Mihail v R [2010] NSWCCA 104

New South Wales Court of Criminal Appeal

CITATION: Mihail v R [2010] NSWCCA 104

HEARING DATE(S): 23 April 2010

JUDGMENT DATE: 25 May 2010

JUDGMENT OF: Allsop P at 1; Grove J at 2; Hislop J at 3

DECISION: (1) Grant leave to appeal; (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence appeal - escape from custody - consideration of claim for discounts for remorse, assistance and ill health.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

CASES CITED : MJ v R [2010] NSWCCA 52

PARTIES: Alexander MIHAIL v R

FILE NUMBER(S): CCA 2009/8879

COUNSEL: S. Beckett (Applicant) S. Dowling (Respondent)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8879

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 25 September 2009

IN THE COURT OF CRIMINAL APPEAL 2009/8879

ALLSOP P GROVE J HISLOP J

Tuesday 18 May 2010 ALEXANDER MIHAIL v REGINA Judgment 1 ALLSOP P: I agree with Hislop J. 2 GROVE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to a charge that on 26 November 2008 at Malabar NSW, being an inmate at the Long Bay Correctional Facility, he did escape from lawful custody in breach of s 310D(a) of the Crimes Act 1900. The maximum penalty for the offence was ten years imprisonment. No standard non parole period was prescribed. 4 On 25 September 2009 the applicant was sentenced in the District Court in respect of the offence to imprisonment for a non parole period of eighteen months commencing on 14 March 2009 and expiring on 13 September 2010 with a balance of term of six months expiring on 13 March 2011. 5 The facts, shortly stated, were as follows: on 15 September 2008 the applicant was convicted of a number of offences at Burwood Local Court. He was sentenced to two years imprisonment with a non parole period of six months commencing on 15 September 2008 and expiring on 14 March 2009. During the afternoon of 26 November 2008, whilst serving that sentence, he was conducting work duties as a welder in the minimum security area 3 at Long Bay Correctional Facility. At 3.15 pm a muster was called and the applicant was not accounted for. The applicant had escaped by unknown means from lawful custody. He had not been given permission or any other authorisation to leave the facility by any means. Ultimately, on 7 December 2008, he was located and arrested without incident. 6 The applicant claimed that he had escaped after being stood over by other inmates for money. His Honour concluded that the applicant's evidence on oath was extremely unconvincing and he did not accept the reason advanced for the escape. His Honour did, however, accept his medical history and his circumstances of incarceration, the applicant being in restricted custody. 7 His Honour accepted the description of the offence as "an unremarkable escape" and held that the offence fell within the lower range of objective seriousness. 8 The applicant was born in 1958. He had an extremely lengthy criminal history, commencing in the Children's Court in 1969. His record included offences in relation to prohibited drugs and utensils, break enter and steal, receiving, stealing, enter inclosed lands, assaulting police, possession of house breaking implements, illegal use of conveyances and a number of offences relating to the use of motor vehicles, and goods in custody. 9 He also had two previous offences, one of escaping lawful custody in 1987 which related to him escaping lawful custody by not returning from work release, and a further escape from lawful custody in 1992. In respect to the escape in 1987 he received a sentence of one month hard labour. In respect to the offence in 1992 he received a minimum term of 12 months with an additional term of 12 months. 10 His Honour found no special circumstances but allowed the applicant a 15 percent discount for his plea of guilty. 11 The applicant sought leave to appeal against sentence on the two grounds referred to and discussed below.