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 ten months in prison in New South Wales. It is also true that if he had not escaped from prison, but remained in the Mobilong prison, the occasion for his spending that time in gaol in New South Wales would not have arisen. But that, to my mind, is the beginning and the end of any connection between the time spent in custody in New South Wales, and the present offence. 5. It is proper, of course, when an offender spends time in custody awaiting trial for an offence, to take that period into account in assessing the appropriate sentence for that offence, but it seems to me that it would be wrong in principle to take into account a period spent in custody in circumstances which are unrelated to the offence for which sentence is being passed. 6. Misfortunes may befall persons who escape from custody while they are at large. Being taken into custody, and being kept in custody in respect of charges which turn out to be unproven is such a misfortune. The fact, however, that that misfortune befell the appellant while his prison sentence was interrupted in consequence of his escape, seems to me to fall far short of establishing any connection between that particular misfortune, and the escape from prison. 7. In my opinion the period spent in prison in New South Wales is not sufficiently connected with the offence of escaping from lawful custody to justify the court taking it into account in reduction of the sentence which would otherwise be imposed. 8. Mr Mayne contended that the sentence imposed was manifestly excessive. I am quite unable to accept that contention. This court, in R v Forrest (1987) 46 SASR 75, discussed the seriousness of the crime of escaping from lawful custody, and the sort of penalties which ought to be imposed for it, and reinforced what I had previously said in the case of R v Knight (1986) 40 SASR
479. 9. It seems to me that the sentence of 15 months' imprisonment, with the extension of the non-parole period by 11 months, was a moderate sentence for the crime which was committed. 10. I should say, at this point, that it seems to me that the sentences of six months' imprisonment imposed upon Young and Collini fell considerably short of the standard of punishment which ought to be observed in relation to the offence of escaping from lawful custody. In stating that the sentence imposed for escaping from lawful custody upon this appellant is by no means excessive, and indeed is moderate, I bear in mind that he has a record for previous offending, which includes one previous conviction for escaping from lawful custody, albeit in 1977, and also an offence of robbery with violence. 11. Mr Mayne contended that even if the sentence is not in itself excessive, it ought to be reduced by reason of disparity between this sentence and the sentences imposed upon the co-offenders. I have already stated that I consider that the sentences imposed upon the co-offenders were low. Nevertheless, there are significant points of distinction. Young, it appears, was only 18 years of age. He had a conviction for a serious crime for which he was serving the sentence, namely the crime of attempted murder, but his youth was nevertheless a relevant factor. The present appellant is aged 32 years. 12. The learned judge who sentenced Collini, appears to have attached considerable importance to two factors. One factor was the injury which Collini sustained in the course of his escape. It appears that he suffered quite serious injuries in the escape, and the judge stated that he had taken those into account. Perhaps in taking those into account, or at all events taking them into account to the extent which he must have done, the learned judge took a lenient course, but it is nevertheless a relevant consideration when considering whether there is an unwarranted disparity between the sentences imposed upon Collini, and that imposed upon the present appellant. The other factor to which the learned judge appears to have attached importance in the case of Collini is the fact that his "record included no offences involving any violent conduct". That is not true of the present appellant who has a prior conviction for robbery with violence. 13. Whether those factors completely or sufficiently account for the difference in the sentences between Collini and Young on the one hand, and the appellant on the other, I think it is not essential to determine. If I had to do so, I would be prepared to say that there is not a sufficient indication of a true disparity to justify the intervention of this court. 14. Putting that aside, however, the authorities make it clear that the mere existence of what appears to be an unwarranted disparity does not compel the Court of Criminal Appeal to intervene. There may be other countervailing considerations which incline the court to refrain from intervening. I think that the fact that the sentences imposed upon the co-offenders are very much below the standard of punishment which this court expects in cases of escape from lawful custody, is itself a sufficient consideration, in the circumstances of the present case, to justify the Court of Criminal Appeal in refraining from intervening, and in upholding a sentence which is in itself entirely reasonable. 15. For those reasons I am of the opinion that the appellant has no just grounds for complaint about the sentence which has been imposed upon him, and I would dismiss the appeal.

JUDGE2 COX J. In my opinion the sentence imposed is not in itself excessive. I agree with the reasons on that matter that have been given by the Chief Justice. As to the disparity argument, even allowing for considerations special to the three respective offenders, I think there was a disparity between the sentence, including the extension of the non-parole period, imposed on the appellant, and the sentences, without any such extension, imposed on the other two men, but the degree of disparity is, in my opinion, not sufficient to warrant this Court's interference. With that qualification I agree with the reasons on this ground of appeal that have been given by the Chief Justice. I would dismiss the appeal.

JUDGE3 MATHESON J. In my opinion the period of ten months spent in prison in New South Wales was a penalty suffered as a direct result of the appellant escaping from custody. It may not be correct to describe that as a mitigating factor, but in my opinion it was a factor calling for more lenient treatment. However, bearing in mind the fact that the maximum penalty was seven years, and the remarks of the Chief Justice in R v Knight (1986) 40 SASR 479, if this Court had to sentence afresh for this offence, a proper head sentence could not be less than that imposed of 15 months. In my opinion the first ground fails. 2. As to the second ground, Mr Jennings QC, in my opinion, rightly conceded that the disparity in penalties here is significant. There were some distinguishing factors between the three offenders, but even when considered cumulatively, they did not in my view justify the appellant having his non-parole period extended by 11 months, whereas his co-offenders will not spend one day longer in prison. 3. I would allow the appeal, but only for the purpose of reducing the extension of the non-parole period from 11 months to six months.