R v Butler - [2000] NSWCCA 525

CITATION: R v Butler [2000] NSWCCA 525

FILE NUMBER(S): CCA 60147/00

HEARING DATE(S): 4 December 2000

JUDGMENT DATE:
4 December 2000

PARTIES :

Crown - Respondent
Lisa BUTLER - Applicant

JUDGMENT OF: Simpson J at 1; Howie J at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0035

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : W G Dawe QC - Crown
J S Andrews - Applicant

SOLICITORS: S E O'Connor - Crown
D J Humphreys - Applicant

LEGISLATION CITED: Sentencing Act 1989

DECISION: Leave to appeal granted, appeal allowed, sentenced quashed - a total term of eighteen months' imprisonment with a non-parole period of nine months to commence from 3 March 2000 imposed.

IN THE COURT OF
CRIMINAL APPEAL

060147/00

SIMPSON J
HOWIE J

Monday 4 December 2000

REGINA v Lisa BUTLER

Judgment

SIMPSON J :

1    The applicant, Lisa Butler, seeks leave to appeal against the severity of a sentence imposed upon her by Coleman DCJ in the District Court on 3 March 2000 following her plea of guilty to a charge of attempting to escape from lawful custody. The maximum penalty applicable to the offence is imprisonment for a term not exceeding ten years. Coleman DCJ sentenced the applicant to imprisonment for a period of eighteen months, made up of a minimum term of twelve months and an additional term of six months.
2    In order to justify departure from the ratio then referred to in s 5(2) of the Sentencing Act 1989, his Honour found special circumstances, these being the applicant’s need for an extended period of supervision on her release. His Honour’s determination in this respect is not in issue.
3    The applicant was serving a term of imprisonment which, so far as I can ascertain from the papers, was imposed in April 1999 for offences of larceny and goods in custody. That sentence was a sentence of twelve months, made up of a minimum term of two months and an additional term of ten months. For reasons which are not entirely clear, her parole was revoked on 6 July 1999 and she was required, subject to any subsequent determination of the Parole Board, to serve what remained of the additional term of ten months which would have entitled her to release on 7 May 2000.
4    The effect of this is that the applicant was in fact serving the additional term at the time of the offence. She was being held at the Mulawa Correctional Centre at Silverwater.
5    The attempt to escape was made early in the morning of Friday 31 December 1999. The applicant and a co-offender managed to obtain access to what was described as a sterile area by climbing over a barbed wire fence and a brick fence. They had prepared to attempt to climb over a third fence. Both gave evidence in the sentencing proceedings which his Honour accepted that before they were discovered they had abandoned the attempt. However, his Honour also accepted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Butler

Details

AGLC: R v Butler [2000] NSWCCA 525
Case: [2000] NSWCCA 525
Decision Date: 4 December 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, the applicant Lisa Butler applied for leave to appeal against the severity of the sentence imposed by Coleman DCJ in the District Court. The applicant was sentenced to imprisonment for eighteen months, consisting of a minimum term of twelve months and an additional term of six months, following her guilty plea to attempting to escape from lawful custody. The maximum penalty for this offence is imprisonment for a term not exceeding ten years. The appeal focused on the severity of the sentence, the parity with the co-offender, and whether the sentence was manifestly excessive.

The court was required to determine whether the sentence imposed by Coleman DCJ was appropriate and whether there were any errors in the sentencing process. The arguments raised by the applicant's counsel included the technical oversight of not making an order for release on parole at the expiration of the minimum term, the parity with the co-offender, and the excessiveness of the sentence. The Crown argued that sentences for escape and attempting to escape from lawful custody have an unusual deterrent significance and should not be overlooked.

The Court of Criminal Appeal found that the sentence imposed by Coleman DCJ exceeded the bounds of legitimate sentencing discretion and did not adequately take into account the applicant's youthfulness and efforts at rehabilitation. The Court granted leave to appeal, allowed the appeal, and quashed the sentence. The Court proposed a new sentence of a total term of eighteen months' imprisonment with a non-parole period of nine months, which would entitle the applicant to release on 2 December 2000. The Court directed the applicant's immediate release as soon as the necessary administrative procedures could be affected.

The final orders of the Court were as proposed by Simpson J, with Howie J concurring. The non-parole period imposed by Coleman DCJ was considered excessive in light of the applicant's youth, personal circumstances, and the offences for which she was in custody. The Court reduced the non-parole period in the way indicated by the presiding judge and directed the applicant's immediate release.

Orders