R v Riddell

[2000] NSWCCA 144

CITATION:	R v RIDDELL [2000] NSWCCA 144
FILE NUMBER(S):	CCA 60801 of 1999
HEARING DATE(S):	10 April 2000
JUDGMENT DATE:	10 April 2000
PARTIES :	Regina John Riddell
JUDGMENT OF:	Hulme J at 1; Dowd J at 9

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0310
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Crown: MC Marien Appellant: CB Craigie
SOLICITORS:	Crown: SE O'Connor Appellant: TA Murphy
DECISION:	Leave to appeal granted; Appeal allowed; Applicant sentenced to imprisonment for a period of 9 months including non-parole period of 5 months commencing on 25 January 2000 expiring on 24 June 2000 and the court direct that at the expiration of the non-parole period, the applicant be released on parole

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IN THE COURT OF
CRIMINAL APPEAL
No: 60801/99


HULME J
DOWD J

Monday 10 April 2000
REGINA -v-John RIDDELL
JUDGMENT

1    HULME J: This applicant for leave to appeal pleaded guilty at the Central Local Court on 27 May 1999 to a charge of escaping from lawful custody. He was committed to the District Court for sentence and on 7 December 1999 Morgan DCJ sentenced the applicant to imprisonment for a period of 9 months, consisting of a 5 months minimum term commencing on 25 January 2000 and an additional term of four months commencing on 25 June 2000.

2    Her Honour found that the escape was a spur of the moment matter, not premeditated and that there were no aggravating features whatsoever. Her Honour tended to accept a submission that the escape was really a cry for help, rather than an attempt for personal freedom. The cry for help arose from the prisoner's concerns about the welfare of his wife who had threatened to commit suicide. The prisoner had made some attempts earlier that day to talk to some of the gaol authorities with a view to having some compassionate latitude extended to him but apparently was unable to talk to those whom he sought to approach. It is not clear whether there were other avenues he could have pursued, although there is certainly some suggestion that there were, albeit ones which he may not have been conscious of at the time.

3    Be that as it may, the escape occurred at a place where the prisoner was liable to be seen and was seen. He suffered some injury from the razor wire he encountered on the way out. Prison warders found him some very short distance from the gaol, walking along the road and he made no further attempt to escape and offered no resistance to them. He acknowledged his guilt at the first opportunity.

4    The ground of appeal is that, in the circumstances, the sentence was manifestly excessive.

5    The offence of which the applicant was guilty carries a maximum penalty of 10 years. In the circumstances which I have described, the case was clearly one which should have been treated by the sentencing Judge leniently but it is clear that her Honour, in fact, did so. While one can understand that the prisoner may well have hoped for a somewhat lesser sentence and that her Honour could well have imposed a lesser sentence, this court is a court of error and it is impossible to conclude that the sentence her Honour imposed was outside the range of sentences available to her. In my view, the applicant should have leave to appeal but the appeal should be dismissed.

6 Those remarks are subject to one qualification. By s 24 of the Sentencing Act which was in force at the relevant time, a Judge imposing a sentence of imprisonment of three years or less was required to make an order directing release on parole at the end of the minimum term. Her Honour omitted to do that. The relevant provision to which we have regard is s 50 of the Crimes Sentencing Procedure Act 1999. As there was error in what her Honour did in this respect, it seems to me that this court should correct the omission. To do that it seems to me, having regard to the terms of s 50, that this court is required to allow the appeal but I do not think that that obliges this court to impose a lower sentence than that which her Honour imposed. Indeed, I am satisfied that within s 6 (3) of the Criminal Appeal Act, no lower sentence has been shown to be appropriate.

7    Accordingly, the orders which I would propose are that leave to appeal be granted, that the appeal be allowed, that the applicant be sentenced to imprisonment for a period of 9 months, including a non-parole period of 5 months commencing on 25 January 2000, expiring on 24 June 2000 and and that the court direct that at the expiration of the non-parole period, the applicant be released on parole.

8    The relativity between the full term to which I have referred and the non-parole period is such that the non-parole period is less than three quarters of the term of the sentence. The circumstances in which the court is interfering are such as to constitute special circumstances so as to justify a change in the relativity from that envisaged by the statute. Her Honour's reasons provide a further ground for the finding of special circumstances.

9    DOWD J: I concur in the proposed orders and the reasons therefor by the presiding Judge.

10    HULME J: The orders of the court will be as I have stated.