How to Surrender Yourself to Police in New South Wales

Darko “Dougie” Desic made headlines in September 2021, when the Avalon handy man turned himself into Dee Why Police Station, after he’d escaped the since-closed Grafton Correctional Centre sometime between 7 pm on 31 July and 7 am on 1 August 1992, using a hacksaw and bolt cutters.

The then 35-year-old Yugoslav national was serving a 44 month prison sentence for cultivating cannabis, yet he fled gaol with only one and a half years left to serve, as he feared being deported on release and subsequently being conscripted into the Yugoslav army to fight in its civil war.

Time as a fugitive

Desic had spent the interim 29 years sleeping rough in the sand dunes of Sydney’s Northern Beaches. He surrendered to police during the COVID pandemic, when his situation became too tough to tolerate. He was then made to serve the rest of original sentence, plus two extra months due to his escape.

As Desic entered Dee Why police station in 2021, he announced, “I believe you’re looking for me.” And unsurprisingly, the incident grabbed global headlines due to the close-to-three-decade-long timeframe the European man was able to evade the detection of NSW Police Force.

However, those with an outstanding arrest warrant who turn themselves don’t always garner media attention, like Desic did.

And there are many factors that can lead a person to give themselves up to police, and a court can in turn treat this more favourably than being apprehended while on the run.

How surrendering can help

There are a number of reasons why those for whom an arrest warrant has been issued will turn themselves in to police.

One reason is that they become tired of running from the law. Another reflects an understanding that giving up to the authorities can serve as a mitigating factor on sentencing – which is one that can lessen any further penalty imposed for those who have escaped from lawful custody, or who are on the run and ultimately wish to plead guilty, indicating to the court a degree of genuine remorse for the offence and bears an acceptance of responsibility. Another factor is an understanding that surrendering can increase the chances of a successful bail application following surrender.

A factor for those who wish to plead not guilty is that they want to case to come before the court in order for their innocence to be formally established.

There are even circumstances where those reddened by guilt or who wish to turn a new leaf on life with confess to crimes that are undetected by police, or for whom a suspect has not yet been identified.

Mitigating and aggravating factors on sentence

A mitigating factor can serve to lessen the sentence ultimately imposed on a person, whilst an aggravating factor can make a penalty more severe. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) contains lists of both mitigating and aggravating factors.

Section 21A(3)(m) cites “assistance by the offender to law enforcement authorities” as a factor that can result in lessening a sentence in line with section 23, which sets out a number of considerations a court should deliberate upon when considering whether assistance provided should be rewarded.

These considerations include “the significance and usefulness” of any assistance, the truthfulness and reliability of information or evidence provided, the nature and extent of the assistance, as well as it’s timeliness and the benefits that resulted.

Further concerns as to how assistance translates into leniency rely on whether the offender will suffer harsh conditions, injury or risk of injury as a result of assistance, and whether their help relates to their own crime or another’s. And injury to the assistant’s family can also play a factor.

Other provisions relating to this law include that resulting lesser penalties “must not be unreasonably disproportionate to the nature” of an offence. And when a lesser penalty results, the court must indicate why and state the penalty that would otherwise have applied.

Bail considerations

Where a person is wanted by authorities, surrendering can also make a magistrate feel comfortable he or she will attend future scheduled court dates, and thereby increase the prospects of being released into the community by way of a release application, which is also known as a bail application.

In fact, whether the court is concerned a person will fail to appear for future court dates is part of the unacceptable risk test that is used when deciding whether or not to release a person from custody pursuant to bail. And having voluntarily surrendered can help satisfy a court a person will later attend court.

Tips on surrendering to police

Similar to Desic’s experience two years ago, handing oneself into police can be as simple as turning up at the police station and advising duty officers that there is a pending warrant out for one’s arrest and, therefore, save the officers any further effort in having to track a person down.

However, anyone considering doing this would be well advised to contact an experienced criminal defence lawyer who can advise of the process and, importantly, liaise with police in advance and arrange a time for surrender that is suitable to the officer who is actually in charge of the investigation – thereby ensuring the process is as smooth and fast as possible.

It is a good idea to arrange the surrender at the police station where the officer in charge of the investigation is normally stationed, and when he or she is on duty, so as to minimise any inconvenience for the police and thereby be on the most favourable terms that the circumstances allow.

As the law makes clear, an arrested person, including one who is surrendering to police, must be brought before a court to determine bail as soon as practicable, it is a good idea to arrange a time early in the morning and preferable not on a Friday, as attending the police station early in the morning when the officer involved in the case is present can increase the chance of not having to spend the night in a police holding cell, or be placed in a long queue for bail courts over the weekend.

Another good idea for those who wish to be represented by a private criminal lawyer – than a public lawyer such as one from the Legal Aid Commission – is to formally retain the lawyer in advance and ensure they are available for a bail application in court in the event they are not given ‘police bail’; in other words, not released after the arrest and formal charging process at the police station and subsequently brought before a court.

Provide your personal details but otherwise remain silent

Some of those who surrender to police may consider participating in a police interview and making a confession, which is known as an ‘admission’ under New South Wales law.

The strong advice here is to provide personal details but do not participate in a police interview unless advised to do so by a lawyer who is familiar with the allegations, has advised to do so, has advised of the parameters of the information that should be provided and the person is confident in staying within these parameters.

The situations whereby a person will be advised to participate in a police interview are exceptionally rare, and unless otherwise advised it is important to exercise the right to silence – as an interview will almost invariably make it more difficult to defend the case.

Dilution of the right to silence – keeping lawyers out of police stations

Some may find it unusual that the previous part does not advise having a lawyer present at the police station through the arrest, charge and interview process.

In that regard, it should be noted that laws enacted in New South Wales in 2013 state that an individual exercising their right to silence in the presence of their lawyer can then find this raised in court with a resulting negative inference on anything they haven’t said and later seek to rely upon.

This new law has essentially had the effect of appeasing police by keeping lawyers out of police stations, and thereby enabling police to engage in unscrupulous tactics such as pressuring arrested persons to participate when they really do not wish to.

Despite this dilution of the right to silence, it is important to contact a lawyer for advice and assistance on how to proceed once taken into custody.

Light at the end of the tunnel

As for Desic, after his extended sentence expired in December 2022, he was transferred to Villawood Immigration Detention Centre, as, under section 501 of the Migration Act 1958 (Cth), noncitizens whose sentence exceeds a certain limit are automatically deported to their country of origin.

At the time Desic was arrested, the deportation threshold was a sentence of more than 24 months. However, then immigration minister Scott Morrison tweaked the law in late 2014, so deportation now results with 12 months, regardless of whether that includes multiple or suspended sentences.

Yet, as a result of the “Free Dougie” campaign that the Northern Beaches community launched on the man’s return to prison in 2021, Desic was not deported. Indeed, the campaign resulted in him receiving a permanent visa and a Medicare card, so he can live out his days here.