R v Griffith

[1997] QCA 315

[1997] QCA 315

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

de JERSEY J

CA No 284 of 1997
THE QUEEN
v.

BRETT RANDALL GRIFFITH

BRISBANE

..DATE 27/08/97

JUDGMENT
270897 T10-11/JAP/20 M/T COA 194/97

DAVIES JA: The applicant seeks leave to appeal against a sentence imposed on him in the Magistrates Court on 15 July this year. The sentence was one of eight months' imprisonment to commence at the expiration of the term presently being served with a recommendation for consideration for parole after serving four months of that term. It was imposed for the offence of being unlawfully at large having been released to serve a period of home detention. It is an offence for which a term of imprisonment must be imposed. The applicant does not appeal against the term of eight months' imprisonment but submits that it should have been ordered to be served concurrently with the term which he was then serving.

At the time of the commission of his offence which was on
10 March 1997 the applicant was 36 years of age. He had a
substantial criminal record dating from 1978. That record
included offences of house breaking, forgery, receiving,
stealing, false pretences, uttering, burglary, indecent assault,
rape, attempted rape, attempted extortion, threats to kill,
dangerous driving causing death, taking part in a riot and
attempting to escape from prison. It also included many counts
of breaches of probation and some drug offences.

At the time of the commission of the present offence he was serving an effective term of 10 years' imprisonment for rape, imposed on 26 February 1988, to which had been added six months' imprisonment for attempting to escape from lawful custody. He had also been sentenced to five months' imprisonment for taking part in a riot but it is unclear whether that was imposed concurrently or cumulatively and it appears that the relevant

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authorities have treated that sentence as concurrent.

On 3 February 1997 the applicant was released on home detention on condition that he reside at a specified address at Beenleigh and did not depart from that address without authorisation. On 10 March 1997 checks were conducted at that address in the evening without locating him. The instrument releasing him on home detention was then revoked and from that time he was unlawfully at large.

At 11.00 a.m. on 28 March 1997 police observed the applicant walking in Acacia Ridge. When they approached him he gave a false name. Whilst they were checking his particulars he escaped and they gave chase. Eventually he stopped and surrendered himself.

The corrective services officer had visited the applicant's house on 10 March at about 8.40 p.m. and found him absent. He had failed to return by 9.05 p.m. It was said, on his behalf, on the sentence hearing, and not contradicted by the prosecution, that he was out jogging and that he returned at 9.30 p.m. However he must have known and it appears to be conceded that he did know that he did not have permission to do this. Indeed, he had previously complained about the stringency of the conditions imposed on home detention and it was said he had requested to be returned to custody but his request had been refused.

Accepting, as we must, that he was out jogging at the time the corrective services officer called at his home when he returned

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he did not stay but immediately sought to escape. He fled to another address and as I have previously mentioned he sought to evade the police when they first apprehended him.

In the court below a number of matters were put forward to support a concurrent sentence. These were his plea of guilty, that during a period of five and a half months during which he was not in custody (that is, partly on work release and partly on home detention) he was not charged with any offence, that his initial breach was not caused by any desire to escape but simply because of the desire for physical exercise, that after capture he eventually cooperated with the police and, it was said on his behalf, and not contradicted, that the reason he fled from his address was because of his disillusionment with the system which he perceived was hindering his progress towards rehabilitation.

However the factors which persuaded the sentencing Magistrate to impose the sentence which he did were the applicant's long criminal history which included one previous attempt to escape from custody and numerous breaches of probation as well as the many serious offences which I have set out and the need to discourage the applicant, and others, from committing offences of this kind. The Magistrate also referred to the circumstances of this offence involving as it did a deliberate attempt to evade apprehension.

It was said on the applicant's behalf before this Court that, because the Magistrate did not refer to some of the mitigating factors referred to earlier, he did not take them into account.

It would be surprising if that were so; they were fresh in his

mind when he imposed the sentence which he did.

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It was also said, on his behalf, before this Court that the applicant had suffered a significant additional penalty as a result of his conviction for this offence in the sense that it resulted in his return to prison to complete his sentence without any hope of remission or realistic prospect of parole.

But the unlikelihood of remission and parole, if that is the case, seems to be as much a consequence of his previous offences including particularly those committed in prison as of the commission of this offence. Certainly, he had lost his remissions prior to the commission of this offence and he had not been released on parole at either the halfway point or, indeed, during any period subsequently until his period of release to work and home detention.

It is also said on the applicant's behalf before this Court that, in consequence of the commission of this offence, the applicant will now be required to return to prison to serve a period of about 14 months, the remainder of his earlier sentences without any hope of release. It should be said, however, as I have already mentioned that the applicant was dissatisfied with home detention or, I should say, the conditions under which he was allowed home detention and indicated early his preference for custody rather than release for home detention.

It is said that to impose an additional sentence of eight months will make the totality of his sentence manifestly excessive. In making that submission it is said that the applicant is unlikely to receive the benefit of a recommendation for parole made by

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the sentencing Magistrate. into account the totality of the sentence which he was imposing together with the sentence still required to be served.

The learned sentencing Magistrate, in making the recommendation for parole which he did, said that he made it because there was a recommendation for parole in relation to earlier offences. This was an incorrect statement because the only recommendation which had been made in respect of earlier offences had been made in respect of offences which had been the subject of a successful appeal against conviction by the appellant. It may be accepted that the learned sentencing Magistrate was in error in thinking that he was obliged to make the recommendation which he did.

Notwithstanding the submissions made on the applicant's behalf it seems to me that it was appropriate to order as the learned sentencing Magistrate did that the sentence imposed in this case be cumulative upon the sentence which the applicant was then serving. The applicant's counsel even went as far as contending that any additional cumulative term should not have been imposed. However, the extent of his criminal record including, in particular, the offences of taking part in a riot and attempting to escape from prison committed whilst he was in prison, the numerous previous breaches of probation and the need to deter offences of this kind in order to ensure the maintenance of discipline within the corrective services system, in my view, support the imposition of a cumulative sentence in a case such as this and even if it be accepted, as I think it

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must, that his initial transgression was temporary only, his subsequent evasion and apprehension more than compensated for this.

The sentence of eight months imprisonment adequately took into account the mitigating factors to which I have referred. It was therefore unnecessary, in my view, to make any recommendation for early parole and, of course, the recommendation by the Magistrate did not do so.

In the circumstances of this case it was unnecessary and probably inappropriate to make any recommendation for parole. I think that that matter is one which can adequately be left for decision by the community correctional authorities. I would therefore grant the application and allow the appeal only to the extent of deleting from the sentence imposed below the recommendation for consideration of parole after serving four months.

THE CHIEF JUSTICE: I agree.

de JERSEY J: I agree.

THE CHIEF JUSTICE: The order of the Court will be as Mr Justice

Davies has indicated.

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