R v Ford - [2006] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORD
[2006] SASC 213
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
19 July 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - ESCAPE - SENTENCING
Appeal against sentence - appellant sentenced to a term of imprisonment upon his plea of guilty to, inter alia, escaping lawful custody - whether sentencing Judge erred in directing that the sentence imposed would commence at the expiration of the existing sentence - consideration of authorities regarding escape lawful custody - discussion of legislative scheme - consideration of application of section 74A of the Correctional Services Act 1982 (SA) and section 254(2a) of the Criminal Law Consolidation Act 1935 (SA) - order of sentencing Judge directing that the subsequent sentence commence on the expiration of the existing sentence is set aside - the sentence of 22 months' imprisonment to commence on 23 December 2005 - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 254(1)(a), s 134(1), s 86A, s 254(2a), s 353(5); Correctional Services Act 1982 (SA) s 66, s 67, s 74A, s 37A(2), s 37C(4), s 50A(2), s 73(1), s 74(3), s 74(4a), s 75, s 85D; Criminal Law (Sentencing) Act 1988 (SA) s 35(5)(a), s 23(7), s 31(3), s 32(1)(b) and (c), s 32(2) and (8), referred to.

R v FORD
[2006] SASC 213
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J: The circumstances giving rise to this appeal are described in the reasons for judgment of Gray J. I will not repeat them. Although, in the end result, I would allow the appeal for the purpose of making a different order, the practical result in this case would be the same as if the appeal were dismissed. However, that will not always be the case, and the route by which one arrives at the appropriate conclusion affects, in some cases, rights to automatic parole.
I agree with Gray J that there was no appealable error by the sentencing Judge in fixing a head sentence of 22 months imprisonment for the offence of escaping lawful custody. I agree with the reasons that Gray J has given for that conclusion. I also agree that, if that sentence were to stand alone, there was no error in fixing the non‑parole period at 20 months.
The difficulty arises in the relationship between this sentence and the appellant’s then existing sentence and the question whether the appellant was, at the time of sentence, entitled to parole.
I will not repeat the history of the appellant’s earlier sentencing, his offending while on parole and revocation of parole in 2002, his subsequent sentencing in the Magistrates Court, escape from custody and sentencing for that offence in the District Court.
The sentence for the offence…

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 Ford

Details

AGLC: R v Ford [2006] SASC 213
Case: [2006] SASC 213
Decision Date: 19 July 2006

CaseChat Overview and Summary

In the case of R v Ford, the appellant, who had previously been convicted and sentenced for escaping lawful custody, was again sentenced to imprisonment for further offences. The appeal was against the sentence imposed by the sentencing judge, who had directed that the sentence for the new offences would commence at the expiration of the existing sentence. The Supreme Court of South Australia was tasked with determining whether the sentencing judge had erred in this regard.

The legal issues before the court involved the interpretation and application of sections 74A of the Correctional Services Act 1982 (SA) and 254(2a) of the Criminal Law Consolidation Act 1935 (SA). The court had to consider how these provisions interacted with the sentencing of the appellant, particularly in terms of the commencement date of the new sentence in relation to the existing one. The court also examined the seriousness of the offence of escaping lawful custody, taking into account the appellant's criminal history, the nature of the escape, and the need for deterrence.

The court found that the sentencing judge had indeed erred in directing that the new sentence should commence at the expiration of the existing sentence. The court set aside this direction and ordered that the sentence of 22 months' imprisonment should commence on 23 December 2005. The appeal was allowed solely to rectify the commencement date and the duration of the non-parole period. The court confirmed that the appellant would be eligible for parole 20 months after 23 December 2005, which is 23 August 2007, and if parole was granted, both parole periods would be served concurrently.

In conclusion, the court allowed the appeal and set aside the order directing that the subsequent sentence commence on the expiration of the existing sentence. The court ordered that the subsequent sentence of 22 months imprisonment should commence on 23 December 2005. The rationale for this decision was grounded in the need to ensure that the sentence imposed was appropriate for the appellant's offending, taking into account his criminal history and the need for deterrence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J ANDERSON J

In the event that the appeal against the subsequent sentence was to be dismissed, both counsel agreed that the correct position was that the appellant would be eligible for parole 20 months after 23 December 2005. This is the date on which the appellant will be eligible for parole. That date is 23 August 2007. In the event of parole being granted, both parole periods with respect to the existing and subsequent sentences will be served concurrently.Conclusion This appeal should be allowed. The order of the sentencing Judge directing that the subsequent sentence commence on the expiration of the existing sentence should be set aside. An order should be made directing that the subsequent sentence of 22 months imprisonment commence on 23 December 2005. I agree with the order proposed by Gray J for the reasons he gives and I agree that the appeal should be allowed solely for the purpose of fixing the commencement date and duration of the non-parole period.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, ANDERSON J

The seriousness of an escape depends upon the circumstances as well as the type of custody or detention from which the offender escapes. The degree of planning involved is also a relevant factor, as is the period spent at large. It also remains an important consideration, when sentencing for offending of this nature, to demonstrate to those in custody that if they escape, imprisonment of sufficient length to act as a deterrent to others may result.[18][18] See for example R v Stokes [2001] NSWCCA 82; Bailey v Kupsch [1966] Tas R (NC 20).Consideration of the Appeal The offence of escaping from custody can be expected to carry a term of imprisonment. The appellant had a relevant prior offence of attempting to escape from lawful custody in 1999. As earlier observed, on that occasion he was sentenced to a term of imprisonment of 11 months with a non-parole period of 8 months. Given the appellant’s antecedents, and in particular the prior offence of attempting to escape from lawful custody, the sentencing Judge’s notional starting point of 24 months imprisonment was well within his sentencing discretion. It is to be borne in mind that the one sentence was imposed for all three offences. The reduction on account of the pleas would appear to be at the lower end of the range for reductions. However, the appellant could hardly have resisted acknowledgment of his guilt in the circumstances. The allowance made by the Judge was within his discretion. The appellant’s poor criminal record suggests that he was not a good candidate for parole. The appellant has been given many opportunities by the courts. He has not responded well. In these circumstances, the fixing of a non-parole period of 20 months was within the Judge’s discretion. This was a case where the appellant’s antecedents operated to preclude or reduce any prospects for leniency. No error of sentencing principle has been identified. It has not been shown that the Judge had regard to any irrelevant material or that he failed to have regard to any relevant considerations.[19] The sentence imposed was an appropriate sentence for the appellant’s offending.The Relationship between the Existing Sentence and the Subsequent Sentence[19] Dinsdale v The Queen (2000) 202 CLR 321.The Relevant History On 12 March 2002, the appellant was released on parole with respect to sentences of imprisonment imposed in 1999 and 2000. These sentences are referred to in these reasons as the “earlier sentence”. On 19 April 2002, the appellant committed further offences. As at that date, the unexpired balance of his earlier sentence was 11 months and 1 day. On 17 September 2002, the appellant committed a breach of a designated condition of his parole by driving a motor vehicle without a licence. As at that date, the unexpired balance of his earlier sentence was 6 months and 2 days. On 30 September 2002, the appellant was arrested and returned to custody. The appellant had remained on parole between 19 April 2002 and 30 September 2002.