R v Teague
[2007] SASC 65
•2 March 2007
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 65Court 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 hospital indicated that the appellant had been using methylamphetamine and cannabis. A bedside court hearing was conducted and he was remanded in custody, on the basis that he remained in hospital under guard.
On the next day, while restrained in bed, the appellant persuaded the guard to allow him to use the toilet. He did so under partial restraint, being chained onto a rail on the wall of the toilet.
Once in the toilet, he wrenched the rail off the wall and, using it as a weapon, threatened the guard, other security staff, doctors and nurses with it. He then smashed a glass panel in an exit door and made his way out of the hospital, over a fence and escaped.
As he made off, he saw the guard, who had followed him, using his mobile phone. He returned to the guard, and threatening him, demanded the mobile phone, which he took, before resuming his flight. The guard injured his left leg as he moved backwards as the appellant threatened him.
An unsuccessful attempt was made to arrest the appellant again when he was seen driving a car at Salisbury Heights on 17 February. The police gave chase, but could not catch him.
However, on 2 March 2006, following information received by the police, the appellant was arrested at Goolwa. He has been in custody ever since.
The charges to which he pleaded guilty and upon which he was sentenced are: escaping from custody contrary to s 254(1)(a) of the Criminal Law Consolidation Act 1935 (“the CLCA”) (maximum penalty 7 years imprisonment); theft of the mobile phone valued at $99 contrary to s 134(1) of the CLCA (maximum penalty 10 years imprisonment); and attempting to damage the hospital window contrary to s 85(3) of the CLCA (maximum penalty 1 year imprisonment).[1]
[1] It is not clear why the appellant was charged only with an attempt. In fact he smashed the glass panel.
For the three offences the sentencing judge imposed a single sentence of imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
He intimated that were it not for the plea of guilty, he would have imposed a sentence of 4 years imprisonment. After taking the plea into account, he reduced that to 3 years and 6 months.
The convictions operated as a breach of bond, pursuant to which, on 17 January 2005, a 10 months sentence of imprisonment was suspended. The sentencing judge revoked the suspension and activated the sentence. He declined to reduce it.
At the time of the offending now in question, the appellant was on parole. The unexpired balance of the sentence pursuant to which he had been released on parole as at the date of the commission of the present offending[2] was 4 months and 23 days.
[2] Correctional Services Act 1982 s 75(1).
The sentencing judge gave credit for approximately 7 months and 2 days spent in custody since the appellant was captured on 2 March 2006.
Allowing for all of those matters, in the result, the head sentence amounted to 4 years 1 month and 3 weeks.
Against that, the sentencing judge fixed a non-parole period of 2 years 6 months and 3 weeks.
The head sentence and non-parole period were directed to commence from the day upon which he was sentenced, that is, 4 October 2006.
The appellant’s age is not entirely clear from the papers. The sentencing judge dealt with him on the footing that he was in his mid-40s. On the hearing of the appeal, the Court was informed by his counsel that he is now 37 years old, and was aged 36 years at the time of the offending.
The appellant has a depressing list of prior convictions, commencing in 1982. The very many convictions recorded include convictions for breaking and entering; vehicle offences, including a number of charges of illegal use of vehicles; unlawful damage to property; and resisting and assaulting police. As well, there are a number of drug related offences, including producing cannabis and possessing equipment to administer drugs.
The bond which was breached by the commission of the present offences, was imposed on charges of non-aggravated serious criminal trespass and dishonestly taking property without the owner’s consent, for which he was convicted on 17 January 2005 in the Magistrates Court sitting at Adelaide.
The sentencing judge had the benefit of a psychiatric report furnished by Dr Chris Branson. Dr Branson expressed the view that at the time of the offences there was no doubt that the appellant was suffering from amphetamine dependence and was heavily intoxicated with amphetamine. Dr Branson also was of the view that the appellant had some form of amphetamine related psychotic disorder associated with hallucinations. He considered the prognosis as uncertain, but he thought that it would gradually recede if he was able to continue to abstain from using amphetamines.
Given the long period over which since adolescence the appellant has offended, he thought it most likely that the appellant satisfied the criteria for anti-social personality disorder.
During the course of his sentencing remarks, the sentencing judge observed:
At the time you committed these offences, as I have said, methamphetamine and cannabinoids were present in your system, as well as benzodiazepines which had been given to you at the Emergency Department of the hospital. Nonetheless, however, it is clear from your actions that you knew what you were doing at the time and successfully escaped to be at-large for a couple of weeks.
You told Dr Branson that you have reconciled with the girlfriend with whom you had split up in July last year, and that you expect to be able to go to her home when you are released from custody. If that comes to pass it would improve your changes of rehabilitation, but it is clear that there is little prospect of any reform unless you are able to abstain from amphetamines. These are matters that will be considered by the authorities in due course, and I direct that a copy of the report of Dr Branson dated 6 September 2006 be sent to the Department of Correctional Services.
Mr Love has submitted that your behaviour is impulsive and the evidence supports that to some extent. However, there were a number of opportunities for you to have pulled back but you did not do so. Even the next day there was plenty of opportunity for you to give yourself up. I bear in mind that you were, to some extent, affected by amphetamines, but that helps to explain your behaviour, not to excuse it.
The arguments on appeal
The appellant advanced one ground of appeal, namely that the sentence was manifestly excessive.
In his written outline of argument, Mr Mead of counsel for the appellant suggested that “an overview of the case law would suggest that a general tariff of two years is appropriate”, citing R v Shepperbottom.[3]
[3] (2001) 212 LSJS 486.
Shepperbottom was a decision of the Court of Criminal Appeal. In that case, Doyle CJ, with whom Duggan J substantially agreed and Williams J agreed, said:
[15]This Court has held in a number of decisions that the offence of escaping from lawful custody will usually attract severe punishment: see R v Cox,[4] and the cases there referred to, and see also R v Forrest[5] and R v Heaton.[6] Sentences of about two years’ imprisonment are quite common, when there are no particular aggravating circumstances. There have been higher and lower sentences, of course: see, for example, Marshall v R.[7]
[16]It should be noted that when Knight and Forrest were decided, the maximum sentence for this offence was imprisonment for five years. The maximum sentence was increased to imprisonment for seven years by the Statute Law Revision Act 1989.
[17]It should also be borne in mind, as King CJ said in Forrest at 77, that “[T]here is far less scope for a parole component in such a sentence than is the case with sentences for other crimes”. In other words, a person who escapes from custody will usually have difficulty in arguing that he or she should be permitted to serve a significant proportion of the sentence on parole.
[18]Having said that, a sentencing court must not overlook the fact that these decisions do no more than establish a pattern or standard to be considered in the light of all of the circumstances of the case. A sentencing standard established by decisions of this Court can never be precise, nor can it be applied automatically or like the rule of thumb.
[19]The standard established by these cases was not drawn to the attention of the sentencing Judge. Counsel for the respondent, in the course of his submissions, made a passing reference to R v Turner & Clarke,[8] but only with reference to the need for a deterrent sentence. In the course of the sentencing submissions the sentencing Judge remarked that “one would normally sentence someone to somewhere between six and twelve months for escaping from custody”. This indicates that the sentencing Judge had in mind an inappropriately low standard, and that was not corrected by counsel before him.
[4] (1996) 66 SASR 152 at 156.
[5] (1986) 46 SASR 75
[6] (1994) 177 LSJS 342.
[7] Court of Criminal Appeal, 22 September 1995, Judgment No S5282 (unreported).
[8] (1992) 65 A Crim R 178.
That passage does support the view that there is some sort of standard of the order of two years, but it must be noted that Doyle CJ was careful to point out that the court can never be precise in such matters, and no so-called standard can be applied automatically like a rule of thumb.
I must say that unassisted by authority, I would with respect hardly describe a sentence of 2 years imprisonment against a statutory maximum of 7 years as “severe punishment”.
It is instructive to have regard to the comments made by King CJ in Knight.[9] The remarks were made by King CJ when imposing sentence upon a prisoner, but the sentence and his comments were upheld on appeal to the Full Court.[10] In the course of his remarks King CJ said:
Escaping from prison is a serious crime. The maximum sentence prescribed by law for the crime is five years’ imprisonment. I am bound to say that, in my opinion, the sentences which have been imposed for this crime over recent years are far too low. The crime is serious for a number of reasons. It involves a deliberate defiance of the legal system. It threatens the control by the authorities of prisons and prisoners. It puts the community to the expense, often the great expense, of a search for the escapee. It unsettles the community and undermines its sense of security. To my mind the deterrent purpose of punishment for this type of crime is paramount. I believe that the courts should make clear to prisoners that an escape from prison will result in severe punishment.
I feel somewhat constrained in the sentence which I can impose by the level of sentences which have prevailed in the last few years. I consider that level to be too low, but I hesitate to impose a sentence which goes too far beyond the prevailing standard without due warning. I think that the time has come for a substantial increase in the level of punishment for this offence. The maximum of five years imprisonment prescribed by law, although, of course, reserved for the most serious offences of this kind, should not be regarded as an unreal and irrelevant maximum sentence. It is the duty of the courts to impose sentences for this crime which will have a genuinely deterrent effect upon prisoners who are tempted to escape. Prisoners should be warned of the seriousness of the crime of escaping from prison so that escapees in the future will have no just grievance when they are dealt with severely. I trust that these remarks will be heeded by magistrates who deal with these offences. The most serious type should be sent to the District Court for heavier punishment.
… As it is, I impose a sentence of imprisonment with hard labour for twenty-one months. (emphasis added)
[9] (1986) 40 SASR 479.
[10] The Queen v Knight (1986) 42 SASR 227.
It is important to note that the period of 21 months fixed by King CJ in that case was clearly lower than he would have imposed were it not for the level of sentences (which he considered to be too low) which had “prevailed in the last few years”. It follows that if he had not felt constrained by that circumstance, he would have imposed a more substantial penalty.
The second part of the comments which I note is his indication that the maximum of five years “should not be regarded as an unreal and irrelevant maximum sentence”. I take the import of that statement to mean that the court should not hesitate to impose the statutory maximum or close to it for the most serious offences of escape from custody.
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 (supra) keep the statutory maximum in mind.
Returning to this case, Mr Mead contended that the utilisation by the sentencing judge of s 18A meant that the offences of attempted property damage and theft were matters upon which the appellant had been sentenced twice. That argument cannot be sustained. Section 18A is nothing but a convenient mechanism by which one sentence may be imposed for more than one offence, commonly being offences committed on the same occasion or of a similar kind, but not necessarily so.
The only question on appeal in such cases as to the severity of the sentence is whether the sentence imposed is appropriate to the total offending.
Mr Mead also complained that the reasons given by the sentencing judge in explaining how he arrived at his sentence were inadequate.
There is nothing in this argument. The sentencing judge gave short, clear and unambiguous reasons which could have left no-one in doubt as to how he reached the sentence which he imposed. The reasons complied with s 9 of the Sentencing Act.
The extent of reasons which need to be given to support a judicial decision varies enormously by reference to the context and nature of the case. There are instances where no reasons at all are needed. No sensible comparison could be made between sentencing remarks in the criminal court and reasons for judgment following a trial in the civil jurisdiction.[11]
[11] See Mountford v Magistrates Court of South Australia and Anor, Full Court, 27 June 2006, Judgment No [2006] SASC 184 (unreported) per Perry J at [74] et seq and DW v The Queen (2004) 150 A Crim R 139 at 146-148 [26]-[29].
Comment was made as to whether or not the sentencing judge had allowed sufficiently for the prospects of rehabilitation, but in my view, the remarks of the sentencing judge on that topic were entirely adequate, and he did not err in that respect.
Ms Boord for the DPP contended that the head sentence, while high, was not manifestly excessive in all the circumstances. She submitted that the fact that the appellant was being held in hospital for medical treatment for his own benefit involved an element of trust which had been breached and which was an aggravating circumstance.
Although the appellant had not previously been convicted of escape from custody, he had a lengthy criminal history, including property offences, offences of violence and breaches of conditional liberty.
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.
The question arises as to how these various requirements, in part conflicting, are to be met.
I would make a direction under s 58(4) of the Sentencing Act that the time spent in custody by the appellant up to the date of sentencing, be counted as part of the suspended sentence.
In order to find a practical solution to the question of the sequence in which the various components in the sentence should be served, I would accumulate them in the order of:
· The unexpired balance of the sentence upon which the appellant had been released on parole
· The activated suspended sentence
· The new head sentence for the current offending.
The non-parole period will apply to the accumulated total.
The sentence must commence on the day upon which the appellant was sentenced in the District Court. This is because a sentence of the District Court varied on appeal remains a sentence of the District Court. The record of that court, which speaks from 4 October 2006, will be amended, and any amended warrant to secure the appellant’s imprisonment pursuant to the substituted sentence will issue from that court.
In the result, I would quash the sentence under appeal, and order that in substitution therefor, a sentence constructed as follows be substituted:
Unexpired balance of sentence upon which appellant released on parole
4 months
23 days
Activated suspended sentence- 10 months less time in custody of 7 months 2 days
2 months
28 days
Unadjusted sentence for the offences committed on 16 February 2006 3 years less allowance of 4 months for plea of guilty
2 years
8 months
Total head sentence 3 years 3 months 21 days
Against that, I would fix a non-parole period of 2 years.
I would order that the head sentence and non-parole period commence on 4 October 2006.
Before parting with the matter, I refer to the following observation by Gray and Sulan JJ in their joint judgment in R v Czubak,[15] with reference to the sentencing provisions referred to in this and similar cases:
[18]… The legislation is complex and on occasion can be difficult to follow and apply. Attention is drawn to the convoluted nature of the present legislative provisions so that consideration may be given to an amended and simplified legislative scheme.
[15] (2005) 92 SASR 400 at 405.
I add my voice to the call for review of the legislation.
GRAY J. I would allow the appeal. I agree with the reasons of Perry J. I agree with the orders that Perry J has proposed.
DAVID J. I would allow the appeal. I agree with the reasons given by Perry J and the orders he proposes.
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