Taylor v R Judgment No. 3670 File No. SCCRM 92/601 Number of Pages 4 Criminal Law and Procedure - [1992] SASC 3670

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL King C.J.(1), Cox(2) and Matheson(3) JJ.

CWDS
Criminal law and procedure - sentence - escape from lawful custody - appeal against sentence of 16 months with extension of non-parole period of 11 months - 10 months spent in custody during period of escape awaiting trial on other charges of which he was acquitted, not taken into account - sentence not excessive - disparity with sentences of two co-offenders not, in the circumstances , requiring intervention of Court of Criminal Appeal - appeal dismissed.

HRNG ADELAIDE, 19 October 1992 #DATE 19:10:1992
Counsel for appellant:        Mr R.N.H. Mayne
Solicitors:                 Jon Lister
Counsel for respondent:     Mr B.J. Jennings QC with
  Ms R. C. Gray
Solicitors:                 Director of Public Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 KING C.J. This is an appeal against a sentence imposed in the District Court for the crime of escaping from lawful custody. The crime was committed on 4 April 1991, when the appellant, in company with two other persons named Young and Collini, escaped from the Mobilong prison. 2. The appellant was serving a sentence of imprisonment for eight years, with a non-parole period of five years when he escaped. He was sentenced for the crime of escaping from lawful custody, to imprisonment for 15 months, cumulative upon the previous sentence, and the existing non-parole period of five years was extended by 11 months. The sentence imposed upon the co-offender, Young, by a different judge, was six months' imprisonment, and the sentence imposed on the co-offender, Collini, by a different judge again, was six months' imprisonment. Collini had an existing non-parole period, but that was not extended. 3. When the appellant escaped from prison he made his way to New South Wales. His counsel told the sentencing judge that his reason for escaping was a desire to get to New South Wales in order to clear up some charges which were pending against him there. On arrival in New South Wales he did not however surrender to the authorities. After a month or so he was apprehended, and was taken into custody. He spent ten months in custody in New South Wales awaiting trial on the charges there. He was duly tried and acquitted. Mr Mayne, who appeared for the appellant before us, has contended that that period of ten months spent in prison in New South Wales awaiting trial, should have been taken into account by the learned sentencing judge in the present case. It is not completely clear from the remarks made by the learned judge, when passing sentence, that he did not take the ten months into account. I am prepared to assume that he did not do so, and approach the matter on that basis. 4. In my opinion, if the learned judge did not take that period of imprisonment into account, he acted correctly. It is true, of course, as a matter of historical fact, that the appellant spent that period of…

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.

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Details

AGLC: Taylor v R Judgment No. 3670 File No. SCCRM 92/601 Number of Pages 4 Criminal Law and Procedure [1992] SASC 3670
Case: [1992] SASC 3670
Decision Date: 19 October 1992

CaseChat Overview and Summary

The appellant in this case is challenging a sentence of 16 months, with an extension of the non-parole period by 11 months, imposed for escaping from lawful custody. The offence was committed while the appellant was serving a sentence of eight years with a non-parole period of five years. The case was heard in the Court of Criminal Appeal, with King C.J., Cox and Matheson JJ. The appellant had escaped from Mobilong prison in the company of two other individuals, Young and Collini, and was subsequently apprehended in New South Wales, where he spent ten months in custody awaiting trial on unrelated charges, which he was later acquitted of. The legal issues before the court were whether the time spent in custody in New South Wales should have been taken into account in the sentencing, and whether the sentence was manifestly excessive or disproportionate to the sentences of the co-offenders.

The court held that the time spent in custody in New South Wales should not have been taken into account as it was unrelated to the offence of escaping from lawful custody. The court found that the sentence imposed was not excessive, and that the disparity in sentences between the appellant and his co-offenders was not sufficient to warrant intervention by the Court of Criminal Appeal. The court noted that the sentences imposed on Young and Collini were below the standard expected for such an offence and that there were distinguishing factors between the appellant and his co-offenders that justified the disparity in sentences. Matheson J. dissented on the second ground, finding that the disparity was significant enough to warrant a reduction in the extension of the non-parole period from 11 months to six months.

The appeal was dismissed, with the sentence upheld. The court acknowledged that the appellant had a history of previous offending, including an earlier conviction for escaping from lawful custody and an offence of robbery with violence. The court concluded that the sentence imposed was moderate and in line with the expected punishment for such an offence.

Orders