R v Melbourne No. Sccrm-02-291

[2002] SASC 277

R  v  MELBOURNE
[2002] SASC 277

1. BLEBY J:             On 23 October 2001 the respondent to this bail review was serving a sentence at the Cadell Training Centre for armed robbery and a number of other lesser offences.  The earliest possible date of his release at the completion of his non-parole period was 14 June 2002.  On the afternoon of that day he and another inmate escaped.

2. It is alleged by the DPP that on 26 October the respondent avoided apprehension by police at gun point by driving away in a reckless manner in a stolen car, having first driven it quickly forward towards where the arresting officer was standing.  It is alleged that the officer had to jump to avoid being hit.  It is also alleged that the respondent then reversed the vehicle into one of the stationary unmarked police cars, having forced another armed police officer to move quickly to avoid being hit, and then drove off at high speed.

3. According to his counsel on the plea of guilty to the offence of escaping lawful custody, the escape was premeditated and the prison authorities were warned by him that if he was sent to Cadell he would escape.  He did within five days.  He was subsequently arrested on 30 October 2001 and returned to custody.

4. The original sentence for the armed robbery and other offences was six years and two months with a non-parole period of two years and nine months.  As I said, the earliest possible date of release was 14 June 2002.

5. On 11 February 2002, while he was still in custody, the respondent pleaded guilty in the District Court to escaping lawful custody.  That offence carries a maximum penalty of seven years imprisonment.  During sentencing submissions on 20 February 2002, the District Court judge became aware that there were pending charges in the Magistrates Court arising out of the alleged events of 26 October 2001.  The sentencing was adjourned to a date to be fixed after the hearing of those charges in the Magistrates Court, because the Court took the view that if they were proved they could constitute aggravating circumstances affecting the penalty for escaping lawful custody.

6. Without hearing argument on the point I express some doubt as to whether that is correct.  What is to be punished is the escape.  The fact that he was at large and avoiding lawful custody, if and when other offences were committed may well affect the sentence for those other offences.  I doubt that they would have much effect on the escape penalty.  Nevertheless, there is obviously some sense in sentencing at once for all offences if he is found guilty of those Magistrates Court offences.

7. Be that as it may, at the time of granting the adjournment the respondent was still in custody for the armed robbery offence.  There was no question of his then being released before being sentenced for the escaping lawful custody.  The charges that are still outstanding in the Magistrates Court are charges of resisting lawful arrest, illegal use of a motor vehicle, doing an act likely to cause harm with the intent to cause such harm, intentional damage to property and larceny.

8. I would be surprised if, in the circumstances, those charges in themselves did not warrant a refusal of bail.  However, it is not necessary to decide that question.

9. On 20 June 2002, notwithstanding the respondent’s earlier plea of guilty to escaping lawful custody, the Parole Board released the respondent on parole at the conclusion of his non-parole period set by this Court, the release date having been adjusted to accommodate the six days the respondent spent at large after his escape.

10. I must say that I find the decision to release him at the earliest possible time, after he had pleaded guilty to escaping lawful custody, to be quite extraordinary and bordering on the bizarre.  He had not been sentenced for the offence but there was no question of his guilt.  That seems to have had no effect on the Board’s apparent assessment of his behaviour as justifying the release as if he was a model prisoner.  Indeed, the likelihood of a further sentence of imprisonment for the escape custody must be great. 

11. This was a prisoner to whom s 67 of the Correctional Services Act 1982 applied. The Board was required to have regard to many matters specified in s 67(4). It is inconceivable that an admitted escape could not have some effect on the decision to grant parole.

12. The “release” on parole was subject to a number of stringent conditions, including designated conditions under s 68(3) of the Correctional Services Act.  However, the release could not take effect as the respondent was then in custody on remand for the escaping lawful custody offence.

13. Having been granted parole, the respondent then applied for bail in what I can only describe as a brazen application which should have been doomed to failure from the outset.  Nevertheless the District Court Judge who heard the application, not the same District Court Judge who is due to sentence the respondent for escaping lawful custody, released him on bail.  He considered that to retain him in custody pending the sentence would be somehow to usurp the functions of the sentencing Judge, and also that the Parole Board’s conditions were sufficiently stringent to ensure proper supervision and to ensure appearance at what the bail authority described as his “trial”.

14. The granting of parole in the circumstances I have described certainly did not justify the release on bail.  Release on bail after pleading guilty to an offence that warrants a period of imprisonment is almost unheard of.  In my view, the granting of bail in those circumstances is as inexplicable as the release on parole.

15. I repeat that the respondent has pleaded guilty to a serious offence for which almost certainly there will be a custodial sentence.  I may be wrong but it would be most surprising if there were not.  His previous record includes numerous offences of breaking and entering and larceny and other offences of dishonesty, motor vehicle offences, one offence of arson, and damage to property, apart from the armed robbery.  Significant for present purposes is that his record includes two breaches of bond and at least three breaches of bail agreements.

16. Given the nature of the offence to which he has pleaded and his past record, the likelihood is very high that, if released, he will abscond and offend again.  His previous bail record is poor.  I have no doubt that for all these reasons the respondent should not be released on bail.  The bail order made in the District Court on 9 August 2002 is revoked.