News · Offences against justice
Escaping lawful custody in NSW.
A man appearing at a Sydney local court last week ran from the courtroom after bail was refused, and was arrested a short distance away by sheriff's officers and police. The charge was attempting to escape lawful custody. It is a charge most people have never heard of, and it carries up to 10 years.
By Aaron Kernaghan · Published 27 July 2026
The news, in summary.
In the week just gone, a man was before a local court in Sydney on an existing matter. When the magistrate refused him bail, he ran from the courtroom and out onto the street. Sheriff's officers and police chased him and arrested him nearby. He was charged with attempting to escape lawful custody, along with resisting officers in the execution of their duty, and was refused bail to reappear before the same court.
That matter is before the court and the person charged is presumed innocent. What follows is about the law, not the individual.
The point of interest is the charge. A dash for the door after bail is refused feels like a moment of panic, not a planned break-out. But the law does not draw that line. Once a person is in lawful custody, breaking free of it, or even trying to, is an offence carrying a maximum of 10 years. And it is one of the few offences the law says should add to a sentence rather than run alongside it.
What is section 310D of the Crimes Act 1900?
Escape offences sit in Part 6A of the Crimes Act 1900 (NSW). The main one is section 310D. It makes three things an offence: escaping from lawful custody, attempting to escape from lawful custody, and, where a person has been temporarily released, failing to return at the end of the time for which they were let out. Each carries the same maximum of 10 years imprisonment.
The section replaced an older patchwork of escape offences and the common law. It is broad on purpose. It does not matter whether the escape was from a prison van, a police cell, a courthouse dock, or a hospital bed under guard. If the person was in lawful custody and got free of it, or tried to, section 310D is engaged.
Escape is often not the only charge. A person who pushes past an officer to get away will usually also face resisting or hindering police, and sometimes assault, on top of the escape count. The escape charge covers the getting free. The other charges cover what was done to the officers in the process.
What is the maximum penalty for escaping lawful custody in NSW?
The maximum is 10 years imprisonment. That is a serious indictable offence, and it is a heavy maximum for conduct that, at the lower end, can be a few seconds of running before a quick arrest.
The maximum is the ceiling, not the going rate. A short and unplanned escape, ending in immediate recapture and with no harm done, sits at the bottom of the range. A planned break-out, the use of a weapon or force, help from others, or a long period at large all push a case up. The person's record matters too, because most people charged with escape were already in custody on something else.
What lifts escape above other offences of similar maximum is not the ceiling. It is the way the sentence is structured, dealt with below.
What counts as lawful custody?
Lawful custody is wider than being in a prison. It covers being held after a valid arrest, being detained by police at a station, being kept in a courthouse cell or the dock after bail is refused, being moved by correctional or sheriff's officers, and being an inmate of a correctional centre. It can also cover a person held under guard away from a prison, such as in a hospital.
The word doing the work is "lawful". The custody has to be lawful for the offence to be made out. If the arrest was invalid, or a person was held past the point when the law required their release, then the custody was not lawful and an element of the offence is missing. This is why the lawfulness of the detention is often the first thing a defence looks at.
A common point of confusion is the courtroom itself. Once a magistrate refuses bail, the person is remanded and is in lawful custody from that moment, even though they are still standing in the court. Running from the dock at that point is an escape from custody, not a failure to appear.
Is it an offence to attempt to escape if you do not get away?
Yes. Section 310D names attempting to escape as an offence in its own right, and it carries the same 10 year maximum as a completed escape. A person who runs from a cell or a dock and is caught within a few metres has still committed the attempt. Whether they got free goes to how serious the offence is, not to whether it was committed.
In practice, most courtroom and cell-block escapes are charged as attempts, because officers are close by and recapture is quick. The word "attempting" in the charge is not a discount. It reflects that the person did not clear the building, and courts treat a brief, failed attempt as a lower-range case than a completed escape that put a person at large.
What is the difference between escaping custody and failing to appear on bail?
People run the two together, but they are very different offences with very different maximums. Escaping custody is breaking free of physical control after arrest or detention. Failing to appear is not turning up to court when you were at liberty in the community on bail.
Failing to appear is dealt with under section 79 of the Bail Act 2013 (NSW). The maximum is the lesser of the penalty for the offence you were on bail for, or 3 years and a fine. Escaping custody under section 310D carries up to 10 years. So the same person, on the same day, faces a much heavier charge if they run from the dock than if they simply never showed up.
The dividing line is control. A person released on bail is at liberty, and their failure to come back to court is a failure to appear. A person who has been arrested, or refused bail and remanded, is in custody, and getting free of that is an escape. The moment bail is refused is the moment the lighter charge is no longer available.
Is a sentence for escaping custody served on top of other sentences?
This is the sting in the tail. Section 57 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directs that a sentence for an escape offence is to be served consecutively, meaning it starts at the end of the sentence the person was already serving, rather than at the same time.
Most offences a person commits are capable of being made concurrent, so that overlapping conduct does not attract double punishment. Escape is treated differently. The law wants the punishment for the escape to be felt as extra time, on the view that a sentence would carry no weight if a person could try to break out of custody with nothing more to lose. The result is that even a short escape sentence adds real time, and it removes the usual room a court has to soften overlapping sentences under the totality principle. The Judicial Commission's bench book on concurrent and consecutive sentences sets out how this works.
There is a related point in the Local Court. That court is normally capped in how much consecutive prison it can impose, but escape offences are an exception to the cap, which is another sign of how the system treats them.
What are the defences to escaping lawful custody?
The first and best defence is that the custody was not lawful. Because lawful custody is an element the Crown has to prove, a defect in the arrest or detention can answer the charge. Was there a valid basis for the arrest? Was the person held past the point the law allowed? Was the detention itself unlawful for some other reason? If the custody fails, the escape charge fails with it.
Necessity and duress can apply, but only rarely. The classic statement of necessity in R v Loughnan [1981] VR 443 requires an imminent and serious peril, an honest and reasonable belief in that peril, and a response that is not out of proportion to it. An escape to avoid an immediate and serious threat inside custody might, on the right facts, reach that bar. A general fear of custody, or of a sentence, does not. The threshold is high and the cases where it succeeds are few.
Identification can be in issue where an escape happens in a crowded or chaotic setting, such as a busy cell block or a moment of disorder. And where there is no realistic defence, the work moves to the plea. The circumstances of the escape, whether it was a moment of panic or a planned break, whether anyone was put at risk, and the person's wider situation, all shape a plea in mitigation that seeks to keep the added time as short as the consecutive rule allows.
What we do for clients charged with escape.
Start with the custody. The first question in an escape case is always whether the detention was lawful, because if it was not, the charge has a hole in it. That means getting the arrest details, the custody records, and the timing, and checking each against what the law required.
Then the sentence structure. Because section 57 makes an escape sentence consecutive, the value of good work is in keeping that extra term short and in presenting the escape at its true level of seriousness. A brief, panicked attempt ending in immediate recapture is a very different case from a planned break-out, and the plea has to make that plain. Most people charged with escape are already in custody, so bail and the effect on the existing matter also need careful handling. If police have charged you or a family member with escape or any related offence, our guide to the first thirty days sets out the steps that matter, the first of which is to say nothing to police until you have spoken to a lawyer.
Frequently asked.
What is the penalty for escaping lawful custody in NSW?
Escaping lawful custody is an offence under section 310D of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years imprisonment. The same maximum applies to attempting to escape and to failing to return after a temporary release. It is a serious indictable offence, and a sentence for escape is usually served on top of any other sentence rather than at the same time.
What is section 310D of the Crimes Act 1900?
Section 310D makes it an offence to escape or attempt to escape from lawful custody, and to fail to return to lawful custody at the end of a period of temporary release. It sits in Part 6A of the Crimes Act 1900 (NSW), which deals with escape and related offences. The maximum penalty is 10 years imprisonment.
What counts as lawful custody?
Lawful custody covers being held after a valid arrest, being detained by police, being held in a courthouse cell or dock after bail is refused, being transported by correctional or sheriff's officers, and being an inmate of a correctional centre. The custody has to be lawful. If the arrest or detention was unlawful, an element of the offence is missing.
Is it an offence to attempt to escape if you do not get away?
Yes. Section 310D covers both escaping and attempting to escape, and both carry the same 10 year maximum. A person who runs from a dock or a cell and is caught within seconds can still be charged with attempting to escape lawful custody. Getting free is not an element of the attempt.
What is the difference between escaping custody and failing to appear on bail?
Escaping custody under section 310D is breaking free of physical control after arrest or detention, and it carries up to 10 years. Failing to appear is not turning up to court while at liberty on bail, and under section 79 of the Bail Act 2013 (NSW) it carries the lesser of the penalty for the main offence or 3 years and a fine. The line is whether the person was in physical custody or in the community on bail.
Is a sentence for escaping custody served on top of other sentences?
Usually yes. Section 57 of the Crimes (Sentencing Procedure) Act 1999 (NSW) directs that a sentence for an escape offence is to start at the end of the sentence the person was serving, rather than at the same time. This makes escape one of the offences most likely to add real extra time in custody, which is a key reason it is treated as serious even where nobody was hurt.
What are the defences to escaping lawful custody?
The main defence is that the custody was not lawful, because the arrest or detention was invalid or continued past the point it should have ended. Necessity or duress can apply in rare cases, such as escape to avoid an immediate and serious threat, but the bar set in R v Loughnan is high. Identification can also be in issue where the escape happened in a crowded or chaotic setting.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 27 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.
Sources: Crimes Act 1900 (NSW), Part 6A, s 310D · Crimes (Sentencing Procedure) Act 1999 (NSW), s 57 · Bail Act 2013 (NSW), s 79 · Judicial Commission of NSW, Sentencing Bench Book, Concurrent and consecutive sentences · Escape offence authorities on JADE · NSW Police News, escape from custody charge, July 2026