R v Martin - [2009] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MARTIN
[2009] SASC 26
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kelly)
13 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES
Appeal against sentence - appellant sentenced in the District Court for the offence of possessing a firearm without a licence and the offence of attempting to escape from lawful custody. Total imprisonment ordered was three years one month - judge imposed a non-parole period of two years three months for both offences - appellant appeals against sentence in relation to the offence of attempt escape from lawful custody - whether manifestly excessive - whether sentencing judge gave sufficient credit for early guilty plea.
Held: appellant's offending serious - breach of trust - serious punishment warranted to act as a deterrent to others - sentence well within the range available - sentencing judge took into account the appellant's early guilty plea and gave a discount of ten percent - strong Crown case - a finding of guilt was almost inevitable - discount of sentencing judge appropriate given circumstances - appeal dismissed.
R v Turner and Clarke (1992) 65 A Crim R 178; R v Shepperbottom (2001) 121 A Crim R 69; R v Teague [2007] SASC 65; R v Knight (1986) 40 SASR 479, referred to.

R v MARTIN
[2009] SASC 26
Court of Criminal Appeal: Anderson, White and Kelly JJ

ANDERSON J: I would dismiss the appeal for the reasons given by Kelly J.
WHITE J: I would dismiss the appeal. I agree with the reasons of Kelly J.
KELLY J:
Introduction
This is an appeal against a sentence imposed in the District Court on 25 August 2008. On that date the appellant was sentenced for two offences, namely possession of a firearm without a licence in respect of which he was sentenced to a term of imprisonment of ten months and the offence of attempting to escape from lawful custody in respect of which he was sentenced to imprisonment for a term of two years three months. The sentences were ordered to be served cumulatively, thus the total period of imprisonment imposed for both offences was three years one month. The learned sentencing judge imposed a non-parole period of two years three months.
The appellant’s complaint on this appeal relates to the sentence of two years three months imprisonment imposed for the offence of attempting to escape from lawful custody. There are two main grounds of appeal, firstly, that the starting point of two years six months for the attempted escape custody is manifestly excessive and secondly, that the sentencing judge failed to give the appellant sufficient credit for his early plea of guilty. Permission to appeal on both grounds was granted by another judge of this court on 10 November 2008.
Before dealing with the grounds of appeal it is necessary to refer briefly to those facts which are relevant to the determination of the issues arising on this appeal.
Background
The offence of attempt to escape from lawful custody occurred after the appellant was taken by ambulance to the Royal Adelaide Hospital. He had been examined by an infirmary doctor at the Yatala Labour Prison who found him to be unresponsive and requested that the ambulance be called. It appears that he had collapsed from hyperventilation. At the time he was regarded as a high risk prisoner and was guarded by three Correctional Services Officers whilst at the hospital.
At around 6.30 am on the morning of 24 July 2007 the appellant requested permission from one of the correctional officers to go to the toilet. He was un-handcuffed and allowed to go to the toilet. On the way back to his bed, after using the toilet, and before being re-handcuffed, the appellant attempted to escape. He ran past the nurses station, along a corridor, past an emergency area and into the x-ray department. At the time he was pursued by three Correctional Services Officers and two other staff members. The appellant was located hiding in the x-ray department. A struggle ensued which required five security personnel to return him to his hospital room.
The charge of possessing an unlicensed firearm related to an incident which occurred on 14 February 2007. On that date the appellant attempted to run away from police down a steep gully and along a creek line. The police finally arrested him and after some struggling managed to wrestle and handcuff him. The loaded revolver was found beneath the appellant’s chest on the ground.
At the relevant time the appellant was also in custody on a charge of attempting to prevent or dissuade a witness from giving evidence at judicial proceedings in respect of which he had entered a plea of guilty in 1995. The appellant had absconded before being sentenced. He was finally arrested and placed in custody in respect of that offending in February 2007 and was still in custody in respect of that matter and other matters on 24 July 2007 when he attempted to escape from the hospital.
The appellant has numerous previous convictions for a variety of offences in respect of which he had either received fines or was given suspended prison sentences. In 1998 he was sentenced in the Brisbane Supreme Court to a period of four years imprisonment for possessing and supplying dangerous drugs.
Discussion
The starting point in considering the first ground of appeal is the penalty prescribed by the Parliament for this offence. Since 1989 the maximum penalty for either an attempted or a completed escape from lawful custody is seven years. This reflects the fact that the need to impose a penalty that will operate as an effective deterrent is equally important even where the likelihood of successfully completing an escape is limited.
This court has reiterated in numerous decisions that the offence of escaping from lawful custody will usually attract severe punishment. In 1992 this court in R v Turner and Clarke (1992) 65 A Crim R 178 considered a Crown appeal against the inadequacy of a sentence of nine months imprisonment imposed on a prisoner who had escaped from lawful custody. The court in that case held that the sentencing judge ought to have imposed a term of imprisonment at least as high as eighteen months and emphasised the responsibility of sentencing judges to impose severe punishment for this offence.
In 2001 in R v Shepperbottom (2001) 121 A Crim R 69 another Crown appeal, Doyle CJ reviewed the authorities and noted that sentences of about two years imprisonment are quite common in the absence of any particular aggravating circumstances. His Honour remarked that the offence of escaping from custody is a serious offence and will always call for a deterrent penalty.
More recently in R v Teague [2007] SASC 65 the court referred to comments of King CJ in an earlier decision of R v Knight (1986) 40 SASR 479 in which the former Chief Justice had said that the deterrent purpose of punishment for this type of offence is paramount. In response to a submission by counsel for the appellant in Teague, that an overview of the case law tended to suggest that a general tariff of two years imprisonment is generally appropriate, Perry J said at [31]:
The offence of escape from custody can be committed in a very wide variety of circumstances involving a wide range of seriousness. I would treat the so-called standard of two years or thereabouts with a great deal of flexibility and in accordance with the remarks of King CJ in Knight (above) keep the statutory maximum in mind.
It is with those authorities in mind that I turn now to consider both grounds of appeal commencing with the first complaint that the sentence of two years three months was manifestly excessive.
In support of this ground of appeal the appellant complained that the sentencing judge had effectively placed the appellant’s offending in a more serious category than the circumstances warranted. It was submitted that when proper regard is given to the surrounding facts and circumstances the appellant’s offending in truth should properly be characterised at the lower end of the scale.
I cannot agree with the appellant’s submission. The appellant attempted to escape from a public hospital in circumstances where it was necessary for five personnel to chase him over 70 metres down a corridor. A concerted effort was needed on the part of the staff to overpower and arrest the appellant when he was located. The appellant’s actions placed hospital staff including doctors, nurses and patients at risk. The fact that no-one was injured was fortuitous.
Moreover the offence occurred in circumstances where it might be said that a degree of trust had been placed in the appellant. The Correctional Services officer guarding him had responded to the appellant’s request to go to the toilet by removing the handcuffs. In this respect the situation was not unlike the facts in Shepperbottom where the prisoner had escaped from a low security prison. There, Doyle CJ noted that rather than diminishing the seriousness of the offence, that circumstance involved an even greater breach of trust and accordingly called for a deterrent punishment.
The criticism made of the sentencing judge’s characterisation of the circumstances in which the appellant was apprehended, is not, in my view, justified. The judge described those circumstances as a struggle which required maximum effort until finally by force of numbers of security personnel, the appellant was returned to his room. That was not an inaccurate summation of what happened.
I do not consider that there is any error in the judge’s general summary of the factual circumstances of the offending. Nor do I consider that the judge’s description of the starting point for the sentence being two years six months as a very substantial sentence, was inappropriate.
A reading of the remarks on sentence reveals that the sentencing judge took into account all of the mitigating circumstances which were put to him in submissions. Those factors included the fact that the appellant’s decision to escape was a fairly spontaneous and impulsive act, the fact that there was no real degree of pre-planning, and the appellant only ran for a short distance before being apprehended, and the fact that no-one was hurt.
In my view the sentencing judge was right to take a serious view of the offending and the authorities to which I have already referred required him to impose a sentence which would act as an effective deterrent to others. For these reasons I would dismiss ground one of the appeal.
The appellant’s second complaint was that the sentencing judge did not give sufficient credit for the appellant’s plea of guilty entered at the earliest opportunity in the Magistrates Court.
The sentencing judge gave a discount of three months, reducing the head sentence from two years six months to two years three months for the plea of guilty. That represented in percentage terms a discount of ten percent.
The court has a wide discretion as to the amount of any discount applied for a plea of guilty. Discounts for early pleas of guilty commonly range from between five percent to thirty percent, depending on the circumstances. Generally speaking it is accurate to say that a plea at the earliest opportunity will attract a greater discount than a plea made on the eve of trial. Nevertheless, there are a wide range of circumstances which might affect the extent of the discount, if any, applied by a trial judge in any given circumstances. One of the factors relevant to the discount is the strength of the Crown case and the inevitability of the plea. Another relevant circumstance is the fact of contrition and the degree to which the offender has cooperated with the authorities.
In circumstances where there is a victim in cases involving allegations of violence or of a sexual nature, a plea of guilty although not made at the earliest opportunity, might attract a somewhat greater discount by virtue of the benefit to the victim not being required to go through the trauma of giving evidence again.
These are just some of the factors which might be relevant to the extent of discount given in any particular case.
In this case, and contrary to the appellant’s submissions, I consider that the Crown case against the appellant was a very strong one notwithstanding the appellant’s explanation at the time that it was only a joke. In my view a finding of guilt was almost inevitable. In these circumstances the facts are not dissimilar to the circumstances in Teague, a case to which I have already referred. In that case, the court in deciding that a discount in the order of twelve percent was appropriate, commented that in such a case where a conviction is inevitable, little allowance could be made for the plea of guilty.
It might be thought that the sentencing judge in this case was doing no more than following the guidance of this court in Teague in determining that a discount in the order of ten percent was appropriate. For these reasons I do not consider that this ground has been made out.
I would dismiss this appeal.