Shortland v Stone
[2019] WASC 217
•21 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SHORTLAND -v- STONE [2019] WASC 217
CORAM: MCGRATH J
HEARD: 20 JUNE 2019
DELIVERED : 21 JUNE 2019
FILE NO/S: SJA 1066 of 2019
BETWEEN: DJON SHORTLAND
Appellant
AND
MATTHEW STONE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE EDWARDS
File Number : PE 29617/2018
PE 29618/2018
Catchwords:
Criminal law – Appeal against sentence - Escape lawful custody – Reckless driving - Express error of law - Magistrate failed to take into account early plea of guilty - Manifestly excessive - Appellant re-sentenced
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14
Sentencing Act 1995 (WA) s 6, s 7(2), s 9AA, s 53
Result:
Leave to appeal granted on grounds one and two
Appeal allowed
The term of imprisonment imposed on charge PE 29617/2018 is set aside and in lieu thereof a term of imprisonment of 2 months is imposed to be served cumulatively on the term of imprisonment of 6 months imposed on charge PE 29618/2018
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151; 244 A Crim R 1
Boyle v The State of Western Australia [2010] WASCA 97
Burrows v The State of Western Australia [2014] WASCA 147
Chan v The Queen (1989) 38 A Crim R 337
Councillor v Hart [2018] WASC 418
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donnachy v Riegert & Anor [2004] WASCA 48; 144 A Crim R 260
Fullgrabe v The State of Western Australia [2006] WASCA 138
Hansen v The State of Western Australia [2013] WASC 205
Hooker v The Police [2006] WASC 188
Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998)
Krijestorac v The State of Western Australia [2010] WASCA 35
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Paskov v Hull [2008] WASC 163
Roberts v The State of Western Australia [2014] WASCA 239
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Voisey v Taylor (Unreported, WASC, Library No 8273, 30 May 1990)
Winmar v Clark [2015] WASC 314
Woods v Glynn [2007] WASC 136
MCGRATH J:
Mr Shortland was charged with two offences, being one charge of wilfully driving a motor vehicle in a reckless manner contrary to s 60(1A)(b) of the Road Traffic Act1974 (WA)[1] and one charge of escape from lawful custody contrary to s 146 of the Criminal Code (WA).[2] On 12 April 2019, Mr Shortland pleaded guilty to the two charges and was sentenced to a term of imprisonment of 2 years in respect of the escape from lawful custody charge and 6 months' imprisonment in respect of the reckless driving charge. The Magistrate ordered that the two sentences were to be served concurrently.
[1] Charge number PE 29618/2018.
[2] Charge number PE 29617/2018.
Mr Shortland now appeals that sentence. He does so, on two bases. Ground one contends that the Magistrate erred in law by failing to give a discount under s 9AA of the Sentencing Act1995 (WA) and further, that the term of imprisonment of 2 years imposed on the escape from lawful custody charge was manifestly excessive.[3]
[3] Notice of Appeal dated 9 May 2019.
For the following reasons, I have determined that the Magistrate did make the express error of failing to give a discount under s 9AA of the Sentencing Act and further, that the term of imprisonment imposed on the escape from lawful custody charge was manifestly excessive. Therefore, leave to appeal should be granted and the appeal must be allowed.
In these reasons for decision, I will consider the following:
(a)The Magistrates Court proceedings.
(b)The grounds of appeal.
(c)An assessment of the merits of the appeal.
Magistrates court proceedings
On 12 April 2019, Mr Shortland appeared in the Magistrates Court and pleaded guilty to one charge of wilfully driving a motor vehicle in a reckless manner contrary to s 60(1A)(b) of the Road Traffic Act and one charge of escape from lawful custody contrary to s 146 of the Criminal Code.
The facts relied upon by the prosecution and which were accepted by Mr Shortland were in the following terms:[4]
The facts are [that] at 2.15 am, Saturday, 2 June, the accused was driving a Holden Commodore Sedan, 1KZ 9HF, along Wellard Road, Wellard. That car was owned by Europcar, had been reported stolen on 7 May last year. Police officers observed the Holden and conducted a vehicle stop. The accused stopped his vehicle in Wellard Road and gave his licence to Senior Constable Herbert. Senior Constable Herbert deemed the location to be unsafe to continue that stop, requested the accused move his vehicle to a safer place for which the accused agreed and moved his vehicle to Abingdon Crescent, Wellard.
Senior Constable Herbert followed the accused with the police vehicle’s emergency lights activated. He parked his vehicle behind the accused. One of the other officers Constable Boyd, conducted a search of the vehicle on the police onboard computer systems and established the car was stolen. Other vehicles were requested to assist at the location. Both Officers Herbert and Boyd left the police vehicle. Senior Constable Herbert approached the driver's side window and Boyd approached the passenger side window.
Sergeant Crossley then arrived, parked his unmarked police vehicle in front of the vehicle driven by the accused. Sergeant Crossley left the vehicle, approached the driver's side window. Another police vehicle arrived and parked behind Senior Constable Herbert and Boyd’s vehicle. This contained Constables McDonald and Williams. Senior Constable Herbert requested the accused turn off his vehicle and leave the vehicle. The accused turned off the vehicle but refused to leave the vehicle.
Herbert advised the accused he's under arrest for stealing a motor vehicle and to leave the car. The accused began arguing with Senior Constable Herbert and refused to unlock the car doors. Herbert again informed the accused he was under arrest and to leave the vehicle. Senior Constable Herbert reached through the window to open the driver's side door. The accused then wound his window up and started the vehicle. Herbert, fearing for his safety and other police officer’s safety, then used OC spray through a small gap in the window.
The accused then reversed the vehicle at speed, accelerating heavily, forcing officers to avoid being hit. One of the other police vehicles moved forward to block the path of the accused. The vehicle driven by the accused struck that police vehicle on the front passenger side of the vehicle, disabling that vehicle and causing significant damage to that door and the rear driver’s side. The accused then left the scene and subsequently dumped the Holden Commodore a little while later in Calista.
At 1.15 pm, Saturday, 2 June, detectives from the Rockingham Detectives located the Holden Commodore in Calista and seized it. 8 June last year the accused surrendered to police at the Perth Police Station and was arrested. He participated in record of interview, making admissions at the time. He was thus charged with the matters before the court today.
[4] ts 8 - 9, 12 April 2019.
The plea in mitigation was then made by Mr Shortland's counsel.[5] Counsel submitted that the vehicle being driven by Mr Shortland was lawfully hired, a fact that was accepted by the prosecution.[6] Whilst Mr Shortland knew that the vehicle was not stolen, he feared being arrested. Counsel submitted that Mr Shortland has autism which affects Mr Shortland's ability to express himself and read people.[7] Mr Shortland had spent 10 months in custody in respect of the offences and had completed a number of courses whilst awaiting sentencing.[8]
[5] ts 9 - 11, 12 April 2019.
[6] ts 10, 12 April 2019.
[7] ts 10, 12 April 2019.
[8] ts 11, 12 April 2019.
The Magistrate stated that the aggravating factors of the offending was that Mr Shortland refused to get out of his vehicle and then drove the vehicle in a manner that involved a collision with a police vehicle and that the lives of officers were put at risk.[9] The Magistrate's sentencing remarks were as follows:[10]
Mr Shortland, you pleaded guilty to two offences, reckless driving and escape lawful custody. The circumstances have been read out to the court and to put them shortly, you were in a vehicle, you were stopped by police. Check by police suggested that the vehicle that you were driving was stolen. You then, I'm told, apparently checked on your phone – made a REVs check in regard to the vehicle to inform police that that was not correct, however the situation deteriorated and you refused to get out of the vehicle and then you drove the vehicle such that I think you collided with a police vehicle, but you also put the lives of the police officers at risk with your manner of driving.
You've been in custody since 2 June last year and it sounds like, from what Ms Myers has had to say, that you have perhaps made the best of that time while in custody. You've undertaken courses and in particular the Sycamore Tree Project, which I’m told has perhaps been quite beneficial to you to understand the impact of offending behaviour on the victims of crime. The circumstances of in particular the reckless driving are particularly serious.
I note of course that the more serious charge has been discontinued and I’m only dealing with you with regard to the escape lawful custody and the reckless driving but of course the factual matrix of that reckless driving does include the circumstances under which you drove recklessly and that’s what puts the reckless driving at the upper end. There, as the prosecutor says, must be a penalty which will demonstrate to others that placing the lives of police officers at risk in the way that you did, when they’re simply carrying out their duty is totally and utterly unacceptable in our society. So a penalty must be imposed that reflects that.
It's perhaps less important from specific deterrents point of view, that is a penalty to ensure that you do not offend like this again in future. In my view, given the amount you’ve spent in custody, the courses that you've undertaken, that is not as important in my view as the question of general deterrents. What I'm going to do is impose a term of imprisonment, backdate it to 2 June last year. It will two years imprisonment in total.
So six months on the reckless driving and two years for the escape lawful custody to run concurrently with each other. So it's a total of two years, but there will also be an order that you be eligible for parole. So if parole is granted, then it's likely that you will not be spending much more time in custody. In addition, for the reckless driving you are disqualified from holding or obtaining a drivers licence for nine months.
[9] ts 12, 12 April 2019.
[10] ts 12 - 13, 12 April 2019.
The grounds of appeal
The ground of appeals are in the following terms:
1.The learned sentencing Magistrate erred in law in failing to discount the sentences imposed to reflect the benefits to the State of the appellant's pleas of guilty pursuant to s 9AA of the Sentencing Act 1995.
2.The learned sentencing Magistrate erred in imposing a sentence for the offences of escape lawful custody that was manifestly excessive.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[11] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact or of both law and fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice.[12]
[11] Criminal Appeals Act 2004 (WA), s 9(1).
[12] Criminal Appeals Act 2004 (WA), s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[13] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[14]
[13] Criminal Appeals Act 2004 (WA), s 9(2).
[14] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
The court may dismiss or allow the appeal and may set aside the sentence and substitute it with the sentence that should have been imposed.[15]
[15] Criminal Appeals Act 2004 (WA), s 14(1).
Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Ground one contends that the Magistrate made an express error in his sentencing remarks. Ground two contends that the length of the term of imprisonment imposed in respect of the escape from lawful custody charge was manifestly excessive.
In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[16]
[16] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
Assessment of appeal grounds
I now consider the two grounds of appeal.
Ground one
By ground one, Mr Shortland contends that the Magistrate erred in law by failing to reduce the sentence to reflect the benefits to the State and to any victim or witness from his plea of guilty, as required by s 9AA of the Sentencing Act.
The respondent concedes that the Magistrate erred by failing to expressly state the fact of a reduction for the purposes of s 9AA of the Sentencing Act and that the Magistrate failed to give a reduction for the plea of guilty.[17] Accordingly, the respondent concedes that the Magistrate made an express error. That concession is properly made for the following reasons.
[17] Respondent's Outline of Submissions [3] ‑ [4].
Section 9AA(2) of the Sentencing Act provides that:
If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
The term 'head sentence' is defined to mean the sentence that a court would have imposed for the offence if (a) the offender had been found guilty after a plea of not guilty and (b) there were no mitigating factors.[18]
[18] Sentencing Act 1995 (WA), s 9AA (1).
The reduction must not be more than 25% and the maximum is only available if the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.[19]
[19] Sentencing Act 1995 (WA), s 9AA (4).
Section 9AA(5) of the Sentencing Act provides that, if a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court. Finally, s 9AA(6) of the Sentencing Act provides that the section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
The purpose and proper construction of s 9AA was outlined in Abraham v The State of Western Australia.[20] The underlying purpose of s 9AA(5) is to increase the transparency of the sentencing process.[21]
[20] Abraham v The State of Western Australia [2014] WASCA 151; 244 A Crim R 1.
[21] Abraham v The State of Western Australia [2014] WASCA 151; 244 A Crim R 1 [50] (Buss JA).
The Magistrate made no reference to s 9AA or to reducing the sentence of imprisonment because of the plea of guilty. However, the Magistrate did make an incidental reference to the guilty plea in her sentencing remarks by observing 'Mr Shortland, you pleaded guilty'.[22] The Magistrate did not refer to the mitigating effect of the plea and there is no statement or indication in the remarks that the court reduced the head sentence.
[22] ts 12, 12 April 2019.
The failure to state that a sentence has been reduced and to quantify the reduction does not necessarily mean that a reduction has not been made and the sentencing discretion is miscarried.[23] However, as in Burrows v The State of Western Australia, to avoid the conclusion that a material error has occurred, it would be expected that the sentencing court should make reference to the mitigating effect of the guilty plea and it should be apparent from the sentence that a reduction has been made. The failure to refer to the effect of the plea of guilty will ordinarily be an indication that the sentencing court has overlooked the granting of the discount.[24] In such circumstances, the failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.[25]
[23] Burrows v The State of Western Australia [2014] WASCA 147 [32].
[24] Roberts v The State of Western Australia [2014] WASCA 239 [34]; Winmar v Clark [2015] WASC 314 [26].
[25] Roberts v The State of Western Australia [2014] WASCA 239 [47].
It is not possible to discern whether the Magistrate regarded the sentence that she imposed as a starting point, from which no reduction was made, or an end point, after some unspecified reduction. The failure to refer to s 9AA of the Sentencing Act in terms indicating that a reduction was being made, in circumstances where Mr Shortland pleaded guilty, was an error of law.
A discount should have been given for the plea of guilty. It is submitted by the respondent that Mr Shortland entered a plea of guilty but not at the first reasonable opportunity. Mr Shortland entered his plea of guilty some 10 months after the charges were preferred. A reason for that delay was that Mr Shortland's counsel negotiated the plea on the basis that a further charge be discontinued by the prosecution. Mr Shortland was charged with another offence, being unlawfully did an act, as a result of which the life, health or safety of a person was likely to be endangered contrary to s 304(1)(b) of the Criminal Code. That charge was discontinued at the commencement of the sentencing hearing.[26] Accordingly, I am of the opinion that Mr Shortland was entitled to a 20% reduction from his sentence pursuant to s 9AA of the Sentencing Act.
[26] ts 7, 12 April 2019.
Therefore, leave to appeal is granted in respect of ground one and the ground is upheld.
Ground two
By ground two, Mr Shortland contends that the Magistrate erred in law by imposing a sentence of imprisonment on the escape from lawful custody charge that was manifestly excessive. Mr Shortland's contention is that the offending did not warrant the imposition of a term of imprisonment of 2 years.
That is, that in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the appellate court to be satisfied that the sentence is unreasonable or plainly unjust.[27]
[27] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. Mr Shortland appeals on the basis that the length of the term of imprisonment imposed on the escape lawful custody charge was not within the Magistrate's discretion.
Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
To determine whether a sentence is manifestly excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[28]
[28] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
The maximum penalty for the offence of escape from lawful custody contrary to s 146 of the Criminal Code is 7 years' imprisonment. The jurisdictional limit where an offence of escape lawful custody is dealt with summarily is 3 years' imprisonment and a fine of $36,000.
Turning to Mr Shortland's personal circumstances, he was sentenced as a 27 year old offender who was in stable relationship and has a four year old son. Both Mr Shortland’s former partner and child visit him[29] and remain supportive.[30] Mr Shortland has an employment history and proposes to return to employment in the retail industry.[31]
[29] Appellant's Additional Submissions [10].
[30] ts 10 - 11, 12 April 2019.
[31] ts 10, 12 April 2019; Appellant's Additional Submissions [11].
Mr Shortland has a criminal record that comprises convictions for criminal damage, dishonesty offences, simple drug offences, threat to injure and common assault. Mr Shortland's previous convictions were all dealt with in the Magistrates Court.
During the sentencing hearing, counsel for Mr Shortland submitted that Mr Shortland has autism and that it is relevant in determining the appropriate sentence.[32] The contention was that Mr Shortland's autism has the consequence that he is unable to read people and has difficulties expressing himself. That contention was not addressed by the prosecution. The Magistrate did not refer to the relevance of autism. At the hearing of this appeal the respondent accepted that Mr Shortland has autism and is a factor that should be taken into account when assessing the appellant’s personal circumstances. I do so. However, given that I have not been provided with any medical reports I am not satisfied that there was a nexus between Mr Shortland's autism and the offending. Therefore, I am unable to make a finding that Mr Shortland's moral culpability for the offending is thereby reduced or that general deterrence as an applicable sentencing factor is reduced.[33]
[32] ts 10, 12 April 2019.
[33] Krijestorac v The State of Western Australia [2010] WASCA 35.
The Magistrate referred to the fact that Mr Shortland had completed courses, including the Sycamore Tree Project, addressing his drug issues whilst incarcerated.[34] The courses referred to by counsel during the plea in mitigation were courses addressing Mr Shortland's drug issues.[35] The completion of the courses, whilst incarcerated awaiting sentencing, is a factor in mitigation. It demonstrates that Mr Shortland is committed to his rehabilitation.
[34] ts 13, 12 April 2019.
[35] ts 11, 12 April 2019.
Counsel for Mr Shortland submitted that Mr Shortland was remorseful and understood the seriousness of the offending and displayed empathy to the officers who were required to move quickly away from his moving vehicle.[36] The Magistrate appeared to accept that Mr Shortland was both remorseful and had empathy for the police officers, observing that the Sycamore Tree Project 'has perhaps been quite beneficial to you to understand the impact of offending behaviour on the victims of crime'.[37]
[36] ts 12, 12 April 2019.
[37] ts 13, 12 April 2019.
It is not possible to discern a range for this type of offending. I have considered the following relevant sentencing authorities relied upon by the parties: Woods v Glynn,[38] Krakouer v Durka,[39] Councillor v Hart,[40] Hooker v The Police,[41] Voisey v Taylor,[42] Hansen v The State of Western Australia,[43] Paskov v Hull,[44] Donnachy v Riegert & Anor[45] and Fullgrabe v The State of Western Australia.[46]
[38] Woods v Glynn [2007] WASC 136.
[39] Krakouer v Durka (Unreported, WASC, Library No 980595, 14 October 1998).
[40] Councillor v Hart [2018] WASC 418.
[41] Hooker v The Police [2006] WASC 188.
[42] Voisey v Taylor (Unreported, WASC, Library No 8273, 30 May 1990).
[43] Hansen v The State of Western Australia [2013] WASC 205.
[44] Paskov v Hull [2008] WASC 163.
[45] Donnachy v Riegert & Anor [2004] WASCA 48; 144 A Crim R 260.
[46] Fullgrabe v The State of Western Australia [2006] WASCA 138.
A review of the sentencing authorities supports Mr Shortland's submission that the 2 year term of imprisonment imposed on him exceeds any other sentence considered on appeal for an offence of escaping from lawful custody.[47] Certainly, each case will depend upon its own factual circumstances.
[47] Appellant's Outline of Submissions [26].
In Fullgrabe v The State of Western Australia the appellant was one of 11 prisoners who escaped from the holding cells at the Supreme Court. Two prisoners overpowered the guards and nine other prisoners escaped, some on foot and others by hijacking a vehicle in St Georges Terrace. The appellant escaped and got into one hijacked vehicle before becoming the driver in another hijacked vehicle. The vehicle was driven recklessly in a pursuit. The appellant was convicted of stealing a vehicle and driving the vehicle recklessly. A term of imprisonment of 2 years for the escape from lawful custody was reduced to 1 year imprisonment. The appellant was sentenced in respect of a number of other offences.
In Councillor v Hart the appellant escaped from a prison before surrendering the next day to authorities. The appellant had youth as a mitigating factor. Corboy J stated that a term of imprisonment of 4 months would have been imposed but that the term was reduced to 1 month to give credit for time spent in custody. In Hansen v The State of Western Australia the appellant was convicted of escaping lawful custody after hiding in the roof of a house that he was intending to burgle. In order to escape the police, the appellant kicked through the roof tiles and jumped from roof to roof of other houses before being apprehended. A term of imprisonment of 1 month was imposed, which formed part of a total effective sentence for other offences.
In Woods v Glynn the appellant escaped from Wooroloo Prison and was not apprehended for two months. On appeal, his sentence was reduced to 3 months' imprisonment. In reducing the term of imprisonment, Jenkins J was mindful of the effect of the term of imprisonment of 6 months 1 day would have on the parole eligibility of the appellant.
A principle that may be discerned from the authorities is that general deterrence is a significant sentencing factor for the offence of escaping from lawful custody.[48]
[48] Donnachy v Riegert & Anor [2004] WASCA 48; 144 A Crim R 260 [100].
The offence of escaping lawful custody may occur in a myriad of factual circumstances. There are a number of factors that are relevant to determining the relative seriousness of the specific offending.
Whether the escape was from a prison is highly relevant factor in determining the seriousness of the offending. An escape from prison ordinarily will result in the disruption to other prisoners and custodial officers which may in turn lead to further procedures being applied to inmates which engenders resentment. Further, an escape from prison brings the prison system into disrepute and strikes at the procedures in the prison.
The methods employed in effecting escape and, in particular, whether any violence was involved and whether there was extensive planning and outside assistance, is highly relevant in determining the seriousness of the offending.
The period for which the offender was at large, whether the offender surrendered himself voluntarily and the conduct of the offender when at large is also relevant.
Mr Shortland's offending was not premediated and did not involve an escape from prison. The respondent accepted that whilst general deterrence is an important sentencing factor, the relevance of that factor is less in this case given that Mr Shortland did not escape from a prison.[49] That submission is undoubtedly correct.
[49] Respondent's Outline of Submissions [9].
Mr Shortland's offending was an unnecessary spur of the moment action. Mr Shortland had not committed any offence and was being subject to routine traffic inquiries by the officers. Mr Shortland voluntarily surrendered to the police after six days. This is a significant mitigating factor.[50] During the six days before surrendering, Mr Shortland did not reoffend.
[50] Boyle v The State of Western Australia [2010] WASCA 97 [49].
A further relevant factor is that a prisoner serving a term of imprisonment for escaping lawful custody is not eligible to be granted parole. Section 89(3) of the Sentencing Act provides that a parole eligibility order must not be made in respect of a prescribed term. Section 85(1) of the Sentencing Act, relevantly, defines 'prescribed term' as meaning a term imposed for escaping lawful custody. This is a factor relevant to the sentencing discretion.[51] The Magistrate granted parole to Mr Shortland, observing that with time already spent in custody, being 10 months, Mr Shortland 'will not be spending much more time in custody'.[52] That order was contrary to law. The effect of the 2 year sentence was that Mr Shortland would have to serve the entire period incarcerated.
[51] Woods v Glynn [2007] WASC 136 [30].
[52] ts 12, 12 April 2019.
The aggravating factor in this offending was that the means of escape, being the vehicle, placed the police officers in potential danger and damage was caused to a police vehicle. However, no person was injured.
After considering the maximum penalty, the circumstances of the offending, mitigating factors and aggravating factors, I am of the view that the term of imprisonment of 2 years imposed for the escape lawful custody charge is manifestly excessive.
Therefore, leave to appeal is granted in respect to ground two and the ground is upheld.
Conclusion - resentence
Given that both grounds one and two have been upheld, the appeal is thereby allowed, and it is necessary to resentence the appellant.[53] I set aside the term of imprisonment imposed by the Magistrate on the escape from lawful custody charge being 2 years' imprisonment and in lieu thereof, I impose a term of imprisonment of 2 months (PE 29617/2018). That term of imprisonment will be served cumulatively on the term of imprisonment of 6 months imposed on the reckless driving charge (PE 29618/2018). Therefore, the total effective sentence imposed is 8 months' imprisonment. In imposing that sentence I am mindful of the totality principle.
[53] Criminal Appeals Act2004 (WA), s 14.
Given that Mr Shortland has been in custody since 8 June 2018 and has served over 12 months' imprisonment he will be immediately released.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DH
Research Associate/Orderly to the Honourable Justice McGrath21 JUNE 2019
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