R v Teague - [2007] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TEAGUE
[2007] SASC 65
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice David)
2 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
The appellant appealed against the sentence imposed following his plea of guilty in the District Court to charges of escaping from custody, theft of a mobile phone and damaging a hospital window - the charges arose out of a single incident when he broke out of a public hospital where he was being detained by the police following his arrest on other unrelated charges - held that a single sentence of 4 years, 1 month and 3 weeks, which included approximately 4 months unexpired balance of a sentence on which he had been released on parole, a 10 months activated suspended sentence and an allowance of 7 months for time spent in custody, with a non-parole period of 2 years 6 months and 3 weeks, was excessive, and that a sentence of 3 years, 3 months and 21 days should be substituted with a non-parole period of 2 years - observations as to approach to sentencing for escape from custody.
Criminal Law Consolidation Act 1935 s 85(3), s 134(1) and s 254(1)(a); Criminal Law (Sentencing) Act 1988 s 9, s 18A, s 31(2) and s 58(4); Correctional Services Act 1982 s 75, referred to.
R v Shepperbottom (2001) 212 LSJS 486; R v Cox (1996) 66 SASR 152; R v Forrest (1986) 46 SASR 75; R v Heaton (1994) 177 LSJS 342; R v Marshall Judgment No S5282 (unreported) Court of Criminal Appeal, 22 September 1995; R v Turner & Clarke (1992) 65 A Crim R 178; R v Knight (1986) 40 SASR 479; The Queen v Knight (1986) 42 SASR 227; Mountford v Magistrates Court of South Australia and Anor Judgment No [2006] SASC 184 (unreported), Full Court, 27 June 2006; DW v The Queen (2004) 150 A Crim R 139; Rowe v Police [2003] SASC 160 (unreported); R v Davey (2004) 236 LSJS 295; Legg v SA Police Judgment No S4760 (unreported), Prior J, 6 September 1994; R v Czubak (2005) 92 SASR 400, considered.

R v TEAGUE
[2007] SASC 65
Court of Criminal Appeal: Perry, Gray and David JJ

PERRY J. The appellant, Darren Scott Teague, appeals by leave against the sentence imposed upon him on 4 October 2006 following his plea of guilty in the District Court to three offences committed while he was in custody at Lyell McEwen Hospital, Elizabeth Vale, on 16 February 2006.
The offences occurred in the course of a single episode. The appellant was arrested on 15 February 2006 on charges not relevant to this matter, following which he was taken to the Lyell McEwen Hospital because of a medical condition. Tests run in…

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 Teague

Details

AGLC: R v Teague [2007] SASC 65
Case: [2007] SASC 65
Decision Date: 2 March 2007

CaseChat Overview and Summary

The appellant, Teague, appealed against his sentence after pleading guilty in the District Court to charges of escaping from custody, theft of a mobile phone, and damaging a hospital window. These charges stemmed from a single incident where Teague broke out of a public hospital where he was being detained by police following his arrest on unrelated charges. The Court of Appeal was tasked with determining whether the sentence imposed was excessive and whether a different sentence should be substituted.

The primary legal issue was whether the sentence imposed by the District Court was excessive and warranted substitution by the Court of Appeal. The court examined the severity of the offences, the principle of totality in sentencing, and the appellant's conduct, including his escape from custody and the accompanying violence and threatening behaviour. The court also considered the impact of the plea of guilty on the sentencing.

In delivering the judgment, the Court of Appeal held that the original sentence of 4 years, 1 month, and 3 weeks was excessive. The court found that a head sentence of four years was somewhat higher than warranted, despite the seriousness of the offences. The court decided to reduce the head sentence from 4 years to 3 years, 3 months, and 21 days, while maintaining the non-parole period at 2 years. The court activated the 10-month suspended sentence and allowed for time spent in custody since re-arrest. The court's reasoning was based on the totality principle and relevant statutory provisions, ensuring that the sentence reflected the gravity of the offences while accounting for mitigating factors.

The Court of Appeal substituted the original sentence with a sentence of 3 years, 3 months, and 21 days, with a non-parole period of 2 years. This decision was based on the court's assessment that the original sentence was excessive and the need to balance the seriousness of the offences with the statutory requirements and principles of sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J GRAY J DAVID J

She denied that the application of the totality principle suggested that the sentence was “crushing”.Conclusion There can be no doubt that the offending was serious, not only by reason of the fact that escape from custody is a serious offence whatever the circumstances, but this was a serious offence of its kind. The offence was accompanied by a good deal of violence and threatening behaviour towards innocent members of the public, and the appellant remained at large notwithstanding every opportunity to return into custody. Were it not for information given to the police, he could still be at large. Notwithstanding those considerations, I have reached the view that a head sentence of four years is somewhat higher than was warranted. In expressing that view, I take account of the authorities. If it were not for them, I doubt that I would interfere with the sentence. In all the circumstances, I would reduce the head sentence from 4 years to 3 years. I would not make much allowance for the plea of guilty, as this is a case where a conviction was inevitable. I would allow a reduction of 4 months on that score. The suspended sentence of 10 months should be activated, and I see no reason to reduce the term of the suspended sentence.[12][12] The Sentencing Act 1988 s 58(4)(a). The balance of the sentence of imprisonment upon which the appellant was on parole as at the day on which the offences now in question were committed, was 4 months and 23 days. The question arises as to how the overall sentence should be restructured to give expression to the view which I have expressed. Under s 75 of the Correctional Services Act 1982, when read together with s 31(2) of the Sentencing Act, it has been held that the unexpired balance of the sentence as at the day the breaching offence was committed commenced forthwith when the defendant was sentenced for the breaching offence.[13][13] Rowe v Police [2003] SASC 160, Sulan J, 6 June 2003; R v Davey (2004) 236 LSJS 295. Section 31(2) of the Sentencing Act relevantly provides:(2)where a sentence of imprisonment is imposed for an offence committed by the defendant-(a) during a period of release on parole …(b) …the sentence will … be cumulative upon the sentence, or sentences in respect of which the defendant was on parole. The activated suspended sentence cannot be backdated.[14] But there is no reason why it should not be cumulative upon and follow the serving of the unexpired term of imprisonment with respect to which the appellant was released on parole. Indeed, that would seem to conform with the intent of the statutory provisions.[14] Legg v SA Police, Prior J, 6 September 1994, Judgment No S4760 (unreported). There is the further requirement that the period spent in custody between the appellant’s re-arrest (2 March 2006) and sentencing (4 October 2006) be taken into account. Section 58(4) of the Sentencing Act relevantly provides:Where a court revokes the suspension of a sentence of imprisonment, the court-(a)…(b)may direct that the time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J, GRAY J, DAVID J

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