Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mattar v R [2012] NSWCCA 98 Hearing dates: 28 March 2012 Decision date: 17 May 2012 Before: Beazley JA at 1 Harrison J at 2 McCallum J at 28 Decision: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence and allow the appeal. 3. Quash the sentence imposed upon the appellant by her Honour Syme DCJ on 27 August 2010. 4. In lieu thereof, sentence the appellant to a fixed term of imprisonment of 12 months commencing on 31 May 2011. 5. Grant liberty to apply if considered necessary or appropriate in respect of any alteration of or amendment to the commencing date of the sentence in the light of the these remarks. Catchwords: CRIMINAL LAW - escape lawful custody - appeal against conviction - conviction following judge alone trial - existence of points raised by appellant that might be decided in favour of the appellant - no substantial miscarriage of justice - conviction appeal dismissed CRIMINAL LAW - escape lawful custody - appeal against sentence - whether sentence manifestly excessive - failure by trial judge to consider special circumstances - evidence to support finding of special circumstances - error by trial judge - lesser sentence warranted in law - sentence appeal allowed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Ngyuen v R [2008] NSWCCA 163 R v Cotterill [2012] NSWSC 89 R v Loughnan [1981] VR 443 R v Novakovic [2004] NSWCCA 437 R v Rogers (1986) 86 A Crim R 542 Taiapa v R [2009] HCA 53; (2009) 240 CLR 95 Category: Principal judgment Parties: Emil Rahib Mattar (Appellant) Crown (Respondent) Representation: B Brassil (Appellant) S Dowling (Respondent) Peter Murphy Criminal Law (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/36588 Decision under appeal Before: Syme DCJ File Number(s): 2009/36588 Judgment 1BEAZLEY JA: I agree with Harrison J. 2HARRISON J: The appellant was convicted in a judge alone trial before Syme DCJ in the District Court of New South Wales at Sydney on 25 May 2010 of one count of escaping lawful custody contrary to s 310D(a) of the Crimes Act 1900. Her Honour sentenced the appellant to a term of 2 years imprisonment with a non-parole period of 18 months. The appellant appeals against his conviction and seeks leave to appeal against his sentence. 3In my opinion the appeal against conviction should be dismissed but the appeal against sentence should be allowed. I have come to this view for the reasons that follow. The conviction appeal 4The appellant relies upon a number of grounds in support of the appeal against his conviction. He contends that her Honour made an error of law in her approach to the determination of proof of the appellant's guilt and made inconsistent findings of fact. Upon this basis it is contended that there was a miscarriage of justice and that the conviction cannot be supported. 5The facts were in relatively small compass. On 21 April 2009 the appellant was serving a term of imprisonment at Long Bay Correctional Centre. Two days later he was transferred to the Prince of Wales Hospital at Randwick for treatment of a long-standing heart condition. He remained at the hospital in lawful custody until 28 April 2009 when he left without the permission of the Corrective Services Department officers at the hospital who had charge of him at the time. His escape was effected by the simple technique of walking out of the hospital and hailing a cab. 6The burden of the appellant's submission is that her Honour's decision does not expose a line of reasoning that includes a finding beyond reasonable doubt of the essential elements of the offence. This arose principally in the context of a defence of necessity, which was raised by the appellant at his trial. In short the appellant contended that he was in fear of his life or at the very least had genuine fears for his own safety and that his departure from the hospital occurred in circumstances where he anticipated that he would be returned to the general prison population and the dangers he identified. Her Honour's decision appears to be based upon a rejection of the appellant's evidence that he held a reasonable belief when he left the hospital that his actions were necessary in order to protect himself from the risk of death or serious injury. 7The common law defence or excuse of necessity operates in circumstances that bear upon an accused person in such a way as to induce him or her to offend in order to avoid even more dire consequences. The accused bears the evidentiary onus of raising the evidentiary basis of the defence but the Crown bears the legal onus of negativing the defence to the criminal standard: Taiapa v R [2009] HCA 53; (2009) 240 CLR 95. The three elements of the defence are: 1. that the criminal act was done in order to avoid the infliction of irreparable evil on the accused, or others that he or she was bound to protect; 2. that the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril; and 3. that the acts performed to avoid that peril were not disproportionate to the peril to be avoided: R v Loughnan [1981] VR 443 at [448]; R v Rogers (1996) 86 A Crim R 542. 8The defence is commonly raised in cases of escape from lawful custody. The principles are discussed by Gleeson CJ in Rogers at 547 in these terms: "...the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody. If it did so, it would subvert the penal system. That is why considerations of reasonableness and proportionality go hand in hand. Considered in the abstract, and apart from any question of escape, it might be said that a prisoner's choice not to be on protection, although risky, is reasonable. However, when a prisoner who is threatened, claims that the law permits him to respond to that threat by removing himself altogether from the custody to which he has been lawfully sentenced, the question whether protection can be dismissed as a reasonable alternative takes on a different complexion." 9It was clear from the evidence tendered at the trial that there had been threats made against the appellant so that he satisfied the first element of Loughnan. In relation to the second element, her Honour did not believe that the appellant had a reasonable belief that he was placed in a situation of imminent peril. At the time he escaped there had been no decision made to return him to gaol. In relation to the third element, her Honour found that the prison authorities had offered the appellant the choice of protection or transfer to another gaol, both of which the appellant, not without some good reason, had decided to reject. The appellant did say, however, that he felt he would be safer in the general prison population. 10Her Honour's enunciation of some of her reasons was less than ideal. The appellant emphasised the following passage in particular: "When considering the defence of necessity, a defence of such exists where the circumstances overwhelmingly impel disobedience to the law. The law cannot leave people to choose which laws they will obey and which laws they will not obey. This case has been about the issue of necessity and whether there was in Mr Mattar's mind a reasonable belief at the time that his actions were required in order to protect himself. The findings that I have made: First, that he did not have that belief. Secondly, that if he did his actions were not a reasonable response to that belief, leave these questions to be answered firstly as follows: Did he honestly believe on reasonable grounds that his escape was necessary to avoid death or serious injury. The answer to that question for those reasons must be no. For those reasons I find the offence proven." 11There is no reference to the criminal standard of proof or the way in which it affected her Honour's approach to or consideration of either the Crown's obligation to prove any of the elements of the offence with which the appellant had been charged, or to negative the defence of necessity. 12However, whatever difficulties may have attended her Honour's reasons or her reasoning process, counsel for the appellant at the hearing in this Court made an appropriate concession at a very early stage. That concession is encapsulated in the following brief extract from the hearing of the appeal: "HARRISON J: ...why would not the proviso [apply]... why would the evidence not support a conviction? Assuming [the proviso] were to apply? BRASSIL: Your Honour, there is nothing I can put to your Honour in reply to that, that is fatal process to whatever I may attempt to say to your Honours. I can't address that question. There is no doubt in my view that there was a proper ground here to found a conviction. I am concerned by her Honour's difficult formulation of her task ..." 13There was in my opinion evidence before her Honour sufficient to support a conviction of the appellant. That is to say, the evidence would satisfy me beyond reasonable doubt that the appellant was guilty of the offence charged. Notwithstanding that there are points raised by the appellant in this appeal that might be decided in favour of the appellant, I consider that no substantial miscarriage of justice has actually occurred. In the circumstances I consider that the appeal against conviction should be dismissed. The sentence appeal 14The appellant's 18-month non-parole period expires on 29 November 2012. At the time of his escape the appellant was serving sentences for drug supply. His total head sentence was 5 years commencing on 28 May 2008 and expiring on 27 May 2013. The aggregate non-parole period for his sentence was 3 years expiring on 27 May 2011. Her Honour imposed a sentence for the escape of 2 years with a non-parole period of 18 months. As required by s 57(2) of the Crimes (Sentencing Procedure) Act 1999, the sentence was directed to commence upon the expiration of the non-parole period of the sentence that the appellant was serving. 15The appellant's third ground of appeal dealt with special circumstances. That ground asserted that where the sentence to be imposed was required to be accumulated on the existing sentence, her Honour erred in concluding that she was unable to make a finding of special circumstances, thereby sentencing the applicant to a period of imprisonment in which the non-parole period was disproportionately long compared to the period on parole and under supervision. 16The appellant's significant concern is that virtually the whole of the balance of term of the original sentence is eradicated by the non-parole period for the sentence imposed by her Honour for the escape. He does not complain that her Honour correctly ordered that sentence to commence at the completion of the original sentence but he does complain that there was no finding of special circumstances when the evidence clearly supported such a finding. The appellant therefore contends that the sentence imposed by her Honour led to an unfavourable skewing of the statutory ratio. He submitted that the result of the sentence imposed by her Honour was an effective non-parole period of 4.5 years with a balance of term of 6 months. This has produced a ratio of non-parole period to head sentence of 90 percent, which even the Crown characterised as "at first blush...an inappropriately high ratio". 17The appellant submitted that this case was analogous to two cases to which the Court was referred. The first was Ngyuen v R [2008] NSWCCA 163 at [16] - [17] as follows: "Ground 3: His Honour erred in failing to find and/or give proper consideration to whether special circumstances were established [16] In his Honour's reasons for sentence he said "I considered the question of special circumstances and I do not believe that they exist". His Honour gave no explanation for so finding. For my part, on the evidence, I regard the finding that special circumstances do not exist as manifestly untenable. His Honour's finding is to be contrasted with a case when circumstances may have been capable of being accepted as special but where, in the discretion of the sentencing judge, no such finding should be made (see R v Phillips [2003] NSWCCA 373 at [16]). In those circumstances this Court may be reluctant to intervene. [17] I am satisfied that the applicant's absence of any criminal antecedents, an established work history and, importantly, the fact that he did not come to fresh notice between the offence and trial, are such as should properly engender a real confidence in his ability to rebuild his life on release with the assistance of appropriate supervision and intervention. Importantly, in this case there can be no suggestion that those matters have been double-counted by reason of the fact that his Honour appears to have given no particular weight to rehabilitation although as I have found not in a way such as to constitute error (see R v Simpson (2001) 53 NSWLR 704 at [47]). I am satisfied that the statutory ratio can in this case be varied to result in the imposition of a non-parole period that appropriately reflects the criminality involved in the offence whilst providing for a longer parole period to facilitate this applicant's readjustment to community life upon his release." 18The second was R v Novakovic [2004] NSWCCA 437. Sully J said this at [37] - [40]: "[37] As to Ground 4, the learned sentencing Judge was, to say the least, to the point in dealing with the applicant's submission to his Honour that "special circumstances" should be found, and that a shorter than usual non-parole period should be set accordingly. His Honour said simply in his remarks on sentence: "I do not find special circumstances justifying the variation of the normal relationship between the head sentence and the non-parole period". [38] The applicant contends, and I agree, that there were matters, established by credible evidence, and capable of amounting to "special circumstances". The applicant's written submissions summarise those matters thus: "... [T]he applicant was of prior good character, has never before been to prison, was contrite, is in his 50's and has good prospects of rehabilitation." [39] The applicant complains, and in my opinion justifiably, that his Honour, if intending to make either a specific finding that there were no circumstances capable of amounting in law to special circumstances; or that there were such circumstances available in principle, but that his Honour was not prepared to find them in fact; was obliged to give some explanation, however brief, of why he was not going to make such a finding in fact. [40] In my opinion there is some proper scope for some modest reduction in an otherwise appropriate non-parole period by reason of the aforesaid special circumstances. To that extent I would uphold Ground 4." 19In the present case, her Honour dealt with the question of special circumstances in these terms: "I note that the offender has been in custody solely on other matters since 28 May and his parole was revoked. I acknowledge that the Act requires me in imposing a sentence to accumulate the sentence I impose today on any non-parole period that Mr Mattar was currently serving. I am unable to make a finding of special circumstances for the reasons given." 20As far as I can determine, her Honour in fact did not give reasons at all. It was perhaps in this context that the Crown quite properly acknowledged in this Court that "[t]he special circumstance ground is the one that poses the greatest difficulty for the respondent and perhaps for your Honours". The Crown's submissions on this topic had emphasised that her Honour's remarks on sentence were effectively limited to a statement that "the ratio of non-parole to parole period as set down by the Act combined with [the appellant's] currently fairly lengthy non-parole periods should adequately cater for his rehabilitation". 21The Crown's submissions went on in the following terms: "35. The primary focus of the sentencing court in determining the non-parole period should be the minimum period of actual incarceration necessary to reflect the multiple considerations of sentencing, not merely rehabilitation: Simpson v R [2001] NSWCCA 534 at [65]; Hejazi v R [2009] NSWCCA 282 at [36]. Where, in a case like this, the original sentence observes the statutory ratio, failure to find special circumstances will almost always lead to a ratio of non-parole period to head sentence in excess of 75 percent. If her Honour wished to maintain a ratio of 75 percent across the total combined head sentence of 5 years, an aggregate non-parole period of 3 years 8 months would have been required. This would equate to a non-parole period for the escape of only 8 months, a period that would be excessively lenient." 22The Crown submitted that any reduction in the non-parole period would lead to a sentence that failed to reflect the very important considerations of deterrence necessary in sentencing for the offence of escape. 23The appellant contended that her Honour was in error in failing to find special circumstances on the grounds of the appellant's health, his assistance to authorities and the presence of threats to his welfare made by fellow prisoners. The evidence in this last respect indicates that it had become known in the prison that the appellant had given assistance to the Crime Commission and that the usual opprobrium attaching to inmates who were known, or even thought, to have done so had manifested itself in the form of direct threats against him. It was these threats that the appellant raised as the basis of his defence of necessity run at trial. 24One of the matters that is covered by s 23 of the Crimes (Sentencing Procedure) Act is whether the offender will suffer harsher custodial conditions as a consequence of assistance to authorities or an undertaking to assist: s 23(2)(g). It was not ever in dispute that the appellant's receipt of threats to his safety flowed from his dealings with the Crime Commission and that that translated into harsher custodial conditions for him. Superadded to that is also the fact that the appellant was suffering from an acknowledged cardiac problem, which was the reason for his admission to hospital in the first place. 25It does not seem to me upon any reading of her Honour's remarks on sentence how or why these facts alone or in combination did not warrant a finding of special circumstances and the imposition and structure of a sentence that made an appropriate allowance. I consider that this amounts to an error in her Honour's sentencing exercise and that it has led to the imposition of a sentence that is manifestly excessive. I consider that some lesser sentence is warranted in law. I am comforted to some extent in that conclusion by data collected by the Judicial Commission of New South Wales. Even allowing for the frailties of statistical comparisons of sentencing trends, the latest Judicial Commission data pertaining to sentences imposed for the offences of escape or attempt to escape from lawful custody indicate that in no less than 72 percent of cases, a non-parole period of less than 18 months was imposed. 26In my opinion the appellant should be sentenced for the offence of escape lawful custody to a fixed term of imprisonment of 12 months. I understand that her Honour was notified of the fact that an adjustment to the commencement date of the sentence she imposed had to be made to take account of the fact that the appellant had been at large for two days following his escape, and that she adjusted that date accordingly. I have taken that fact into account in the structure of the sentence I propose. 27In my view the following orders should be made: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence and allow the appeal. 3. Quash the sentence imposed upon the appellant by her Honour Syme DCJ on 27 August 2010. 4. In lieu thereof, sentence the appellant to a fixed term of imprisonment of 12 months commencing on 31 May 2011. 5. Grant liberty to apply if considered necessary or appropriate in respect of any alteration of or amendment to the commencing date of the sentence in the light of the these remarks 28McCALLUM J: I agree with Harrison J that the appellant's appeal against his conviction should be dismissed. There was no contest at the hearing as to proof of the elements of the offence. The issue on which the trial was run was the defence of necessity. Central to the defence was the appellant's contention that he was told by a correctional services officer, Mr John Wynn, that his medical treatment was finalised and that he would be taken to 9 Wing (T47, 25.5.10). The judge rejected that evidence. Her Honour's decision was given ex tempore and must be read with that fact in mind. Whilst it may be acknowledged that the reasons might have been expressed more clearly, it is clear that her Honour was satisfied, having rejected that evidence, that the appellant did not in fact hold the relevant belief. As effectively acknowledged on his behalf, that finding was plainly open. The inevitable consequence was that the Crown had negatived the defence. On that basis, I consider that no substantial miscarriage of justice has actually occurred. 29I also agree with Harrison J as to the appeal against sentence. The only reason given by the judge for refusing to make a finding of special circumstances was that, in light of the statutory ratio, the appellant's "current fairly lengthy non-parole periods should adequately cater for any rehabilitation". It is clear in my respectful opinion that her Honour there overlooked the impact of the mandated accumulation of the sentence she imposed. In my view, that is a factor that should be taken into account in determining the proper sentence for an offence of escape. That is the approach I took in R v Cotterill [2012] NSWSC 89 at [55]. 30I agree with the orders proposed by Harrison 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. Decision last updated: 17 May 2012