R v Friedemann

[2000] NSWCCA 516

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:         Regina v Friedemann  [2000]  NSWCCA 516

FILE NUMBER(S):
60485/99

HEARING DATE(S):          06/12/00

JUDGMENT DATE:           06/12/2000

PARTIES:
Regina v Horst Hans Friedemann

JUDGMENT OF: Simpson J Carruthers AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):               99/21/1087

LOWER COURT JUDICIAL OFFICER:          Puckeridge DCJ

COUNSEL:
(Applicant): P R Boulten
(Crown):  P Hock

SOLICITORS:
(Applicant):  Mark Klees & Associates
(Crown): S E O'Connor

CATCHWORDS:
SENTENCING - Severity appeal - strong subjective circumstances - Re-sentencing required by sentencing judge overlooking the requirements of s 6(3) of the Sentencing Act 1989.

LEGISLATION CITED:
Correctional Centres Act 1952
Sentencing Act 1989

DECISION:
See paragraph 21

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60485/99

SIMPSON J

CARRUTHERS AJ

Wednesday 6 December 2000

REGINA v Horst Hans FRIEDEMANN

JUDGMENT

1. SIMPSON J:  Acting Justice Carruthers will give the first judgment.

2. CARRUTHERS AJ:  Horst Hans Friedemann seeks leave to appeal against a sentence imposed upon him by his Honour Judge Puckeridge QC at the Penrith District Court on 3 August 1999.

3. The applicant came before his Honour on one count of escape lawful custody contrary to s 34(1) of the Correctional Centres Act 1952 which attracts a maximum penalty of imprisonment for 10 years.

4. The applicant was born on 1 December 1937 and accordingly has just attained the age of 63 years.  The offence was in fact committed on 10 November 1994.  His Honour imposed a fixed term of 12 months imprisonment to commence on 3 November 2001, that sentence being cumulative upon the sentence which the applicant was serving in circumstances to which I shall briefly refer.

5. On 19 November 1993 the applicant was sentenced to a minimum term of four years imprisonment to date from 25 June 1993 and to expire on 24 June 1997, with an additional term of three years to date from 25 June 1997.  Those sentences were imposed at the Sydney District Court in relation to a number of drug offences.

6. The applicant's conduct whilst in custody apparently merited his being moved to the John Maroney Correctional Centre.

7. On 10 November 1994 the applicant was working in the vicinity of the Centre, immune from surveillance or restraint by officers of the Department of Corrective Services, no doubt because of his prior good behaviour whilst in the system.  At that time the applicant was suffering from a number of medical conditions, to which I shall later make reference, and he felt a strong sense of grievance that, in his view, he was not receiving adequate treatment or attention or consideration from the Corrective Services Officers in relation to his medical conditions.  Therefore, he considered that the best thing that he could do in order to obtain appropriate medical treatment and advice, was to leave the John Maroney Correctional Centre.  So, on 10 November 1994, having at lunchtime finished his morning's work on his vegetable garden, he sat down on a log, consumed a roll and a cup of tea and then walked out of the Centre.

8. He then went to Victoria where he received a great deal of medical attention, being in hospital on some six occasions for treatment.  However, imprudently, whilst in Victoria he committed further drug offences for which he was arrested.

9. On 26 February 1998 he was sentenced at the Melbourne County Court to 20 months imprisonment.

10. On 22 March 1999, while still in custody, he was extradited to New South Wales.  His whereabouts only became known to the authorities in New South Wales by reason of his arrest and sentence in Victoria.  In any event, he was brought back to New South Wales on 22 March 1999.  This meant that the sentence he was serving in New South Wales when he escaped, was adjusted so that the minimum term was fixed to expire on 3 November 2001 and the additional term was varied to expire on 3 November 2004.  As I have already indicated, he then came before Judge Puckeridge to be dealt with for the escape.

11. His Honour's reasons for imposing the sentence for 12 months were brief in the extreme.  Regrettably, his Honour overlooked the need to comply with the provisions of s 6(3) of the Sentencing Act 1989, in that, having imposed a fixed term of 12 months, he failed to give reasons as required by s 6(3) of that Act.

12. As a result, his Honour failed in law to perform the function which the legislature had imposed upon him and what he did amounted in law to no performance of that duty:  see Roos v Director of PublicProsecutions (1994) 34 NSWLR 254 at 265 and 268.

13. Miss Hock for the Crown fairly and realistically accepted that this Court must set aside the sentence imposed by Judge Puckeridge and sentence the applicant de novo.

14. That being so, it is relevant for this Court to address itself to two circumstances.  The first one is the reason for which the applicant escaped and, for myself, I would accept his assertion that he did so because of his concern about his medical condition and his belief that, out of the Corrective Services situation, he would obtain the medical treatment and advice that he required.

15. The evidence presented before this Court demonstrates that he now suffers from a litany of quite serious medical conditions.  In that regard there is the affidavit of the applicant himself, together with certain medical reports. There is an up to date report, namely one of the 25 October 2000 under the hand of Associate Professor John Charlesworth, Associate Professor of Renal Medicine and Director of Nephrology of the Prince of Wales Hospital.

    He reports that the applicant:

    “... appears to have a number of significant medical problems including IgA nephropathy (a common form of glomerulonephritis), maturity-onset (ie type II) diabetes, ischaemic (ie coronary artery) disease, peripheral vascular disease and hypertension.”

    And medication is taken for a condition of gout.

16. It would appear, according to Professor Charlesworth, that the applicant’s kidney disease is stable in that there has been no change in kidney function between January and September 2000, also his blood pressure and blood sugar  levels appear to be under control.

17. The applicant's regime of medication is set out in a further report of the Prince of Wales Hospital dated 9 October 2000.  The applicant is on 12 different drugs for the five conditions to which I have made reference, together with his gout.

18. In these circumstances one must acknowledge that the service of the remaining period under his adjusted sentence, together with the sentence which this Court must impose for his escape, means that he will be under greater physical difficulty and anxiety than the average person serving a sentence in a Corrective Services institution.  Further, he may have forfeited the right to the more relaxed circumstances under which he would otherwise have served the remainder of the sentence originally imposed in New South Wales.

19. This Court must acknowledge the authorities which consistently emphasise the serious nature of an escape from a Corrective Services institution and, in the helpful submissions of Miss Hock for the Crown, the relevant authorities are cited.  One need only refer to one of the more recent decisions, namely Regina v  Aslett, an unreported judgment of this Court dated 16 October 1998.

20. However, the objective circumstances of the subject escape are far from the worse type of case that comes before this Court, and the subjective circumstances are very persuasive.

21. It would seem to me that under all the circumstances, and taking into account the helpful statistics of the Judicial Commission, it would be appropriate for this Court to grant leave to appeal and set aside the sentence imposed by his Honour Judge Puckeridge and in lieu thereof impose a sentence by way of a fixed term of six months in relation to the escape, which will commence on 4 November 2001 and expire on 3 May 2002.  Because the sentence is six months, no question of a non-parole period arises. However, the applicant will clearly, in accordance with the law, be entitled to apply for parole on 3 May 2002 and I would so propose.

22. SIMPSON J:  I agree, the orders of the Court will be as proposed by Acting Justice Carruthers.

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LAST UPDATED:             19/12/2000