Warren v Bessell
[1990] TASSC 103
•14 June 1990
Serial No B26/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Warren v Bessell [1990] TASSC 103; B26/1990
PARTIES: WARREN, Allen Ralph
v
BESSELL, Anthony Stuart
FILE NO/S: LCA(L) 5/1990
DELIVERED ON: 14 June 1990
JUDGMENT OF: Zeeman J
Judgment Number: B26/1990
Number of paragraphs: 16
Serial No B26/1990
List "B"
File No LCA(L) 5/1990
ALLEN RALPH WARREN v ANTHONY STUART BESSELL
REASONS FOR JUDGMENT ZEEMAN J
14 June 1990
The applicant, who was the complainant in the Court below, seeks the review of a sentence of seven days' imprisonment imposed by a magistrate upon the respondent's plea of guilty to a charge of escape contrary to s.107 of the Criminal Code. The sole ground upon which the review is sought is that the sentence imposed was manifestly inadequate.
The respondent appeared before the learned magistrate on 22 March 1990 charged with escape in that on 21 March 1990 at Oatlands, being a being in lawful custody, he did escape from such custody. The respondent declined to seek to have the proceedings adjourned, elected to be dealt with summarily and pleaded guilty.
The transcript then records that the following occurred:
"WARREN: Sir, the facts are that the defendant was being transported in the Tasmania Police prison van from Burnie to Risdon Prison yesterday, the 21st of March, accompanied by other prisoners. He was on remand to appear in the Hobart Supreme Court for sentencing on Friday, tomorrow. The van stopped for a short time at Oatlands early in the afternoon, yesterday, and this defendant and others decided they would break out of the prison van when the van stopped. The – my instructions are that somehow the defendant managed to manipulate the lock on the van door and then by kicking managed to get the door open. I am not instructed as to whether the defendant solely did that or whether he did it with the assistance of others.
CORAM: You can sit down Mr Bessell.
WARREN: Reading one of the other persons files it appears that he was assisated (sic) by one of the others. The door was eventually opened. Just as the van was starting to move off they escaped from the van and then ran to the bush area at Oatlands and then walked to Tunbridge and after dark they jumped on a train, at least one of them jumped on a train heading north. The train took them to Conara where the defendant got off and hid in the bush. They were apprehended this morning after heading towards Launceston. They received a ride in a vehicle and were apprehended near Evandale. I have got the defendant's prior convictions with me, I have only just received the file, but I don't think he's got any for escape. No, I'm pretty certain he hasn't got any for escape but so far I just haven't been able to get hold of them.
CORAM: When was he remanded in custody?
WARREN: Well, he was remanded – he was remanded in custody to appear in Hobart for sentencing on another matter tomorrow, so he's certainly going to be in custody until tomorrow.
CORAM: But then he's going to Hobart isn't he?
WARREN: Yes. Well –––
CORAM: Well, so far as you are concerned he has not priors or not?
WARREN: None for escape, sir.
CORAM: No.
WARREN: It might be worthwhile if your Worship would look at the prior history though.
CORAM: Yes.
WARREN: I can get someone to go and obtain a copy of the convictions which will only take –––
CORAM: I will stand the matter down. If you would stand down please Mr Bessell.
(Short adjournment)
(Upon resumption)
WARREN: There is the prior history, sir.
CORAM: Have you anything to say about this before I proceed to penalty?
DEFENDANT: No, sir.
CORAM: You're like a canary, Mr Bessell, you can't last long out of a cage. I sentence you to 7 days imprisonment."
The transcript does not record that the "prior history" therein referred to was tendered to the learned magistrate nor does it record that it was shown to the respondent. However there was transmitted to this court a document purporting to record prior convictions of the respondent. That transmission was pursuant to s.109(2)(a) of the Justices Act 1959. The hearing of the motion proceeded upon the basis that that record was the "prior history" referred to in the transcript. No issue has been taken as to its accuracy.
Both counsel were agreed that I should not be concerned about any procedural irregularities before the learned magistrate.
I turn to the one ground upon which the review is sought which falls be determined by reference to the materials before the learned magistrate.
The principal ingredients of the facts placed before the learned magistrate may be summarized as follows:
1The respondent was in custody pending his sentence by this court on 23 March 1990.
2On 21 March 1990 he was being transported in the company of other prisoners in a prison van from Burnie to Risdon Goal.
3Whilst the prison van was in transit or stopped (it is not clear which) the respondent, with the assistance of one of the other prisoners, managed to unlock the van's locking device.
4The prison van stopped at Oatlands.
5Whilst the van was stopped the respondent and other prisoners escaped from it.
6On the following day the respondent was apprehended a considerable distance North of Oatlands.
The respondent's list of prior convictions merited the close attention of the learned magistrate. That document disclosed that the respondent had been born on 2 November 1970 and was therefore 19 years old at the time he committed the offence.
Although a young man he had managed to amass a formidable list of previous convictions commencing in December 1986 for various offences committed earlier that year. The courts have taken care to give the respondent an opportunity to rehabilitate himself. He has had the benefit of probation orders. On 15 April 1987 a sentence of imprisonment was wholly suspended on condition that he be on good behaviour for 3 years.
Those chances given to the respondent have had little or no perceptible modifying effect on his behaviour. Thereafter he committed numerous further offences, generally of dishonesty, for which various short terms of imprisonment were imposed upon the respondent.
Escape from lawful custody is a crime which admits to a multitude of different circumstances and the sentences which have been imposed in this court reflect this (see the judgment of Underwood J in Devine v Richardson, unreported serial No59/1987 at pp4–5). During argument I was referred to a number of sentences for escape imposed in this court and elsewhere. Again their range was indicative of the wide range of circumstances which might exist.
To the extent that a sentencing policy is disclosed, it is plain that the sentence of seven days' imprisonment imposed by the learned magistrate was a lenient sentence indeed. The maximum sentence which the magistrate could have imposed was one of 12 months' imprisonment.
There was an absence of aggravating factors such as violence, either in the course of the escape or subsequent thereto prior to recapture, or the commission of crimes whilst at large.
The absence of such aggravating factors left the learned magistrate with the position that the respondent had broken out of a prison van and spent some time at large, undoubtedly causing some public alarm and public expense.
I have no hesitation in saying that the circumstances of the matter as they were put before the magistrate clearly called for a more substantial sentence than that imposed. The circumstances did not admit to the degree of leniency extended to the respondent. By imposing the sentence under review the learned magistrate clearly fell into error. The sentence was manifestly inadequate.
Accordingly the sentence imposed by the magistrate will be quashed. It has been agreed by counsel that I should re–sentence the respondent and I will hear counsel further.
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