His Honour continued:-
"The amount of time and the circumstances of the escape do not in my mind make this an unremarkable escape of the type which was referred to in R v Thomson , (NSW CCA, 12 May 1986 per Street CJ) where it was laid down that the penalty for an unremarkable escape would be two years".
16 His Honour then immediately referred to R v Garget, (unreported CCA 20 July 1990), where Wood J, as his Honour then was, said that in R v Thomson: "the period of two years was intended by Street CJ to apply to the total sentence."
17 Judge Coleman also observed that R v Thomson had been decided at a time when the maximum penalty for an escape from lawful custody was penal servitude for only seven years. His Honour referred to the decision of this Court in R v Ertl, (unreported 7 May 1997).
18 In his remarks on sentence Judge Coleman then referred to the need to have regard to general deterrence in sentencing escapees from minimum security correctional centres, which applies even to escapees who may have had strong personal reasons for escaping.
19 His Honour found that there were special circumstances under s 5(2) of the Sentencing Act, in that the sentence his Honour would be imposing for the escape would be cumulative on the minimum terms of the sentences the applicant was already serving and that the applicant would be serving the sentence his Honour imposed in a maximum security correctional centre.
20 The first ground of appeal argued by counsel for the applicant was that his Honour erred in having regard to the decision in R v Thomson, without having regard to the fact that the sentencing in that matter occurred prior to the introduction of the Sentencing Act 1989.
21 I do not consider that the sentencing judge made the error which is alleged in this ground of appeal. The decision of the Court of Criminal Appeal in R v Thomson and particularly the remarks by Street CJ about the length of an appropriate sentence for an unremarkable escape have been frequently referred to in cases decided since the coming into force of the Sentencing Act. Appeals which have been heard by this Court against sentences imposed for offences of escaping committed after the commencement of the Sentencing Act include such cases as R v Prasad, (unreported 1 September 1993), R v Kennedy (unreported 22 July 1994), R v Ertl, and R v Mackenroth (unreported 19 May 1998). In all of these cases members of this Court referred in their judgments to what had been said by Street CJ in R v Thomson. In Mackenroth Simpson J, who delivered the leading judgment, said at p 4 of her judgment: "The starting point in considering the appropriate range of penalties is the decision of this Court in R v Thomson".
22 Apart from the coming into force of the Sentencing Act, another change which has occurred since Thomson was decided has been the increase in the maximum penalty for the offence of escaping from lawful custody from penal servitude for seven years to penal servitude for ten years by an amendment to the Correctional Centre Act, then called the Prisons Act, which came into force in November 1991.
23 In his remarks on sentence, Judge Coleman expressly referred to the decisions of this Court in Thomson, Garget and Ertl noting the dates on which each decision had been given. His Honour pointed out that Thomson had been decided at a time when the maximum penalty for the offence was lower. His Honour's remarks indicate in my opinion, that his Honour was familiar with the judgments of Wood J in Garget and Bruce J in Ertl, the latter being a case decided after the introduction of the Sentencing Act. I would not find that his Honour made the error alleged in the first ground of appeal of failing to have regard to the fact that the sentence in Thomson had been imposed prior to the introduction of the Sentencing Act, whereas the sentence to be imposed by his Honour would be subject to the Sentencing Act.
24 The second ground of appeal against sentence was that the total sentence of three years, including the minimum term of two years, was manifestly excessive. I have already referred to the passage in his Honour's remarks on sentence in which his Honour said, "the amount of time and the circumstances of the escape do not … make this an unremarkable escape of the type referred to in R v Thomson". I would understand his Honour to be saying in this part of his Honour's remarks that, because of the amount of time the applicant had been at liberty after escaping and because of the circumstances of the escape, the applicant's escape was not an unremarkable escape.
25 It was not disputed by counsel for the applicant that the amount of time an escapee was at liberty after he escaped and before he was taken back into custody can be a circumstance of aggravation. I am of the opinion that, not only can it be a circumstance of aggravation, but it can also have the effect of removing an escape from the class of cases consisting of "unremarkable" escapes (see R v Kennedy, especially at p 7, where Levine J noted that in that case, "the applicant had been at liberty just over three years").
26 It was submitted by counsel for the applicant that the applicant had been at liberty only for about six months before he was arrested in the Northern Territory, that he should not be regarded as having been at liberty during the period he was in custody in the Northern Territory and that the applicant should not be prejudiced by the failure of the New South Wales authorities to have him extradited to New South Wales after he had completed serving his sentence in the Northern Territory.
27 I would accept that the applicant should not be regarded as having been at liberty during the period of time he was actually in custody in the Northern Territory, even though his custody in the Northern Territory was for unrelated offences.
28 However, I would not accept that the time the applicant was at liberty, after he was released from custody in the Northern Territory, should not be taken into account, because of the failure of the New South Wales authorities to have him extradited. During this period, from October 1995 to January 1999, the applicant was, in fact, at liberty, enjoying the privileges and benefits of being at liberty. During this period, the applicant was aware that he was an escapee, he remained outside New South Wales and he took no step to surrender himself to the New South Wales authorities. There was no evidence to suggest that during this period (in which he had committed offences in the Northern Territory and in Queensland) the applicant had made such progress towards rehabilitation or had otherwise entered into such a situation that considerations of fairness required leniency to be extended to him. Cf R v Todd (1982) 2 NSWLR 517.
29 Accordingly, I would find that, even disregarding the period of one year four months during which the applicant was in custody in the Northern Territory, the applicant was at liberty, between escaping and being taken back into custody, for a period of more than three and a half years. In my view, his Honour was entitled to regard the amount of time during which the applicant had been at liberty as being a circumstance of aggravation and as being of itself sufficient to remove the case from the class of "unremarkable" escapes.
30 As regards the second matter referred to by his Honour, his Honour did not expressly state in that part of his remarks on sentence what were "the circumstances of the escape" which prevented or helped to prevent the escape being an unremarkable escape.
31 It was submitted by counsel for the applicant that the circumstances of the escape were quite unremarkable. It was submitted that, if his Honour had regarded the circumstance that the escape had been from a minimum security correctional centre as being a circumstance which prevented the escape from being an unremarkable escape, then his Honour was in error. It was pointed out that in R v Thomson itself, the appellant had escaped from a minimum security correctional centre and Street CJ had expressly stated in his judgment that the escape was "of an unremarkable character".
32 I would accept that the circumstance that an escape was from a minimum security correctional centre does not of itself render an escape a "remarkable" escape, that is does not of itself take an escape out of the class of "unremarkable" escapes. It seems to me that so much must follow from the judgment of Street CJ in R v Thomson.
33 However, when Judge Coleman's remarks on sentence are read as a whole, I consider that his Honour was entitled to find that there were some circumstances tending to remove the escape from the class of unremarkable escapes. Matters which are referred to by his Honour at different places in his remarks on sentence include that the escape had occurred just three days after the applicant had signed an undertaking not to escape and that the applicant, assuming he had received threats, had not, unlike the escapees in some other cases which have come before the court, informed the prison authorities of the threats which had been made against him or gone into protection, before making a decision to escape from the correctional centre. I also consider, notwithstanding a submission put by counsel for the applicant, that his Honour should be taken as having made a finding that there had been some premeditation and that the escape had not been an impulsive, spur of the moment, escape. In any event, as I have held earlier in this judgment, I am of the view that the length of time the applicant had been at liberty was of itself sufficient to remove the present escape from the class of unremarkable escapes.
34 We were referred by counsel for the applicant to statistics of sentences for escaping kept by the Judicial Commission. In my opinion, these statistics indicate that, while the sentence imposed by his Honour was a severe sentence, it was not outside the range falling within a proper exercise of his Honour's sentencing discretion.
35 It was submitted by counsel for the applicant that the sentencing judge should have further extended the additional term of the sentence, in relation to the minimum term of the sentence.
36 As I have already stated, his Honour found that there were special circumstances, because the sentence his Honour would be imposing for the escape would be cumulative on the sentences the applicant was already serving. His Honour, accordingly, made the additional term of the sentence for escaping exceed one third of the minimum term of the sentence for escaping. It does not seem to me that his Honour can be said to have erred in not further extending the additional term. The sentences the applicant had to serve before commencing to serve the sentence for escape were not, comparatively speaking, long sentences. The applicant, up to the time he was taken back into custody in January 1999, had been at liberty for more than three years and he would appear to have been able to cope quite effectively while at large and would not appear to have any special need for supervision by the parole service. I would, accordingly, reject the submission based on s 5(2) of the Sentencing Act.
37 The orders I would propose would be that, while leave to appeal against sentence be granted, the appeal against sentence be dismissed.
38 ABADEE J: I agree with the reasons that have been delivered by James J. The orders of the court are the orders as proposed by his Honour.