Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jinnette v R [2012] NSWCCA 217 Hearing dates: 12 October 2012 Decision date: 16 November 2012 Before: Hoeben JA at [1] Johnson J at [2] Beech-Jones J at [119] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - appeal - sentence - offences committed by sentenced prisoner following escape from correctional centre - offences of specially aggravated kidnapping, robbery, aggravated carjacking and escape lawful custody - sentences partially accumulated on existing sentences - whether error in application of totality principle - whether error in failing to find special circumstances - whether error in structure of sentences - applicant's dysfunctional upbringing and history of abuse - objective gravity of offences - relevance of institutionalisation - no error demonstrated by applicant - attention of sentencing judge not drawn to ss.56 and 57 Crimes (Sentencing Procedure) Act 1999 - failure to apply s.57(2)(b) - error favoured the applicant - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912 Crimes (Administration of Sentences) Regulation 2008 Cases Cited: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Jackson v R [2010] NSWCCA 162 Zreika v R [2012] NSWCCA 44 R v Speechley [2012] NSWCCA 130 R v Dickson [2002] NSWCCA 327; 132 A Crim 137 R v Horne [2004] NSWCCA 8 R v Fidow [2004] NSWCCA 172 Caristo v R [2011] NSWCCA 7 Collier v R [2012] NSWCCA 213 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 R v Pham [2005] NSWCCA 94 R v Williams [2004] NSWCCA 246; 148 A Crim R 325 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 Dyer v R [2011] NSWCCA 185 AM v R [2012] NSWCCA 203 Ta'ala v R [2008] NSWCCA 132 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Texts Cited: --- Category: Principal judgment Parties: James Paul Jinnette (Applicant) Regina (Respondent) Representation: Counsel: Mr D Barrow (Applicant) Mr E Balodis (Respondent) Solicitors: David H Cohen & Co (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/45181 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-09-10 00:00:00 Before: His Honour Judge Colefax SC File Number(s): 2009/45181 Judgment 1HOEBEN JA: I agree with Johnson J and the orders which he proposes. 2JOHNSON J: The Applicant, James Paul Jinnette, seeks an extension of time to apply for leave to appeal against sentences imposed at the Parramatta District Court on 10 September 2010. 3The Applicant had pleaded guilty at the Bathurst Local Court on 1 February 2010 to the following charges: (a)Count 1 - Escape lawful custody on 18 May 2009 contrary to s.310D(a) Crimes Act 1900 (maximum penalty of 10 years' imprisonment); (b)Count 2 - Specially aggravated kidnapping on 19 May 2009 contrary to s.86(3) Crimes Act 1900 (maximum penalty of 25 years' imprisonment); (c)Count 3 - Robbery on 19 May 2009 contrary to s.94 Crimes Act 1900 (maximum penalty of 14 years' imprisonment); (d)Count 4 - Aggravated take motor vehicle without consent when the owner was in the vehicle on 19 May 2009 contrary to s.154C(2) Crimes Act 1900 (maximum penalty of 14 years' imprisonment with a standard non-parole period of five years). 4At the request of the Applicant, the sentencing Judge took into account on a Form 1 in passing sentence on Count 4, offences committed on 19 May 2009 of driving a motor vehicle in a manner dangerous to the public and driving a motor vehicle whilst never having been licensed. 5The sentencing Judge imposed the following sentences: (a)Count 1 - Imprisonment for two years and three months with a non-parole period of one year, eight months and seven days commencing on 1 February 2010; (b)Count 2 - Imprisonment for nine years with a non-parole period of six years and nine months commencing on 1 February 2011; (c)Count 3 - A fixed term of imprisonment for two years commencing on 1 February 2011; (d)Count 4 - Imprisonment for six years with a non-parole period of four years and six months commencing on 1 February 2011. 6The total effective sentence imposed upon the Applicant was a term of imprisonment for 10 years with a non-parole period of seven years and nine months commencing on 1 February 2010. The Applicant is eligible for release to parole on 30 October 2017, with the total effective sentence expiring on 31 January 2020. Application for Extension of Time to Appeal Against Sentence 7The Applicant filed a Notice of Intention to Appeal against severity of sentence on 30 September 2010, however an Application for Leave to Appeal (containing grounds) was not filed until 14 June 2012. The reasons for this delay are contained in the affidavit of the Applicant's solicitor, David Harold Cohen, sworn 8 June 2012. It is clear that the reasons for the delay were not the fault of the Applicant. 8The Crown does not oppose an extension of time in this case. 9On an application for extension of time to seek leave to appeal against sentence, this Court has regard to a number of factors, including the finality of litigation in the area of sentencing where, in many cases, the prospect of the question of sentence being reopened long after the event may impact adversely upon victims of crime: Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at 194-195 [4]-[12]. As will be seen, the victim of the Applicant's crimes has suffered greatly as a result and it may be taken, even in the absence of evidence on this point, that the reopening of the question of sentence may be an unwelcome step. However, the Crown does not oppose an extension of time in this case and there are issues of some significance to be considered on the application. 10In light of the Crown concession that an extension was appropriate, together with the arguability of the grounds, the Court indicated on 12 October 2012 that an extension of time would be granted. Facts of Offences 11As at 18 May 2009, the Applicant (then aged 28 years) was a sentenced prisoner at the Kirkconnell Correctional Centre, a minimum-security facility. He was serving a total term of imprisonment of six years and six months, with a non-parole period of three years and six months (to date from 18 January 2007), imposed at the Sydney District Court on 17 January 2008 for offences of robbery in company, armed robbery, robbery, larceny as a bailee, break enter and steal (four counts) and take and drive a conveyance. His earliest date for release on parole was 17 July 2010. 12The Applicant had been transferred to the Kirkconnell Correctional Centre on 25 April 2009, having been given a C1 classification on 25 February 2009. 13On 18 May 2009, the Applicant and his co-offender, Brett Anthony Islaub ("Islaub"), were in a workshop within the prison. Shortly before the 10.00 am muster, the two men went to the boundary fence where they cut a hole using wire cutters obtained from the workshop. They attended the muster. Immediately after the muster, the two men climbed through the hole in the fence and escaped. At the time of escape, each offender was in possession of a 30 centimetre long screwdriver which they intended to use to steal a car, if one could be found. 14Correctional authorities noticed their absence at about 10.45 am that day and police were contacted. 15Following their escape, the offenders travelled through bushland and rural properties until they reached Bathurst later that night. There they changed their clothing, donning clothes obtained from a charity bin. They discarded their prison attire. The two men spent the night in a number of unknown locations around Bathurst. 16Shortly before 7.00 am on 19 May 2009, the Applicant and Islaub were in an underground shopping centre car park on Bentinck Street, Bathurst. At that time, a 55-year old lady drove her Toyota Camry vehicle into the car park to attend work in one of the shops in the complex. She noticed a man sitting on the stairs that led to the upper level car park and shops. She parked her vehicle and got out. She then noticed a second man standing near the first man. 17The victim went to the back of her car to remotely lock the vehicle. At this point, the Applicant approached the victim. He first asked her the time and then produced the screwdriver and held it with the tip pointing at her stomach. He demanded her keys, handbag and the vehicle. The Applicant grabbed the car keys out of her hand and said "And you're coming with us". 18The Applicant and Islaub told the victim not to scream or draw attention to them. He held the screwdriver to her stomach as she was escorted to the vehicle. The victim said repeatedly "You don't need me, take my handbag, take my keys, take the car". 19The Applicant and Islaub pushed the victim into the back seat. Islaub got into the back of the vehicle with her. The Applicant got into the driver's seat and said "We will kill you if you make a scene and draw attention to us". Moments later, the Applicant said "We are not going to hurt you or rape you". 20The Applicant (who had never been licensed to drive a motor vehicle) then drove from the car park. 21As they drove through Bathurst, the victim lowered the rear-passenger window and yelled out "Help, police" and waved her hands around. Islaub grabbed the victim by the shoulder and pulled her away from the window, before winding up the window. The Applicant accelerated through a red light and drove towards Lithgow. A number of other motorists had observed these events, and the victim's actions were reported to police. 22Before reaching the outskirts of Bathurst, Islaub asked the victim if she had any money or cards. She obtained her handbag and took out a Commonwealth Bank keycard. Islaub then asked the victim for the PIN number for the card which she gave to him. The victim then asked to be released and Islaub said "You're coming with us, we need to make sure this is the correct number. How much money is in the account"? The victim replied that there was about $300.00 to $400.00 in the account. The victim suggested that they stop at a service station in Raglan where there was an ATM, but this did not occur. Islaub retained the keycard. 23Once the vehicle left Bathurst, the victim asked on a number of occasions to be left beside the roadway or in a paddock. This request was denied and she was told that money would be withdrawn at either Lithgow or Sydney. 24Once the vehicle had passed Raglan, the Applicant and Islaub believed that police were in pursuit. The Applicant drove the vehicle at a speed up to 180 kilometres per hour. A number of cars and trucks were overtaken during this part of the journey, some on the wrong side of the road. The vehicle was sighted by a patrolling highway patrol vehicle and its speed was checked on radar at 155 kilometres per hour. The police vehicle attempted to pursue the stolen Toyota Camry. However, due to the excessive speed, attempts to catch the vehicle were discontinued. 25The pursuit was resumed a short time later and the vehicle continued east past the Mount Lambie service station. The Applicant lost control of the vehicle as he attempted to take a side road. It spun on the roadway across two lanes of oncoming traffic, before leaving the roadway and colliding with trees and a culvert. 26The two offenders got out of the vehicle and ran south across farmland, but both were arrested a short time later in a paddock and were taken to Bathurst Police Station. 27The Applicant was interviewed by way of ERISP and made admissions that they had taken the victim with them in the vehicle to avoid her raising the alarm regarding the theft of the vehicle. It was said that the offenders intended to remove the victim's cash from a bank when they reached Lithgow, at which point they would have released her. The Applicant said that he drove the stolen vehicle at excessive speeds in an attempt to escape police. 28The Applicant was returned to custody following his arrest and charging on 19 May 2009, and he has remained in continuous custody from that date. Effect of the Offences Upon the Victim 29The victim suffered physical injuries as a result of her detention and involvement in the collision prior to the Applicant and Islaub fleeing the vehicle. She sustained a bruised right elbow and soft-tissue injury to the left knee, lumbar spine and cervical spine. 30A victim impact statement was tendered at the sentencing hearing, together with other evidence concerning the effect of the offences upon the victim. The sentencing Judge summarised this evidence in the course of sentencing the Applicant (ROS4-5): "As a result of the motor vehicle collision, the victim suffered a bruised right elbow and soft tissue injuries to her left knee, lumbar spine and cervical spine. She has been prescribed analgesia and receives extensive physiotherapy and hydrotherapy. She has ongoing neck pain. More significantly, however, the victim suffers from serious post-traumatic stress disorder from the terrifying ordeal to which she was subjected by these offenders. The victim has provided a victim impact statement in the form of two expert reports; one by the victim's general practitioner; the other by a psychologist. The general practitioner's report, dated 1 December 2009, stated that as at that date the victim was unfit for work and her prognosis for full recovery was guarded. The psychologist's report of 24 November 2009 noted that the victim's capacity to cope with stress was profoundly and permanently altered. She would need to employ management strategies for the remainder of her life to cope with situations which caused her anxiety and panic; and it was considered that it would be highly unlikely that she would ever be able to return to work in a similar position to the one that she had occupied at the time of these offences. The psychologist observed that, 'Although she has recovered physically to a considerable extent and has recovered emotionally to some extent, she has been changed by the experience in a way that reaches into every corner of her life.' It is clear from the psychologist's report that the psychological impact on the victim has been severe. Her capacity to work has been very considerably reduced and her enjoyment of life has been very substantially and permanently impaired." The Applicant's Subjective Circumstances 31The Applicant was born in September 1980. He was 28 years' old at the time of the offences and 30 years' old at the time of sentence. 32The Applicant has an extensive criminal history commencing in 1998. His offences include robbery in company (1999), drive conveyance taken without consent (1999), break enter and steal (2003 and 2004), intimidate officer in execution of duty (2004), take and drive conveyance (2004), assault occasioning actual bodily harm (2005), steal from a dwelling (2006) and robbery in company, armed robbery, robbery, larceny as a bailee, break enter and steal and take and drive conveyance (2008). 33The State Parole Authority has revoked the Applicant's parole on a number of occasions (in 2000, 2001, 2004 and 2005). 34Tendered at the sentencing hearing were a number of reports relating to the Applicant, some of which had been tendered on sentence on earlier occasions. The reports were those of Emma Collins, psychologist, dated 27 February 2006, Dr Stephen Allnutt, forensic psychiatrist, dated 4 December 2007, Dr Katie Seidler, clinical and forensic psychologist, dated 6 April 2009, Professor David Greenberg, forensic psychiatrist with Justice Health, dated 28 May 2010 and Claire Stanley of the Department of Community Services dated 28 June 1998. 35The Applicant's grim personal history was recorded in these reports and in the evidence of the Applicant in the District Court. 36The most recent report concerning the Applicant which was before the sentencing Judge was that of Professor Greenberg dated 28 May 2010. Bearing in mind a number of submissions advanced on appeal, it is pertinent to set out Professor Greenberg's conclusions and recommendations (AB155-156): "The writer is of the opinion that there are no reasonable grounds to believe that Mr Jinnette suffers from a mental illness or mental disorder as defined within the meaning of Chapter III of the NSW Mental Health Act 2007. The writer is of the opinion that there are no reasonable grounds to believe that Mr Jinnette suffers from a developmental disability. Mr Jinnette's primary diagnosis is that of a man with a severe personality disorder associated with poly substance and alcohol dependence. Mr Jinnette comes from a dysfunctional and turbulent family background. His father was absent and his mother was reportedly neglectful, abusive and an alcoholic. At the age of 4 years old he was placed under the supervision of the Department of Community Services and by age 7 was made a Ward of the State. He was subsequently placed in various foster homes and children's homes, but it is reported that he [had] significant difficulties forming attachments during his placements. It is reported that he was physically and sexually abused. He reported significant conduct and disruptive behaviours from the age of 12 years old, which resulted in him being placed in various Juvenile Justice Detention Centres. He has a persistent and chronic history of abuse of various illicit substances including heroin, amphetamines, ecstasy and cannabis among others. He has also abused significant amounts of alcohol. As an adult he presents with significant personality difficulties, which are now chronic in nature. With regard to treatment recommendations, Mr Jinnette, may benefit from further drug and alcohol treatment and rehabilitation. He may also benefit from psychological counselling with regard to his personality problems and anger management training for his difficulties with anger. He is currently not displaying any evidence of psychotic symptoms and does not take any psychiatric medication. He is currently on methadone medication for his heroin addiction." 37The sentencing Judge described the Applicant's life as "profoundly sad" (ROS5). His Honour included in his remarks on sentence a lengthy extract from the report of Dr Seidler which referred to the Applicant's dysfunctional family background, his placement in care and a history of sexual abuse and physical assaults upon him by foster parents, teachers, youth workers and later adult male sex offenders. As a result of these early experiences of abuse and trauma, the Applicant demonstrated behavioural concerns from a young age, most significantly associated with aggression and these problems worsened with age. 38The Applicant became increasingly itinerant and unstable, developing poly-drug dependence, engaging in an antisocial peer network and being entrenched in a paedophile ring that saw him abused, threatened and forced into recruiting other children for abuse. 39The history contained in Dr Seidler's report had been accepted by authorities as being reliable. Dr Seidler observed that the Applicant had come into custody as a young man and had "never maintained independent living or community liberty for any length of time", but had demonstrated a pattern of release from custody into the community with relapses of drug use and further commission of crimes thereby returning him to prison. 40In the extract from Dr Seidler's report incorporated in the remarks on sentence, Dr Seidler described the Applicant as "a highly dysfunctional and disturbed individual who has failed to develop many of the coping skills required for basic community functioning". Dr Seidler said that the Applicant met the criteria for poly-substance dependence and that he experienced chronic mood disturbance associated with depression and anxiety. Dr Seidler observed that it would likely take "many years of intervention and intensive support to begin to make important changes in his life". 41Dr Seidler observed that the Applicant needed "long term and intensive psychological treatment and perhaps the most appropriate source of such intervention is with the Dialectical Behaviour Therapy Program at the Personality Disorders Unit at Cumberland Hospital". 42As the sentencing Judge noted, Dr Seidler's report was dated 6 April 2009, a time when the Applicant was a prisoner at Kirkconnell Correctional Centre, and some five weeks prior to his escape and the commission of the offences now before this Court. The Applicant's Grounds of Appeal 43The Applicant relies upon the following grounds of appeal: (a)Ground 1 - The learned sentencing Judge erred in his application of the totality principle. (b)Ground 2 - The learned sentencing Judge erred in failing to find "special circumstances". (c)Ground 3 - The learned sentencing Judge erred in structuring the sentences. Some Features of the Sentencing Hearing and the Remarks on Sentence 44Having regard to the Applicant's ground of appeal, it is appropriate to note aspects of the sentencing hearing and his Honour's remarks on sentence. 45The sentencing hearing involving the Applicant and Islaub commenced on 22 February 2010, and continued on various dates until 2 August 2010, when his Honour reserved his sentencing decision until 10 September 2010. 46Extensive documentary and oral evidence was placed before the sentencing Judge. However, despite the fact that each offender was to be sentenced for escape lawful custody, it does not appear that his Honour was taken to s.57 Crimes (Sentencing Procedure) Act 1999 which, in May 2009, was in the following terms: "57 Sentences for offences involving escape by inmates (1) This section applies to a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre (whether or not the escape was from a correctional centre). (2) A sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set." 47Nor was any submission made to the District Court by reference to s.56 Crimes (Sentencing Procedure) Act 1999 which, as at May 2009, was in the following terms: "56 Sentences for offences involving assault by convicted inmate (1) This section applies to: (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or (b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control. (2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender: (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence. (3A) Such a direction may not be given in relation to: (a) an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or (b) an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control, unless the court is of the opinion that there are special circumstances justifying such a direction. (4) A direction under this section has effect according to its terms. (5) In this section, a reference to a sentence of imprisonment is taken to be a reference to: (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set. (6) In this section, a reference to another sentence of imprisonment, other sentence of imprisonment or further sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987." 48It was necessary for his Honour to comply with s.57, with counsel agreeing on appeal that s.57(2)(b) (but not s.57(2)(a)) applied to this case. Submissions were made in this Court with respect to s.57, and the courses open to this Court on an offender's appeal against sentence where there has been non-compliance with the terms of that provision. 49Before this Court, counsel agreed that s.56(2)(b) (but not s.56(2)(a)) applied to the Applicant's case. Submissions were made concerning the consequences of its application to this case. 50No express submission was made in the District Court on the issue of "special circumstances" for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999 concerning the sentencing of the Applicant. 51The Crown Prosecutor appearing at first instance submitted that some degree of concurrency was appropriate as between the carjacking and the kidnapping offences (AB338-339). No reference appears to have been made to s.57. 52Counsel for the Applicant at first instance likewise did not refer to s.57. With respect to issues of totality, concurrency and accumulation, counsel for the Applicant submitted that the effect of these additional sentences "on top of time already served for other matters will effectively institutionalise Mr Jinnette unless your Honour considers that institutionalisation itself may be something that causes your thinking to not go towards maxima [sic] of penalty but looks at other ways of sentencing Mr Jinnette" (AB340). 53Defence counsel submitted that the sentencing Judge should take into account the principle of totality and the need to evaluate the overall criminality of the Applicant (AB340). 54The Applicant's counsel submitted that lengthy sentences "will more than likely complete the institutionalisation" of the Applicant with counsel asking the sentencing Judge to take those matters into account. 55In reply, the Crown Prosecutor submitted that it was probably "arguable that Mr Jinnette is already institutionalised" (AB341). 56At the completion of the evidence and submissions concerning the Applicant, his Honour turned to complete the sentencing hearing with respect to the co-offender, Islaub. Neither the Crown Prosecutor nor different counsel appearing for Islaub referred to s.57 in the context of sentencing for the escape offence, with general submissions being made on issues of accumulation, concurrency and totality concerning the offences (AB351-355). 57It is noteworthy that counsel for Islaub and the Crown Prosecutor addressed the question of "special circumstances" concerning his sentence, with the Crown submission being that special circumstances should not be found in his case (AB355-356). 58It is appropriate to consider his Honour's remarks on sentence concerning the Applicant and Islaub, in particular, to note what was said with respect to issues of totality, accumulation and concurrency and "special circumstances". 59Following a recital of the facts of the offences and a detailed statement of the Applicant's subjective circumstances, his Honour: (a)allowed a 25% discount for the utilitarian value of the pleas; (b)found that the Applicant had "not displayed any relevant remorse" (ROS10); (c)concluded that "there are only very poor prospects of rehabilitation" for the Applicant (ROS11); (d)observed that both specific and general deterrence were of "considerable significance" with full-time imprisonment being the "only possible penalty for these offences" and with that imprisonment, for a significant period of time, being "of a particularly severe kind, involving isolation" (ROS11). 60His Honour referred to the Applicant's evidence concerning his reason for escaping (ROS8): "In his evidence Mr Jinnette sought to explain why it was that he had acted in the way that he did, a way which on any rational analysis was clearly contrary to his own interests. He said that after arriving at Kirkconnell he was told that his classification was wrong and that he was to be returned to Long Bay. When it was put to him in cross-examination by the Crown Prosecutor that even if he returned to Long Bay he would still have been eligible for parole on 17 July 2010, Mr Jinnette said he had never previously been given early parole. The evidence that he gave on that topic showed little, if any, insight." 61With respect to issues of concurrency and accumulation concerning the Applicant, his Honour found (ROS11): "There are four separate and distinct offences. However, in my opinion, the stealing, carjacking and kidnapping offences can be properly regarded as one act of criminality and, in my opinion, it is appropriate that they be served concurrently. There should, however, be some partial accumulation in relation to the escape offence." 62His Honour noted that the Applicant had been in custody since his arrest on 19 May 2009, but that his custody had not been solely referrable to these matters, so that the commencement date of the sentences was to be 1 February 2010, when the Applicant was committed for sentence from the Bathurst Local Court. 63His Honour made no mention of "special circumstances". His Honour proceeded to impose the sentences referred to at [5] above. 64Although no ground of appeal invites reference to the sentences imposed upon the co-offender, Islaub, it is noteworthy that this Honour did not advert to "special circumstances" in his case either. Submissions Concerning the Grounds of Appeal 65In reality, the three grounds of appeal are overlapping and bear upon the approach to sentence for an escapee who is to be sentenced for escape, and also for serious offences committed whilst at large in the community following escape. The appropriate course is to note the arguments advanced by the parties and then turn to resolution of the application in light of those submissions. Submissions for the Applicant 66Mr Barrow, counsel for the Applicant, pointed to the overall sentence imposed upon the Applicant, which amounted to 10 years' imprisonment with a non-parole period of seven years and nine months. When taken with the sentences which the Applicant was serving at the time of his escape, he submitted that the Applicant has been in continuous custody since 18 January 2007, so that the overall minimum custodial component of the sentence will extend from 18 January 2007 to 30 October 2017, with an available balance of term of two years and three months expiring on 31 January 2020. 67Mr Barrow submitted that the sentencing Judge had made no mention of the total effective term of custody in his remarks on sentence. He pointed to the fact that submissions had been made concerning totality, by reference to the risk of institutionalisation, as bearing upon that issue. 68Mr Barrow's essential submission in support of Ground 1 was that the overall sentence was manifestly excessive, given the pre-existing sentence being served, the imposition of a sentence at the upper end of the range of sentence for the specially aggravated kidnapping offence and the imposition of the sentence for the escape lawful custody offence. 69Concerning Ground 2, Mr Barrow acknowledged that no express submission had been made with respect to "special circumstances", but he contended that submissions had been made by reference to the risk of institutionalisation and totality, so that it was clear enough that these matters bore upon the length and structure of the total effective sentence. Reliance was placed upon Jackson v R [2010] NSWCCA 162 in support of the proposition that risk of institutionalisation constitutes a basis for a finding of special circumstances. 70Mr Barrow pointed as well to the evidence concerning the Applicant's personal history, and the need for intensive steps to be taken given his dysfunctional background and the entrenched problems referred to in the evidence. 71With respect to the third ground of appeal, Mr Barrow acknowledged that his Honour has not complied with s.57 Crimes (Sentencing Procedure) Act 1999 in imposing sentence for the escape offence. He submitted, however, that in the absence of a Crown appeal, the total effective sentences imposed upon the Applicant should not be extended. It would be open to the Court, he submitted, to impose sentences which complied with s.57, but otherwise provided a more significant opportunity for the Applicant to have an extended period of conditional liberty by way of parole than was presently available by reference to the sentences imposed. 72Mr Barrow submitted that the Court should entertain the ground of appeal asserting error in not finding "special circumstances" even though an express submission to that effect had not been made in the District Court. He submitted that arguments were advanced in the District Court addressing totality and the risk of institutionalisation, which ought to have translated into a finding of special circumstances. In any event, Mr Barrow submitted that this was an argument which presented itself based upon the materials that were before the District Court, and that it would be unjust that this Court not allow the argument to be advanced in the circumstances of this case, based upon the principles in Zreika v R [2012] NSWCCA 44 at [75]-[82]. 73Mr Barrow addressed submissions by reference to the objective gravity of the specially aggravated kidnapping offence. Although no ground of appeal contended error in the fact-finding process with respect to that offence, counsel submitted that, should the Court move to resentence the Applicant, it would be appropriate to consider aspects of that offence for that purpose. He pointed to the short period of detention, although acknowledging that the detention did not come to an end because of any act of the Applicant, but rather as a result of the collision leading to the Applicant and Islaub fleeing the vehicle. Reliance was placed upon R v Speechley [2012] NSWCCA 130 at [47]-[64], [106]-[107]. Crown Submissions 74The Crown submitted, with respect to Grounds 1 and 3, that the sentences at first instance had not complied with s.57(2) Crimes (Sentencing Procedure) Act 1999. The Crown observed that s.57(1A) came into force on 14 March 2011, after the Applicant was sentenced. Accordingly, it was open to the sentencing Judge to sentence the Applicant for escape with that sentence to take effect before the sentences for other offences for which he was being sentenced at the same time: R v Dickson [2002] NSWCCA 327; 132 A Crim 137 at [18]-[20], R v Horne [2004] NSWCCA 8. 75However, the Crown submitted that the partial accumulation ordered for the escape did not comply at all with s.57 Crimes (Sentencing Procedure) Act 1999. 76The Crown submitted that the sentencing Judge had regard to totality by approaching the offences committed whilst the Applicant was at large as "one act of criminality". 77It was submitted that accumulation was appropriate in the circumstances of this case. 78The Crown submitted further that s.56 Crimes (Sentencing Procedure) Act 1999 provided an exception to the general rule under s.55 of that Act, which provides for concurrency unless the sentencing court otherwise directs. It was submitted that the Applicant was a "convicted inmate" and that he did not cease to be an inmate by not being in the correctional centre because of legitimate reasons set out in s.38 Crimes (Administration of Sentences) Act 1999. The Crown submitted that although the Applicant, as a convicted inmate, was absent, he remained an inmate. Section 39(1)(d) Crimes (Administration of Sentences) Act 1999 allows a police officer or correctional officer to arrest an inmate who has escaped from custody. It was submitted, therefore, by the Crown that the Applicant was a convicted inmate who had escaped. Next, the Crown submitted that kidnapping lies within Division 14 of Part 3 of the Crimes Act 1900, with Part 3 of that Act dealing with offences against the person. It was submitted that the Applicant's specially aggravated kidnapping offence was caught by s.56, so that the sentence to be imposed for that offence was to be consecutive unless there was a direction by the sentencing Judge that it be concurrent or partially consecutive. 79With respect to Ground 2, the Crown noted that his Honour was not asked to find special circumstances. Further, each of the sentences imposed by his Honour followed the statutory ratio of 75%. 80The Crown submitted that whether or not a finding as to special circumstances is made is a discretionary decision for the sentencing Judge. It was submitted that there can be no basis for interference in the exercise of this discretion unless the non-parole period is manifestly inadequate or, as is claimed by the Applicant here, manifestly excessive: R v Fidow [2004] NSWCCA 172 at [19]. Simply because there are circumstances which are capable of constituting special circumstances, the Court is not required to make such a finding and reduce the non-parole period: R v Fidow at [22]. 81The Crown submitted that the non-parole period imposed by his Honour was appropriate given the objective seriousness of the offences and the need for general deterrence. 82It was submitted further that there was nothing advanced on behalf of the Applicant which established how long would be needed by way of supervised conditional liberty following release: Caristo v R [2011] NSWCCA 7 at [42]. The Crown pointed to the three-year limit on parole supervision (Collier v R [2012] NSWCCA 213 at [37]) and observed that a longer parole period may only create the risk that a breach might cause further imprisonment of the Applicant. 83Whilst acknowledging that a submission had been made at first instance that the Applicant was at risk of institutionalisation, the Crown submitted that this was but one factor in considering whether special circumstances should have been found. Had there been a greater period of time on parole, then that risk would still arise. 84The Crown submitted that, even if error was otherwise established, no lesser sentence is warranted in law: s.6(3) Criminal Appeal Act 1912; Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. Decision 85It is appropriate to commence consideration of this application by reference to the objective gravity of the Applicant's offences. 86The Applicant escaped from a minimum-security correctional centre and embarked immediately upon the commission of serious crimes. Although his time at large was relatively brief, he devoted his attention to criminal activities throughout that period. That this was his intention from the outset is made clear by the fact that he and his co-offender took screwdrivers with them at the time of escape for the purpose of assisting their criminal activity. 87The Applicant and his co-offender kidnapped the 55-year old victim whilst she was going about her business in Bathurst. Rather than attending work, she found herself forcibly detained by two apparently desperate men who threatened her life and took her and her vehicle on a rampage through Bathurst and beyond. The offenders kidnapped the victim to assist them to avoid detection and apprehension by the police. This frightening experience only came to an end because the Applicant (who had never been licensed to drive a motor vehicle) lost control of the vehicle (after a high-speed chase) and then fled the scene. 88It is true that the period of detention of the victim was not prolonged. However, the Applicant and the co-offender did not voluntarily release her. The period of detention was accompanied by threats with the use of a weapon. The victim was injured in the collision and has suffered understandable significant psychological harm as a result. All of this was predictable given the course of conduct undertaken by the Applicant. This was a serious offence of specially aggravated kidnapping contrary to s.86(3) Crimes Act 1990: R v Speechley at [47]-[64], [105]-[109]. 89The fact that the Applicant committed these offences whilst a prison escapee was of fundamental significance. In R v Pham [2005] NSWCCA 94, Wood CJ at CL (Hislop J and myself agreeing) said at [16]-[19]: "[16] The offence of escape has been regarded by the courts as a serious offence, which potentially jeopardises the future of minimum security facilities and threatens the continued provision to prisoners of beneficial and humanitarian custodial arrangements and opportunities. It may lead to additional restrictions being placed upon their access to external medical treatment, and it may also impede the progress of rehabilitation for offenders with favourable prospects, if conditions of detention are strengthened, in order to prevent escapes. [17] These considerations were noted, for example, in R v Thomson NSWCCA 21 May 1986 where, in a case decided before enactment of the Sentencing Act 1989, Street CJ observed that the ordinary sentence for an unremarkable escape 'could be expected to approximate two years' (at a time when the maximum penalty for the offence was imprisonment for 7 years); and also in R v Mathieson [2002] NSWCCA 97 at [27]. [18] Where the offender has remained at large for a very lengthy period or has used the opportunity of being at large to commit further offences, as was the case here, then the overall objective seriousness of his criminality is potentially increased: R v Plummer [2000] NSWCCA 363 at [34] and R v Josef Regina [2000] NSWCCA 100. The elements of both personal and general deterrence are also important, it being essential that prisoners understand that any offence of escape or attempted escape will result in a meaningful overall increase in their detention: R v Butler [2000] NSWCCA 525 at [18] and R v Smith [2004] NSWCCA 69. That this is so is also demonstrated by the fact that the maximum penalty prescribed for the offence has been increased from imprisonment for 7 years to imprisonment for 10 years. [19] It is also for that reason that the legislature enacted, by way of s 57(2) of the Crimes (Sentencing Procedure) Act 1999, a requirement for sentences for escape to be served consecutively upon any existing sentence that has yet to expire, or upon any other sentence that is imposed in the same proceedings." 90The Applicant had escaped from a minimum-security facility and had used the opportunity of being at large to commit serious offences, so that the overall objective seriousness of his criminality was effectively increased. The elements of personal and general deterrence were important, with it being essential that prisoners understand that any offence of escape will result in a meaningful overall increase in detention, with s.57(2) Crimes (Sentencing Procedure) Act 1999 further emphasising the expectation that a cumulative sentence will be imposed for escape. 91In the circumstances of this case, the statutory requirement in s.57 was not mentioned or put into effect. The partial accumulation which saw one year only (1 February 2010 to 1 February 2011) being referrable to the escape, did not meet the requirements of s.57, or a reasonable expectation of what ought occur in the Applicant's case. It must be kept in mind, as well, that the Applicant was not, in any event, eligible for release to parole on pre-existing sentences until 17 July 2010, so that only six-and-a-half months of this period was solely referrable to the sentence for escape. 92As mentioned earlier, counsel agree that s.57(2)(a) did not apply to the Applicant as his non-parole period had expired by the time he was sentenced on 10 September 2010: s.57(3)(a) Crimes (Sentencing Procedure) Act 1999; R v Williams [2004] NSWCCA 246; 148 A Crim R 325 at 338 [63]. However, s.57(2)(b) applied so that the sentence for escape (Count 1) should have been served consecutively with the sentences for Counts 2-4. To the extent that the approach of the sentencing Judge was erroneous, the error operates in favour of the Applicant. 93The order that the sentences for the three remaining offences be entirely concurrent operated in favour of the Applicant as well. His Honour did not fail to have regard to the principle of totality in this respect. His Honour's characterisation of these offences as constituting, in effect, "one act of criminality" gave effect to principles of totality, accumulation and concurrency: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]. 94The Crown submission concerning s.56 Crimes (Sentencing Procedure) Act 1999 was not advanced at first instance. Unlike s.57, s.56 gives rise to discretionary, rather than mandatory, accumulation. Counsel for the Applicant accepted that s.56 applied in the circumstances of this case as contended by the Crown (see [78] above). Once again, counsel agree that s.56(2)(a) did not apply to the Applicant as his non-parole period had expired by the time he was sentenced on 19 September 2010: s.56(5)(a) Crimes (Sentencing Procedure) Act 1999. However, it was agreed that s.56(2)(b) applied to the Applicant. To the extent that the failure to apply s.56(2)(b) operated in the Applicant's favour in the District Court, the consequence is less substantial given the discretionary, and not mandatory, operation of that provision. It may or may not have made a difference to the structure of the sentences, if the attention of the sentencing Judge had been drawn to the provision. It was necessary, however, that consideration be given to that section. 95No submission was advanced at first instance with respect to "special circumstances" concerning the Applicant. A general submission was made concerning institutionalisation and totality, with this being capable of being construed as an indirect argument that "special circumstances" should be found. 96In Dyer v R [2011] NSWCCA 185, a submission was advanced that a sentencing Judge had erred in not finding "special circumstances" where the risk of institutionalisation was a clear factor, although not advanced as such in the District Court. With the agreement of McClellan CJ at CL, I said at [47]-[52]: "47In Quayle v R [2010] NSWCCA 16, it was contended (at [40]) that there was material before the District Court capable of amounting to 'special circumstances', and that the Judge should have made such a finding and reduced the proportion of the sentences represented by the non-parole period. RA Hulme J (Grove and Simpson JJ agreeing) said at [41]: 'It is difficult to say that a judge was in error for not doing something that he or she was not asked to do. A finding that there are, or are not, special circumstances is a discretionary finding of fact: see R v El-Hayek [2004] NSWCCA 25 per Howie J at [103]. In a case in which there are compelling circumstances for making such a finding, and the judge is in fact asked to do so, one might expect that if the judge declines to do so he or she would provide reasons: R v Novakovic [2004] NSWCCA 437 at [39] per Sully J. Cf R v Simpson [2001] NSWCCA 534; 2001 53 NSWLR 704 Spigelman CJ at [86]-[88].' 48Here, his Honour was not asked to find 'special circumstances' on the basis advanced in this Court. The sentencing Judge responded to the submissions made on the issue of 'special circumstances'. An applicant faces real difficulty in this Court in contending that a sentencing Judge has fallen into error by failing to take into account a material consideration, when that consideration was not advanced to the primary Judge as being a matter which should be taken into account. 49A wide range of considerations are capable of constituting 'special circumstances' for the purposes of s.44(2): R v Simpson at 722 [88]. There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge by reference to the particular factors which are sought to be taken into account in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]. 50There is no question that the risk of institutionalisation may, in a particular case, warrant a finding of 'special circumstances': Jackson v R [2010] NSWCCA 162 at [24]-[25]. Where such a submission is made, a sentencing Judge is not bound to make such a finding. It will be a factor to be taken into account with other factors, in the exercise of discretion, to determine whether a finding of 'special circumstances' should be made. 51If such a submission was made here, no doubt his Honour would have considered that factor together with other factors, including the finding of dangerousness (and the need to protect the community), the Applicant's prior poor history of compliance with conditional liberty and the need for the non-parole period to properly reflect the minimum period which the Applicant should spend in custody for this offence (including the Form 1 matter). 52I am not persuaded that the Applicant has demonstrated error on the part of the sentencing Judge in this case." 97The Applicant contends that the arguments advanced in the District Court, based upon the risk of institutionalisation, sufficiently engaged that issue so as to permit the question to be litigated in this Court. Further, based upon Zreika v R, it was submitted that this is a clear issue which emerges from the sentencing materials so that it ought be open to the Applicant to advance submissions in this regard in this Court. 98It is the case that risk of institutionalisation has been regarded as a factor capable of constituting "special circumstances". As mentioned in Dyer v R, however, the existence of that factor does not require a sentencing Judge to find "special circumstances". 99The concept of "institutionalisation' is well recognised in the area of sentencing, where a class of offenders who have long custodial histories are at risk of this phenomenon. According to the Macquarie Dictionary, to "institutionalise" someone is "to make (someone) dependent upon an institution, as a prison, mental hospital, etc, to the point where they cannot live successfully outside it". 100Regrettably, there is a strong argument that the Applicant is already institutionalised in this sense, as the Crown submitted at first instance. The Applicant's explanation for escaping on this occasion, where he had a possible release date in July 2010, may support this scenario (see [60] above). There was no suggestion that the Applicant escaped from custody for some reason associated with family illness or some compassionate concern, unlike Islaub who, according to the sentencing Judge, was determined to see his mother before she died and then to hand himself in. 101There is something to be said for the proposition that the Applicant's actions in escaping and committing serious crimes had a self-destructive element to it, with the inevitable consequence that he would be housed for a long period in prison. There is a flavour of institutionalisation about conduct of this type, quite apart from the unhappy conclusions expressed by Dr Seidler and Professor Greenberg to which reference has already been made. 102In the Applicant's case, it is probably misleading to speak in terms of extending his period of potential conditional liberty on parole to reduce the risk of institutionalisation. If he is not institutionalised already, it is the regrettable but almost inevitable fact that he will be institutionalised by the time he comes to be considered for release on parole, whenever that may be. 103The more accurate way of characterising the Applicant's position with respect to institutionalisation and "special circumstances" is to take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend. This approach does not involve a somewhat unrealistic suggestion that institutionalisation can be avoided. Rather, it acknowledges the fact of institutionalisation, and seeks to reduce the adverse consequences of that state of affairs. In my view, this better reflects the practical reality of the Applicant and his case. 104It is the case that the Applicant has had a terrible life involving a dysfunctional family and constant negative events involving abuse and exploitation of him by others. There is no way that his life can be recalled and a more positive life substituted for it. All reasonable persons will have a considerable measure of sympathy for him. 105At the same time, reasonable members of the community will observe what the Applicant has done consistently when at large in the community, offending in different ways including placing members of the community at risk and harming them. There is a history of failed conditional liberty and breaches of parole. The criminal justice system has no ready solution for cases such as this given the relatively blunt instruments available to it. 106The protection of the community remains a most important consideration in a case such as this, involving incapacitation through incarceration of the Applicant, and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the Applicant comes to be considered for release on parole. 107In this respect, it is important to observe that there will be a practical limit of three years upon parole supervision which the Applicant may receive: Clause 228 Crimes (Administration of Sentences) Regulation 2008; AM v R [2012] NSWCCA 203 at [90]; Collier v R at [37]. 108The whole question of the setting of a balance of term should, in my view, be premised upon the basis that the Applicant should be subject to supervision, with associated counselling and treatment, for the entirety of the period upon which he is to be on parole. As this period is confined by an upper limit of three years, then that is an important factor which indicates that no longer period ought be set. The prospect of the Applicant being at liberty on parole without supervision does not, to my mind, meet the interests of the community in the circumstances of this case. 109I am not persuaded that the sentencing Judge erred in the application of the totality principle in this case. There was the need to accumulate the sentences on pre-existing sentences, and to give effect to the escape offence as well as the serious offences committed by the Applicant whilst at large. As it happens, error has occurred in that process (at least by reference to s.57) which operates in the Applicant's favour. The imposition of entirely concurrent sentences for the offences committed on 19 May 2009 was open to the sentencing Judge, but was a course favourable to the Applicant. 110To the extent that counsel for the Applicant contends that the overall sentence was a crushing one, it should be kept in mind that the description of sentences as "crushing" does not articulate some applicable test: Ta'ala v R [2008] NSWCCA 132 at [42]. The Applicant's offending called for the imposition of a substantial total effective sentence of imprisonment, with public confidence in the administration of justice requiring an appropriate measure of accumulated sentences: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [15]-[18]. 111The Applicant's strongest argument lies in the relationship between the total effective continuous period of custody of some 10 years and nine months with an available parole period of two years and three months. 112However, the determination of the effective non-parole period was affected by error which favoured the Applicant. 113It is a fundamental sentencing principle that the effective non-parole period should reflect the objective seriousness of an offender's crimes and take into account, as well, the factors of general deterrence, specific deterrence and other factors bearing upon the sentencing discretion: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 718 [65]. 114It is undoubtedly the case that there is a lengthy period extending from 2007 to 2017 during which the Applicant will be held in custody. The Applicant's offences committed in May 2009, which have led to the sentence to be served between 2010 and 2017 (as a minimum term), are such that no lesser minimum term would reflect the objective gravity of his crimes. This view ought be formed making full allowance for the Applicant's subjective circumstances and extraordinarily sad life. It is noteworthy, however, that Professor Greenberg does not diagnose any psychiatric condition which could operate in the Applicant's favour on sentence. 115Having regard to all these factors, to the extent that error may have been demonstrated, I am not persuaded that any lesser sentence should be imposed upon the Applicant for the purpose of s.6(3) Criminal Appeal Act 1912. The period of two years and three months available as the balance of term is not inadequate, noting the three-year ceiling upon supervision available to the Applicant. It is sufficiently long to reflect an appropriate period of supervision. 116In approaching the resolution of this appeal, I have taken into account a scenario which may have seen the Applicant persuading the Court that his "special circumstances" argument ought be recognised by some adjustment to the sentencing structure, but with the Court having to consider resentencing the Applicant as well, under s.7(1A) Criminal Appeal Act 1912 to give effect to the statutory requirements of s.57 Crimes (Sentencing Procedure) Act 1999 on the sentence for escaping lawful custody: cf R v Williams at 336-339 [55]-[70]. If this point had been reached, as was mentioned during the hearing, an outcome for the Applicant may have been that the effective non-parole period would have remained as it is, with an increase in the effective balance of term. 117On the view which I have formed with respect to the issues in the case, I do not think that the Court should move in that direction. The absence of a Crown appeal bears upon this issue as well. 118I propose that leave to appeal be granted, but that the appeal be dismissed. 119BEECH-JONES J: I have had the advantage of reading the judgment of Johnson J. For the reasons given by his Honour I see no error in the sentencing judge's approach save for the failure to apply s.57(2)(b) of the Crimes (Sentencing Procedure) Act 1999 and potentially the failure to address s.56(2)(b). The consequence is that I am satisfied that no lesser sentence is warranted in law. However it is arguable that to conclude that the appeal should be dismissed under s.6(3) of the Criminal Appeal Act 1912 (NSW) I would also need to be satisfied that a more severe sentence is not warranted either. Instead of further considering that issue and as there is no crown appeal concerning the inadequacy of sentence, I consider the more appropriate course is to refuse leave to appeal. If the Court was to grant leave and dismiss the appeal it might be taken as an affirmation of a sentence that does not conform with s.57(2)(b). If the Court was to grant leave and allow the appeal then a resentencing of the Applicant might have lead to a more severe sentence being imposed. Accordingly I would refuse leave to appeal. ********** 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: 16 November 2012