Marc Luis Fortunato v R No. SCCRM 93/140 Judgment No. 4054 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4054

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - sentence - escape from lawful custody - sentence 2 years' imprisonment with extension of existing non-parole period by one year and nine months upheld on appeal.

HRNG ADELAIDE, 20 July 1993 #DATE 20:7:1993
Counsel for appellant:     Mrs M E Shaw
Solicitors for appellant:    Mcgee and Associates
Counsel for respondent:     Ms A M Vanstone
Solicitors for respondent: Director of Public Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the District Court for the crime of escaping from lawful custody. The sentence imposed was imprisonment for two years. The non-parole period which then existed in relation to the sentence which the appellant was serving at the time of the escape was extended by one year and nine months. 2. At the time of the escape the appellant was serving sentences of imprisonment aggregating eight years and two months, with a total non-parole period attaching to those sentences of five years and six months. He had served the earlier part of his sentences in the Yatala Labour Prison, but in December 1992 he was transferred to the lower security of the Northfield Prison complex. He did not wish to go there and was apparently concerned about persons that he would have to associate in that environment. 3. The escape occurred on 12 December 1992. It appears that he was due to be released in the middle to latter end of 1993. On the day of the offence the appellant had been drinking. He was taken to a particular area in the prison for the purposes of a breath analysis test. He found he had been left alone and he took the opportunity of making his escape by kicking out the flyscreen of a window and then going through that window and climbing the outer fence of the complex. He remained at large for approximately a month and was then apprehended at a house at Prospect where he had apparently been living during that time. 4. The appellant pleaded guilty to the offence in the Magistrates Court and was committed for sentence to the District Court, and he is entitled to credit for that plea of guilty. 5. He is aged 30 years. He has a long record of prior offending. It is unnecessary to refer in detail to that offending, but I must mention that included in that offending is the crime of armed robbery, which was one of the crimes for which he was undergoing imprisonment at the time of his escape. There is one prior conviction for escaping from lawful custody in 1981. It appears however, that that may not have been a serious form of escape from lawful custody. It is notable that he was sentenced to only 14 days' imprisonment for that offence. 6. This court has stressed on a number of occasions the importance of deterrent penalties for escape from lawful custody. I refer in particular to the cases of Taylor v R (unreported, delivered 19 October 1992) Judgment No. 3670, and R v Turner and Clark (unreported, delivered 8 December 1992) Judgment No. 3752. This court must be concerned to ensure that the level of sentencing for escape from lawful custody does not fall below what is appropriate for that offence and below what is necessary to operate as a deterrence. For the reasons that have been given in the previous cases, it is necessary for the courts to maintain a standard of punishment which will operate to deter prisoners who are tempted to escape from custody, from doing so. It is necessary that all those in lawful custody should realise that an escape must result in a stiff additional penalty. 7. Mrs Shaw, who appeared for the appellant, has stressed that this was not a planned escape, but an impulsive act committed while the appellant was under the influence of liquor. That may well be so, but the fact is that once at large he made no attempt to surrender himself. This cannot be regarded as an impulsive act committed under the influence of drink and subsequently regretted. The appellant remained at large. 8. I think in those circumstances and in all the circumstances of the case, and bearing in mind the necessity for this court to uphold sentences by sentencing judges which are intended to be a deterrent against escape from lawful custody, this sentence must be regarded as a proper and reasonable sentence. It is, in my opinion, within the scope of the sentencing discretion and there are no proper grounds upon which this court should interfere. In my opinion the appeal should be dismissed.

JUDGE2 DUGGAN J I agree, the appeal should be dismissed for the reasons given by the Chief Justice.

JUDGE3 DEBELLE J I agree with the reasons of the Chief Justice.