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[2012] NSWCCA 98
mixed. The conviction appeal was dismissed. Leave to appeal against sentence was granted and the sentence appeal allowed. The sentence imposed on 27 August 2010 was quashed and replaced with a fixed term of...
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The Court upheld Mattar’s conviction for leaving lawful custody. The trial judge’s reasons could have been clearer, but the central issue was whether Mattar genuinely and reasonably believed that escape was necessary to avoid danger. The trial judge rejected his evidence on that point, and the appellate judges considered that finding open. The Court nevertheless changed the sentence. It considered that the sentencing judge had not adequately addressed threats connected with Mattar’s assistance to authorities, the harsher custodial conditions arising from those threats, his heart condition, or the practical impact of adding the escape sentence after his existing non-parole period. The two-year sentence was quashed and replaced with a fixed 12-month term.
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2,258 words · generated 02/10/2026
Mattar was serving a term of imprisonment at Long Bay Correctional Centre when he was transferred to Prince of Wales Hospital on 23 April 2009 for treatment of a long-standing heart condition. He remained there in lawful custody. On 28 April 2009, he left the hospital without permission from the Corrective Services officers responsible for him. The judgment describes his method simply: he walked out and hailed a cab ([5]).
He was charged with escaping lawful custody under s 310D(a) of the Crimes Act 1900. The case was tried by a judge alone. Mattar did not contest the basic proof that he had left lawful custody. His defence was necessity: he said he feared for his safety if returned to the general prison population, based on threats against him. He relied on those threats to argue that leaving custody was necessary to avoid death or serious injury ([6], [23], [28]).
The trial judge convicted him and imposed two years’ imprisonment with a non-parole period of 18 months. The sentence was directed to commence after the non-parole period for the sentences Mattar was already serving, as required by s 57(2) of the Crimes (Sentencing Procedure) Act 1999 ([2], [14]). At the time, his existing aggregate sentence had a five-year head sentence and a three-year non-parole period, which expired on 27 May 2011 ([14]).
The Court of Criminal Appeal reached different results on conviction and sentence. It dismissed the appeal against conviction, finding no substantial miscarriage of justice. It granted leave to appeal against sentence, allowed that appeal, quashed the original sentence and substituted a fixed 12-month term commencing on 31 May 2011 ([13], [27]). The Court also gave liberty to apply about any necessary or appropriate alteration to the commencement date ([27]).
The conviction appeal focused on how the trial judge dealt with necessity and whether her reasons showed that she had applied the correct legal burden. Harrison J set out the three elements of necessity from R v Loughnan: the criminal act must have been done to avoid irreparable evil; the accused must honestly believe on reasonable grounds that he or she faces imminent peril; and the response must not be disproportionate to the peril ([7]). The judgment also states that the accused has an evidentiary onus to raise the defence, while the Crown must negative it to the criminal standard, referring to Taiapa v R ([7]).
The trial judge’s reasons did not expressly refer to the criminal standard of proof or clearly explain how the Crown’s burden applied to the defence ([11]). Harrison J acknowledged that the reasons and reasoning process had difficulties ([10]–[11]). However, the appeal did not turn only on the form of the trial judge’s reasons. The appellate court considered whether the conviction could stand in light of the evidence and the findings actually made.
The trial judge had rejected Mattar’s evidence that he held the relevant belief when he left the hospital. In particular, McCallum J identified as central Mattar’s claim that a correctional services officer told him his medical treatment had finished and that he would be taken to 9 Wing. The trial judge rejected that evidence. McCallum J considered the rejection plainly open and concluded that the Crown had thereby negatived the necessity defence ([28]). Harrison J also concluded that evidence before the trial judge was sufficient to support a conviction and that no substantial miscarriage of justice had occurred ([13]). Counsel for Mattar acknowledged during the appeal that there was a proper evidentiary basis for a conviction, while maintaining concern about the trial judge’s formulation ([12]).
The sentence appeal succeeded for a different reason. The relevant issue was not simply whether a sentence for escape should be accumulated. Mattar did not complain that the sentence had been directed to commence after the existing non-parole period. His concern was that the sentencing judge had not found special circumstances, despite evidence said to support a different relationship between the head sentence and non-parole period ([15]–[16]).
The sentencing judge said she was unable to find special circumstances, referring to the appellant’s existing custody and non-parole period, but Harrison J could identify no reasons explaining why the circumstances did not justify that conclusion ([19]–[20]). The evidence included threats linked to Mattar’s dealings with the Crime Commission, which had produced harsher custodial conditions. Harrison J noted that s 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999 covers whether an offender will suffer harsher custodial conditions because of assistance to authorities or an undertaking to assist. The appellant also had an acknowledged cardiac problem, which had led to his hospital admission ([23]–[24]).
The Court considered that the sentencing judge’s failure to explain how those matters were taken into account amounted to error and led to a manifestly excessive sentence ([25]). McCallum J added that the sentencing judge had overlooked the impact of mandated accumulation. In his view, that impact was relevant when determining the proper sentence for an escape offence ([29]).
The judgment does not purport to establish a new general test for necessity or special circumstances. It applies existing principles to the facts before it.
For necessity, the judgment restates the three Loughnan elements and the allocation of burdens described in Taiapa ([7]). It also refers to the discussion in R v Rogers about the relationship between a prisoner’s safety concerns, protective custody and the proportionality of escape. The passage from Rogers explains that necessity should not create a general choice for threatened prisoners to leave lawful custody rather than accept protection or another reasonable alternative ([8]). In Mattar’s case, the trial judge had evidence that prison authorities offered protection or transfer to another gaol, options Mattar rejected, although Harrison J noted that he had reasons for doing so ([9]). The appellate court did not decide that those alternatives invariably defeat necessity. It upheld the conviction because the trial judge’s rejection of Mattar’s relevant belief was open on the evidence ([28]).
On sentencing, the judgment emphasises that circumstances connected with assistance to authorities and resulting harsher custodial conditions can be relevant under s 23(2)(g) ([24]). It also applies the point that the effect of accumulating a sentence can matter to the sentencing exercise. McCallum J said the sentencing judge overlooked that impact ([29]). The decision does not set out a new numerical formula for special circumstances, nor does it say that particular evidence automatically requires such a finding. Rather, it identifies an unexplained failure to address relevant evidence and the sentence structure in the circumstances of this case ([20], [25], [29]).
The judgment’s orders changed Mattar’s individual sentence, not the statutory provisions. It left the conviction intact and substituted a fixed 12-month term for the two-year term with an 18-month non-parole period ([27]). The Court also allowed for possible adjustment of the commencement date if necessary, reflecting its discussion of the period Mattar was at large after leaving custody ([26]–[27]).
At [7], the judgment says that the accused must raise an evidentiary basis for necessity, but the Crown must disprove the defence to the criminal standard. In plain English, the accused must point to evidence capable of supporting the defence, but the prosecution retains the burden of persuading the court that the defence does not apply.
At [8], the judgment reproduces the concern from R v Rogers that necessity should not give a prisoner a general option to escape instead of accepting protection or another reasonable alternative. In practical terms, the court must consider both the danger claimed and whether the response of leaving custody was proportionate, including the available alternatives. The passage does not, by itself, determine whether any particular alternative is reasonable in every case.
At [13], Harrison J states that appeal points might be decided in Mattar’s favour, but no substantial miscarriage of justice had actually occurred. This explains why the conviction remained in place notwithstanding concerns about the trial judge’s expression of her reasoning. McCallum J’s explanation at [28] makes the factual basis clearer: the trial judge rejected evidence central to the necessity defence, and that rejection was open to her.
At [25], Harrison J asks how the threats, harsher custodial conditions and health circumstances could fail to warrant consideration of special circumstances. He then finds error and manifest excess. In plain English, the sentencing judge needed to address those matters in explaining the sentence and its structure. The appeal court did not treat the existence of those facts as an automatic rule requiring a particular outcome; it found the sentencing reasoning inadequate in the circumstances presented.
At [29], McCallum J identifies the “impact of the mandated accumulation” as a factor that should be taken into account in setting a proper sentence for escape. That means the court should consider the real effect of adding the new sentence to the sentence already being served, rather than assessing the new term in isolation.
The decision is relevant to escape-from-custody cases where an accused raises necessity based on a claimed threat to personal safety. Its discussion makes clear that the factual inquiry includes the accused’s belief at the time of escape, whether that belief was held on reasonable grounds, whether danger was imminent, and whether escape was proportionate compared with the available alternatives ([7]–[9]). The judgment does not say that a threat, without more, establishes the defence. Here, the decisive point for the conviction appeal was that the trial judge rejected evidence central to the asserted belief, and the appellate court considered that finding open ([28]).
The case may also be relevant where sentencing for escape follows another sentence and must be accumulated. In Mattar, the sentence was required to commence after the non-parole period then being served, and the Court considered the combined effect of the existing and new sentence ([14]–[16], [29]). The judgment’s reasoning is particularly tied to the circumstances where special circumstances are argued, the original sentencing reasons do not explain why they are absent, and accumulation has a substantial practical impact ([19]–[25]).
A further relevant fact pattern is where threats or harsher custodial conditions are said to arise from assistance to authorities. The Court connected this type of evidence to s 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ([24]). The appellant’s cardiac condition was an additional personal circumstance considered alongside the threats ([24]–[25]). The judgment does not establish that these circumstances must always result in a finding of special circumstances. Its focus is that the sentencing judge needed to explain why the evidence did not warrant that finding and an appropriate sentencing structure ([25]).
The supplied judgment does not report any later judicial treatment of Mattar v R, so no conclusion about how subsequent courts applied, followed or distinguished it can be drawn from this source.
The judgment itself refers to R v Cotterill [2012] NSWSC 89 at [55]. McCallum J said that he had taken the approach that the impact of accumulation should be considered in determining the proper sentence for an escape offence ([29]). Cotterill is therefore a prior authority referred to by McCallum J, not a later court’s treatment of Mattar.
The judgment also considers earlier authorities on necessity and special circumstances. Taiapa v R is cited for the allocation of evidentiary and legal burdens ([7]). R v Loughnan supplies the elements of necessity, and R v Rogers is discussed in relation to the limits of necessity in prison escape cases ([7]–[8]). Ngyuen v R and R v Novakovic are discussed in connection with the need to explain a decision not to find special circumstances where evidence may support such a finding ([17]–[18]). These authorities show the legal context the Court used; they do not establish how later courts have treated Mattar.
The judgment does not decide the general circumstances in which threats to a prisoner’s safety amount to imminent peril for the purpose of necessity. It records the trial judge’s conclusion that Mattar did not hold the relevant belief and notes the availability of protection or transfer as alternatives ([9], [28]). It does not set out a comprehensive test for when those alternatives will be reasonable or sufficient in a different case.
Nor does the judgment decide whether every sentencing judge must make a finding of special circumstances whenever an offender has assisted authorities, faces threats, or has a health condition. The decision turns on the particular evidence and the failure to explain why those facts, alone or together, did not warrant such a finding ([23]–[25]). The limits of that reasoning in other factual settings are not explored.
The judgment also does not prescribe how courts should quantify the effect of accumulation in every case. It states that the impact of mandated accumulation should be taken into account and substitutes a 12-month fixed term on Mattar’s facts ([26], [29]). It does not provide a universal ratio or formula for adjusting a non-parole period or head sentence.
Finally, Harrison J referred to Judicial Commission data showing that at least 72 per cent of relevant escape or attempted-escape cases had a non-parole period below 18 months, while acknowledging the limitations of statistical comparisons ([25]). The judgment does not explain the dataset’s detailed composition or determine how such data should be weighted in other sentencing decisions.
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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:
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:
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
Mattar
R
(2009) 240 CLR 95
(2001) 53 NSWLR 704
The conviction appeal was dismissed. Leave to appeal against sentence was granted and the sentence appeal allowed. The sentence imposed on 27 August 2010 was quashed and replaced with a fixed term of imprisonment of 12 months commencing on 31 May 2011. Liberty to apply was granted concerning any necessary or appropriate alteration of the commencement date ([27]).