R v Andreason
[2004] VSCA 169
•9 September 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 83 of 2004
| THE QUEEN |
| v. |
| JASON KIRK ANDREASON |
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JUDGES: | WINNEKE, P., ORMISTON and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 September 2004 | |
DATE OF JUDGMENT: | 9 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 169 | |
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Criminal law - Sentence - Conspiracy to escape - Sentence of 9 months' imprisonment - Lesser sentence imposed on co-conspirator - Disparity - Manifest excess - Appellant resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.G. Hillman, S.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr. T. Kassimatis | Brugman Mellas |
WINNEKE, P.:
I invite Charles, J.A. to give the first judgment in this appeal.
CHARLES, J.A.:
The appellant and Rachel Ann Kain both pleaded guilty in the County Court at Melbourne on 14 April 2004 to a presentment alleging one count of conspiracy to escape contrary to s.321(1) of the Crimes Act 1958. The maximum penalty for the offence was five years' imprisonment. A plea was heard and on 14 April the judge convicted and sentenced the appellant to be imprisoned for nine months. The co-accused Kain was sentenced to be imprisoned for six months, and the judge ordered that three months of her sentence be suspended for a period of two years. The appellant was granted leave to appeal under s.582 of the Crimes Act on 11 June 2004.
By grounds substituted on 31 August, the appellant now attacks the sentence claiming that -
1. In the circumstances the sentence imposed was manifestly excessive;
2. The sentence offended the principle of totality;
3.The sentence was manifestly disparate to the sentence imposed on the co-offender.
The circumstances of the offending were as follows. The appellant was in custody at Langi Kal Kal correction facility, serving a 5½-year sentence of imprisonment imposed in the County Court on 2 March 2001 for armed robbery, burglary and theft. Rachel Kain was the appellant's girlfriend. She had been introduced to him by a fellow prisoner with whom she shared a cell at Deer Park. Her cell mate had been corresponding with the appellant while she was serving her sentence and after she was released from custody, Kain began communicating with the appellant both by correspondence and by telephone. At this point, Kain had never met the appellant face to face.
On 12 October 2003 at 5 p.m. a telephone conversation took place between the appellant and Kain, who had by then been released from custody. In this conversation an escape plan was discussed, during which it was arranged that the appellant would be picked up by Kain some time after 9 p.m., one kilometre from Beaufort on the Melbourne side of that town. The telephone call was monitored by a prison officer at Langi Kal Kal. As a result the appellant was "locked down" and transferred to Ararat Prison, a higher security gaol. The plan to escape was thus thwarted, but Kain remained unaware of what had occurred after the conversation and proceeded to execute her part of the plan to escape. Between 8 and 9 p.m. that evening Kain was seen driving along the Western Highway between Trawalla and Beaufort looking for the appellant. She returned to Melbourne after it became clear that she would not find him. Some five days later a letter from Kain to the appellant was intercepted by the prison authorities at Langi Kal Kal. In that letter Kain described her attempts to find the appellant and drew a map of the area in which she had looked for him. An examination of earlier telephone calls between the appellant and Kain, which had been recorded, revealed that arrangements had first been made on 3 October 2003 for the appellant to escape on 4 October 2003. That plan did not proceed.
During the plea no evidence was called on behalf of either the appellant or Kain and no exhibits were tendered. Both the appellant and Kain admitted substantial criminal histories. The appellant had appeared on eleven occasions in the Magistrates' Courts and once in the County Court between July 1992 and March 2001. He had been sentenced to terms of imprisonment in 1992, 1993, 1996, 1997, 1999 and 2001. His offences before 2 March 2001 were largely offences of dishonesty and burglary, and appear to have been substantially drug-related. The most serious, however, were the two counts of armed robbery for which, as I have said, he had been sentenced on 2 March 2001 to a head sentence of 5½ years' imprisonment. Kain admitted three appearances in the Children's Court and eleven appearances in the Magistrates' Court between May 1994 and January 2003.
At the time of sentencing, the appellant was already serving two sentences, first, the sentence of 5½ years imposed on 16 March 2001, and secondly a sentence of three months imposed on 16 March 2001, for breach of a suspended sentence imposed on 8 December 1999; to which was to be added the sentence imposed for the present offence of conspiracy to escape, of nine months' imprisonment. We were told during the appeal that service of the present sentence was calculated as having commenced on 14 April 2004. At the plea it was put that prior to the commission of the present offence the appellant's earliest release date on parole would have been 3 May 2004. The effect of the present sentence is that the appellant will become eligible for parole on 28 December 2004.
During the plea it was accepted by the Crown that the offence of conspiracy to escape was not to be treated as an "escape offence" for sentencing purposes. The Crown argued, however, that the offence was serious, and that there should be some degree of cumulation by virtue of an immediate custodial sentence being imposed.
During the plea it was put on behalf of the appellant that he had become dissatisfied with the conditions at Langi Kal Kal, which is an open gaol, and wished to be transferred back to Fulham Prison, in which he had previously been incarcerated. The appellant was in October 2003 half way through a pre-release program, leading to him being eligible for release on parole; and had it not been for this offence the appellant would have been eligible for release shortly after the date on which he was sentenced. It was put that he had achieved considerable rehabilitation in prison during the previous three years, that he had freed himself from his drug addiction, and had completed a variety of courses and obtained skills and qualifications in hospitality, cooking, first aid, and driving a fork lift vehicle. He was also being regularly visited whilst in Fulham by a woman who had previously been his partner and by whom he had two children. Once he was moved to Langi Kal Kal he had ceased to receive visits from his former partner and children, and had failed in his attempts to get various prison jobs. It was submitted that the appellant was well aware that his telephone calls were being monitored, and that he had been speaking of this plan to escape to bring his unsatisfactory position at Langi Kal Kal to the attention of the authorities; in effect that he was trying to manipulate the authorities to get him out of Langi Kal Kal and back into Fulham Prison. Unfortunately for him, the effect of his being picked up for conspiring to escape from Langi Kal Kal was that he had gone from being a low risk prisoner to being classified in the second most dangerous category, and so was incarcerated at Barwon Prison in a high security unit, Grevillia, where prisoners are isolated from other prisoners in the system and it was impossible for his family and others to visit him. In other words, he was already being punished by serving his existing sentence in much harder circumstances.
In this Court it was submitted by Mr Kassimatis for the appellant that the effect of the sentence imposed had been to delay the appellant's eligibility for parole by almost the entirety of the nine months' sentence and had reduced his parole period by the same amount. The maximum penalty for the offence was five years, and it had been accepted by the Crown that the offending was at the low end of the scale of such offences. No breach of the peace or threat to the good order of the prison had been anticipated or was likely, the planning was crude and the preparations involved little concealment and no sophistication. Although the judge did not accept the submission of counsel for the appellant that the conspiracy did not amount to a bona fide plan to escape, it was argued that his Honour should have accepted that the offending was intimately connected with various aspects of the appellant's predicament following his transfer from Fulham into Langi Kal Kal, since they provided the only plausible explanation for his offending. It was submitted that the appellant had been in custody since August 2000, and that his time in custody had been spent on his rehabilitation and on minimising the likelihood of his re-offending once released. Accordingly it was submitted that the sentence of nine months imposed on a person in his position was excessive and, having regard to the time he had already served, was crushing.
Mr Hillman for the Crown submitted that the sentence imposed was not manifestly excessive and did not offend against the principles of totality. He argued that the judge was entitled to find that the appellant genuinely intended to flee the area of the prison. The plea of guilty was an admission of all the elements of the crime of conspiracy to escape. The plea therefore included an admission that both the appellant and the co-offender intended that the appellant actually escape from prison, and the appellant fell to be sentenced on that basis. He argued that the judge was well aware of the existing sentence and that the earliest date for eligibility for parole for the appellant was 3 May 2004. The judge was also well aware that the sentence imposed had the potential to defer the earliest date for parole. His Honour was also plainly aware that if a sentence was imposed which did not attract a non-parole period, then the appellant would have to serve that sentence before being able to be paroled on the existing sentence. Since the sentence imposed was not ordered to be served cumulatively upon the existing sentence, on the completion of the sentence the subject of the appeal the appellant would also have served a further nine months of the existing head sentence and the balance of the non-parole period fixed in relation thereto. Mr Hillman argued that the judge was well aware of the changes in the appellant's incarceration which resulted from his commission of this offence and that it should not be supposed that they were not taken into account and given proper weight. His Honour had specifically referred to the activities for his rehabilitation undertaken by the appellant whilst in prison. He submitted that the sentence imposed was not crushing, and that an appropriate punishment had to be imposed over and above the sentence the appellant was undergoing. He argued that the sentence was well within the range open to the sentencing judge. As to parity, he submitted that the circumstances of the appellant and Kain were so different that the issue did not arise.
The real questions in this appeal are whether the sentence was manifestly excessive, allied to the issue of disparity. There is some substance in the contentions of Mr Kassimatis that the offending was at the lowest end of the scale for offences of this kind and that no breach of the peace was likely. The planning for the escape was crude and unsophisticated, and the plan was virtually certain to be discovered by the prison authorities. The appellant had indeed spent his time in gaol in working to overcome his addiction and in gaining skills to improve his prospects of rehabilitation upon his release. It seems that employment has been arranged for him on his release from prison through the good offices of a friend of the mother of his children. It is plain that he is now serving his sentence in much harder circumstances in a high security unit.
On the other hand, escaping from legal custody is indeed a serious offence. I do not accept the argument of counsel for the appellant that no threat to the good order of the prison was anticipated or likely. On the contrary I should have thought that good order in any place where criminals are confined is largely dependent upon the acceptance by the inmates that they are obliged to serve their sentences without rebellion or indiscipline and in compliance to the letter with the lawful commands of those employed to guard such places. General deterrence is plainly a factor of particular significance in the construction of a sentence for crimes of this nature.
The sentence imposed was, I think, stern, and, having regard to the maximum penalty, at or about the top of the appropriate range. The judge did not mention in his sentencing reasons the much harder circumstances under which the appellant is now serving his term in custody. Nor was mention made of the fact that the commission of this offence resulted in it becoming possible that the Parole Board will not exercise its power to release the appellant immediately upon his qualifying for parole; see R. v. Orphanides[1].
[1][2002] VSCA 86 at [34].
Furthermore there is, I think, substance in the argument of disparity. The offenders and their offending were comparable and their culpability seems to me to have been identical. There is, I think, insufficient difference in their backgrounds and antecedent histories to account for the variations in sentence. The appellant would, I think, accordingly be entitled to a justified sense of grievance in the circumstances.
I would therefore uphold grounds 1 and 3 of the appeal. I would set aside the sentence of nine months' imprisonment imposed on 14 April. In lieu thereof I would order that the appellant be sentenced to be imprisoned for six months, such sentence commencing on 14 April 2004.
WINNEKE, P.:
I agree that the appeal should be allowed and a sentence of six months substituted for the sentence imposed by his Honour. I simply say that the reason for my agreement is that the error identified in the sentencing process by Charles, J.A. has re-opened the sentencing discretion of this Court; and the reason for my agreement with the sentence of six months that we are proposing to impose is largely due to the fact that I believe there is disparity between the sentence imposed on this appellant and the sentence imposed upon his co-offender. In other circumstances I would not have regarded the nine months' imprisonment imposed by the sentencing judge as beyond the range available to him.
ORMISTON, J.A.:
I agree, and I agree not merely with what Charles, J.A. has said but in particular with what the President has just said.
WINNEKE, P.:
The formal order of the Court is as follows:
The appeal is allowed.
The sentence imposed below is set aside and in lieu thereof the Court orders that the appellant be sentenced to a term of six months' imprisonment commencing on the 14th day of April 2004.
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