Warren v Colgrave

[1990] TASSC 139

Serial No B62/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Warren v Colgrave [1990] TASSC 139; B62/1990

PARTIES:  WARREN, Alan Ralph
  v
  COLGRAVE, Jason Mark

FILE NO/S:  LCA 4/1990
DELIVERED ON:  26 September 1990
JUDGMENT OF:  Wright J

Judgment Number:  B62/1990
Number of paragraphs:  7

Serial No B62/1990
List "B"
File No LCA 4/1990

ALAN RALPH WARREN v JASON MARK COLGRAVE

REASONS FOR JUDGMENT  WRIGHT J

(Delivered Orally)  26 September 1990

1. This is an appeal against a sentence of seven days' imprisonment imposed in respect of the crime of escape from lawful custody. The sentence was imposed in the Court of Petty Sessions at Launceston on 22 March 1990. Together with two other prisoners, the respondent broke out of a prison van which was transporting them to the Risdon Prison on 21 March. Whilst the van was stationary at Oatlands, the respondent opened the latch on the van's inner door and then helped kick open the outer door. As the van moved off, he escaped into the bush. He secreted himself on a train after dark and was eventually apprehended near the roadside at Evandale the following morning. One of his co–offenders, Bessell, was also apprehended and was sentenced to seven days' imprisonment by the same learned magistrate on the same day. The third offender was apprehended five days later and he was sentenced to four months' imprisonment.

1. The prosecutor appealed against the manifest inadequacy of the seven day sentence imposed on Bessell. This appeal was upheld by Zeeman J on 14 June of this year. I have read Zeeman J's written reasons and the other unreported decisions of this Court which were referred to by counsel. It was submitted by counsel for the respondent that there has been a much greater variation in sentences imposed in this Court than was indicated by the review undertaken by Zeeman J in Bessell's case and also by Neasey J in Devine v Richardson No 59/1987. He also made reference to sentences recently imposed in the Court of Petty Sessions.

1. I think that Mr Gabriel has demonstrated that there is a considerable range over which past sentences have been imposed and I think from the small number of illustrations he gave from cases in the lower court, it may be fair to say that there has been a tendency to extreme leniency in such cases in that jurisdiction. This may be due in part to the maximum of twelve months' imprisonment which may be imposed in the Court of Petty Sessions, but even so it seems to me that some of the very short sentences which have been pronounced show a lack of appreciation of the serious nature of this crime on the part of the sentencing magistrates.

1. As Burbury CJ observed in Triffett v Nelan [1970] Tas SR 207 at pp213, 214, the practice of magistrates cannot prevail where proper principles of punishment clearly require that a different sentence should be imposed and, indeed, it is part of the function of this Court to provide proper guidance if and when inappropriate practices are shown to exist. In my opinion, the principles of sentencing and the factors to be balanced in individual cases were identified with some care by Neasey J in Devine v Richardson (supra) and with respect, I agree with the observations he there made.

1. Having considered these matters in relation to the present motion to review, I have reached the conclusion that current trends in the Court of Petty Sessions, if accurately reported to me, must be seen as being an inadequate response to the seriousness of this type of offence. The deterrent aspect of sentences for escape is very difficult to over emphasise, particularly in the case of prisoners actually serving a sentence at the time. I am conscious, of course, that the respondent was not in this category at the time he committed the present offence, and I am also conscious that although he used force to open the van, he did not use personal violence to any of his custodians. Nor did he commit other offences whilst at large, and he was not at large for any extensive period of time before his recapture.

1. Notwithstanding these features, I must say that I regard this offence as being in what Neasey J would call the "medium or average range of gravity". As I have just said, there were no aggravating factors attendant upon the commission of this offence but equally there do not appear to have been any extenuating circumstances peculiar to the respondent.

1. With these features in mind, it is my opinion that the sentence imposed upon him was indeed manifestly inadequate and the motion to review will be allowed. However, giving full weight to the principles discussed in the High Court in Lowe's case (1984) 154 CLR p606, I do not feel necessarily constrained to impose an identical sentence to that imposed upon his co–offenders and consequently I propose to invite counsel to make further submissions before I impose sentence afresh. [After considering submissions from counsel the respondent was sentenced to 10 weeks' imprisonment to be served at the expiration of any sentence which he is currently serving or due to serve].