Christianos v The Queen

[2000] WASCA 184

CHRISTIANOS -v- THE QUEEN [2000] WASCA 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 184
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:200/1999	Heard:	3 MARCH 2000
Coram:	KENNEDY J PIDGEON J WALLWORK J	Delivered:	27/07/00
No of pages:	16	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
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Parties:	CHRISTOS CHRISTIANOS THE QUEEN
Catchwords:	Criminal law and procedure Sentencing One count of conspiring to cultivate cannabis with intent to sell or supply it to another, one charge of escaping legal custody Sentence of 7 years in relation to conspiracy and 9 months in relation to escaping legal custody, to be served cumulatively Co-conspirator sentenced to 5 years' imprisonment Whether requirement for parity Whether sentences otherwise excessive
Legislation:	Misuse of Drugs Act 1981 (WA), s 33, s 34
Case References:	Langridge v The Queen (1996) 17 WAR 346 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 R v Cox (1996) 66 SASR 152 R v Knight (1986) 40 SASR 479 R v Olbrich (1999) 73 ALJR 1550 R v Smith (1987) 44 SASR 587 R v Storey[1998] 1 VR 359 Savvas v The Queen (1995) 183 CLR 1 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Delaney v Van Arkel, unreported; SCt of WA (Steytler J); Library No 950176; 13 April 1995 Douglas v Power, unreported; SCt of WA (Anderson J); Library No 940035; 27 January 1994 Ficara v The Queen, unreported; CCA SCt of WA; Library No 930529; 30 September 1993 Goddard v The Queen [1999] WASCA 281 Griffiths v The Queen (1989) 167 CLR 372 House v The King (1936) 55 CLR 499 Jones v Williams, unreported; SCt of WA (Rowland J); Library No 920652; 7 December 1992 Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998 Mill v The Queen (1988) 166 CLR 59 Nicoletti v The Queen, unreported; CCA SCt of WA; Library No 970578; 4 November 1997 Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993 R v Morrison [1999] 1 Qd R 397 R v Raptis (1988) 36 A Crim R 362 R v Ruane (1979) 1 A Crim R 284 R v Shaw (1989) 39 A Crim R 343 R v Vasich (1998) 99 A Crim R 262 R v Weng Keong Chan (1989) 38 A Crim R 337 Scaffidi v The Queen, unreported; CCA SCt of WA; Library No 970166; 18 April 1997 Siganto v R (1998) 159 ALR 94 Taylor v Kenny, unreported; SCt of WA (White J); Library No 950247; 23 May 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CHRISTIANOS -v- THE QUEEN [2000] WASCA 184 CORAM : KENNEDY J

PIDGEON J
WALLWORK J

HEARD : 3 MARCH 2000 DELIVERED : 27 JULY 2000 FILE NO/S : CCA 200 of 1999 BETWEEN : CHRISTOS CHRISTIANOS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - One count of conspiring to cultivate cannabis with intent to sell or supply it to another, one charge of escaping legal custody - Sentence of 7 years in relation to conspiracy and 9 months in relation to escaping legal custody, to be served cumulatively - Co-conspirator sentenced to 5 years' imprisonment - Whether requirement for parity - Whether sentences otherwise excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 33, s 34

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Result:

Leave to appeal granted

Appeal dismissed

Representation:

Counsel:

Applicant : Mr O P Holdenson & Mr B R Jackson
Respondent : Mr S E Stone

Solicitors:

Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Langridge v The Queen (1996) 17 WAR 346
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R v Cox (1996) 66 SASR 152
R v Knight (1986) 40 SASR 479
R v Olbrich (1999) 73 ALJR 1550
R v Smith (1987) 44 SASR 587
R v Storey [1998] 1 VR 359
Savvas v The Queen (1995) 183 CLR 1

Case(s) also cited:

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Delaney v Van Arkel, unreported; SCt of WA (Steytler J); Library No 950176; 13 April 1995
Douglas v Power, unreported; SCt of WA (Anderson J); Library No 940035; 27 January 1994
Ficara v The Queen, unreported; CCA SCt of WA; Library No 930529; 30 September 1993


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Goddard v The Queen [1999] WASCA 281
Griffiths v The Queen (1989) 167 CLR 372
House v The King (1936) 55 CLR 499
Jones v Williams, unreported; SCt of WA (Rowland J); Library No 920652; 7 December 1992
Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998
Mill v The Queen (1988) 166 CLR 59
Nicoletti v The Queen, unreported; CCA SCt of WA; Library No 970578; 4 November 1997
Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993
R v Morrison [1999] 1 Qd R 397
R v Raptis (1988) 36 A Crim R 362
R v Ruane (1979) 1 A Crim R 284
R v Shaw (1989) 39 A Crim R 343
R v Vasich (1998) 99 A Crim R 262
R v Weng Keong Chan (1989) 38 A Crim R 337
Scaffidi v The Queen, unreported; CCA SCt of WA; Library No 970166; 18 April 1997
Siganto v R (1998) 159 ALR 94
Taylor v Kenny, unreported; SCt of WA (White J); Library No 950247; 23 May 1995

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1 KENNEDY J: The applicant, Nikolas Tzimas and Ioannis Lymberis were presented in the District Court on an indictment charging them with having, between 1 October 1995 and 11 August 1996, at Mitchell River and elsewhere, conspired together to cultivate a quantity of prohibited plants, namely cannabis plants, with intent to sell or supply cannabis to another. Each of the accused pleaded not guilty. After a trial before a judge and jury, the applicant and Lymberis were convicted. Tzimas was acquitted. At the same time, the applicant was also convicted on his own plea of guilty of having, on 12 August 1996 at Kununurra, by using a false name, that of Andrew Pelagosic, attempted to pervert the course of justice on his own prosecution for conspiracy. He further pleaded guilty, pursuant to s 32 of the Sentencing Act 1995, of having on 16 August 1996, at Kununurra, escaped out of legal custody. In respect of each of these three offences, the applicant had initially been charged in the name of Andrew Peter Lagos, the false name which had been given by him to the police.

2 The conviction for conspiracy rendered the applicant liable under s 34(1)(b) of the Misuse of Drugs Act 1981 to a fine not exceeding $75,000, or to imprisonment for a term not exceeding 20 years, or both. His conviction of attempting to pervert the course of justice rendered the applicant liable to imprisonment for 7 years, and the conviction for escaping out of legal custody rendered him liable to a fine not exceeding $1,500 or imprisonment for a term not exceeding 18 months. In relation to the conspiracy, the learned sentencing Judge imposed a sentence of 7 years' imprisonment, at the same time sentencing Lymberis to 5 years' imprisonment, subject to the adjustments later referred to. The differing penalties were determined on the basis that the applicant was one of the organisers behind the plan to cultivate cannabis and that, by implication, Lymberis was not. The applicant was sentenced to 18 months' imprisonment on his conviction for attempting to pervert the course of justice, that sentence being ordered to be served concurrently with his sentence for the conspiracy. With respect to his conviction for escaping out of legal custody, he was sentenced to a term of 9 months' imprisonment, to be served cumulatively upon the sentence for conspiracy.

3 The applicant seeks leave to appeal against his sentences with respect to the conspiracy and his escaping out of legal custody on the following grounds:

"1. That the sentence of 7 years imposed for conspiracy to cultivate cannabis was manifestly excessive in all of the

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circumstances, and in particular having regard to my antecedents and the circumstances of the offence.

2. His Honour erred in finding that I was one of the organisers, and in imposing a sentence which was greatly in excess of that imposed on my co-accused Lymberis.

3. The sentence of 9 months cumulative for escaping legal custody was manifestly excessive, taking into account the circumstances of the offence, and his Honour erred in not imposing a fine, a shorter sentence of imprisonment or a concurrent sentence of imprisonment."

4 The facts of the case, having regard to the jury's verdict, may be stated quite briefly. On 22 July 1996, a helicopter pilot, who was flying at a low altitude in a southerly direction along a creek approximately 12 kilometres to the south west of the ruins of the Mitchell River homestead, observed a well established camp. It was camouflaged. Branches had been placed over a trailer, a hut structure had been painted with green and brown camouflage-type paint and a "bobcat" had been painted green. The pilot also saw two motor bicycles which had been placed under cover in the hut structure and a silver and blue Nissan 4-wheel drive vehicle, which had been covered with black plastic and leaves. Having flown two circuits over the campsite at a height of about 60 feet, the pilot flew off to the south, where he saw two large coils of black polythene reticulation pipe. He then left the area. The Crown case was that the three persons charged in the indictment had been at this campsite when it was being observed and, realising that it had been seen, they had rapidly abandoned it.

5 On 26 July 1996, the Reverend Raymond Foster, when driving along the Kulumburu Road near the Gibb River Road, came across three men in a silver and blue Nissan 4-wheel drive vehicle, VMR-079, which had broken down. One of them identified himself as "Chris". They said that they were Greeks. The Reverend Foster parted company with the three men the following morning, having camped by them overnight. The three men were seen to be heading for Kununurra. On the following day, 27 July, three men stayed at the Kununurra Caravan Park. One of them booked in under the name of Andrew Pelagosic. He was driving a Nissan 4-wheel drive vehicle, VMR-079. The applicant admitted that he was that person.

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6 On 2 August, police visited the campsite, where they found what was described as a permanent camp, made out of bush timber, black plastic and shadecloth. There were three bunks in the camp, which had been camouflaged with green and brown paint. Trees and rocks had been painted green. The Crown maintained that the purpose of the camouflage had been to disguise an illegal activity. Two large areas had been cleared for cultivation some time previously, but at the time of the inspection some regrowth had occurred. These areas were to the west of the campsite, and closer to a nearby creek than they were to the campsite. They were approximately 30 metres x 100 metres and 135 metres x 50 metres. The police inferred that they had been cultivated for the illegal purpose of growing cannabis. They dug up a rubbish pit which they had located nearby, and found a copy of The West Australian newspaper, dated 6 July 1996, indicating that people had been in the area some time on or after that date. They also found an egg container, which was identified as having come from South Australia.

7 Fresh tyre marks were followed from the campsite, leading in a north easterly direction for some eight kilometres, until the police came across a trailer which had been disabled and abandoned. A firebreak had been cleared around it. They found a Honda water pump in the trailer, which had been camouflaged with newly cut leaves and branches, indicating that it had been placed there relatively recently. Although the serial number of the pump had sought to be erased, it was restored by heat and chemical means, which enabled the police to trace it back to the appellant, who had used the name Andrew Lagos when he purchased it in Adelaide in October 1995. The applicant had subsequently had the pump repaired under warranty in January 1996. The police also found water pipes at this site.

8 A kilometre further away, the police discovered two more trailers, which had been linked together. They also were camouflaged. The police estimated that the trailers contained enough food for several people for several months. The food items, when they were examined, were found to include items not available in Western Australia but which were freely available in South Australia and in the Northern Territory. A fireplace nearby was still warm, as if it had been used the night before. Two motor cycles and a bobcat were also located. The identification numbers on both motorcycles had been ground off. One of them was subsequently identified as having been stolen in Adelaide on 31 October 1995. The applicant's fingerprints were found in two places on one of the trailers and also on two magazines.

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9 When the trailers were searched by the police, they found a leather pouch containing some 16 cannabis seeds in one of them. A single cannabis seed, wrapped in paper and foil, was also discovered. In the other trailer, there were some 52 seeds. It appears that there were an additional 36 seeds located elsewhere.

10 Lymberis was found by detectives on 8 August and, on 10 August, the applicant was found at the Gibb River Road crossing in the Nissan 4-wheel drive VMR-079, which had broken down. It was facing in a southerly direction. The applicant gave his name as Andrew Pelagosic - the spelling of which varies in the transcript. He said he was from Coober Pedy. The number plate was later found to be false and the vehicle was then identified as having been stolen in South Australia in October 1995. The registration number belonged to another South Australian vehicle, a Nissan 4-wheel drive, which was subsequently found parked in the rear of a property owned by the applicant's wife. That vehicle was registered in the name of one Michael Nikola, whose registered address was the same post office box number as that in documents in the name of Andrew Pelagosic found in the stolen Nissan.

11 The applicant was arrested and later remanded in custody. He was still using the false name of Andrew Pelagosic. He was subsequently charged in the name of Andrew Peter Lagos, the false name in which he had acquired the water pump. While in custody, on 16 August 1996, the applicant escaped with another person or persons being held in custody from the Kununurra Lock-up. They effected their escape by pulling open a welded mesh cell, in which they had been placed, and climbing through it to freedom. How the applicant left Kununurra is not known. More than a year later, on 19 September 1997, he appeared in the Adelaide Magistrates' Court in response to an extradition application and was thereafter extradited to Western Australia.

12 At the time of sentencing, the applicant was 47 years of age. He had come to Australia from Greece as a young boy. The learned sentencing Judge noted that he had a long criminal history in different names, commencing in the Adelaide Children's Court and progressing to offences of dishonesty and burglary offences. In 1983, he was convicted of the cultivation of cannabis and sentenced in the District Court of South Australia to imprisonment. It appears to have been a suspended sentence. In 1987, he was arrested and extradited to the Northern Territory in respect of a large cannabis cultivation, apparently in the Adelaide River area. He was subsequently released on bail, but he absconded and it

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appears that a warrant still remains outstanding in the Northern Territory in respect of this matter.

13 In 1990, the applicant was arrested in respect of a further cannabis cultivation matter in South Australia. He was released on bail using yet another false name, that of Constantine Koutsogiannis. He was finally dealt with for that offence in the District Court in Adelaide in August 1997 and sentenced to a term of imprisonment of 16 months. In mid 1993, he was charged at Halls Creek, in the name of Andrew Peter Lagos, with driving a motor vehicle with a blood alcohol level of more than .08 per cent. He failed to appear on the date fixed for the hearing, but he has since been dealt with for that offence. He has at various times been dealt with in the courts for using false names, and for traffic and firearms offences and offences of dishonesty. His antecedents, accordingly, were far from favourable.

14 The learned sentencing Judge found that the applicant was deeply involved in the organisation and planning to grow cannabis. He described Lymberis as an active partner. His Honour backdated the applicant's sentence of 7 years to give credit for the period he had spent in custody prior to his sentencing. An order was made for his eligibility for parole.

15 Lymberis, at the time of sentencing, was serving a term of imprisonment of 3-1/2 years commencing on 9 June 1999 imposed in the District Court of Western Australian for cultivating cannabis at Brookhampton on 7 January 1999. His sentence of 5 years' imprisonment in respect of the conspiracy was ordered to be backdated to 31 August 1999, "less 106 days to be credited".

16 The well established principle is that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This was described by the High Court in Lowndes v The Queen (1999) 195 CLR 665, at 672, as "basic". It added: "The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice".

17 Grounds 1 and 2 of the grounds of appeal were argued together. The first ground was that the sentence for the conspiracy was manifestly excessive in all of the circumstances and in particular having regard to the applicant's antecedents and the circumstances of the offence. Ground 2 was that his Honour erred in finding that the applicant was one of the

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organisers and in imposing a sentence which was greatly in excess of that imposed on his co-accused, Lymberis.

18 It was accepted that, in imposing a sentence for the offence of conspiracy, one of the matters to be taken into account by the sentencing Judge was the distance to which the conspirators had travelled towards their goal. The argument was that, because no cannabis had been planted, a lesser sentence should have been imposed. However, the charge itself proceeds on the basis that no cannabis was planted. Had it been planted, the appropriate charge would have been the substantive offence, which carried a penalty of a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both. The fact was that the necessary manpower, equipment and food supplies had been transported to a remote area and the next step would have been the cultivation of cannabis.

19 In Savvas v The Queen (1995) 183 CLR 1, at 7 - 8, the High Court, comprising Deane, Dawson, Toohey, Gaudron and McHugh JJ, said:

"Whether or not a sentencing Judge is entitled to look at events relating to the implementation of a conspiracy and an accused's role in those events, there is a danger in describing that role in terms of "further offences committed by the prisoner". The choice of language is likely to give rise to a belief that the prisoner is being dealt with for something which has not been the subject of a charge. But the language has to be taken in context and, in the present case, Hunt J was at pains to point out that he was not sentencing the appellant for anything other than the conspiracy offences of which he was convicted.

The choice of language aside, it is artificial to ignore what the judgment in Kane describes as "considerations which advert to the content and duration and reality of the conspiracy [R v Kane [1975] VR 658 at 661]". And this can hardly be avoided if the actions of the accused are excluded from consideration. That is particularly true in the present case where the conspiracy was of an ongoing nature to import heroin on a large scale and where the appellant's part in that conspiracy was to provide a corrupt Customs officer each time an importation of heroin was to take place. After all, if, after agreeing to provide a corrupt Customs officer, the appellant had a change of heart and decided not to play any part in the importation of the heroin, it is inconceivable that this would not be a matter urged in mitigation of sentence. Yet, counsel's submission, in answer to a question from the

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Bench, was that the sentencing Judge must always sentence on the basis that the conspiracy was not implemented.

20 At 8 - 9, their Honours continued:

"It is commonplace that the ingredients of the offence of conspiracy are complete once there is agreement between two or more persons [Gerakiteys v The Queen (1984) 153 CLR 317 at 327, 334; R v Kamara [1974] AC 104 at 119]. But it is equally plain that the conspiracy does not end with the making of the agreement. "It will continue so long as there are two or more parties to it intending to carry out the design" [R v Doot [1973] AC 807 at 823. See also R v G, F, S and W [1974] 1 NSWLR 31 at 43 - 44]. The conspiracy alleged by the Crown in the present case continued over a period of a year or so and during that time the parties to the conspiracy decided on such matters as the dates of importation of heroin and the quantities involved. A finding of guilt by the jury that there was a conspiracy as alleged by the Crown necessarily involved, as has already been stated, an agreement by the appellant with others to import large quantities of heroin and thereafter to distribute it. In assessing what Gleeson CJ described as "the degree of criminality involved in the appellant's participation in the conspiracy" [R v Savvas [No 2] (1991) 58 A Crim A 174, at 177], Hunt J was entitled to have regard to the part the appellant played. A permissible, perhaps the only, way in which his Honour could do that was by considering the number of importations and supplies of heroin in which the appellant was involved."

21 The facts previously set out indicate that the conspiracy had progressed to an advanced stage. It obviously came to an end only by reason of the site having been discovered. The number of men involved, said to have been at least six and perhaps eight or nine, the equipment which had been taken up to the selected site for the cultivation, some of it, at least, having been transported from Adelaide, the nature of the camp and the amount of food provided, indicated clearly just how substantial the operation was intended to be and how close it came to fulfilment.

22 It is then complained that the learned sentencing Judge erroneously drew a distinction between the applicant and Lymberis in respect of their respective involvements and roles in the conspiracy. For some reason, however, which is not readily apparent, neither counsel for the applicant

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nor counsel for the Crown placed the transcript of the evidence given in the trial before this Court. Nor, in those circumstances, did they draw any significant part of it to our attention. The material which is before us, however, did indicate that the name of the applicant was mentioned in the evidence far more than that of any other person and it was conceded that the applicant had become the spokesman for the group, although this was claimed to be by reason of his command of the English language. We were informed, however, that neither of the applicant's co-accuseds required an interpreter during the trial. The applicant claimed that Michael Nikole (a name which has previously been referred to) was the "boss" and that everyone else was working for him, although the applicant, as his Honour indicated, claimed that he himself had not worked for Nikole. It was the Crown's case that the applicant was in fact Nikole; but his Honour made no finding in this regard. Nevertheless, he was satisfied that the applicant was one of the organisers behind the plan to grow cannabis. He was also linked with the provision of the pump and he was linked to the substitution of a false number plate on one of the Nissan vehicles. Nor should it be overlooked that his Honour had the advantage of seeing and hearing all the witnesses and making his own assessment of the role played by the applicant, albeit in a case in which on the critical points the two convicted persons were disbelieved. His Honour reached his conclusion having regard, but not exclusive regard, to the fact that the applicant was far more intelligent and cunning than Lymberis. In the course of the submissions on sentencing, his Honour described the applicant as showing more obvious signs of intelligence, organisation and application than did his two co-accused. His Honour made no finding as to whether the applicant was the driving force behind the conspiracy. His finding was that, as distinct from Lymberis, the applicant was "one of the organisers behind this plan to grow cannabis in the Mitchell River area". There was very little evidence as to the role played by Lymberis. Indeed, it appears to have extended only to his being a cook and working on camouflaging the camp. It was certainly not possible to sustain a finding that Lymberis played a role in the conspiracy equivalent to that of the applicant.

23 It is accepted that proof of the place of the applicant in the senior hierarchy of the organisation was required to be established by the Crown beyond reasonable doubt - see Langridge v The Queen (1996) 17 WAR 346, R v Storey[1998] 1 VR 359 and R v Olbrich (1999) 73 ALJR 1550. In my opinion, it has not been shown that it was not open to the learned sentencing Judge to make the finding which he did to that standard.
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24 It was accepted by senior counsel for the applicant that there was much more evidence linking the applicant to the commission of the offence as compared to Lymberis, but he argued that, once the jury had returned a verdict of guilty, that was irrelevant. With respect to counsel, it was this evidence which established the applicant's significant role in the conspiracy, in contrast to the evidence of the role of Lymberis.

25 In the present circumstances, the applicant having been found to be significantly higher in the hierarchy than Lymberis, the requirement for parity does not avail the applicant. In Lowe v The Queen (1984) 154 CLR 606, at 609, Gibbs CJ said: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account". This is not a case of like having to be treated alike - see Postiglione v The Queen (1997) 189 CLR 295, per Dawson and Gaudron JJ at 301, 302. This is a case in which "the difference may fairly be regarded as reflecting their different roles in the conspiracy in respect of which they were convicted". See also R v Cox (1996) 66 SASR 152, per Doyle CJ at 159, a passage approved by McHugh J in Postiglione's case at 313. There could, in my view, be no justifiable sense of grievance on the part of the applicant with respect to his sentence in comparison to that of Lymberis.

26 Although not specifically covered by the grounds of appeal, senior counsel for the applicant sought to maintain that the ill-health of the applicant required a lesser sentence than that which was imposed.

27 The evidence regarding the applicant's ill-health was far from satisfactory. In his submissions regarding sentencing, counsel appearing at the trial submitted that the applicant had not been able to work for quite some time due to his medical condition. He then said:

"I don't know that I wish to say too much about that. There are no doubt several medical reports on your Honour's file. The most recent one which I sent in was dated 12 August [1999]."

28 No pre-sentence report was requested by counsel for the applicant and no report was commissioned by the sentencing Judge. The other reports referred to were written in connection only with the applicant's capacity to travel to Western Australia to stand his trial. The transcript records that the "recent" report referred to, which was the last report prior

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to the commencement of the trial on 23 August 1999, indicated that there had been "a considerable improvement in [the applicant's] physical state". This is not consistent with the applicant's claims in his written representations to the sentencing Judge regarding his physical condition a matter of days after the date of the report. An earlier report had indicated that, on 7 April 1998, the applicant had been standing on a ladder about six feet above the ground holding a timber roof rafter when he slipped and fell onto the concrete below. His orthopaedic surgeon then indicated that he would be able to travel from Adelaide to Perth by the end of the following week. This is not consistent with his claim about not having been able to work for quite some time because of his medical condition.

29 The applicant was said by his counsel also to be nervous about the possibility of prison and not having access to his medication, some of which was a strong narcotic pain-killer, and that other medicines did not apparently work properly and did not kill the pain as well.

30 In a written submission just prior to sentencing, the applicant said that in 1985 he had undergone an osteotomy operation in relation to his hip and that he was very concerned about the prospect of then having to have a hip replacement operation because of the prospect that such an operation might not be successful and might make his condition worse. He referred also to a hemiparesis which he had suffered earlier in 1999, and which he claimed had made it more difficult for him to decide whether to have the hip replacement operation because he had still not recovered feeling in his left leg. No information was forthcoming as to the extent of the paresis. The applicant wrote that he was still experiencing severe pain in his right hip and still taking medication, but finding it difficult by reason of what he maintained was a lack of co-operation on the part of the prison authorities. He said he was concerned at the prospect of spending time in prison in his current medical condition because he was still in severe pain and because it was not possible to receive all necessary medical treatment in prison. He also claimed he would be "non productive" in prison and would not be able to enjoy recreation periods and would be mainly confined to his bed. There is no medical evidence to lend any substance to these claims and there is no evidence of such bad health or physical disability as required a reduction in the sentence. He was not subject to any severe incapacity and his condition was not a causative factor in his offence - see D A Thomas, Principles of Sentencing, 2nd edn (1979) at 215 - 216.

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31 The position with respect to sentencing an offender who claims to be in ill-health was well expressed by King CJ in R v Smith (1987) 44 SASR 587, at 589:

"How far should the new information about the appellant's health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

32 Senior counsel for the applicant on the appeal indicated that he did not have the materials which had been presented to the learned trial Judge but that it did not matter for the present purposes because it had all been overtaken later on in the proceedings, having been superseded by the applicant's written submissions. Those submissions, as indicated, were not supported by reference to any current medical reports. They came from a person who was found by the jury not to be credible.

33 Notwithstanding the applicant's claim that he had suffered throughout his life with pain as a result of "Perthes" disease of the right hip and his having told his doctor that by mid-1984 his pain was getting worse, both in his right hip and in his right leg, and that in January 1985 he had an operation on his right leg with correction of the alignment of the left femur (osteotomy), he had nevertheless been capable of driving up to the north west of this State and camping in a remote area far removed from medical facilities. His Honour did not deal specifically with the applicant's ill-health as a consideration in the determination of the appropriate sentence. Nevertheless, acknowledging that the onus rested on the applicant to establish the extent of his ill-health on the balance of probabilities, I am not persuaded that his Honour erred in not treating the applicant's ill-health as a mitigating factor. Nor am I persuaded that imprisonment would impact significantly more harshly upon the applicant by reason of any ill-health on his part than upon another prisoner. As was

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indicated in R v Smith, it is the responsibility of the authorities to provide appropriate care and treatment for sick prisoners. In particular, they will be responsible to provide proper medication for the applicant regardless of there being so-called "set times" asserted by him.

34 Senior counsel also revived "other matters relied upon on the plea", one of which was concerned with the impact of the applicant's sentence upon his wife and family. As Thomas, op cit, at 211 - 213, has pointed out, however:

"The court has stated on many occasions that the hardship caused to the offender's wife and children is not normally a circumstance which the sentencer may take into account."

The particular circumstances of the family in this case are not such that the degree of hardship is exceptional and considerably more severe than the deprivation suffered by a family in normal circumstances as a result of imprisonment. There is no question of young children being involved. His son was aged 29 and his daughter 27. The claim that the applicant's wife was not coping very well on her own and that he was concerned about the pressure which had now been placed upon her, and his further claim to be very "concerned" about the fact that he was going to be away from his family conveniently ignored the fact that his counsel had told the learned sentencing Judge that, for nine years or so, he had been on the run and having a very difficult time moving from hotel room to hotel room and living out of a suitcase. He was then said to have had little contact with his family "or not as much as he would have liked". He claimed that his financial position was not very good, but no details were provided apart from the fact that he had built a new house in Flinders Park in Adelaide and had extensions made to another house which he owned in Flinders Park. Presumably whilst on the run, in his submissions he said that he was organising and supervising the various contracts in relation to both houses and that his wife would then have to take responsibility for supervising the completion of both projects, for which she was not equipped. Furthermore, although he referred to a debt of $235,000 on the houses, he was also entitled to the return of a cash deposit of $100,000 for the deposit lodged in respect of his bail.

35 The applicant was unable to bring himself within the well recognised criteria which are required to justify a reduction in the sentence which would otherwise be imposed by reason of its effect upon his family.

36 In my opinion, grounds 1 and 2 have not been made out.

(Page 16)

37 The third ground of appeal relates to the sentence of 9 months' imprisonment in respect of escaping out of legal custody.

38 The attitude of the legislature towards escaping from custody is made clear by the Sentencing Act, by virtue of which a sentence for such an offence being a "prescribed term" within the meaning of s 85(1), a parole eligibility order is not to be made in respect of it - s 89(4). And a prisoner may not be discharged, as he would be in respect of other sentences when he has served two-thirds of the term - s 95(1). Escaping from custody involves a deliberate defiance of the legal system and it puts the community to the expense, often the great expense, of a search for the escapee, and, in this case, extradition from another State. The deterrent purpose of punishment for this type of crime is paramount - see R v Knight (1986) 40 SASR 479, per King CJ at 479, which, although a case of escaping from prison, is still relevant, and see also C C Ruby, Sentencing, 4th edn (1994) at 640.

39 In my opinion, the learned sentencing Judge was fully justified in fixing a sentence which was one-half of the maximum in respect of the applicant's escape and in ordering that it be served cumulatively upon the sentence for the conspiracy. There is nothing to indicate that the learned sentencing Judge was doing other than sentencing for the offence of escaping, which, it is accepted, is not a continuing offence which continues while the offender is unlawfully at large. The offence was completed when the applicant escaped from the lock-up. There is nothing, however, to indicate that his Honour fell into any error in this regard.

40 Although I would grant the applicant leave to appeal against his sentences, I would dismiss the appeal.

41 PIDGEON J: I agree with the reasons of Kennedy J.

42 WALLWORK J: I agree with the reasons for judgment of Kennedy J and with the orders proposed by his Honour.