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…

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 Martin

Details

AGLC: R v Martin [2009] SASC 26
Case: [2009] SASC 26
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the case of R v Martin, the appellant appealed against the sentence imposed by the District Court for the offence of possessing a firearm without a licence and the offence of attempting to escape from lawful custody. The total imprisonment ordered was three years and one month, with a non-parole period of two years and three months for both offences. The appellant specifically appealed against the sentence for the offence of attempting to escape from lawful custody, arguing it was manifestly excessive and that the sentencing judge did not give sufficient credit for his early guilty plea.

The legal issues the court had to decide were whether the sentence was manifestly excessive and if the sentencing judge appropriately considered the early guilty plea. The court considered the seriousness of the appellant's offending, which involved a breach of trust and the need for a severe punishment to act as a deterrent. The court also reviewed the total imprisonment ordered and the non-parole period, assessing whether they were within the appropriate range.

The court concluded that the appellant's offending was serious, justifying a severe punishment to act as a deterrent to others. The sentence imposed was well within the range available for these offences. The sentencing judge had taken into account the appellant's early guilty plea and applied a discount of ten percent, which the court deemed appropriate given the circumstances. The strong case presented by the Crown further supported the sentence. Consequently, the appeal was dismissed.

The court's final orders were to affirm the sentence imposed by the District Court, dismissing the appeal against the sentence for the offence of attempting to escape from lawful custody.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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