R v Stokes - [2001] NSWCCA 82

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Stokes [2001] NSWCCA 82

FILE NUMBER(S):
60832/99

HEARING DATE(S): 1 March 2001

JUDGMENT DATE: 01/03/2001

PARTIES:
Gary Donald STOKES - Applicant
Crown - Respondent

JUDGMENT OF: Ipp AJA Simpson J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/51/0045

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
M C Marien - Crown
R Burgess - Applicant

SOLICITORS:
S E O'Connor
D J Humphries

CATCHWORDS:
Criminal law - appeal against sentence - whether sentence discloses error or is manifestly excessive - escaping from unlawful custody - special cirucmtances.

LEGISLATION CITED:
Correctional Centres Act 1952
Sentencing Act 1989
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted, appeal allowed, sentence imposed quashed, applicant sentenced to a total term of imprisonment for a period of two years with a non-parole period of eight months, the applicant be released at the end of the non-parole period.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60832/99
IPP AJA
SIMPSON J

CARRUTHERS AJ

1 March 2001

REGINA v Gary Donald STOKES

Judgment

SIMPSON J :

IPP AJA: I will ask Simpson J to deliver the first judgment.
SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed on him by Ducker DCJ in the District Court on 15 October 1999 following his plea of guilty to a charge of escaping from lawful custody. By s 34 of the Correctional Centres Act 1952 such an offence carries a maximum penalty of imprisonment of ten years and the sentence is to be accumulated upon the sentence or sentences imposed by the Court or to which the offender was subject at the time of sentencing.
Ducker DCJ imposed a sentence of imprisonment for three years and one day, commencing on 10 January 2005, and specified a non-parole period of one year. The reason for the unusual length of the total term is the foundation for one of the grounds of the application. I will return to this.
The facts were put to the sentencing judge in the form largely of a number of bundles of documents, one of which, marked as ex C, contained a statement of Jason Michael Anderson, who was a Constable of Police stationed at Noosa Heads and who interviewed the applicant on or about 23 January 1999. This interview was tape recorded and, therefore, there was no written note taken. However, when it came to transcribing the tape recording, it was found o be indecipherable and Mr Anderson made his statement from recollection some time later.
To the extent that that statement is in conflict with evidence given by the applicant, it must be seen in light of that circumstance. However, it is also relevant that ex C, as recorded in the transcript, seems to have been jointly tendered and admitted without objection. Both of those matters create some difficulty in relation to the ascertainment of disputed facts where the sentencing judge has not made a specific finding.
The applicant was incarcerated at Grafton Gaol where he was held in the minimum security section. He apparently had access to gardening implements and tools - this is drawn largely from Constable Anderson's statement - and the day before his escape he secreted a pair of bolt cutters, a file and a hacksaw blade in the nursery. The following morning after muster he took the tools and cut his way out of the perimeter fence. There his wife was waiting with a car. There was little doubt that the car had been stolen, although there is some uncertainty as to the manner in which the arrangements for its theft had been made and the applicant's knowledge of that. These circumstances evidence a degree of planning, and preparation, and involvement in some criminal activity apart from the escape itself although, as I have said, it is necessary to be cautious about what was said about the applicant's knowledge of the circumstances of the theft of the car.
The applicant remained at large until, on 22 January 1999, he was stopped by highway police at Noosa. He gave false details before admitting his true identity and situation. He had been at large for a few days less than one year.
The background of the offence has a number of unusual features. The applicant was born in September 1955. He is now forty-five years of age and at the time of the offence he was forty-two years of age. He had spent what would appear to be the greater portion of his life in custody. He has a long-standing and serious problem with alcohol. In 1989 he was sentenced to several lengthy concurrent terms of imprisonment. These related to offences of armed robbery and wounding, robbery with striking, armed robbery, assault and malicious infliction of grievous bodily harm with intent to do so. The sentences then imposed ranged from two years for the assault to eighteen years for the malicious infliction of grievous bodily harm. These sentences were imposed in the dying days of the sentencing regime that existed prior to the commencement of the Sentencing Act 1989. It appears that no non-parole period was specified.
A month later the applicant was again sentenced for an offence of malicious infliction of grievous bodily harm with intent to do so and for this he was at first instance sentenced to twenty-five years imprisonment to date from the date of sentence, 25 August 1989. This sentence was also imposed under that regime. It seems that this sentencing judge also declined to specify a non-parole period and the sentence was subsequently re-determined under the provisions of the Sentencing Act 1989. A fixed term of nineteen years, seven months and twenty-one days dating from 27 July 1984 was imposed. An appeal against that re-determination was dismissed. As a result, the applicant became entitled to release without parole on 17 March 2004. That entitlement is deferred by reason of the time he spent at liberty following his escape.
The applicant made impressive progress whilst in custody. In a number of reports psychologists, a counsellor and a clinical nurse consultant wrote of his apparent rehabilitation and his contribution to the welfare and rehabilitation of other prisoners. Each report was favourable to the applicant to an unusual degree. Whilst at Grafton Gaol he met and eventually married an inmate of the women's prison. She was, or had been, a heroin addict. On her release she experienced problems adjusting to the community and put a good deal of pressure on the applicant to provide her with support and assistance which, obviously, was difficult, if not impossible, for him to meet whilst in custody.
It is evident that a degree of planning went into the escape. The applicant took the trouble to obtain and secrete the implements already mentioned. A stolen car had been arranged. The applicant's wife was waiting with that vehicle on the outskirts of the prison. The two of them drove to Capertee near Lithgow where they located a bush hut in which they lived for several months. During this time the applicant obtained a rifle and ammunition. Apart from possession of this weapon, which I would infer to be without the necessary licences, the applicant committed no offences whilst he was at large. I should say that the principle stated in R v de Simoni (1981) 147 CLR 383 would prevent any regard in sentencing being given to the inference I have drawn about the lack of licences for the gun.
After about six months the applicant's wife travelled to Sydney to visit her children and she subsequently died of a drug overdose. The applicant travelled around Australia working in a variety of jobs. Prior to his apprehension and during the three months or so after his wife's death, the applicant telephoned Ms Sue Jeffreys, a clinical nurse consultant employed by Corrections Health, with a view to surrendering himself, but he never took this step before he was arrested. Indeed, he left New South Wales and took up residence interstate.
Taking account of the time spent as an escapee, the applicant's date of release, apart from the sentence for escaping, has been delayed to 9 January 2005. The sentence being served being one of a fixed term, it provides for no period of supervision after release.
Ducker DCJ accepted that the applicant, with relatively few intellectual or emotional resources, had succumbed to the considerable pressure imposed upon him by his wife. His Honour was conscious of the substantial and impressive progress the applicant had made prior to his marriage and also of the heavy sentence the applicant was already serving although he, correctly, reminded himself that it was not his function to tailor the sentence for the offence with which he was dealing to accommodate his own views about the severity or otherwise of sentences earlier imposed. His Honour was, on balance, quite sympathetic to the applicant and was particularly mindful of the circumstances that prompted his escape. He said:
"I have come to the view, after careful consideration, that a period of three years or thereabouts is an appropriate sentence. I think, bearing in mind the length of time he still has to serve, that a minimum term of one year is sufficient."
He then turned his attention to the provisions of s 24(1) of the Sentencing Act which then required:
"When a court imposes a sentence of imprisonment of three years or less that has a minimum term, the Court is required to make an order directing the release of the prisoner on parole at the end of the minimum term."
Ducker DCJ then said:
"I do not believe that this is an appropriate case for me to make an order under s 24 of the Sentencing Act for his automatic release on parole at the expiration of the minimum term which must, by statute, commence at the expiration of the term of imprisonment to which he was subject at the time of the escape ..."
Very shortly after that he said:
"I do not believe that it is appropriate that I, with limited material, should determine when Mr Stokes should be released. I propose to add one day to the three years that I have determined as appropriate in order to see that his supervision is undertaken by the Parole Board, which will be in a superior position at that time to consider him for parole."
Ducker DCJ then proceeded to make a finding of special circumstances under s 5(3) of the Sentencing Act justifying departure from the conventional ratio between the minimum and additional terms. He identified those circumstances as the previous sentences the applicant was serving and the need for close supervision and alcohol counselling for at least two years after his release.
The explanation for the unusual length of the full term of the sentence lies in the sentencing judge's reluctance to take upon himself the determination that the applicant be released on parole at the expiration of the minimum term. Some confusion is evident in the reason given by his Honour. His Honour appears to have thought, at least in one passage of the paragraph I have extracted, that an order for release on parole made by the Court would not necessarily involve supervision by the Probation and Parole Service. What he was really attempting to do was to ensure that the decision about whether the applicant was to be released on parole at the end of the minimum term or not was one made at a time closer to the date of that entitlement by authorities in possession of current knowledge and information about the applicant's then condition and circumstances. The rationale for this is clear. It is fairly unusual that a relatively short sentence of three years or less is imposed with its commencement date deferred by more than five years. It may well be that this was not envisaged when s 24 was drafted. However, it is an incident of any sentence imposed under s 34 of the Correctional Centres Act that the sentence will be deferred for a period and what that period is will depend upon how long the expired portion of the sentence being served is.
On behalf of the applicant it was argued that error is disclosed in this aspect of his Honour's approach to sentencing. I agree. The Crown, in response, put some store on the words "or thereabouts" in the passage first quoted which, the Crown submitted, indicated that the Judge had not selected a three-year term as the correct sentence but had arrived at a term that could have been more or could have been less. That is usually the case in sentencing. There is always a range available within which a sentence is appropriate, neither excessive nor inadequate. No single term can ever be identified as the only sentence adequate to meet the varying considerations that go into the determination of a sentence.
Sentencing involves a delicate balancing exercise, sometimes said to be "largely intuitive". A sentencing judge is obliged to take into account, for example, the objective circumstances of the crime, the subjective circumstances of the offender, the need for deterrence, both general and specific, the prospects of rehabilitation and, in appropriate cases, many more factors. While some of these circumstances, for example the objective seriousness of the offence, are a compulsory and essential ingredient of every sentencing decision, others will be relevant and given weight according to the exigencies of the individual case. What the sentencing judge said was not limited to the passage in which he selected the “three-year or thereabouts” term. He added that he intended to add one day to the three years which he had determined as appropriate and stated the reason for doing that was to, and I am paraphrasing what he said, reflect what he intended, to ensure that the decision about the date of release on parole would be taken by the authorities who were in possession of current and better information than he was at the time of sentencing.
Whatever the motivation for that decision, in my opinion it is not a relevant consideration that the determination of release on parole should be made by the Parole Board. Being in possession of better knowledge and information than the sentencing judge at the time of sentencing is not a factor to be taken into account in the determination of the sentence. If the sentencing judge considers, as Ducker DCJ did, that a three-year term or less is the appropriate term, then that is the sentence that should be imposed and s 24 will take effect. That the sentencing judge thought that a three-year term was the appropriate sentence is apparent from what I have already said. Even without the express detail, it would be plain that a term of three years and one day is artificial and was explicitly chosen in order to defeat the automatic operation of s 24.
I am, therefore, satisfied that an error in the sentencing process in this respect has been disclosed and I would grant leave to appeal on this ground alone and reduce the sentence by at least one day. It will, therefore, be necessary to proceed to re-sentence. The effect will be that the applicant is entitled to a direction that he be released on parole at the expiration of the minimum term.
It was also argued on behalf of the applicant that the sentence was manifestly excessive. In R v Thomson (unreported, 21 May 1986) the then Chief Justice held that the penalty for an unremarkable escape could be expected to approximate a total sentence of two years imprisonment. At the time that case was decided the maximum penalty was penal servitude for seven years. However, as I observed in R v Mackenroth (CCA, unreported, 19 May 1998) that case has to be read in light of the changes in sentencing legislation. As I understand it, that was also the view taken by Wood J (as his Honour then was) in R v Simonds (6 May 1991) to which I will shortly make more detailed reference. In any event, I am satisfied that what was said in Thomson was not intended to be prescriptive.
This Court was provided with statistics of the Judicial Commission in relation to offences of escaping from lawful custody. These show that ninety-five per cent of all offenders sentenced in higher courts between January 1993 and December 1999 received full terms of three years or less. Only four per cent were sentenced to terms of three years and another six per cent to lengthier terms, although I observe here that in case anybody examines the mathematics too closely, the statistics are arranged in such a way as to give 101 per cent. The reason for this is obviously the rounding up or down of the number of individual cases considered. Thirty-four per cent were sentenced to a full term of six months; another twenty-seven per cent to a full term of twelve months; eleven per cent to eighteen months and fifteen per cent to twenty-four months. From there the sentences drop dramatically: four per cent were sentenced to two and a half years and another four to three years. These statistics would tend to suggest that the total term imposed on the applicant was at the outer limit, if not outside, the range legitimately open for this offence.
The picture, however, is not so stark when minimum or fixed terms are analysed. Fifty-four per cent of offenders were sentenced to a minimum or fixed term of six months and thirty-one per cent to twelve months. Forty-eight per cent were sentenced to twelve months or more. However, the primary sentence is the total term and, having regard to all of the circumstances, I am satisfied that it has been shown to be manifestly excessive.
That conclusion means that this Court must proceed to re-sentence. In relation to the appropriate length of sentence, the Crown relies upon the decision of this Court in R v Simonds to which I have just referred in which Wood J, with whom the other members of the Court agreed, said that the excuse for the escape was not of much assistance. In that case the escape was because of family difficulties and Wood J observed that it was a fact of life that prisoners will undergo personal hardships and these provided no excuse or justification for an escape.
The Crown relied upon this decision as authority for the proposition, as I understand what was put, that the motivation for an escape, whatever it is, is not a mitigating factor, and should not be taken into account in the consideration of the sentence. I find that proposition difficult to accept. I am conscious of what Wood J said but I do not regard the judgment as an attempt by his Honour to lay down a binding principle. It only takes a moment's consideration to realise that there can be quite heinous reasons for prisoners to escape. An example proposed in argument was a prisoner who escaped purely for the purpose of doing damage to a witness who is to testify against him or her. Clearly, that would be a more serious escape than an escape of the kind we are here considering, or an escape of the kind the Court was dealing with in Simonds. In any event, when Wood J came to proposing the sentence in Simonds, he went on to take into account that her escape was prompted by news of injury to her son and father.
There is no suggestion that Ducker DCJ failed to take into account relevant circumstances. As I have mentioned, he evinced a good deal of sympathy for the applicant. In particular he referred to the applicant's rehabilitation.
He said:
“The circumstances of the case are unusual. There is a considerable volume of evidence before me which indicates that over the years since he committed the awful crime to which I have earlier referred, Mr Stokes appears to have undergone a considerable change for the better. This evidence relates to his activities and attitudes in prison over a number of years now, which give the appearance of his having changed his ways and making a determined attempt towards his own rehabilitation, and in trying to assist other prisoners. Perhaps in his own mind he is trying to expiate his sense of guilt for his crime.”
And, later:
“For my part I should add that he is to be commended for his determined efforts towards his own rehabilitation before and after his escape. It is most regrettable that that escape has blemished his long period of good behaviour.”

Relevant circumstances adverse to the applicant in this case include the degree of planning that went into the escape, the use of implements, the fact that he was from a minimum security institution thus endangering beneficial rehabilitative policies for other prisoners and the length of time during which he remained at large. Mitigating circumstances include the circumstances in which he escaped, without violence, the pressure brought to bear upon him by his wife and the absence of any criminality during almost a year of freedom and the fact he supported himself by working during that period of time.
Recognition must be given to the very impressive performance whilst he was in custody. Against the possibility of re-sentencing, this Court accepted an affidavit sworn by the applicant today in which he has set out the circumstances of his present incarceration, together with certificates attesting to the courses he has undertaken.
More importantly than any of these factors, important though they are, in my opinion there is a clear need for the sentence, whatever its total term, to be structured in such a way as to provide the applicant with the support and assistance he will plainly need on release. In this respect, it is to be observed that he apparently went into custody on 1 September 1986. Even without the sentence for escape, he will have been in gaol very nearly twenty years when he is entitled to release. To turn him out into the community without the benefit of and the obligation to comply with parole conditions and the supervision and assistance of the Probation and Parole Service is to invite disaster, not only for the applicant but also for the community.
I would here observe that what used to be the additional term is now the time between the non-parole period and the full term and it is not only beneficial to the prisoner but is also beneficial to the community in bringing about the rehabilitation of released prisoners. It may well be that the sentence that was imposed in 1989 without a non-parole period reflected not only a different sentencing regime but also a different philosophy of sentencing, including what I have just said about the reasons for the imposition of a non-parole period. The usefulness of that non-parole period is not only in relation to the prisoner but also to the community at large.
It may also be that what I have said will be interpreted as an attempt to remedy a perceived deficiency in the sentence imposed in 1989. That is not my intention. Such was not the role either of the sentencing court at first instance or this Court on appeal. However, it is proper for this Court to take account of the fact that when his sentence for escaping expires, the applicant will have been incarcerated for almost twenty years and that circumstance alone makes this case, if not exceptional, at least highly unusual.
I propose that this Court grant leave to appeal, allow the appeal, quash the sentence imposed and re-sentence the applicant to a total term of imprisonment of two years. It is necessary for this Court to sentence under the provisions of the Crimes (Sentencing Procedure) Act 1999. Section 44 requires the Court, firstly, to set the term of the sentence and, secondly, to set a non-parole period which must not be less than three-quarters of the term of the sentence unless the Court decides that there are special circumstances for it being so.
For the reasons given by Ducker DCJ in relation to the equivalent provisions under the Sentencing Act 1989 I would adopt his finding of special circumstances. To those reasons I would add, perhaps by way of emphasis, the extraordinarily long time the applicant will have been in custody when he is due for his release and his clear need for the assistance I have mentioned.
I therefore propose this Court sentence the applicant to a term of imprisonment of two years with a non-parole period of eight months. The sentence is to commence on 10 January 2005. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 in which the provisions of s 24 of the Sentencing Act 1989 are re-enacted, I would make an order directing the release of the applicant on parole at the end of the non-parole period.
I propose that the orders of the Court be:
1.            Leave to appeal granted.
2.            Appeal allowed.
3.            Sentence imposed quashed.
4.            This Court sentences the applicant to a total term of imprisonment for a period of two years with a non-parole period of eight months.
5.            The applicant be released at the end of the non-parole period.
IPP AJA: I agree.
CARRUTHERS AJ: I agree. It is obvious from what Simpson J has said this is an exceptional case which may be viewed as such.
IPP AJA: The orders of the Court will be as proposed by Simpson J.

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LAST UPDATED: 20/08/2001