Regina v Ravet

[1999] NSWCCA 63

CITATION:	REGINA v RAVET [1999] NSWCCA 63
FILE NUMBER(S):	CCA 60150/98
HEARING DATE(S):	10 March 1999
JUDGMENT DATE:	10 March 1999
PARTIES :	Shane Ravet (Applicant) v The Crown (Respondent)
JUDGMENT OF:	Simpson J at 1; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0200
LOWER COURT JUDICIAL OFFICER:	Howie DCJ

COUNSEL:	Applicant in person L M B Lamprati (Crown - Respondent)
SOLICITORS:	S E O'Connor (Crown - Respondent)
CATCHWORDS:
ACTS CITED:	Criminal Procedure Act 1986
CASES CITED:	R v Thomson, unreported 21 May 1986
DECISION:	In relation to the escape lawful custody charge, leave to appeal is granted, the sentence imposed is quashed, in substitution therefor the applicant is sentenced to a fixed term of imprisonment for four and a half months to commence on 10 July 1999 and to expire on 25 November 1999

IN THE COURT OF
CRIMINAL APPEAL

60150/98

SIMPSON J

SMART AJ

Wednesday 10 March 1999

REGINA v Shane RAVET

Judgment

THE COURT :
1 The applicant seeks leave to appeal a sentence imposed by Howie DCJ in the District Court at Parramatta on 13 March 1998. On that date the applicant appeared before Howie DCJ for sentence in relation to three matters, the first two of which were charges of robbery in company and the third of which was one charge of escaping lawful custody. In addition he asked that eleven offences be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. Those were all offences of obtaining advantage by deception and related to the use of a stolen credit card. They were committed in December 1994.
2 It is unnecessary to say any more about the two charges of robbery in company except to note that they both involved the applicant entering a retail store with a co-offender. In each case some violence was used by the co-offender but not by the applicant and Howie DCJ disregarded this in sentencing the applicant. The applicant did not challenge the sentences imposed in relation to those offences.
3 The offence of escaping lawful custody occurred on 4 March 1997. On that date the applicant appeared at the Central Local Court for sentence on a charge of stealing. He was sentenced to imprisonment for five months and was in the police van conveying prisoners to the gaol. The van called at Darlinghurst cell complex to take other prisoners on board and while it was stopped the applicant managed to open the door, get out of the van and run a short distance. He was wearing handcuffs which made any real prospect of escape negligible and he was very shortly after recaptured, having jumped into a courtyard, injured his left foot and hurt his back.
4 The applicant was interviewed and he admitted the offence and said he had not planned to escape but had done so instinctively. He said that he was able to open the door just by pushing it. This was in conflict with the statement of facts put before his Honour, and statements of the prison officers, also in evidence. In these, it was asserted that the van door had been secured by the officers, and that the applicant had somehow managed to manipulate the outside lock of the door and free himself. When asked why he had escaped the applicant said :
"I'm still a bit sick from hangin' out for drugs and that and because I just got sentenced and that and me grandmother is going to be upset and that, you know, and 'cause when the door come open it was just the first thing that ran into me head. I just wanted to, you know, go."
5 He also said that his mental state was not normal because he had been given lawful medication by the prison authorities to assist him to control his illegal drug problem.
6 That he had been given medication was confirmed by other evidence before the sentencing judge.
7 When the matter came before Howie DCJ the applicant gave evidence but there was no attempt to explore the factual matters in relation to the escape that I have mentioned, that is, the fact that he had been prescribed and had taken medication and what has now emerged as a serious factual issue about the means by which he was able to escape from the van. These, perhaps because of the two more serious matters that were before his Honour, appear simply to have been overlooked and had been overlooked, it seems, by those then representing the applicant. All concerned focussed upon the two robbery charges
8 The result was that Howie DCJ proceeded to sentence in relation to the escape charge on the basis that the applicant was able to escape the van by manipulating the lock despite the fact that at least one of the doors to the van had been secured. Now that the issue has been raised, as it was not before Howie DCJ, it is difficult to see, on the evidence before his Honour, how it could have been possible to make a finding of fact beyond reasonable doubt to that effect. The reason his Honour proceeded on that basis was simply that he was not alerted to it as an issue. Nevertheless, the means by which the applicant was able to get out of the van was a significant fact in the overall sentencing exercise.
9 Having regard to the factual matters put before him, Howie DCJ imposed, on the charge of escaping, a fixed term of imprisonment for six months which, as he is required to do, he specified was to commence at the expiration of the minimum term of the first sentence he imposed on the robbery charges. The sentence for escape is therefore to commence on 10 July 1999.
10 The applicant seeks leave to appeal only his sentence.
11 The applicant appeared unrepresented in this Court. He put before the Court a handwritten document in which he made four points relevant to the factual basis of the sentencing. These are the effect upon him of the medication prescribed for his heroin withdrawal by prison medical authorities: the circumstance in which he was able to escape the van: he asserts that he instructed his barrister to make these points but that he failed to do so; - his final point was that he should have been charged with attempted escape because he really was never able to get out of the Court complex where the van was when he escaped. This last matter can be put to one side, as can the complaint about his representation. We are unable to determine the factual assertion about the extent to which his instructions were or were not complied with and it is unnecessary to do so. The fact is that the applicant did escape, and he pleaded guilty to the charge of escape and the sentence applicable to attempts is the same as the sentence applicable to a completed offence. However, the factual matter about the way in which the applicant was able to escape is a matter of significance in considering the level of his criminality, as is the extent to which his judgment might have been impaired by his use of (unusually) legal drugs..
12 This is a very unusual case. The Crown referred the Court to R v Thomson, unreported 21 May 1986, in which it was held that an ordinary level of sentence for an unremarkable escape could be expected to be approximately two years. Since the date of that decision the maximum sentence applicable to escape has been increased and one would expect the ordinary level of sentence for an unremarkable escape at least to remain constant or to increase proportionately with the maximum term. However, having regard to the very unusual circumstances of this case, there was error in the sentencing process and it is appropriate for this Court to set aside the sentence imposed and re-sentence the applicant.
13 It is unnecessary to restate the subjective matters that were referred to by Howie DCJ in his remarks. More significant are the matters that have been put before us by the applicant which were accepted to be used in the event that this Court did proceed to re-sentence. They show a very concerted attempt on behalf of the applicant to rehabilitate himself while in prison and it is to be hoped that those efforts will continued.
14 The applicant was born on 15 May 1972 and is now twenty-six years of age. Plainly, just from what has already been said, he has been in trouble on a number of occasions and has a lengthy criminal record. It is to be hoped that the promise of rehabilitation and the promise shown by the materials put before this Court result in this being the last time he appears before a criminal court.
15 As we have said, we have come to the view that the applicant should be re-sentenced for the reasons outlined above.
16 In relation to the escape lawful custody charge, leave to appeal is granted, the sentence imposed is quashed, in substitution therefor the applicant is sentenced to a fixed term of imprisonment for four and a half months to commence on 10 July 1999 and to expire on 25 November 1999.

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