R v Millar (unreported, NSW Court of Criminal Appeal, 25/5/1998)

IN THE COURT OF
CRIMINAL APPEAL
CCA 60536/97
25 May 1998
Studdert J, Carruthers AJ
NATURE OF JURISDICTION: Appeal against severity of sentence
FILE NO/S: CCA60536/97
DELIVERED: 25 May 1998
HEARING DATE/S: 25 May 1998
PARTIES: REGINA v Glen MILLAR
JUDGMENT OF: STUDDERT J; CARRUTHERS AJ
COUNSEL
Appellant: R Burgess
Crown: D M Carmody
SOLICITORS
Appellant: T A Murphy
Crown: S E O'Connor
RESERVED/EX TEMPORE Ex tempore
ALLOWED/DISMISSED: Allowed
NO OF PAGES: 7


REGINA v GLEN ANTHONY MILLAR
JUDGMENT

CARRUTHERS AJ: Glen Anthony Millar seeks leave to appeal against the severity of sentence imposed upon him on 10 October 1997 by Judge Keleman, SC, presiding over the District Court Sydney, for one count of escape from lawful custody contrary to s 34 of the Correctional Centres Act 1952 .
It is perhaps convenient to recall the terms of subs.(1) that section which are:
"(1) An inmate in lawful custody who escapes or attempts to escape from that custody is guilty of an offence and liable to penal servitude for a term not exceeding 10 years."
The increase in the maximum term to ten years was effected by the legislature reflecting public concern about the frequency of escapes from Corrective Services institutions and the public concern and alarm associated with such escapes. Subsection 2 provides:
"(2) A sentence of penal servitude imposed by a court under this section is to be imposed as a sentence that is cumulative on all previous sentences imposed by the court or to which the inmate is subject."
Subsection 2 does provide extremely difficult problems for a sentencing judge, particularly when dealing with a somewhat complex sentence regime which the offender is serving at the time of the escape and that is precisely the situation which faced Judge Keleman in this case. The effect of his Honour's sentence can be seen from the pattern of sentences imposed in recent years upon the applicant. However, before referring to that pattern, brief reference should be made to the applicant's background.
He was born in New Zealand on 28 May 1964. He came to Australia in 1980 with his parents and two siblings. His parents separated and his father returned to New Zealand with the applicant remaining in Australia. His mother now resides in Melbourne.
It appears that the applicant began using heroin in 1981 or 1982 and continued to use heroin until approximately October 1996 when he commenced a Methadone programme in prison with which he was still active at the time of sentence. Regrettably he has an appalling criminal record in this country having spent long periods in gaol. Interestingly the sentencing judge referred to him as being institutionalised. However, unfortunately the periods which he spent in institutions have been punctuated by frequent escapes. Prior to the present matter he was dealt with at the District Court on 25 May 1986 for one escape and on 12 December 1990 at the same court for three separate escapes. He also has a history of one attempted escape. Reference may now be made to the sentencing pattern in a little more detail.
On 25 May 1986 at Sydney District Court he was convicted of ten counts of robbery being armed and one count of escaping from lawful custody. In relation to the robberies he was sentenced to eight years penal servitude with a non-parole period of seven years six months. On the escape charge he was sentenced to two years imprisonment. These sentences were recalculated in accordance with the Sentencing Act 1988 and expired on 23 April 1992.
On 12 December 1990 at Sydney District Court the applicant was convicted of one count of attempting to escape from lawful custody, that is on 16 November 1987 and three counts of escaping from lawful custody, that is on 24 January 1989, 26 September 1989 and 10 January 1990. He was also charged with robbery whilst armed, assault and possession of a firearm with intent to commit an indictable offence.
In relation to these offences the applicant was sentenced to an effective term of sixteen years penal servitude to commence on 24 April 1992, the date of the expiration of the sentences imposed on 25 May 1988 by way of re-calculation as I have previously mentioned.
The applicant successfully appealed to this Court and the total sentences were reduced to penal servitude for twelve years, comprising a minimum term of eight years to commence on 24 April 1992 and an additional term of four years. The minimum term was specified to expire on 23 April 2000 and the additional term to expire on 23 April 2004. Basically this Court took the view that the sentencing judge had inadvertently overlooked the principle of totality in imposing the sentences which he did.
Judge Keleman sentenced the applicant in relation to the subject escape to a minimum term of two years penal servitude to commence on 24 April 2000 and to expire on 23 April 2002 and an additional term of two years to commence on 24 April 2002 and to expire on 23 April 2004. It can be seen therefore that the additional term of two years fixed by his Honour was concurrent with the existing additional term.
The brief facts relating to this escape are as follows. On 28 August 1996 the applicant was working as a sweeper in the electronic shop at the Bathurst Correctional Centre. He emptied two cartons containing electronic components which were on a pallet together with other cartons. He cut the adjoining sides of each carton and secreted himself inside the two cartons. The pallet was loaded onto a truck and driven to a storage building outside the main prison complex from where he completed his escape.
How a prisoner serving such a lengthy sentence could escape undetected from the Bathurst Correctional Centre in such a simplistic fashion beggars belief. Be that as it may, this was his achievement. However, he was arrested in Sydney twenty-eight days later and sentenced on the basis that he committed no offences whilst at large.
The applicant readily admitted the offence when interviewed by police officers and said that his reason for escaping was that he was having health problems.
In evidence on the sentencing hearing he said that between 1990 and 1996 he had no thoughts of escaping. He said that he escaped on this occasion because he mistakenly believed that he was suffering from a sexually transmitted disease and because he had been informed that he was not going to be transferred to Broken Hill as he believed he would be. This was a significant disappointment to him, he said, because he would have been able to receive visits from his brother who had obtained employment in Adelaide.
Further details relating to the matters which the applicant says compelled him to escape were given in evidence before the learned District Court judge but it is unnecessary to relate that detail here.
The learned sentencing judge indicated that he was prepared to accept the applicant's evidence in respect of both his reasons for escape and his lack of appreciation of the seriousness of his conduct at the time of escape. One would have thought, however, with all due respect to the judge, that a person who had accomplished as many escapes as the present applicant would have been well aware of the seriousness of his conduct. His Honour took into consideration that the applicant was, at the time of sentence, suffering from Hepatitis C.
The applicant's father came from New Zealand to give evidence in support of the applicant before the sentencing judge. He said that he intended to buy a caravan rental business in New Zealand to assist his son on his release. He said that he and his family and friends would assist in any way with his son's rehabilitation and he produced a number of supportive references from persons who were prepared to assist the applicant upon his release.
In support of her argument that four years was manifestly excessive in the circumstances of this case, counsel for the applicant referred us to statistics from the Judicial Commission for the period from November 1991 to October 1997. These statistics reflect only sentences imposed since the increase of the maximum penalty in relation to s 34 to ten years penal servitude. These statistics reveal that the overall sentence imposed on the applicant fell in the top four per cent of the range of sentences and, the minimum term was in the top seven per cent.
I must say I do not feel that these statistics are of any real assistance to the Court in this particular matter because of the remarkable number of previous escapes in respect of which the applicant has been sentenced in the past, and because his Honour fixed the additional term of two years to be served concurrently with the existing additional term. From an objective point of view the seriousness of escaping from lawful custody has been the subject of constant reference by this Court and sentencing judges. It will be recalled that in Regina v Marfutenko, (unreported, 8September 1992), Gleeson CJ said:
"In sentencing for the offence of escaping from lawful custody considerations of general deterrence are of special importance. As this Court has pointed out in the past, the system of minimum or reduced security imprisonment is to the great benefit of most of the prisoners who participate in it. Those who take advantage of that system to escape tend, by their conduct, to undermine the system to the potential disadvantage of others. In addition, escape from lawful custody often causes serious public alarm as well as expense and inconvenience. Of course the facts and circumstances of each individual case need to be taken into account but the above are general considerations that are not to be overlooked."
Since Judge Keleman sentenced the applicant, this Court, consisting of Hulme and Simpson JJ has given judgment in the matter of McInroth, (unreported, 1 April 1998).
Ms Burgess in her helpful address, referred us to that judgment and in particular the following remarks by Simpson J at p 8. This, I might add, was a case with some similarities to the existing case. Her Honour said:
"I have already noted that the original sentence the applicant was serving contained an additional term of three years to commence on 14 June 2000. By that date the applicant will have been in custody continuously for almost ten years. His record shows that he has been incarcerated for earlier periods as well and has had relatively little time in the community. He is therefore a classic example of a person who, on his eventual release, will require ongoing supervision and assistance. The effect of the imposition of a further term of imprisonment to be served during the concurrency of what would otherwise be his additional term and which he could expect to serve in the community under supervision, is to reduce the period he will spend under supervision and the availability to him of that very necessary guidance. That is an inevitable consequence of the provisions of s 24 of the Correctional Centres Act. However, in my view it is the circumstance that demanded that the sentence be divided into minimum and additional terms in preference to the imposition of a fixed term."
Those observations are completely apposite to the existing situation. I would, however, put the situation somewhat differently to her Honour so far certainly as the present applicant is concerned, by saying that the manner in which Judge Keleman imposed the subject sentences distorted the relationship between the total minimum terms which the applicant was serving and the relevant additional term of two years. His Honour did not, however, have the very helpful benefit of the observations of Simpson J.
Mr Carmody of counsel for the Crown very fairly, in my view but also correctly, responded sensitively to the situation which exists here and indicated impliedly, if not expressly, that the Crown would not look amiss upon a readjustment on the existing sentence so that the minimum term is reduced and there would be a corresponding increase in the additional term.
For the reasons which I hope I have already made clear, this seems to me to be the appropriate way to deal with this applicant, particularly in the light of the Court's decision in McInroth.
I am quite unconvinced that an overall term of four years, bearing in mind that as the additional term was fixed by his Honour to run concurrently with the existing additional term, was excessive. However, a readjustment between the two terms is called for.
I would propose therefore that the minimum term be reduced to one year and six months and the additional term be increased to two years and six months. Thus I propose that Judge Keleman's sentence be varied as follows.
In lieu of two years penal servitude to commence on 24 April 2000, there will be a sentence of one year and six months to commence on 24 April 2000 and to expire on 23 October 2001, and there will be an additional term of two years and six months to commence on 24 October 2001 and to expire on 23 April 2004.
STUDDERT J: I agree with the orders proposed by Mr Justice Carruthers and with the reasons for those orders. The orders of the Court then will be those orders proposed by Mr Justice Carruthers.