Devine v Richardson

[1987] TASSC 62

Serial No 59/1987
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              DEVINE v RICHARDSON [1987] TASSC 62; A59/1987

PARTIES:  DEVINE
  v
  RICHARDSON

FILE NO/S:  110/1987
DELIVERED ON:  20 November 1987
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey J

Judgment Number:  A59/1987
Number of paragraphs:  9

Serial No 59/1987
File No 110/1987
List "A"

DEVINE v RICHARDSON

REASONS FOR JUDGMENT  NEASEY J

20 November 1987

1. This applicant on a motion to review seeks to have set aside a sentence of 12 months' imprisonment imposed on him in the Court of Petty Sessions by a magistrate for the crime of escape from lawful custody. The charge was laid under s107 of the Criminal Code, and the applicant pleaded guilty. Under s72(1)(a), a charge under s107 of the Code being one of the charges to which that sub–paragraph refers, the applicant chose to be tried by the magistrate instead of by a jury, and accordingly his offence was deemed to be a simple offence, to be dealt with by the magistrate accordingly. That being so, the maximum sentence became 12 months' imprisonment for a first offence, which this was – s72B(4)(a).

1. The learned magistrate was told by the prosecutor that the applicant was one of a party of prisoners from the Risdon Gaol who had been working at the Botanical Gardens in Hobart on the afternoon in question. The applicant, in company with another man named Colin Bone, left the gardens about 2.20 pm, walked to the Queen's Domain and waited until night–fall, and were then taken by a friend whom they contacted to Collinsvale some miles away, and there set up camp in the bush. They had been supplied by the friend with clothes, food and camping equipment. Two days' later they were apprehended and retaken into custody. Each made signed admissional statements, and each had a record of previous offences. The learned magistrate was told no more than that, except, in answer to a question by him, that there had been an extensive police search.

1. Learned counsel for the applicant, in a plea in mitigation, told the magistrate that the applicant was a single man of 31, presently serving a sentence of five and a half years for several offences, including one of robbery with violence. He had an extensive record of previous offences, and had spent some nine of the last 15 years in custody. Notwithstanding his previous record, counsel told his Worship, the applicant was regarded as a model prisoner, which had earned him the privilege of working outside the prison from time to time. He had been one of nine prisoners who were escorted by a single guard. They arrived at the Botanical Gardens at about 8.30 am, and in accordance with usual custom had been split into either individuals or groups of two. Devine and Bone had been allocated the task of digging holes in one area of the gardens, and were working in conjunction with certain of the garden staff. One of the employees of the gardens, counsel said, had during the day produced some marijuana which he and the two prisoners smoked, and then later the gardener produced "an armful of stubbies" (small bottles of beer) which they all drank. Presumably, if this was true, they did these things whilst unsupervised by the guard, who visited them about every two hours. They were due to be returned to the prison shortly after 2.30 pm, but shortly before that time arrived the applicant and Bone assisted a woman whose car had broken down in the gardens, and then they decided on the spur of the moment to escape.

1. Their decision to escape was spontaneous and largely induced by their reaction to the marijuana and alcohol they had consumed, according to counsel; and it was unlikely that they would otherwise have escaped, because they had had ample opportunities to do so earlier. They had not committed any offences during the period at large, either to persons or to property, but lived quietly in the bush. When arrested, they surrendered quietly, and the only trouble they had caused to the community by their escape, said counsel, was the cost of an extensive police search. On return to the prison, they had lost most of the privileges, remissions and prospect of parole, and the like which they had enjoyed before the escape, and both were placed in solitary confinement. All this, counsel for the defence told the court without contradiction from the prosecutor. Whether or not the allegations about the un–named gardener were true is immaterial as far as the court is concerned, because being uncontradicted they must be assumed to be true for purposes of sentence.

1. The learned magistrate appears to have passed sentence immediately. He referred to the basic facts, to what had occurred in the gardens, and to the fact that these were first convictions for escape. His Worship said that there had been an extensive police search, and that he had no doubt that the public was put at fear because two escaped criminals were at large in the Hobart area. He said that he had considered in view of the limitation of his sentencing power whether the matter was serious enough to make it appropriate for him to send the applicants to the Supreme Court for sentence (as he had power to do under s72B of the Justices Act 1959). However, he thought in all the circumstances that 12 months' imprisonment would be an adequate penalty, and he imposed that sentence.

1. The main ground relied upon in the motion to review is that the sentence was manifestly excessive. This ground is made out. Escape from lawful custody is a crime in which the seriousness may vary over a wide range according to circumstances. In the present case, it was not a planned escape but a spontaneous one, induced to a substantial extent by the applicant's indulgence in alcohol and marijuana. It was, of course, wrong of the applicant to indulge himself in that way, but, human nature being what it is, the temptation to a person under imprisonment must have been great. The facts that there was no violence involved in the escape, nor any crimes committed while the prisoners were at large, nor any harrassment to members of the public or damage to property, and that the prisoners surrendered quietly when apprehended, all indicate an absence of factors which when they accompany an escape from custody greatly aggravate its seriousness.

1. On the other hand, the appellant had a long and serious record of previous offences, and the escape of such a person from custody is always likely to be more alarming to the public than the escape of a person with little in the way of a previous record. In addition, the escape was a breach of the applicant's position as a trusted prisoner, and an action likely to cause prison authorities to harden discipline, and so to worsen the lot of fellow prisoners.

1. Considered overall, the crime of escape committed by this applicant was in the medium range of gravity, and references to sentences passed in the Supreme Court for this crime in recent years indicate that an appropriate sentence would have been in the region of six months' imprisonment – see eg Hryczszyn v The Queen, unreported, Serial No 91976, a decision of the Court of Criminal Appeal (six months, reduced to three months suspended); Bailey v Kupsch, unreported, Serial No. 261971 (two months); Wills v Shearing, unreported, Serial No. 721966 (three months); Campbell, September 1986 (three months); Taylor, September 1986 (four months); Maynard, November 1986 (four months). These are examples, but they are representative of the general level. The present case was more serious than most of those, but not much more. Learned Crown counsel appearing for the respondent was good enough to supply the court with recorded examples of sentences for escape imposed in this Court in recent years, and only one was as severe as nine months' imprisonment, except for the case of Watson. In that case a sentence of five years' imprisonment was imposed, but the case was entirely exceptional due to its circumstances' and it is of no value as an indication of the general level.

1. Thus in Tasmania, a sentence of 12 months' imprisonment for the crime of escape is a penalty clearly above average and reserved for cases of the more serious kind, of which this was not one. It was of medium or average gravity, and I think a sentence of six months' imprisonment would be appropriate. That difference from the sentence imposed by the magistrate is sufficient to warrant interference. The sentence will be quashed and a sentence of six months' imprisonment imposed in lieu.