Philpott v The Queen
[2001] TASSC 71
•4 July 2001
[2001] TASSC 71
CITATION: Philpott v R [2001] TASSC 71
PARTIES: PHILPOTT, Troy Matthew
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 101/2000
DELIVERED ON: 4 July 2001
DELIVERED AT: Hobart
HEARING DATE: 21, 22 May 2001
JUDGMENT OF: Cox CJ, Slicer and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Escape from lawful custody - Whether sentence is manifestly excessive in circumstances where it is to run concurrently with a sentence of life imprisonment.
R v Farlow (1980) 2 NSWLR 166, referred to
Aust Dig Criminal law [1003]
REPRESENTATION:
Counsel:
Appellant: S J N Brown
Respondent: J N Perks
Solicitors:
Appellant: Clarke & Gee
Respondent: Director of Public Prosecutions
Judgment Number: [2001] TASSC 71
Number of paragraphs: 9
Serial No 71/2001
File No CCA 101/2000
TROY MATTHEW PHILPOTT v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
SLICER J
EVANS J
4 July 2001
Orders of the Court:
Appeal allowed.
Sentence of three years' imprisonment from 24 July 2000 quashed and sentence of two years' imprisonment from that date substituted therefor.
Serial No 71/2001
File No CCA 101/2000
TROY MATTHEW PHILPOTT v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
4 July 2001
On 13 November 2000, the appellant adhered to the plea of guilty he had earlier entered in the Court of Petty Sessions to a complaint alleging one count of escape contrary to the Criminal Code, s107. Although the Court of Petty Sessions had jurisdiction under the Justices Act 1959, s71, to deal with the matter, the presiding magistrate declined to do so and remanded the appellant to the Supreme Court, being of the view that the offence should be dealt with in the latter Court. The Sentencing Act 1997, s13, provides that the maximum term of imprisonment a Court of Petty Sessions may impose on an offender convicted of a crime that is triable summarily is 12 months for a first offence, and 5 years for a second or subsequent offence. On 23 November 1994, the appellant had been convicted of murder and sentenced to imprisonment for the term of his natural life. He escaped from Risdon Prison on 3 May 2000 and was at large until recaptured without a struggle on 24 July 2000, 11 weeks and 3 days later. Being a second offender, the maximum sentence which could have been passed upon him by the Court of Petty Sessions was 5 years' imprisonment. The learned primary judge imposed a sentence of three years' imprisonment which, by virtue of the Sentencing Act, s14(2), was made concurrent with the sentence of life imprisonment he was then serving. The third ground of appeal on which he relies is that the sentence was in all the circumstances manifestly excessive. As I consider this ground made out, I shall confine myself to it.
The appellant, who had been classified as a medium risk prisoner, escaped at the same time as another prisoner, one Woods, from the prison workshop situated in an unfenced area of the prison grounds. It appears that the supervisor had left both prisoners at the workshop and on his return to escort them back to the main prison, had found them gone. The escape was not attended with any violence and it is important to bear in mind that the sole charge dealt with was one of escape. Woods was at large for four weeks, while the appellant remained at large for more than seven weeks longer. Two other persons who had harboured him received sentences of three and nine months' imprisonment respectively. While both prisoners were at large, an extensive police search was mounted and Crown counsel claimed that the search for the appellant had cost approximately $110,000 and had involved up to 50 police officers at any one time. She also asserted that the search was disruptive to the police and to the community in general and raised a great deal of public alarm. On his arrest, the appellant had not been co-operative, had denied his identity and declined to participate in a recorded interview.
In mitigation, the appellant's then counsel said that the appellant had made an application to be resentenced under the Criminal CodeAmendment (Life Prisoners and Dangerous Criminals) Act 1994 and that an appointment for the application to be heard had been given for 10 May 2000, but the appellant had not been advised of this appointment at the time of his escape and was feeling frustrated at the delays that were occasioned in getting the matter before the Court. That application has not been pursued and still stands adjourned sine die. A further matter operating on his mind was that he had discovered a year before his escape that he was the father of an 8 year old daughter and that he was beginning to establish a relationship with her via the telephone. He had been anticipating meeting her in September 1999, but about a week before the meeting was to take place, she had been killed in a motor vehicle accident. Counselling within the prison system had been of little assistance in overcoming his grief and disappointment. The appellant is aged 30 years and prior to his conviction for murder, had a short record for crimes of dishonesty, street and driving offences, but none for violence.
In his comments on passing sentence, the learned primary judge said:
"There are a number of matters that I should take into account in your favour. Your escape was not pre-planned. No violence was involved in the escape. You apparently did not commit any crimes when you were at large. You pleaded guilty before a magistrate at the earliest possible opportunity. I accept that you were feeling frustrated with the prison system as a result of not having been allowed to go to your daughter's funeral, and as a result of delays concerning your resentencing application.
On the other hand, your escape has cost the State a great deal of money in police overtime and helicopter hire charges. You got two other people into trouble for harbouring you, and they are both now in gaol. You were given a certain amount of trust as a medium risk prisoner, but you broke that trust. As a result, others might be encouraged to try to escape, and others might suffer from the tightening of prison discipline. A lot of fear and worry is caused to the more vulnerable people in our community whenever a convicted murderer escapes. It is true that you have no prior convictions for any crimes of violence apart from your conviction for murder, but I expect that made no real difference to the amount of public alarm during the months that you were at large. For sentencing purposes, I think it is very significant that you were in prison for the most serious of all crimes. Prisoners serving long sentences need to be deterred from escaping, and should therefore receive heavy sentences when they do escape.
I sentence you to three years' imprisonment, dating from 24 July 2000."
Perusal of Professor Warner's book, Sentencing in Tasmania, and of subsequent sentences for single counts of escape handed down in this Court, demonstrates that a sentence of three years' imprisonment is significantly higher than the mean of those sentences and considerably higher than the maximum. Professor Warner noted that in the period 1978 - 1989, the sentences ranged from two weeks to twelve months. Of the later cases put before us, none exceeded that maximum and in respect of cases where other counts had been joined in the indictment, none was as high as three years, save one, namely David Watson, who was sentenced to five years' imprisonment concurrent with a life sentence for murder which he was then serving. The sentencing judge in that case, Neasey J, subsequently said of it that it was "entirely exceptional due to its circumstances and it is of no value as an indication of the general level" of sentences for escape (see Devine v Richardson unreported 59/1987). A perusal of sentences recorded in Fox and Freiberg's Sentencing, State and Federal Law in Victoria (1985) and the Australian Sentencing Digest (1985) by Ross W Carter shows that the sentencing trends in Victoria and New South Wales are not significantly different from those in Tasmania.
Crown counsel on the appeal conceded that he would be hard pressed to argue against the ground that this sentence was manifestly excessive but for the fact that the Sentencing Act requires that the sentence be made concurrent with the sentence of life imprisonment to which the appellant is subject. However, this provision merely recognises the logical impossibility of making a sentence of imprisonment cumulative upon a life sentence (see R v Foy (1962) 46 Cr App R 290; R v Farlow (1980) 2 NSWLR 166). It does not follow that because such a sentence is concurrent a life prisoner may commit any crime, including escape, with impunity. The Corrections Act 1997, s72(4)(h), specifically requires that in determining whether or not to grant parole to a prisoner who is eligible to apply for it, his or her behaviour while in prison is to be taken into consideration. Thus if the appellant pursues his application to be resentenced and a time is set for him to become eligible to apply for parole, the fact of his escape from prison and the Court's view of it as demonstrated by an appropriate sentence commensurate with its gravity must be taken into account by the Parole Board, although by virtue of the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act, s9(4), the Court resentencing him for murder must not take into account his conduct as a life prisoner (see also Hunt v R unreported 113/1999). The fact that account would be taken of an escape was recognised by Neasey J when passing sentence upon Watson (unreported 20 November 1986) when he said:
"As you are already sentenced to imprisonment for life, any sentence which I now impose must be made concurrent with your present sentence, but nevertheless, it will not be without effect because I hope and expect that it will be taken into account under S 13 of the Parole Act if and when the Parole Board should come to consider the question of recommending parole in your case … ."
It was also recognised by the comment on R v Farlow (supra) made by Fiori Rinaldi [1980] 4 Crim LJ 111:
"Merely because no additional cumulative penalty can be imposed upon a prisoner serving a life sentence does not mean that prisoners in that class may commit any crime with impunity. All 'lifers' expect ultimately to be released, and their punishment for offences committed whilst in prison consists immediately of non-curial measures of deprivation taken by the prison authorities and ultimately of delays in granting release on licence."
In my respectful opinion, a sentence of three years' imprisonment for this escape was manifestly excessive and cannot be justified by the fact that it will run concurrently with the appellant's sentence of life imprisonment. Nevertheless, it was a more serious matter than many of the cases mentioned in the digests to which I have referred. That a convicted murderer is at large in the community is likely to cause alarm. His recapture put the public purse to considerable expense and he evaded his pursuers for a considerable period of time. These factors, in my view, justify some departure from what may be seen to be the general tariff. In my opinion, the appeal should be allowed and a sentence of imprisonment of two years from the date of his apprehension on 24 July 2000 substituted. In the circumstances, I find it unnecessary to determine the other grounds of appeal.
File No CCA 101/2000
TROY MATTHEW PHILPOTT v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
4 July 2001
I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice and agree with both his reasoning and conclusions. I would allow the appeal and substitute a sentence of imprisonment of two years.
File No CCA 101/2000
TROY MATTHEW PHILPOTT v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
4 July 2001
I agree with the reasons for judgment prepared by Cox CJ. I would allow the appeal and substitute a sentence of imprisonment for two years from 24 July 2000.
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