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R v Colson

R v Colson

Case [1999] SASC 184 13 May 1999

Power to Specify Sentence Commencement

Criminal Law

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R v COLSON
[1999] SASC 184

Court of Criminal Appeal: Doyle CJ, Prior and Mullighan JJ

DOYLE CJ

Introduction

This appeal against sentence turns upon the interaction between the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) and the Young Offenders Act 1993 (“the YOA”).
The appellant was serving a sentence of detention in a training centre. That sentence was imposed on the appellant when he was a youth. While serving the sentence he was permitted to visit a relative in hospital. He escaped from custody in the course of that visit. At the time of the escape the appellant had turned eighteen years of age. He was no longer a youth for the purpose of the YOA, notwithstanding the extended definition of “youth” in the YOA.
The appellant pleaded guilty to a charge of escaping from custody contrary to s254(1) of the Criminal Law Consolidation Act 1935.
A term of imprisonment for this offence must be cumulative on any other term of imprisonment that the prisoner is liable to serve: s50(1) Correctional Services Act 1982. I doubt whether that provision applies to the present case. The appellant was serving a sentence of detention in a training centre, not a term of imprisonment. In any event, the judge did not refer to this provision, and does not appear to have regarded himself as bound by it.
The appellant has a significant criminal record, and on two previous occasions has escaped from custody. No doubt influenced by that, the District Court judge imposed a sentence of imprisonment of 15 months. He fixed a non-parole period of 6 months.
The judge made a further order, and this is the subject of the appeal. He ordered that the head sentence and the non-parole period commence at the expiration of the period of detention being served by the appellant.
The issue on appeal is whether the judge had power to make that order. If he did not, the order is invalid. If the order is invalid the sentence was passed on an erroneous basis and the appellant would have to be resentenced.

Imprisonment and detention

The YOA distinguishes between a sentence of detention and a sentence of imprisonment. The Youth Court cannot sentence a youth to imprisonment, although in limited circumstances it may direct that a sentence of detention be served in a prison: s23(1) and (6) of the YOA. The Supreme Court and the District Court have power to sentence a youth to imprisonment: s29 of the YOA.
In any event, when sentenced by the judge the appellant was serving a sentence of detention in a training centre. The sentence that the judge imposed was a sentence of imprisonment.

Power to impose a cumulative sentence

Section 31(1) of the Sentencing Act provides as follows:
“Subject to subsection (2), the court by which a sentence of imprisonment is imposed may direct that the sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or…

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 Colson

Details

AGLC: R v Colson [1999] SASC 184
Case: [1999] SASC 184
Decision Date: 13 May 1999

CaseChat Overview and Summary

In the matter of R v Colson, the appellant, who had previously escaped from custody twice, was serving a sentence of detention in a training centre when he escaped from custody for the third time. The appellant had turned eighteen years of age at the time of the escape, making him no longer a youth under the Young Offenders Act 1993. The appellant pleaded guilty to the charge of escaping from custody contrary to s254(1) of the Criminal Law Consolidation Act 1935. The District Court judge imposed a sentence of imprisonment of 15 months, with a non-parole period of 6 months, and ordered that the sentence and the non-parole period would commence at the expiration of the period of detention being served by the appellant. The issue on appeal was whether the judge had the power to make the order, and if not, whether the sentence passed was on an erroneous basis, requiring the appellant to be resentenced.

The court examined the distinction between a sentence of detention and a sentence of imprisonment under the Young Offenders Act 1993 and the Criminal Law (Sentencing) Act 1988. The court determined that the judge did not have the power to make the order under s31(1) of the Sentencing Act, as the appellant was serving a sentence of detention, not imprisonment, at the time of sentencing. However, the court found that s30(1) of the Sentencing Act did authorize the judge to make the order, as it conferred a general power to specify a date or time for the commencement of a sentence, earlier or later than the time at which the sentence was imposed.

The appeal was ultimately dismissed, as the court concluded that the judge had the power to make the order under s30(1) of the Sentencing Act. The court suggested that this case revealed the need for further consideration by Parliament of the interaction between the Sentencing Act and the Young Offenders Act.

Orders