R v Smith, Hookey and Dates - [2009] NSWDC 215

CITATION: R v Smith, Hookey and Dates [2009] NSWDC 215

HEARING DATE(S): 08/04/2009

JUDGMENT DATE:
23 June 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Leigh Smith: Escape Lawful Custody - sentenced to imprisonment 12 months Non parole period 3 months
Darren Hookey: Escape lawful custody - sentenced to 11 months 1 week imprisonment - non parole period 3 months
Steven Dates: Escape lawful custody - sentenced to 12 months imprisonment - non parole period 3 months.
His Honour recommends to the Department of Corrective Services that each offender be housed at prison closer to family

CATCHWORDS: Criminal Law - Sentence - Escape Lawful Custody - Minimum security prison - short period at large - lower level of criminality - clouded rehabilitation prospects for each offender - drug abusers - housed in prison remote from families.

LEGISLATION CITED:

CASES CITED: R v Cuthbert (1967) 2 NSWR 329
R v Rushby (1977) NSWLR 597
R v Hayes [1984] 1 NSWLR 740

PARTIES: Regina
Leigh Wallace Smith
Darren Hookey
Steven Dates

FILE NUMBER(S): 2009/00003680; 2009/00003670

SOLICITORS: Crown: Mr J May ODPP - Dubbo
Defence: M/s S Carr - Aboriginal Legal Service.

Crown Appeal Dismissed:

JUDGMENT

1. Yetta Dhinnakkal is a correctional facility located 65 kilometres from a small north-western township of Brewarrina. Set on about 10,000 hectares it has no security fence. Young prisoners, frequently first time prisoners, usually Aborigines, are the main source of inmates. Prison routine is generally abandoned for a more therapeutic type of custody geared towards learning skills ranging from literacy, driving knowledge tests to driving farm equipment, fencing and the like.

2. Leigh Smith, Steven Dates and Darren Hookey were selected to be inmates at Yetta Dhinnakkal. It would seem none of them applied and none of them were asked whether they would like to go.

3. On 2 November 2008 each escaped together, driving in a white utility belonging to the Department of Corrective Services from the grounds of the facility. It goes without saying that none had permission to drive or be driven in the vehicle.

4. Today each is to be held accountable for his escape from Yetta Dhinnakkal and offences that occurred as a consequence thereof. As the sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this court, committed by these offenders, in this community. That task requires an assessment of the objective criminality of the offence before the court. I will need to have regard to matters personal to each of the offenders. The starting point for such assessments requires me to make findings of fact from evidence before the court relating to both the offence and offender. Each of the offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

5. Before any sentence can be made there are technical questions relating to deterrence, discount, whether special circumstances are to be found, parity, s 166 matters and finally…

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 R v Smith, Hookey and Dates

Details

AGLC: R v Smith, Hookey and Dates [2009] NSWDC 215
Case: [2009] NSWDC 215
Decision Date: 23 June 2009

CaseChat Overview and Summary

The case of R v Smith, Hookey and Dates involves three individuals who escaped from a minimum security prison and were subsequently convicted of escaping lawful custody. The matter was heard in the Supreme Court of Queensland. The defendants, Leigh Smith, Darren Hookey, and Steven Dates, had all been in custody at a prison located far from their families. Each was a drug abuser and had varying levels of criminal history. Their escape was brief, but it raised concerns about their rehabilitation prospects and the potential impact of their actions on their future within the criminal justice system.

The legal issues before the court included determining the appropriate sentences for each offender, taking into account the nature of the offence, their individual circumstances, and the impact of their escape on their prospects for rehabilitation. The court had to balance the seriousness of the offence with the mitigating factors, such as the short duration of their escape and the potential for rehabilitation given their current circumstances. Furthermore, the court had to consider the need for any specific recommendations to the Department of Corrective Services regarding the placement of the offenders in future.

The court found that while the offence of escaping lawful custody was serious, the short duration of their escape and their clouded rehabilitation prospects warranted consideration. Each offender was sentenced to a term of imprisonment, with a non-parole period set at three months. The court noted that housing the offenders in a prison closer to their families could potentially aid in their rehabilitation. As a result, the court recommended to the Department of Corrective Services that each offender be housed in a prison that is geographically closer to their families. This recommendation was intended to support their rehabilitation and potentially mitigate the impact of their criminal history and drug abuse issues.

In conclusion, the court imposed sentences on the three offenders, taking into account the seriousness of their offence and their individual circumstances. The sentences imposed were relatively lenient, with a focus on rehabilitation and the potential benefits of housing the offenders closer to their families. The court's recommendation to the Department of Corrective Services aimed to facilitate the offenders' rehabilitation and address some of the underlying issues that contributed to their criminal behaviour.

Orders

Orders of the court

Leigh Smith: Escape Lawful Custody - sentenced to imprisonment 12 months Non parole period 3 months

Darren Hookey: Escape lawful custody - sentenced to 11 months 1 week imprisonment - non parole period 3 months

Steven Dates: Escape lawful custody - sentenced to 12 months imprisonment - non parole period 3 months.

His Honour recommends to the Department of Corrective Services that each offender be housed at prison closer to family

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Smith, Hookey and Dates [2009] NSWDC 215
HEARING DATE(S):	08/04/2009
JUDGMENT DATE:	23 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Leigh Smith: Escape Lawful Custody - sentenced to imprisonment 12 months Non parole period 3 months Darren Hookey: Escape lawful custody - sentenced to 11 months 1 week imprisonment - non parole period 3 months Steven Dates: Escape lawful custody - sentenced to 12 months imprisonment - non parole period 3 months. His Honour recommends to the Department of Corrective Services that each offender be housed at prison closer to family
CATCHWORDS:	Criminal Law - Sentence - Escape Lawful Custody - Minimum security prison - short period at large - lower level of criminality - clouded rehabilitation prospects for each offender - drug abusers - housed in prison remote from families.
LEGISLATION CITED:
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Leigh Wallace Smith Darren Hookey Steven Dates
FILE NUMBER(S):	2009/00003680; 2009/00003670
SOLICITORS:	Crown: Mr J May ODPP - Dubbo Defence: M/s S Carr - Aboriginal Legal Service.