R v Bernier (1998) 102 A Crim R 44 at 49, this Court observed it to be "in the range of about 60 per cent to 66 and two thirds per cent". She argued that there should be no difference in the approach to recognizance release orders. There was discussion in oral argument about the circumstances in which a court might depart from that normal range and whether reasons should be given for doing so. 25 However, I find it unnecessary to consider those issues. The difficulty Ms McNaughton faces is that, if we were to alter the recognizance release order on the second charge so as to place it within the normal range, it would mean an adjustment of not much more than a month. This Court has consistently set its face against " tinkering" with sentences. It would not be appropriate to intervene in the present case to effect such a minor adjustment. 26 I would grant leave to appeal but dismiss the appeal. 27 HISLOP J: I agree with Hidden 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.