Elali v R

[2025] NSWCCA 9

116 NSWLR 442

Elali v R [2025] NSWCCA 9 Court of Criminal Appeal Price AJA, Ierace and McNAUGHTON JJ 15November 2024, 19 February 2025 CRIME — Public justice offences — Escape — Whether a continuing offence .

A man was being escorted by police to a police vehicle when he broke free and ran across a road, down an alleyway and through a house. The man then ran into a second house and hid in a bedroom. Having lost sight of the man, police secured a perimeter around the man’s general location. They ultimately found the man in the bedroom, where he was arrested and returned to custody.

The man pleaded guilty to, and was sentenced for, an offence of entering a building with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW). It was common ground that the indictable offence was the common law offence of escaping from lawful custody. The man sought leave to appeal against his conviction on the ground that he could not in law have been convicted of the offence on the agreed facts because, by the time he entered the second house, he was no longer in the direct vicinity of police and police had lost sight of him, such that he had already committed the offence of escaping from lawful custody. The man submitted that, as a result, a miscarriage of justice had been occasioned and his plea of guilty should be set aside.

Held (granting leave to appeal and dismissing the appeal against conviction): The common law offence of escaping from lawful custody is a continuing offence. It is not constrained by the imposition of boundaries such as the lack of immediate pursuit, loss of control or being out of sight. ([61], [65]; [166]; [167])

(Obiter) It would be sensible to say that there is a temporal limitation to the offence, escape does not continue indefinitely, there will come a time when the escape has been completed such that the escapee becomes a fugitive from justice and whether the escape has been completed is a question of fact. It may be doubted that the offence continues so long as the person escaping is kept out of imprisonment, as stated in R v Ryan (1890) 11 LR (NSW) 171. ([61], [65]; [166]; [167])

R v Ryan(1890) 11 LR (NSW) 171; R v Ryan[1966] VR 553; R v Scott[1967] VR 276; R v Dhillon[2006] 1 WLR 1535;  [2005] EWCA Crim 2996 considered. R v Reid[2015] EWCA Crim 597 applied. R v Keane[1921] NZLR 581; R v Kafka[1962] NZLR 351; R v Kura[2008] NZCA 337 not followed.

CASES CITED

The following cases are cited in the judgments:

Andreata v R[2015] NSWCCA 239 Barnes v R(2022) 299 A Crim R 483;  [2022] NSWCCA 140 Da Silva v R[2024] NSWCCA 216 Delaney v R(2013) 230 A Crim R 581;  [2013] NSWCCA 150 Director of Public Prosecutions (Cth) v De La Rosa(2010) 79 NSWLR 1;  [2010] NSWCCA 194 Gett v Tabet(2009) 109 NSWLR 1;  [2009] NSWCA 76 House v The King(1936) 55 CLR 499;  [1936] HCA 40 Kandemir v R[2018] NSWCCA 154 Kaveh v R[2017] NSWCCA 52 Kentwell v The Queen(2014) 252 CLR 601;  [2014] HCA 37 Khoury v R(2011) 209 A Crim R 509;  [2011] NSWCCA 118 Meissner v The Queen(1995) 184 CLR 132;  [1995] HCA 41 Mill v The Queen(1988) 166 CLR 59;  [1988] HCA 70 Moriarty v Nye(2024) 114 NSWLR 560;  [2024] NSWCCA 116 Nasrallah v R(2021) 105 NSWLR 451;  [2021] NSWCCA 207 Nassr v R[2015] NSWCCA 284 Nguyen v R[2008] NSWCCA 322 Postiglione v The Queen(1997) 189 CLR 295;  [1997] HCA 26 Pym v R[2014] NSWCCA 182 R v AGR(Court of Criminal Appeal (NSW), 24 July 1998, unrep) R v Dhillon[2006] 1 WLR 1535;  [2005] EWCA Crim 2996 R v Elali(District Court (NSW), Turnbull SC DCJ, 21 November 2023, unrep) R v Gavel(2014) 239 A Crim R 469;  [2014] NSWCCA 56 R v Goodwin(1990) 51 A Crim R 328 R v Kafka[1962] NZLR 351 R v Keane[1921] NZLR 581 R v Kura[2008] NZCA 337 R v Liberti(1991) 55 A Crim R 120 R v Reid[2015] EWCA Crim 597 R v Ryan(1890) 11 LR (NSW) 171 R v Ryan[1966] VR 553 R v Scott[1967] VR 276 Refaieh v R(2018) 272 A Crim R 245;  [2018] NSWCCA 72 Rizk v R[2020] NSWCCA 291 Roach v R(2019) 344 FLR 429;  [2019] NSWCCA 160 Shaw v R[2024] NSWCCA 241 Shortland v R[2024] NSWCCA 174 Skondin v R[2006] NSWCCA 59 Totaan v R(2022) 108 NSWLR 17;  [2022] NSWCCA 75

APPLICATION FOR LEAVE TO APPEAL

This was an application for leave to appeal against conviction and sentence following the entry of a plea of guilty in the Local Court and sentencing by the District Court (unreported, 21 November 2023 (Turnbull SC DCJ)).

PD Lange, for the applicant. S Lind, for the respondent. Judgment reserved 19 February 2025 PRICE AJA. 1 The applicant, Abdul Elali, seeks leave to appeal against his conviction for the offence of entering a building on 30 December 2021 with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW), to which he pleaded guilty. For ease of identification, the sequence number of the offence is H85707372/4. 2 The applicant also seeks leave to appeal against his sentence imposed by Turnbull SC DCJ (the judge) on 21 November 2023 in the District Court at Sydney, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW): R v Elali (District Court (NSW), Turnbull SC DCJ, 21 November 2023, unrep). 3 On 12 May 2023, the applicant pleaded guilty in the Local Court at Penrith to the offences set out in the table below (at [5]) and was committed for sentence to the District Court. 4 On 21 November 2023, the judge sentenced the applicant to an aggregate sentence of 8 years’ imprisonment, with a non-parole period of 4 years, after allowing a discount of 25% for his pleas of guilty and finding special circumstances. The aggregate head sentence was backdated to commence on 20 March 2022 and expires on 19 March 2030, with the non-parole period to expire on 19 March 2026. 5 The table below which was helpfully provided by the Crown sets out the offences; the maximum penalties for the offences; the offences included on a Form 1; and the judge’s indicative sentences:

Charge and sequence number	Offence and section	Maximum penalty	Indicative sentence
H85768234/1	Enter building with intent to commit indictable offence of larceny s 114(1)(d) Crimes Act 1900 (NSW)	7 years’ imprisonment	21 months’ imprisonment (taking into account Form 1A)
H85768234/2	Damage property s 195(1)(a) Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1A attaching to H85768234/1
H85768234/3	Common assault s 61 Crimes Act 1900 (NSW)	2 years’ imprisonment	Taken into account on Form 1A attaching to H85768234/1
H325335096/1	Enter inclosed lands s 4(1)(b) Inclosed Lands Protection Act 1901 (NSW)	5 penalty units	Taken into account on Form 1A attaching to H85768234/1
H325335096/2	Larceny s 117 Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1A attaching to H85768234/1
H85199222/1	Police pursuit (second or subsequent) s 51B(1) Crimes Act 1900 (NSW)	5 years’ imprisonment and 5 years’ automatic / 2 years’ minimum disqualification	28 months’ imprisonment
H85199222/3	Resist officer while in the execution of his or her duty s 58 Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1B attaching to H85199222/4
H85199222/4	Assault officer while in the execution of his or her duty s 60(1) Crimes Act 1900 (NSW)	5 years’ imprisonment	28 months’ imprisonment (taking into account Form 1B)
H85199222/5	Drive while disqualified (second or subsequent offence) s 54(1)(a) Road Transport Act 2013 (NSW)	12 months’ imprisonment and/or 50 penalty units 12 months’ automatic / 6 months’ minimum disqualification	14 months’ imprisonment, with a 12-month licence disqualification
H85199222/6	Possess prohibited drug s 10(1) Drug Misuse and Trafficking Act 1985 (NSW)	2 years’ imprisonment and/or 20 penalty units	Taken into account on Form 1B attaching to H86199222/4
H85199222/7	Drive conveyance taken without consent of owner s 154A(1)(b) Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1C attaching to H86031136/1
H85199222/8	Possession of identification plate not attached to vehicle s 154J(1) Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1C attaching to H86031136/1
H85199222/12	Goods in premises suspected stolen

s 527C(1)(c) Crimes Act 1900 (NSW)	12 months’ imprisonment and/or 10 penalty units	Taken into account on Form 1C attaching to H86031136/1
H85199222/15	Use class A vehicle with unauthorised numberplate affixed cl 129(1) Road Transport (Vehicle Registration) Regulation 2017 (NSW)	20 penalty units	s 10A Crimes (Sentencing Procedure) Act 1999 (NSW)
H85199222/16	Enter inclosed lands s 4(1)(b) Inclosed Lands Protection Act 1901 (NSW)	5 penalty units	Taken into account on Form 1B attaching to H85199222/4
H85199222/18	Damage property s 195(1)(a) Crimes Act 1900 (NSW)	5 years’ imprisonment	Taken into account on Form 1B attaching to H85199222/4
H86031136/1	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	14 years’ imprisonment	3 years and 8 months’ imprisonment (taking into account Form 1C)
H85882920/1	Larceny s 117 Crimes Act 1900 (NSW)	5 years’ imprisonment	16 months’ imprisonment
H317489798/1	Break, enter and steal s 112(1)(a) Crimes Act 1900 (NSW)	14 years’ imprisonment	30 months’ imprisonment
H85166214/1	Larceny s 117 Crimes Act 1900 (NSW)	5 years’ imprisonment	15 months’ imprisonment
H85166214/2	Drive while disqualified (second or subsequent offence) s 54(1)(a) Road Transport Act 2013 (NSW)	12 months’ imprisonment and/or 50 penalty units 12 months’ automatic / 6 months’ minimum disqualification	12 months’ imprisonment, with a 12-month licence disqualification
H85707372/1	Escape police custody Common law	Penalty at large	12 months’ imprisonment
H85707372/3	Enter inclosed lands s 4(1)(b) Inclosed Lands Protection Act 1901 (NSW)	5 penalty units	Taken into account on Form 1B attaching to H85199222/4
H85707372/4	Enter building with intent to commit indictable offence of escape police custody s 114(1)(d) Crimes Act 1900 (NSW)	7 years’ imprisonment	36 months’ imprisonment
H91650838/1	Larceny s 117 Crimes Act 1900 (NSW)	5 years’ imprisonment	18 months’ imprisonment

6 The notice of appeal identifies the following three grounds of appeal:

“Ground 1: A miscarriage of justice was occasioned by the applicant’s conviction for the offence of entering a building with intent to commit an indictable offence, namely the common law offence of escape, in circumstances where, on the agreed statement of facts, the applicant could not in law have been convicted of the offence.

Ground 2: His Honour erred in determining the commencement date of the aggregate sentence by reference to the asserted effect of the applicant’s parole and previous intensive corrections order having been revoked, in circumstances where there had been no such revocation.

Ground 3: His Honour erred in sentencing the applicant in respect of the two driving while disqualified offences on the basis that the maximum penalty was one of 2 years imprisonment, when in fact the maximum penalty was one of 12 months imprisonment.”

7 At the commencement of the hearing in this court, the applicant’s counsel, Mr Lange, sought leave to advance a fourth ground of appeal:

“Ground 4: His Honour erred in failing to find that the applicant was sexually mistreated in the custodial environment.”

8 Both parties were granted leave to file further written submissions. 9 During the proceedings on sentence, a signed statement of agreed facts setting out the circumstances of the applicant’s offending was tendered. Before proceeding further, it is convenient to summarise the agreed facts for all the applicant’s offences other than those relating to ground 1. The agreed facts relevant to ground 1 are summarised below at [23].

Summary of the agreed facts

H325335096 (Seq 1 and 2) — enter inclosed lands — larceny — 18 June 2021

10 On the evening of 18 June 2021, the applicant entered the car park of a Millers Point residential apartment block which was a secured and enclosed space. The applicant then stole a bicycle valued at around $400 parked in the car park and left the area. On two separate occasions later that night, the applicant was stopped by police and captured on body-worn video in possession of the stolen bicycle.

H85768234 (Seq 1–3) — enter land with intent to commit larceny — damage property — common assault — 25 July 2021

11 In the very early morning of 25 July 2021, the applicant was captured on CCTV footage entering the car park of a residential apartment block in Dee Why. The applicant was seen searching through the windows of parked cars using the flashlight on his phone, while also holding a wheel brace and metal pole. He then approached a motorcycle parked in one of the bays and used the metal pole to tamper with and strike the front wheel. He also shook the motorcycle and twisted the throttle causing damage. The estimated cost of repairing this damage was assessed to be $2,469.41. 12 On that same day at about mid-morning, the applicant was confronted by a female resident who had called the owner of the motorcycle. The applicant was approached by the owner and in conversation told them that he was just fixing the bike because “some kids tried to steal it”. Upon the owner insisting that the applicant remain and wait for the police to arrive, he attempted to leave the premises and was closely followed by the owner. At this point, the owner caught up with the applicant, and the applicant punched the owner’s chest with two closed fists. When this occurred, the owner stopped following the applicant on foot but continued observing the applicant from a distance in his car.

H85166214 (Seq 1 and 2) — larceny — drive while disqualified — 20 November 2021

13 On 20 November 2021, the applicant entered Michael Hill Jewellers in Westfield at Penrith, stole jewellery from the display area and left without paying. The CCTV footage showed that he had successfully picked the lock to a display cabinet and removed two trays of pendants, placing the jewellery in the front pocket of his jumper. The total value of the jewellery stolen by the applicant was $22,783. These items have not been recovered. The applicant was also captured driving to Westfield and leaving when he did not at that time hold a driver’s licence and was also disqualified from driving.

H317489798 (Seq 1) — break and enter and steal — 25 November 2021

14 On 25 November 2021, the applicant broke into a residence at St Clair by damaging the side flyscreen and entering through the ground-level window.The applicant stole several items from the property including two laptop computers, a money tin containing around $300, multiple pairs of shoes and jewellery. The total value of all the items stolen was approximately $12,650, which has not been recovered.

H85882920 (Seq 1) — larceny — 16 December 2021

15 On 16 December 2021 during the afternoon, the applicant and two co-offenders were captured on CCTV entering Selected Jewellery in Westfield at Miranda. The co-offenders momentarily distracted the store employee as the applicant unlocked a glass cabinet in the store and removed four watches. The CCTV footage also shows the applicant removing a diamond pendant and chain from a mannequin when leaving the store. The total value of the jewellery stolen was approximately $21,180, which has not been recovered. In a later recorded Electronically Recorded Interview with a Suspected Person (ERISP), the applicant made full admissions of the offending conduct during the incident.

H91650838 (Seq 1) — larceny — 17 December 2021

16 On 17 December 2021 in the afternoon, the applicant and a co-offender attended Angus and Coote inside Macquarie Shopping Centre. The CCTV footage appears to show that while the staff member was busy speaking with the co-offender, the applicant lifted a glass sliding window of a display case and took four rings. The applicant is seen on CCTV placing the rings in his pocket and leaving the store with the co-offender. The total value of the rings was $11,196, which has not been recovered.

H86031136 (Seq 1) — break and enter and steal — 27 December 2021

17 On 27 December 2021 in the early hours of the morning, the applicant broke into the premises of a Cars24 site in St Marys and stole a Mercedes-Benz GLA 250. About two days later, employees noticed that a Mercedes had been stolen, along with various other items such as car keys and identification plates. The applicant was caught driving the stolen Mercedes in the police pursuit outlined below at [18]–[19] (H85199222), and the stolen items were recovered from inside that vehicle.

H85199222 (Seq 1–18) — police pursuit — resist officer — assault officer — drive while disqualified — possess prohibited drug — drive stolen conveyance — possess identification plate not attached to vehicle — goods in premises suspected stolen — use vehicle with unauthorised numberplate — enter inclosed lands — damage property — 29 December 2021

18 On 29 December 2021, police spotted the applicant driving a stolen Mercedes-Benz GLA 250 as he passed through Willmot. The Mercedes was displaying a Victorian registration numberplate belonging to an Audi Q3 8U station wagon. The applicant’s manner of driving caught the attention of police who then followed him. Upon seeing that the patrolling police car had activated its sirens and warning lights the applicant started accelerating away. A police pursuit ensued with the applicant travelling at speeds in excess of the speed limit. At one point during the pursuit, the applicant had increased his speed to approximately 80km/h in a 50km/h zone which was 30km/h above the speed limit. The pursuit went on for over 5km and eventually ended when the applicant lost control of the vehicle and crashed into a tree. 19 The co-offender, who sat in the passenger seat, was arrested nearby. The applicant fled the scene with a police officer pursuing him not far behind. The officer repeatedly requested and directed that the applicant get on the ground in order to be arrested but he did not comply. The applicant shaped up and threw several punches at the officer, which did not land, and made threats to “slash”, “stab” and “shoot” the officer. He also placed one arm under his jumper which caused the officer to believe that he was holding a knife. The officer in response raised his gun at the applicant. Once arrested, the applicant was searched and a small package containing 2.46g of buprenorphine was found. Police searched the vehicle the applicant had been driving and found a number of items including car keys belonging to seven cars, three different NSW registration plates, two laptops, black gloves, a bunch of power tools, two sunglasses and vehicle inspection forms for several cars.

Ground 1 — common law offence of escape

20 The court attendance notice (CAN) is as follows:

“Crimes Act 1900 114(1)(d)

Enter building/land w/I commit indictable offence — T1 between 1:15 pm and 1:30 pm 30/12/2021 at ROOTY HILL did enter a building, to wit, … Victoria Road, Rooty Hill with intent to commit an indictable offence in the said building, to wit, … Victoria Road, Rooty Hill.”

21 Although the CAN does not provide particulars of the indictable offence, it is common ground that the indictable offence described is the common law offence of escape from lawful custody. 22 The applicant also entered a plea of guilty to the common law offence of escape from police custody. The CAN is in the following terms:

“Common Law (NSW) CommonLaw

Escape police custody — T1 between 1:15 pm and 2:30 pm 30/12/2021

At MOUNT DRUITT did, being a prisoner, escape from the lawful custody of Constable TRACEY and Constable SMITH, members of the Police Force.”

23 The agreed facts for these offences which occurred on 30 December 2021 are as follows:

“101. At around 1:15pm Constables Michelle TRACEY and Jacqueline SMITH escorted the offender from the Hospital to the Police Vehicle. The offender was escorted with Police on both sides of him. Whilst walking back to the car, the offender ripped free from Police and ran away from the car park of Mount Druitt Hospital in the direction of Railway Street, Mount Druitt.

102. A foot pursuit ensued from this point where the offender was chased from the car park Eastbound onto Railway Street. The offender ran over two lanes of traffic almost causing a car accident.

103. The offender continued to run Eastbound onto Kimberly Street and cut left into an alleyway leading Northbound onto Victoria Road, Rooty Hill.

104. The Offender entered the land and residential premises at … Victoria Road Rooty Hill and went through the house (sequence 3 placed in Form 1B), in attempting to escape from police custody. Thereupon he entered the residential premises at … Victoria Road Rooty Hill from the back door and asked the occupants (victims 1 & 2) to hide him. (Sequence 4 — Enter building with intent). When they refused, he himself closed the front door and went into the guest bedroom to hide from the police.

105. When Constables TRACEY and SMITH lost sight of the accused, they urgently requested further Police resources where a perimeter was quickly established. Whilst holding a perimeter as K9 Dog Unit was requested, numerousmembers of the Public began to point in the direction of the driveway of … [a house on] Victoria Road, Rooty Hill.

106. The perimeter was tightened further by the police and they began to look into and around the backyard of … [houses in] Victoria Road. As Police checked the backyard of … [the victim’s house on] Victoria Road, a rear security door was seen by them to be ajar.

107. At this time, the elderly female occupant … (victim 2) was holding her hands in the air looking extremely distressed. Police asked the victim if she needed any assistance. The victim appeared to be fearful and could not verbally reply. Instead, the victim was moving her eyes in the direction of the hallway.

108. When Police fully opened the screen door, the victim started pointing inside a bedroom within the house and she informed Police that a male intruder was inside her house. Police cleared the room and located the offender in the guest bedroom of … [a house on] Victoria Road, Rooty Hill.

109. The offender was apprehended by Police and placed under arrest. Due to the room where the offender was located in was a confined space and knowing the violent history of the offender and noting his previous escape from police custody, Police immediately took down the accused and arrested him. Police attempted to place his arms to the rear. Police had to use large flexi cuffs made out of a plastic construction.

110. The main occupant of the premises (victim 1— elderly male) also spoke with the police at the scene and both victims later provided statements to the police.

111. Following the arrest, a further victim approached Police and advised that the offender ran through her house as well … [another house on] Victoria Road, Rooty Hill. (sequence 3 placed on the Form 1C) In total, three victims between the two houses informed Police that they did not give any consent for anyone to enter their property.

112. The two elderly victims at … Victoria Road disclosed to the Police that they were fearful for their safety due to the offender entering their premises in such manner and asking them to hide him inside their house.

113. Once the offender was back in police custody, he was not violent any longer and began apologising to Police …

114. The offender was entered into custody, explained his rights and then charged with the matters currently before the court.”

Submissions

24 The applicant complains that the agreed facts for the offence of entering a building with the intent of committing an indictable offence do not as a matter of law establish the offence. The applicant pointed out that he had pleaded guilty to the common law offence of escape from police custody (see [22] above). 25 The single authority in New South Wales on the common law offence of escape is the decision of the Full Court of the Supreme Court in R v Ryan (1890) 11 LR (NSW) 171 (Tommy Ryan). In Tommy Ryan, Windeyer J observed at 196 that the offence of escape is a continuing offence. The applicant contends that Tommy Ryan should no longer be followed. 26 The applicant cited R v Scott [1967] VR 276 in which the Full Court of the Supreme Court of Victoria unanimously declined to adopt the reasoning in Tommy Ryan. Particular reference was made to the judgment of Smith J in Scott at 285–286. The applicant submitted that this court would conclude that Tommy Ryan should not be followed and find the reasoning in Scott to be correct. The applicant pointed out that the conclusion that escape is not acontinuing offence is supported by NZ authority which has considered this issue. In particular, the applicant cited the NZ decisions of R v Keane [1921] NZLR 581 at 583 and R v Kura [2008] NZCA 337 at [16]. 27 Referring to the agreed facts to which he had entered his plea of guilty, the applicant argued that by the time he had entered the residence on Victoria Road (the premises), he had already committed the common law offence of escape. He was no longer in the direct vicinity of the police officers, who had lost sight of him. It was submitted that as the applicant could not be convicted of entering the premises with intent to commit the offence of escape, a miscarriage of justice had been occasioned and his plea of guilty should be set aside. 28 The Crown submitted that on the agreed facts, the applicant could in law be convicted of the offence charged. In addition to Tommy Ryan, Scott and the NZ decisions cited by the applicant, the Crown referred to R v Ryan [1966] VR 553 (Ryan and Walker), a joint judgment of the Full Court of the Supreme Court of Victoria (Winneke CJ, Hudson and McInerney JJ) at 562, in which the Full Court said that while an accused would be liable for the offence of escape immediately upon exiting a prison, it did not necessarily follow that an accused was “not still committing the offence at the stage when he is in the act of making good his escape after his emergence”. The Crown submitted that insofar as it may be suggested that Ryan and Walker stands for the authority that a person is only committing the offence of escaping lawful custody when they are in the immediate vicinity of the area in which the person originally escaped, this submission should be rejected. 29 The Crown argued that the applicant’s contention that Scott and the NZ decisions are authorities for the proposition that the common law offence of escaping lawful custody is complete when the offender is no longer in the immediate vicinity, sight or control of police should be rejected. The Crown cited a further NZ authority of R v Kafka [1962] NZLR 351. The Crown pointed out that the NZ decisions were not concerned with the common law offence of escaping lawful custody but rather with statutory offences under NZ legislation. 30 The Crown contended that the offence of escaping lawful custody was not complete by the time the applicant entered the premises. The Crown submitted, adopting the language in Ryan and Walker, that the applicant continued to commit the offence when he hid in the house “to make good his escape”. 31 In oral argument, Mr Lange submitted that the statute being considered by the NZ cases was similar to the offence of escape under s 310D of the Crimes Act. Mr Lange argued that the law of escape ought to be that “a person escapes from the moment he breaks free from his lawful custody until such time as he is no longer under the control of the person exercising lawful authority nor in his view”.1

Consideration

32 In order for this court to grant leave to the applicant to withdraw his plea of guilty to the offence contrary to s 114(1)(d) of the Crimes Act, the applicant must establish that upon the facts admitted by the plea he could not in law have been guilty of the offence: Meissner v The Queen (1995) 184 CLR 132 at 157 (Dawson J); [1995] HCA 41. A miscarriage of justice will have occurredif the applicant establishes he could not lawfully have been convicted of the charge of entering the premises with intent to commit the indictable offence of escape from lawful custody by hiding inside that dwelling house contrary to s 114(1)(d) of the Crimes Act: R v Liberti (1991) 55 A Crim R 120 at 121 (Kirby P; Grove and Newman JJ agreeing); Meissner at 157 (Dawson J); Nassr v R [2015] NSWCCA 284 at [5] (Meagher JA, Rothman and Bellew JJ). 33 The question in this ground of appeal is whether the applicant was continuing to commit the common law offence of escaping from lawful custody when he entered the premises or the offence was complete at the time police officers lost sight of him after he broke away. 34 It appears that this issue has not been considered by this court since Tommy Ryan was decided in 1890. The relevant principle arising from Tommy Ryan is that the common law offence of escaping is a continuing offence. In that case, the offender escaped from Grafton Gaol and eluded pursuit for two months. He was eventually arrested by a police officer without a warrant and taken to a lock-up at Copmanhurst, where he was held in a cell. A few days later, the same police officer entered the cell and attempted to handcuff the offender to take him back to Grafton Gaol, but the offender resisted. During the struggle, the offender seized the officer’s revolver and shot him in the face, incapacitating the officer, and then escaped the lock-up. At trial, the jury acquitted the offender of intent to do grievous bodily harm but found him guilty of maliciously wounding although finding that the offender had used no more force than was necessary for his escape. The Full Court upheld the offender’s conviction based on finding that the general verdict of the jury was correct. 35 The pertinent question for determination by the Full Court was whether the offender was committing the offence of escaping from lawful custody when he shot the officer. At 195–197, Windeyer J stated:

“The view apparently taken by the Chief Justice [Darley CJ] at the trial was that the offence was complete as soon as the prisoner got outside the gaol, and that as the arrest was not immediately after the prisoner committed the offence, the constable had no authority to arrest him without a warrant. The view of the law upon this point taken by his Honour appears to me erroneous. The offence of escaping is a continuing offence so long as the person escaping is keeping out of imprisonment. The offence has no doubt been committed, and is complete as an offence for which a man may be punished, directly he gets outside the gaol gates, though he should go no farther, and be at once retaken; but he is no less committing his offence because after getting outside he runs away and eludes his pursuers. … In theory, though a man has escaped, his imprisonment is still continuing, and every hour that he remains out of and is defeating his imprisonment he is escaping. …

… That the law considers the imprisonment as still continuing when a prisoner escapes from his confinement is clear.”

36 Innes J, at 199, agreed that the offender was still escaping because “[c]learly he was trying at the time of his arrest to make good his escape”. Similarly, Foster J stated at 216 that:

“[Escape] does not consist, as prison breach, of a single concentrated act, but is a condition — that of refusing to undergo imprisonment, and evading its infliction. It seems, therefore, to be a continuing offence, and the person is continually committing this offence as long as he evades the penalty of his sentence. An imprisonment, in like manner, is not the mere fact of putting in prison, but continues as long as he is kept in prison, and the person guilty of it is in thecommission of the offence all the time that he restrains the liberty of the prisoner …”

37 In the present appeal, the applicant gave the following evidence during the proceedings on sentence about what occurred after he broke away from the police officers:

“Q. You talked about being truly sorry. When you were fleeing police, you ran into the home of two elderly people, didn’t you?

A. Yes.

Q. What do you want to say about that?

A. I regret of [sic] what I done [sic]. I wasn’t thinking at the time. I wasn’t in a right state of mind.

Q. What about them? They would’ve been terrified. A criminal on the run comes through their house.

A. Yes.

Q. Their sanctuary, their castle, something they worked all their lives for. I’m just making a point to you, that’s all —

A. Yeah, I understand, your Honour. To tell you the truth, I actually asked them permission for me to hide in their house. One of them agreed, and then disagreed, so I left. I know it was the wrong thing to do. Like I said, I wasn’t in a right state of mind. I was on drugs. All I was thinking was to try to get away. It was just the heat of the moment, and the drugs were just controlling my mind at the time, and I’m not that person. I — that’s not me, and I regret what I done and I’m, I’m very sorry for the victims.

Q. You say they gave you permission to hide from the police?

A. They gave me permission, but you could see that they were sort of pressured, so I left.

Q. I might’ve got this wrong, there’s a lot of detail in these facts.

A. Yeah.

Q. But weren’t you arrested in the house?

A. At the second house, yes.

Q. I see, so you fled from that house into another house?

A. Yes, I did.”

38 From the applicant’s evidence, it is plain that at the time he entered the premises he was fleeing from the police and tried to hide to make good his escape. He was in the process of escaping. In accordance with the principles enunciated in Tommy Ryan, the applicant is guilty of the offence. 39 The applicant places considerable reliance on Scott, a decision of the Full Court of the Victorian Supreme Court in late 1966. 40 Scott was preceded by around five months in 1966 by the joint judgment in Ryan and Walker. In that case, the applicants, Ryan and Walker, were charged with the murder of Hodson, a warden at Pentridge Gaol in Coburg, Victoria, in the course of escaping from that gaol. Ryan was convicted of murder and sentenced to death, whereas Walker was convicted of manslaughter. 41 On appeal, the applicant Ryan complained that the judge erred in ruling that, for the purpose of establishing felony murder, the shooting occurred at a time when the applicants were committing an offence of escaping from lawful custody contrary to s 35 of the Gaols Act 1958 (Vic). Section 35 was relevantly as follows:

“Every male person lawfully imprisoned for any crime misdemeanour or offence by the sentence of any court of competent jurisdiction … who escapes or attempts to escape from any gaol or from the custody of any member of the police force gaoler or other officer in whose custody he may be, shall be guilty of felony …”

42 This offence was later said in Scott by Smith J at 286 to mirror the common law offence of escaping from lawful custody. The applicant Ryan argued that the offence of escaping from lawful custody was complete as soon as he had cleared the external wall of the gaol. The trial judge ruled that the escape was not in fact complete as the applicants had not made good their getaway when the murder was alleged to have been committed. 43 On appeal, the view taken by the trial judge was said to be supported by the decision in Tommy Ryan. In support of Ryan’s contention that the construction adopted by the trial judge was erroneous, reliance was placed on Keane, a decision of the Supreme Court of New Zealand. The Full Court of the Victorian Supreme Court (Winneke CJ, Hudson and McInerney JJ) held that the trial judge’s construction of s 35 of the Gaols Act was correct. The Full Court stated at 562:

“Reading the section as a whole it appears to have been the dominant intention of the legislature to impose a penalty upon persons lawfully imprisoned, whether in a gaol or elsewhere, in the event of their not remaining in the state of imprisonment to which they have been subjected unless lawfully authorized to leave the same. The view may be accepted that a prisoner who without such authority succeeds in leaving the gaol by complete emergence therefrom has incurred the penalty imposed on him by the section, but it does not necessarily follow from this that he is not still committing the offence at the stage when he is in the act of making good his escape after his emergence. Had it been proved, for instance, in what may be regarded as a classic case of felony murder — Director of Public Prosecutions v. Beard, [1920] A.C. 479; [1920] All E.R. Rep. 21 — that the accused had killed the girl to stifle her cries after initial penetration but whilst still in the act of intercourse, could it be doubted that he was still in the course of committing the felony? We think not and for like reasons in the present case we have reached the conclusion that the felony created by s. 35 was still being committed by the applicants at the time when they were endeavouring to elude pursuit outside and in the immediate vicinity of the gaol.”

44 The court was of the view that it was a matter of fact for the jury to determine when the process of escaping had been completed. The court said at 563:

“Although it was not raised as a ground of appeal, it was argued before us that on this interpretation of the section the question whether the applicants had completed the process of escaping from gaol prior to the shooting or were still in the process of escaping at that moment was a question of fact for the jury to determine, and that the trial judge did not leave that issue to it but instead directed it on the basis that the escape had not been completed. This may be accepted, and to that extent the learned judge withdrew from the jury an issue which properly should have been left to it. But on that interpretation of the section, we are of opinion, having regard to the evidence, that a jury properly instructed could not reasonably have failed to draw the inference that the applicants were still in the process of escaping from gaol at the time of the shooting. Consequently, even if this point of appeal were to be decided in favour of the applicant no substantial miscarriage of justice has actually occurred.”

45 In Scott, while serving a sentence of imprisonment at Beechworth Training Prison, the appellant went missing from a working group clearing timber under the supervision of a warder outside the gaol buildings. After the appellant went missing, he travelled to Sydney and committed a robbery. On expiration of his sentence in Sydney, the appellant was extradited to Victoria on a charge of unlawfully escaping from lawful custody contrary to s 35 of the Gaols Act. 46 At trial, the appellant gave evidence that during the timber clearing, he was struck over the head with a piece of wood by another prisoner, Mr Wilson, and lost consciousness. When he regained consciousness, he realised he was out of the custody of the gaoler and did not want to return to face Mr Wilson who had assaulted him and had threatened to harm him on numerous previous occasions. At issue was whether, if the appellant’s account was accepted, he could be found guilty of escape at law by finding himself involuntarily at large and deciding to remain so. 47 The Crown relied upon the decision of Tommy Ryan to support the contention that as the offence of escape was a continuing one, the offence could be committed in circumstances where the person found themselves out of custody and “decided not to give himself up”. In rejecting this argument, Smith J said at 285:

“I am unable, however, to see force in this argument; for if the offence of escape was not committed by the appellant at Beechworth on 2 May, there was no starting point from which the offence could be regarded as still continuing at the time when he became conscious.”

48 It was against this background that Smith J considered the case of Tommy Ryan and concluded that it was not “satisfactory authority” for the following reasons at 285–286:

“In the first place, the view there adopted, that the offence of escape continues to be committed until recapture, would involve that, years after a prisoner had regained his freedom, any person who, with knowledge of the escape, helped him to avoid detection, would be a principal offender in an offence of escape then and there being committed; yet in the long history of this crime there is not, so far as I have seen, any indication that such a charge has ever been laid in respect of such assistance. Secondly, the suggested doctrine of continuance is contrary to the view which has long been settled law in New Zealand: see R. v. Keane, [1921] N.Z.L.R. 581; R. v. Otto, [1951] N.Z.L.R. 602, at p. 615; R. v. Kafka, [1962] N.Z.L.R. 351. Thirdly, the reasoning by which the conclusion as to continuance was supported in R. v. Tommy Ryan, supra, does not appear to me persuasive.

It was there said that in theory the imprisonment of an escapee continues after he has gained his freedom. But if this fiction were adopted it would not be easy to see how the crime of escape could exist. Moreover, the authorities that were cited in support of the fiction appear, upon examination, to do no more than support two much narrower propositions. Of these the first is that, where a gaoler recaptures his prisoner after an escape, the prisoner cannot rely upon the fact that he was at large in a different county when retaken, or upon the fact that the gaoler has been punished for negligently permitting the escape, as making the retaking and subsequent imprisonment unlawful. The second is that a gaoler who has recaptured his prisoner after an escape may dispose of him as though he had never escaped, because after such a recapture ‘in supposition of law he was always in custody’ of that gaoler: see Hale P.C. vol. 1, pp. 581, 602: Hawkins P.C. vol. 2, Ch. 19, s. 12; Anon., 6 Mod., Case 339; Sir William Moore’s Case (1704), 2 Ld. Raym. 1028; 92 E.R. 183. If for these particular purposes there is a fiction as between prisoner and gaoler that the actual custody continues, then the case, as it appears to me, is one for the application of the principle stated in Hawkins P.C. vol. 2, ch. 18, s. 14, that ‘fictions of law are never carried farther than the necessity of those particular cases, which were the cause of the inventing them, doth require’. Compare also R. v. Tommy Ryan (1890), 11 L.R. (N.S.W.) 171, per Foster, J., at p. 215.

Another argument put in that case was that escape should be regarded as an offence which continues to be committed until recapture in the same way as larceny continues to be committed after the commencement of the asportavit anduntil its termination. But this argument by analogy appears to assume the conclusion to be proved. If one assumes that escape consists in obtaining one’s freedom and continuing at large thereafter, the analogy applies in one way; if one assumes that escape consists in obtaining one’s freedom, it applies in quite another way.

Yet another reason given was that escape differs from what was conceded to be the non-continuing offence of prison breach, in being not a single concentrated act, but a condition of refusing to undergo imprisonment and evading its infliction. But to say this appears, once again, to assume the conclusion. If one assumes that escape consists in the obtaining of freedom then the act is no less and no more concentrated than prison breach. The true legal position is that prison breach is merely an escape effected by force.

A distinction between the two crimes was sought to be made by pointing out that in Hawkins P.C., vol. 2, ch. 17, s. 5 it is said, in relation to escape, that all persons are bound to submit to the judgment of the law and that to free oneself from an imprisonment imposed by law is to be guilty of ‘a high contempt’. But Hawkins also states that prison breach is contempt; and it seems clear that in calling these two crimes contempts the author was not intending to express any view as to whether they were offences which continued to be committed after freedom had been gained.”

49 Smith J then held at 286:

“For these reasons, I consider that there is no foundation for the view contended for on behalf of the Crown that the offence of escape is committed when a prisoner who has not been discharged or released according to law finds himself innocently at large and decides not to give himself up.”

50 Barry J said at 278:

“The common law was concerned rather with prisoners in custody for trial than with those imprisoned in execution of sentence (Encyclopaedia of Laws of England, 2nd ed., vol. 11, p. 572), and I was at first attracted by the opinion of the majority of the Supreme Court of New South Wales in R. v. Tommy Ryan (1890), 11 L.R. (N.S.W.) 171; 6 W.N. (N.S.W.) 162, that the offence of escaping from lawful custody continues while the offender is unlawfully at large, a decision which was discussed, apparently with approval, by the Full Court (Winneke, C.J., Hudson and McInerney, JJ.) in R. v. Ryan and Walker, [1966] V.R. 553. However, the exposition of the common law given by Smith, J., is convincing, and I agree that if the presentment is regarded as charging the common law offence, the defects of the judge’s charge to the jury are such that the appeal must succeed.”

51 It is apposite to observe that the factual circumstances in Scott are far removed from the present case. Critical to the reasoning of Smith J was that the appellant being rendered unconscious found himself to be “innocently at large”. Scott is authority for the proposition that the offence of escape cannot be committed by finding oneself at liberty and deciding not to give oneself in, that is, escaping must be a conscious and intentional act.

New Zealand authorities

52 In Keane, a 1921 decision of the NZ Court of Appeal, the accused, Mr Keane, was charged with assisting a prisoner in escaping or attempting to escape from lawful custody contrary to s 145 of the Crimes Act 1908 (NZ) (now s 120 of the Crimes Act 1961 (NZ)). The accused was alleged to have assisted in the escape as he met with the prisoner outside of prison at a hotel in Auckland and lent him some clothes. The question for the NZ Court of Appeal was whether the prisoner was escaping or attempting to escape from lawful custody at the time the accused had assisted him. The Court of Appealexpressed the view that once the prisoner had regained his liberty it was clear he had already escaped and, therefore, impossible for the accused to have assisted the prisoner in escaping. The court ultimately held that escape was not a continuing act and introduced a test for determining the completion of an escape based on sight and control of police officers or prison officials. Sim ACJ (delivering judgment for the court, which also comprised Hosking, Stringer and Salmond JJ) said at 583:

“If a prisoner has regained his liberty by getting away from the precincts of the prison, and also from the sight and control of all the prison officials, he then has made his escape, and is no longer in lawful custody.”

53 In Kafka, a 1960 decision of the Supreme Court of New Zealand, a prisoner who had been sentenced to life imprisonment for murder evaded his gaolers and hid in the roof of the prison. The accused, Mr Kafka, supplied the prisoner with food and was charged with assisting the prisoner in an attempt to escape from lawful custody. Counsel for Mr Kafka relied on the decision of Keane to submit that at the time Mr Kafka assisted the prisoner, the prisoner was no longer in lawful custody and had made good his escape. TA Gresson J found that “in reality and in law” the prisoner was still in lawful custody as he had not physically got outside the precincts of the gaol despite his whereabouts being unknown. His Honour said at 352:

“He had not regained his liberty and was still effectively and physically detained within the precincts of the Mt Eden gaol, notwithstanding the fact that his precise whereabouts were unknown to his gaolers. … [The prisoner] was still physically detained within the prison precincts, and though in hiding, which was his first step in attempting to escape, he could in no real sense of the word be said to have regained his liberty.”

54 In Kura, a 2008 decision of the NZ Court of Appeal, Mr Kura had been granted bail on the condition that he not enter licensed premises or consume alcohol. After locating Mr Kura in a bar, police officers arrested him but as they did, he ran off down the road. The appellant remained at all times within the sight of the officers. He was convicted by a jury of injuring two police officers with intent to escape and of escaping from custody. The question for the Court of Appeal was whether the appellant had truly “escaped” because he was never out of the sight of the officers. The court stated the present case was factually different to Keane and that the real issue was not whether the officers had lost sight of Mr Kura but rather whether they had lost control over him. The court (O’Regan, Chisholm and Ronald Young JJ) held at [16]:

“[16] … The key question as to whether the escape was complete was not whether the police officers could see the appellant but whether the officers had lost control of the appellant. Here the appellant had removed himself from where he had been arrested against the will of the police officers. The officers had no control at that stage over the appellant. His escape was therefore complete.”

55 In Kura, the NZ Court of Appeal departed from a strict application of the binary factors in Keane of out of sight and loss of control to determine when an escape was completed. The court established that the relevant consideration when a person is running away from arresting officers is whether that person has escaped lawful custody in the sense that the officers have lost control over the person after the arrest. In such a case, whether the person running away was out of sight of the officers was not required to conclude that they had escaped lawful custody. 56 The reasoning of the NZ Court of Appeal raises a number of questions. Is there any temporal qualification to a loss of control? Is an escape completewhen a prisoner initially breaks free from the control of the officers but is brought back under their control within minutes? Does it accord with reality that despite a momentary loss of control of a prisoner, that escapee may still be pursued and may still hide from officers yet be considered to have completed his escape? Does the concept of loss of control place an artificial limitation on the common law offence of escape (bearing in mind that the NZ authorities were considering NZ legislation)?

United Kingdom authorities

57 Two UK Court of Appeal decisions have relevantly considered the elements of the common law offence of escaping from lawful custody: see, for example, R v Dhillon [2006] 1 WLR 1535; [2005] EWCA Crim 2996; R v Reid [2015] EWCA Crim 597. 58 In Dhillon, the defendant was arrested and after being taken to the police station, it appeared he might have suffered a knee injury. He was then taken by a police officer to hospital to receive treatment. At the hospital, after the defendant had received his treatment, he went back into the hospital waiting room but noticed that no police officers were waiting for him. Seeing no police officers, he left the hospital and went home. The defendant was convicted by a jury of the common law offence of escaping from lawful custody. On appeal, the defendant argued that the trial judge had inadequately directed the jury as to the elements of the offence. The Court of Appeal allowed the appeal and quashed the defendant’s conviction because of the inadequate direction to the jury on the ingredients of the offence: at [26]–[27]. David Steel J, delivering judgment for the court, after conducting a review of the relevant UK authorities relating to the offence of escaping, summarised them at [21]:

“[21] In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things: (i) that the defendant was in custody; (ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not); (iii) that the custody was lawful; and (iv) that the defendant intentionally escaped from that lawful custody.”

142 At the time of the offending, as the judge said, he was subject to conditional liberty being an ICO and was also subject to parole. 143 The author of the sentencing assessment report recorded that the applicant had struggled with drug addiction issues from the age of 15, despite receiving treatment through the opiate treatment program. The applicant had reported the motivating factor for stealing high-end items was to support his $600-a-day heroin addiction combined with Xanax and methylamphetamines. The applicant was assessed at a Tier 2 Medium/High risk of reoffending. 144 The written material tendered on the applicant’s behalf included the Allnutt report; Youssef Elali’s affidavit sworn 16 November 2023 and a report prepared by Navin Goonniah, a psychologist. Mr Goonniah was of the opinion that the applicant’s symptoms at the time of the offending met the criteria for antisocial personality disorder, post-traumatic stress disorder, substance abuse disorder, adult attention deficit disorder and oppositional defiant disorder, and borderline personality disorder. Mr Goonniah opined that the applicant was suffering from mental health impairments for which treatment was available in a mental health facility. 145 The applicant gave evidence before the judge. He confirmed that he had been using heroin since he was 21, and had been on methadone for the past six or seven years. He was also using methylamphetamine. He related that at the time he committed the offences in June and July 2021 he was using drugs. 146 The applicant said that prior to his offending in November and December 2021, he had been stabbed in the back by his partner and he became homeless, living in his car. He was using drugs. He stole to sell the stolen items for cash and drugs. 147 The applicant said he was sorry for the impact caused to the victims of his offending. 148 A letter from the applicant was also tendered in which he expressed his regret for the offences, his change of attitude and his confidence in the future with the support of his brothers and sisters who live in Victoria.

Some findings by the judge

149 The judge’s findings on the objective seriousness of the offences were not challenged by the applicant or the Crown. The judge observed that the value of the jewellery stolen from the jewellery stores was not insignificant but was “not the most spectacular amounts”.14 His Honour noted that the applicant seemed to be a leader in relation to the conduct of others.15 150 As to the police pursuit on 29 December 2021, his Honour observed that the applicant was a disqualified driver and was driving the stolen Mercedes. His distance of pursuit was about 5.4km. His Honour noted the aggravating features of brake checking, unheralded turns, swerving, the extent to which he was above the speed limit, as well as his conduct towards the following carsand noted that this was in a suburban street or series of streets with the real possibility of other cars and other people coming upon them.16 151 As to the offence of entering the building with intent to commit an indictable offence, his Honour said that it was not surprising that the two elderly victims at the premises on Victoria Road disclosed to the police that they were fearful for their safety due to what had occurred and the manner in which it had occurred and from the offender asking them to “hide him inside the house”.17 152 Other findings that the judge made that were not challenged include:

• (a)

  the applicant was entitled to a 25% discount on sentence for the pleas of guilty entered in the Local Court;

• (b)

  the applicant’s antecedent criminal history should be characterised as a continuing attitude of disobedience of the law. This had relevance to the need for retribution, deterrence and protection of society;

• (c)

  the letter of apology intended to convey remorse as well as optimism about the applicant’s future;

• (d)

  the applicant’s prospects of rehabilitation continued to be guarded as well as his likelihood of reoffending;

• (e)

  the commission of the offences whilst subject to conditional liberty did not enhance the objective seriousness of the offences but did serve as an aggravating feature on penalty;

• (f)

  where Form 1 offences were attached, they may require the sentence imposed to which they attach to reflect a greater need for denunciation and personal deterrence;

• (g)

  the applicant had a striking record of prison misconduct;

• (h)

  his Honour did not accept that the applicant had a $600-a-day heroin habit but did not reject that he was abusing drugs intermittently at the relevant time; and

• (i)

  his Honour found special circumstances being the applicant’s need for assistance for his drug problems and for psychological counselling because of his exposure to violence and his being on the verge of being institutionalised.

Material tendered on re-sentence

153 The applicant tendered on re-sentence an affidavit of Ms Howard affirmed on 14 November 2024, which annexed emails from his brother, Isaac Elali, and sister, Hanna Elali. 154 In his email, Isaac refers to the applicant’s sexual abuse at Reiby and highlights the impact this trauma had upon his brother. He refers to the applicant’s significant remorse and genuine desire to change. He confirms his commitment to help his brother reintegrate into society. 155 In her email, Hanna refers to the applicant’s genuine remorse and that the burden of incarceration has weighed heavily upon him, cutting him off from his daughter and family members. Hanna asks this court to see her brother’s potential for rehabilitation and transformation. 156 The Crown tendered on re-sentence an affidavit of Ms Gadsby, a solicitor in the Office of the Director of Public Prosecutions. The affidavit annexes the applicant’s custodial history and copies of misconduct reports for correctional offences on 10 March 2024, 4 August 2024 and 5 August 2024.

Re-sentence

157 The applicant is now 39 years of age. He was born in November 1985 and was aged 35 to 36 years old at the time of the offences. 158 The findings made by the judge at [149]–[152] above are well founded and I will adopt them in re-sentencing the applicant. 159 I should also mention that the offences of break and enter are serious offences. The property the applicant stole from the residence at St Clair on 25 November 2021 amounted to a value of about $12,650 and has not been recovered. On 27 December 2021, after gaining entry to the Cars24 site, the applicant stole a Mercedes GLA 250. 160 The material contained in the affidavits tendered on re-sentence does not persuade me to take a more positive view on the applicant’s prospects of rehabilitation. The progress that the applicant has made in custody as a hardworking sweeper is diminished by the correctional centre offences in March and August 2024. An assessment of the applicant’s prospects of rehabilitation and the likelihood of re-offending remains uncertain and is dependent upon his ability to overcome his prohibited drug use upon release. 161 I am satisfied on the balance of probabilities that the applicant was both physically and sexually assaulted at Reiby. I accept Dr Allnutt’s opinion that this abuse aggravated his antisocial personality disorder and substance abuse disorder and contributed to his post-traumatic and depressive symptoms. In my view, there is a causal link between the applicant’s mental conditions and his offending. The applicant’s moral culpability is reduced and I give less weight to general deterrence, retribution and denunciation: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I am not satisfied that the need for specific deterrence is eliminated, having regard to the applicant’s history of offending, the commission of the offences whilst subject to conditional liberty and his guarded prospects of rehabilitation and re-offending. 162 In assessing the indicative sentences, I have fixed an appropriate sentence for each offence. Critical to the sentence is the principle of totality which requires that the aggregate sentence must be “just and appropriate”: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. 163 The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 25% discount has been applied: s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW):

Charge and sequence number	Principal offence and section	Indicative sentence after 25% discount (round figures)
H85768234/1	Enter building with intent to commit indictable offence of larceny s 114(1)(d) Crimes Act	1 year 8 months’ imprisonment (taking into account Form 1A)
H85199222/1	Police pursuit (second or subsequent) s 51B(1) Crimes Act	2 years 4 months’ imprisonment
H85199222/4	Assault officer while in the execution of his or her duty s 60(1) Crimes Act	2 years 4 months’ imprisonment (taking into account Form 1B)
H85199222/5	Drive while disqualified (second or subsequent offence) s 54(1)(a) Road Transport Act	10 months’ imprisonment, with a 12-month licence disqualification
H85199222/15	Use class A vehicle with unauthorised numberplate affixed cl 129(1) Road Transport (Vehicle Registration) Regulation 2017 (NSW)	s 10A Crimes (Sentencing Procedure) Act
H86031136/1	Break, enter and steal s 112(1)(a) Crimes Act	3 years and 6 months’ imprisonment (taking into account Form 1C)
H85882920/1	Larceny s 117 Crimes Act	1 year 2 months’ imprisonment
H317489798/1	Break, enter and steal s 112(1)(a) Crimes Act	2 years 4 months’ imprisonment
H85166214/1	Larceny s 117 Crimes Act	1 year 2 months’ imprisonment
H85166214/2	Drive while disqualified (second or subsequent offence) s 54(1)(a) Road Transport Act	10 months’ imprisonment, with a 12-month licence disqualification
H85707372/1	Escape police custody Common law	12 months’ imprisonment
H85707372/4	Enter building with intent to commit indictable offence of escape police custody s 114(1)(d) Crimes Act	3 years’ imprisonment
H91650838/1	Larceny s 117 Crimes Act

1 year 4 months’ imprisonment

164 I have reduced the aggregate head sentence and found special circumstances for the reasons expressed by the judge. The ratio between the head sentence and non-parole period of 50% has been maintained.

Orders

165 The orders I propose are:

• (1)

  Leave to appeal against conviction for the offence of entering a building on 30 December 2021 with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW) is granted.

• (2)

  Appeal against conviction dismissed.

• (3)

  Leave to appeal against sentence granted.

• (4)

  Appeal against sentence allowed.

• (5)

  Quash the aggregate sentence imposed in the District Court on 21 November 2023.

• (6)

  In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 7 years and 6 months consisting of a non-parole period of 3 years and 9 months commencing on 20 March 2022 and expiring on 19 December 2025 with a balance of term of 3 years and 9 months commencing on 20 December 2025 and expiring on 19 September 2029.

• (7)

  The earliest date the applicant will be eligible to be released on parole is 19 December 2025.

IERACE J. 166 I agree with Price AJA. McNAUGHTON J. 167 I agree with Price AJA.

So ordered

Solicitors for the applicant: Just Defence Lawyers. Solicitor for the respondent: Solicitor for Public Prosecutions (NSW). J WILCOX BARRISTER 1

Transcript, 15 November 2024, pp 5(50)–6(1).

2

Remarks on Sentence, p 40.

3

Crown’s outline of written submissions (MFI B) at par 50.

4

Transcript, 17 November 2023, p 47(14).

5

Remarks on Sentence, p 40.

6

Remarks on Sentence, p 21.

7

Remarks on Sentence, p 35.

8

Remarks on Sentence, p 35.

9

Allnutt report, p 8.

10

Allnutt report, p 9.

11

Allnutt report, pp 9–10.

12

Remarks on Sentence, p 32.

13

Remarks on Sentence, p 35.

14

Remarks on Sentence, p 11.

15

Remarks on Sentence, p 11.

16

Remarks on Sentence, p 15.

17

Remarks on Sentence, p 20.