R v Aslett (unrep, NSWCCA 16/10/1998)

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Tuesday 3 July 2007

NATURE OF JURISDICTION: Appeal from District Court (Solomon DCJ)
FILE NO: 60470/98
DELIVERED: 16 October 1998
HEARING DATE: 16 October 1998
RESULT: Appeal dismissed.
CATCHWORDS: Criminal law & procedure - leave to appeal against severity of sentence - escape - 3 months fixed term
No. of pages: 9


LEVINE J: The applicant, Dudley Mark Aslett, seeks leave to appeal against the severity of the sentence imposed upon him by his Honour Judge Solomon in the District Court on 7 August 1998.
The sentence was a fixed term of three months penal servitude to commence on the 24 October 1998 and it was imposed upon the applicant having pleaded guilty to escaping from lawful custody, an offence provided for by s 34 (1) of the Correctional Centres Act 1995.
The facts as found by his Honour were that at 1.30am on Monday 2 March this year the applicant was in the custody of prison officers in Ward 2 at the Prince of Wales Hospital at Randwick. The applicant requested to go to the toilet. He was allowed to do so and a prison officer stood guard at the door. A short time later the applicant exited the toilet and ran out of the ward down a fire escape to the southern end of the Hospital pursued by both officers.
One of the officers, from the rear of the chase, called upon the applicant to "Stop or I'll shoot" and a warning shot was fired near the applicant. The prison officer continued chasing the applicant and knocked him to the ground by kicking his legs from under him. The applicant regained his footing and was chased by both prison officers who lost sight of him for a short time. A car alarm was heard sounding from the carpark a short time later approximately 1.50am and the applicant was located by an officer under a building near the carpark. The building was surrounded by prison officers, police and hospital security staff and upon being called upon the applicant came out from under the building and was placed in a police vehicle and escorted to Long Bay.
At the time of his escape the applicant wore only his underpants and had a bandage on his right arm from an injury that he had caused to himself that had necessitated his admission to the Hospital.
The learned sentencing judge was satisfied that the escape had not been preceded by a substantial degree of planning and that there was no assistance from within or without the jail population; the escape was not a large scale escape and did not involve violence or risk of violence to patients, the prison officers or members of the public. (I pause respectfully to query in this context the fact that the officer fired a warning shot.) The escape was not for the purpose of continuing a criminal career and whilst at large the prisoner did not attempt to involve other persons by force or threats.
The sentencing judge found that the prisoner had a tragic background and took that into consideration. He accepted unequivocally in relation to the 27 year old applicant that he escaped as part of a suicide bid as he wished to be shot by prison officers.
His Honour noted a prior offence for escape and took into consideration that the prisoner had pleaded guilty, that the plea contained a degree of contrition and noted the prisoner's psychiatric condition of a personality disorder referred to in the reports he had before him from Dr Michael Paton and Ms Barrier, clinical psychologist.
The prisoner in fact appears to have been hospitalised by reason of repeated attempts to commit suicide, or at least do himself serious injury, by slashing his arm and reopening the wound.
His Honour noted that the courts have always taken what he said is a serious attitude to those who escape from prison.
His Honour also noted the proposition that a person who suffers from a psychiatric condition is one to whom what he described as "the deterrent effect of the sentence on an individual" is reduced. His Honour took into account that the prisoner had support from his immediate family and was in a relationship that would assist him in his rehabilitation.
The commencement date of the three months term, as far as I can understand it, was fixed to commence at the expiration of a minimum term of eight months, which itself commenced on 25 February 1998 of sentences imposed in February 1998, but subject to a successful appeal to the Campbelltown District Court in June of this year. The applicant has to serve an additional term of 8 months.
The applicant through his legal adviser does not canvass the material adduced before the sentencing judge who, it is acknowledged, accepted unequivocally that the escape was part of a suicide bid as I have indicated. It is acknowledged and stressed here orally as well as in writing that all the findings of fact were favourable to the applicant.
It is contended that in the circumstances described in submissions as "unique" that the applicant was entitled to a maximum of leniency, the starting point for which could have been the imposition of a non¬custodial sentence.
Given his Honour's acknowledgment of the part played by deterrence when a person suffers a psychiatric condition, it is submitted overall that his Honour's sentence reflects reliance by him upon the notion of general deterrence, the previous record of escapes being irrelevant.
It is submitted that the objective of general deterrence in the absence of any other of the generally recognised criteria of punishment ought not to result in the imposition of a penalty that would not otherwise be appropriate.
The essence of that submission was further refined today by Mr Laucis, as I understood it, to be to the effect that in the circumstances where everything has been favourably found by the sentencing judge in favour of the applicant, the exercise of the sentencing discretion, where the penalty provided is, in the scale of things, high, is almost compelled as a matter of principle to warrant the imposition of the minimal or minimalist of punishment.
Pausing there, I cannot be persuaded as a matter of principle that where findings of fact as to objective criminality and subjective components have been made favourably to an offender on the one hand, and on the other there exists, first, the commission of the offence and second a potentially high penalty as provided for by Parliament, that the exercise of judicial discretion and all the matters of principle that affect it can be circumscribed in the way I understood Mr Laucis to be suggesting.
A philosophical or policy foundation for the making of that submission as was advanced today rested in the citation by Mr Laucis of an extract from Emmanuel Kant's Philosophy of Law as commentated upon by Professor H L A Hart in a dissertation entitled Punishment and Responsibility. Both Emmanuel Kant and Professor Hart command respect but not necessarily universal agreement.
It is submitted that in the instant application the usual balancing of the factors to be taken into account in the exercise of the sentence discretion is not required because all the objective and subjective factors have been determined in the applicant's favour.
With that proposition I have dealt but I would add this observation: that that proposition in my view, notwithstanding what Mr Laucis has said today, must necessarily exclude the determination adverse to the applicant of his guilt of the offence charged to which he made that plea of guilty.
It is submitted that any critical analysis of escape must contain two factors: the first being a movement from one location to another (which certainly occurred here), and second, a desire to remove oneself from oppressive or unpleasant circumstances. The submission is made that the second component is absent from this case.
I did not take the use of the expression "a Clayton's escape" as otherwise than an appropriate formulation of what Mr Laucis had in mind and I certainly did not take it to be a flippant one. It was submitted that this was a Clayton's escape in the sense that it was an escape perpetrated when one was not really escaping. I find that proposition quite difficult to accept, the more so when it is acknowledged that the prisoner was desirous of being shot in the light both of his psychiatric history and his criminal history and all the catastrophes that had befallen him in his lifetime. One could not characterise that otherwise than a desire to remove oneself from oppressive or unpleasant circumstances.
It is acknowledged in the submissions that the legislative intention to view the offence of escape as a serious one is reflected in the relevant provision as to penalty, reinforced by the operation of the Sentencing Act, 1989. It is however contended that that factor does not and cannot as a matter of law over¬ride the general discretion in the Court to impose a minimum sentence in appropriate circumstances.
It is not a question of over¬riding the general discretion. The legislative intent as reflected in the statute and the concomitant operation of the Sentencing Act provide the context in which that general discretion is to be exercised.
There is a second basis that was the subject of the written submissions impugning the sentence and that was that it is said that the applicant is effectively prevented from seeking a parole review in respect of the balance of the additional term which expires on the 2 October 1999. I will return to that.
In R v Thompson (CCA, unreported, 21 May 1986) it was held by the Court that the ordinary level of sentence for what might be called an "unremarkable" escape, should be expected to approximate two years. That statement was of course made before the introduction of the Sentencing Act and has been referred to recently by his Honour the Chief Justice in R v Jurisic (CCA, unreported, 12 October 1998, p 14).
Reference is also made to R v Steff (1997) 96 ACR 1 and the judgment of Bruce J in which his Honour noted that given the increase in the maximum penalty from seven to ten years the ordinary sentence should be greater than two years, though this itself is to be noted in the context of Thompson being a pre¬Sentencing Act decision and Steff which was a post¬Sentencing Act decision.
In this context I note particularly what Simpson J said at p 5 of her judgment in R v Mackenroth (CCA, unreported, 1 April 1998).
The only factor which may be said to distinguish this applicant from other escapees is the particular and peculiar personal crisis he was experiencing which was said to make him suicidal. That of course doesn't provide an excuse for the offence. In R v Simonds (CCA, unreported, 6 May 1991) this Court was concerned with a prisoner who escaped after hearing that her son and mother had been injured in a serious motor vehicle accident. Wood J stated:
"It is a fact of life which all prisoners must accept, that a personal crisis affecting them and their families will emerge while they are serving sentences. Those crises provide no excuse or justification for escape. As the courts have pointed out the offence of escape must be severely punished for it strikes at the heart of the prison system and throws into jeopardy the opportunity of minimum security for other persons with favourable prospects of rehabilitation".
This and the other cases to which I have referred enunciate the policy that the Court must apply in considering offences against the law as enacted by the Parliament of this State. Simonds particularly articulates a basis, in my view, for the rejection of that proposition advanced by Mr Laucis to which I referred earlier in these reasons and which I have described as one which, if accepted, would impose a circumscription upon the free exercise of judicial discretion in accordance with usual principles.
It is acknowledged however that the policy of the law and its application by the courts might not conform with views held by others in exercising the luxury of philosophical contemplation towards a less imperfect and more ideal condition for humankind.
As to the submission that a non¬custodial sentence could have been imposed, either within the context of the submission to which I have referred that Mr Laucis made, or otherwise, I find it difficult presently to imagine circumstances relating to an escape from lawful custody where that situation could arise. I am not to be taken to be conclusively stating of course that it could never arise, but this Court does not re-sentence except in the event of legal error.
The submission is, in my view, untenable that the sentencing judge erred by failing to impose in this case a non¬custodial sentence.
Given all the favourable findings for the applicant it must be remarked that the sentence imposed in my view was extremely lenient, but it has not in any formal way been contended by the Crown to be so lenient as to be erroneous. The contention that it is too severe as to reflect error, in my view, has not been made out. The sentence within the context of his Honour's remarks can be taken at the least to reflect the notion of general deterrence to some extent, his Honour not having expressly excluded that consideration.
As to the second basis, namely, the alleged potential effect of the sentence upon the applicant's parole review, the only things I wish to say about that are; first, it does not prevent the applicant from making an application for a parole review; secondly, the factors that the relevant Board may take into account by considering any such application by Mr Aslett will be a matter entirely for that Board and, thirdly, nothing in this judgment should in any way be regarded as being of any influence over the deliberations of that Board whatsoever.
It is for this Court only to consider whether there was any error committed by the sentencing judge in imposing that sentence in respect of which leave to appeal against severity was sought. I am firmly of the view that no such error has been exposed and I would refuse the application for leave.
GREG JAMES J: I agree. I also agree with the reasons expressed by the presiding judge.
LEVINE J: The order will be as I have proposed.


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