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:
- Dismiss the appeal against conviction.
- Grant leave to appeal against sentence and allow the appeal.
- Quash the sentence imposed upon the appellant by her Honour Syme DCJ on 27 August 2010.
- In lieu thereof, sentence the appellant to a fixed term of imprisonment of 12 months commencing on 31 May 2011.
- 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.