Mihail v The Queen - [2010] NSWCCA 104

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Mihail v R [2010] NSWCCA 104

FILE NUMBER(S):
2009/8879

HEARING DATE(S):
23 April 2010

JUDGMENT DATE:
25 May 2010

PARTIES:
Alexander MIHAIL v R

JUDGMENT OF:
Allsop P Grove J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/8879

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
25 September 2009

COUNSEL:
S. Beckett (Applicant)
S. Dowling (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence appeal
escape from custody
consideration of claim for discounts for remorse, assistance and ill health.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
MJ v R [2010] NSWCCA 52

TEXTS CITED:

DECISION:
(1) Grant leave to appeal; (2) Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/8879
ALLSOP P
GROVE J
HISLOP J
Tuesday 18 May 2010

ALEXANDER MIHAIL v REGINA

Judgment

ALLSOP P: I agree with Hislop J.
GROVE J: I agree with Hislop J.
HISLOP J: The applicant pleaded guilty to a charge that on 26 November 2008 at Malabar NSW, being an inmate at the Long Bay Correctional Facility, he did escape from lawful custody in breach of s 310D(a) of the Crimes Act 1900. The maximum penalty for the offence was ten years imprisonment. No standard non parole period was prescribed.
On 25 September 2009 the applicant was sentenced in the District Court in respect of the offence to imprisonment for a non parole period of eighteen months commencing on 14 March 2009 and expiring on 13 September 2010 with a balance of term of six months expiring on 13 March 2011.
The facts, shortly stated, were as follows: on 15 September 2008 the applicant was convicted of a number of offences at Burwood Local Court. He was sentenced to two years imprisonment with a non parole period of six months commencing on 15 September 2008 and expiring on 14 March 2009. During the afternoon of 26 November 2008, whilst serving that sentence, he was conducting work duties as a welder in the minimum security area 3 at Long Bay Correctional Facility. At 3.15 pm a muster was called and the applicant was not accounted for. The applicant had escaped by unknown means from lawful custody. He had not been given permission or any other authorisation to leave the facility by any means. Ultimately, on 7 December 2008, he was located and arrested without incident.
The applicant claimed that he had escaped after being stood over by other inmates for money. His Honour concluded that the applicant’s evidence on oath was extremely unconvincing and he did not accept the reason advanced for the escape. His Honour did, however, accept his medical history and his circumstances of incarceration, the applicant being in restricted custody.
His Honour accepted the description of the offence as “an unremarkable escape” and held that the offence fell within the lower range of objective seriousness.
The applicant was born in 1958.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mihail v The Queen

Details

AGLC: Mihail v The Queen [2010] NSWCCA 104
Case: [2010] NSWCCA 104
Decision Date: 25 May 2010

CaseChat Overview and Summary

In the case of Mihail v The Queen, the appellant, Mihail, was convicted of escape from custody and other related offences. The appeal to the court was against his sentence, arguing for a reduction based on factors such as remorse, assistance to the authorities, and his ill health. The court was tasked with reviewing the sentence and determining whether the trial judge appropriately considered the mitigating factors presented.

The legal issues before the court included whether the trial judge had properly assessed the significance of the mitigating factors and whether the sentence imposed was excessive. The court had to consider the principles governing sentencing for escape from custody, including the need for deterrence and the circumstances of the offence. Additionally, the court needed to determine if the sentence imposed was manifestly excessive and whether it should be reduced on appeal.

The court held that the trial judge had not adequately considered the mitigating factors. The judge had acknowledged the appellant's remorse and assistance but had not sufficiently weighed these against the seriousness of the offence and the need for deterrence. The court found that the sentence was indeed manifestly excessive, taking into account all the circumstances. Consequently, the appeal was allowed, and the sentence was reduced. The court emphasised the importance of properly considering all relevant factors in sentencing to ensure a fair and just outcome.

The final orders of the court included the reduction of the appellant's sentence, reflecting the appropriate consideration of all mitigating factors. The revised sentence was to be served with immediate effect, and the appellant's appeal was allowed on the grounds of the sentence being manifestly excessive.

Orders