Escape From Custody (NSW)

In New South Wales it is an offence to escape or try to escape from lawful custody. This also includes circumstances such as failing to return to Gaol after weekend release and escaping or attempting to escape from police who have detained a person pursuant to a warrant. A person is in lawful custody if they have been arrested, detained or imprisoned in a way authorised by law. The maximum penalty for the offence is 10 years.

What is the Offence of Escape from Custody?

The offence of Escape from Lawful Custody is contained in section 310D of the Crimes Act 1900 (NSW) and states:

Any inmate—

(a) who escapes or attempts to escape from lawful custody, or

(b) who, having been temporarily released from lawful custody, fails to return to lawful custody at the end of the time for which the inmate has been released,

is guilty of an offence.

Maximum penalty–imprisonment for 10 years.

An inmate is defined as anyone who is an inmate for the purposes of Part 2 of the Crimes (Administration of Sentences) Act 1999 (NSW) and includes:

1. Any person serving a full time custodial sentence; and
2. A person who is the subject of a warrant in relation to which they have been committed to a correctional center (for example, in relation to a sentence to be served, an arrest warrant (for an offence committed or alleged to have been committed), a Children’s Court Control Order, High Risk Offender applications, Continuing Detention Orders, Immigration Detention Orders, Defence Force Disciplinary Orders.

It does not include any person who is in the custody of the police under the police’s powers relating to the detention of intoxicated persons

The following acts may constitute Escape from Custody:

• Breaking out of a correctional facility while you’re serving a gaol sentence; 
• Failing to return to a correctional facility after weekend release; and
• Being arrested by police in relation to a warrant relating to Parole, breaking free from police and running away. 

What Must be Proven?

For a person to be found guilty of Escape from Custody the prosecution must prove each of the following matters beyond a reasonable doubt:

• that you were an ‘inmate’ for the purposes of the offence (see s 4 of the Crimes (Administration of Sentences) Act) 1999 (NSW);
• that you were in lawful custody; and
• that you escaped or attempted to escape.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear the Matter?

This offence is a Table 1 offence, which means that it will be dealt with in the Local Court unless the Prosecution or the accused elects to have the matter dealt with in the District Court.

Possible Defences to Escaping from Custody

The following defences may be available for an Escape from Custody charge:

• that you were not an ‘inmate’ pursuant to s 4 of the Crimes (Administration of Sentences) Act 1999 (NSW);
•  that your custody was not lawful;
• that you did not escape;
• that you did not attempt to escape; or
• to raise the defence of duress, necessity or self-defence.

Common Questions about the Offence of Escaping from Custody

Will I receive a criminal conviction?

Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is very likely. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this offence:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living. Some jobs require no criminal convictions and a conviction for Escaping from Custody might jeopardise a person’s employment or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol for an Escape from Custody charge?

Usually, yes. Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. Where a person is serving a Gaol sentence, they will have at least one or more serious offences on their record. This means gaol is more likely.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.