Woods v Glynn
[2007] WASC 136
•5 JUNE 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WOODS -v- GLYNN [2007] WASC 136
CORAM: JENKINS J
HEARD: 5 JUNE 2007
DELIVERED : 5 JUNE 2007
FILE NO/S: SJA 1029 of 2007
BETWEEN: LLOYD TODD WOODS
Appellant
AND
FRANCIS GERARD GLYNN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE K M BOOTHMAN
File No :PE 51926 of 2006
Catchwords:
Criminal law - Appeal against sentence for offence of escaping from lawful custody - turns on own facts
Legislation:
Criminal Code 1913 (WA), s 146
Prisons Act 1981 (WA), s 79
Sentencing Act 1995 (WA), s 86, s 86(b), s 89(3)
Sentencing Administration Act 2003 (WA), s 8, s 23(2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr C L J Miocevich
Respondent: Ms K C Cook
Solicitors:
Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen [2004] WASCA 16
Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998
Voisey v Taylor, unreported; SCt of WA (Franklyn J); Library No 8273;
.......... 30 May 1990
JENKINS J:
The decision under appeal
This is an appeal from the decision of a Magistrate sitting in the Magistrates Court at Perth on 23 September 2006 on Prosecution Notice 51926 of 2006 containing one count of escaping lawful custody. The Magistrate, after convicting the appellant of the offence, sentenced him to 6 months and 1 day imprisonment. The sentence was ordered to be served cumulatively on another sentence that the appellant was then serving.
The appellant filed his application for leave to appeal on 12 April 2007. Thus, he requires an extension of time within which to appeal.
The principles upon which an extension of time within which to appeal were stated in Cameron v The Queen[2004] WASCA 16 at [28] by McKechnie J. His Honour said:
"The principles governing the grant of leave when there has been a long delay have been settled. (Authority omitted). If there has been a long and unexplained delay exceptional circumstances must be shown before an extension of time will be granted unless it can be demonstrated that there will be a miscarriage of justice if an extension is not granted."
In this case the delay is some five months and this is considerable when seen in the context of the appellant's total sentence. As for the reasons for the delay, an affidavit has been filed by the appellant's solicitor in support of the application for an extension of time. It states that the appellant only decided to appeal when he discovered in January 2007 that he would not be eligible for parole on his total sentence. The respondent opposes any extension of the time limit.
The decision as to whether the appellant should receive an extension of time depends to a significant extent on the merits of his proposed appeal. Consequently, I intend to consider that issue before determining whether he should have an extension of time within which to apply for leave to appeal.
Grounds of appeal
There is one ground of appeal. It is:
"The learned Magistrate erred in law by finding that he had a lack of discretion in imposing 6 months 1 day imprisonment cumulative on the [appellant's sentence] for escape legal custody."
Details of the charge and proceedings
The charge alleged that on 20 July 2006 at Wooroloo, Lloyd Todd Woods escaped from lawful custody contrary to s 146 of the Criminal Code.
The appellant pleaded guilty to the charge the day after he was arrested. After the prosecutor recited the facts and a plea in mitigation was made, the appellant was sentenced as I have previously detailed.
Factual background
The facts which were presented to the Magistrate were very short. They are elaborated upon in a statement of material facts that I have received in evidence today.
The facts are that the appellant was a sentenced prisoner who was being held in custody at Wooroloo Prison Farm in Wooroloo. On the afternoon of Thursday 20 July 2006 the appellant was transferred from Hakea Prison to Wooroloo Prison. When prison staff conducted a muster at 10 pm on 20 July the appellant was found not to be in his room or on the prison grounds.
The appellant had been sentenced to 9 months' imprisonment on 10 July 2006 in the Perth District Court for breach of bail. His earliest date of release was 18 November 2006 and his maximum date for release, that is the date on which the sentence would have finished, was 4 April 2007.
On 22 September 2006 detectives attended at a unit in White Gum Valley. The detectives heard noises coming from the rear of the premises and observed the appellant jumping the rear fence. The appellant was arrested in the rear yard of a nearby residence shortly thereafter.
Consideration of the ground of appeal
The appellant submits that the Magistrate erred in concluding that he had no discretion at law other than to impose a sentence of more than 6 months' imprisonment cumulative on any other sentence the appellant was then serving.
The respondent says that it is not clear that the Magistrate meant his comment as to lack of discretion in that way and that he may have meant that he had no discretion but to impose a cumulative sentence on the appellant.
In order to determine the issue between the parties it is necessary to examine both the sentencing transcript and the relevant sentencing provisions.
After hearing submissions from the appellant's counsel, the Magistrate said:
"Well, I am limited as to what I can do with him, Mr Sutton."
Then he said:
"In respect to this matter there is no point in imposing any sort of a fine, there is no point in - - and I won't impose a penalty which is suspended because to escape legal custody and to remain out of custody is a serious matter, notwithstanding that the accused says that he wanted to see his relatives, he's been adrift for some considerable time.
I don't see that any order is available. In respect of the matter ‑ ‑ stand up, Mr Woods - ‑ you're sentenced to a period of 6 months' imprisonment - - 6 months and 1 day, cumulative. It's regrettable that such lack of discretion on sentencing matters for this type of thing is what is imposed upon the courts, but that is the way it is. I would not have ordinarily done that, Mr Sutton."
Mr Sutton was the appellant's counsel.
In respect to the law, the Criminal Code 1913 (WA), ("the Criminal Code"), s 146 states that a person who escapes from lawful custody is guilty of a crime and is liable to imprisonment for 7 years. The summary conviction penalty for the offence is imprisonment for 3 years and a fine of $36,000.
The provision which the appellant believes the Magistrate was referring to is when his Honour said he had a "lack of discretion" of the Sentencing Act 1995 (WA) ("the Sentencing Act"), s 86 which states:
"A court must not sentence an offender to a term of 6 months or less unless –
(a)the aggregate of the term imposed and any other term or terms imposed by the court is more than 6 months;
(b)the offender is already serving or is yet to serve another term; or
(c)the term is imposed under section 79 of the Prisons Act 1981."
The appellant submits, and the respondent concedes, that the Magistrate erred in law if he thought that s 86 prevented him from imposing a sentence of less than 6 months and 1 day imprisonment on the appellant. This is because the appellant fell into the exception in s 86(b), that is, he was already serving another term of imprisonment at the time the Magistrate came to sentence him for the offence of escaping lawful custody.
The respondent submits that the Magistrate may have been correctly referring to the appellate authorities which state that for an offence against s 146 a cumulative sentence will almost invariably be imposed of a sufficient length to deter others from escaping from legal custody.
In Krakouer v Durka, unreported; SCt of WA (Miller J); Library No 980595; 14 October 1998, Miller J restated the correct position when he said at page 18:
"There is a line of authority in this Court (authorities omitted) which indicates that for the offence of escaping legal custody from a lockup or prison, a sentence of imprisonment will invariably be imposed, and cumulative at that. As was said by Steytler J in Delaney (at 7), the offence 'strikes at the disciplinary procedures in prisons and leads to the undermining of the prison system'. Further, as was pointed out by Rowland J in Jones (supra) at 7‑8, it is well recognised that escaping from a low security prison requires a cumulative sentence of sufficient length to deter others, and it would normally be contrary to sentencing principles to direct that a sentence for escaping legal custody should be served other than cumulatively upon existing sentences."
After considering the law and the words of the Magistrate, I am in agreement with the appellant in respect to the meaning of the Magistrate's words. This is for three reasons. First, the Magistrate considered forms of sentence other than a period of imprisonment. If he thought that he was constrained by the appellate established principles relating to sentencing for an offence against s 146 of the Criminal Code then he would not have bothered to do so.
Secondly, the Magistrate sentenced the appellant to 6 months and 1 day imprisonment. That is a clear indication that he believed that if he was going to impose a sentence of imprisonment he had to sentence the appellant to a term of more than 6 months' imprisonment, in accordance with the Sentencing Act, s 86.
Thirdly, the Magistrate speaks of the lack of discretion being imposed on the courts. The Magistrate's terminology is much more consistent with a belief that statute prevented him from imposing a different sentence, rather than a belief that case based legal principle was that the usual sentence for an offence against s 146 is a cumulative sentence of imprisonment. In any event, neither statute nor principle prevented the Magistrate reducing the sentence to less than one of 6 months or less, cumulative.
For these reasons, I am of the opinion that the Magistrate erred in law in finding that he had a lack of discretion to impose a sentence of less than 6 months and 1 day's imprisonment, cumulative upon the sentence the appellant was then serving. Nevertheless, the respondent says that there has been no miscarriage of justice because a sentence of 6 months and 1 day, cumulative was an appropriate sentence in any event.
After considering the appellant's circumstances and all matters relevant to sentencing an offender, I have concluded that I do not agree with the respondent. I take into account also that the Magistrate did not think so either. He specifically said that he, "Would not have ordinarily done that," thus indicating that he considered that he was constrained by law to give a penalty that was harsher than was warranted.
In my opinion, even having regard to the general principles applicable to offences of this type, given the appellant's circumstances, a cumulative sentence of 6 months and 1 day was outside the range of appropriate penalties for this offence. I stress that it is the appellant's circumstances which have taken that sentence of 6 months and 1 day out of an appropriate range of sentences for the appellant.
One relevant circumstance is that as a consequence of sentencing the appellant to a term of imprisonment the appellant would not be able to be released on parole in respect to the sentence imposed on him on 10 July 2006. This is because the appellant's sentence then became longer than 12 months and included a sentence for a prescribed offence; that is, escaping lawful custody. A sentence for a prescribed offence cannot be made subject to a parole eligibility order: Sentencing Act, s 89(3).
If the appellant had not been sentenced for escape legal custody he would have had the right to be released on parole after he had served half of the 9 month term for breach of bail: Sentence Administration Act 2003, (WA) ("the Sentence Administration Act"), s 23(2).
It is generally not appropriate for a judicial officer to consider parole eligibility when fixing the length of a sentence. In my opinion, this general principle does not prohibit a judicial officer from taking into account that if a sentence of imprisonment is imposed for the offence of escaping lawful custody, the offender will be deprived of the opportunity to be released on parole in respect to another sentence which he is then serving. It is a factor going to mitigation of sentence that, if a particular sentence is imposed, the offender will be denied a right to be paroled on an earlier sentence which he would otherwise have. This is not to say that the sentencing Court should not impose an appropriate sentence on the appellant. Simply that the total effect of the sentence is a factor which should be taken into account.
General deterrence will invariably be a primary consideration in sentencing for the offence of escaping lawful custody. The reasons for this were stated by Franklyn J in Voisey v Taylor, unreported; SCt of WA (Franklyn J); Library No 8273; 30 May 1990. At pages 6 to 8 his Honour said:
"It has been held by authorities accepted and applied in this State that it is an offence which the courts must firmly put down as it strikes at the disciplinary procedures in prisons in that it leads or may lead to procedures being applied which engender resentment in the inmates and so works to their disadvantage. It also leads to the undermining of the prison system. (Authorities omitted).
Some of such authorities deal with escapes from 'open' institutions and respondent's counsel seeks to distinguish this case on that basis. It is not necessary that the escape be from an open institution for the above principles to apply. The offence if it relates to an 'open' institution might be seen to be more serious than otherwise or to involve special considerations. Its consequence is that measures are required to be taken to prevent further escapes which measures may lead to a reduction in the 'openness' of the institution and to restrictions upon prisoners which would not otherwise be applied. It may further lead to the loss or change in nature of a type of custody considered beneficial to those there detained. Further the escape involves an abuse of trust and brings the prison system into disrepute. (Authority omitted). It is clear on the authorities that the principles expressed in the above cases apply equally to institutions which are not within that category. That is so was made clear in R v Payne (supra) a judgment followed in this State on a number of occasions. What the authorities emphasise in relation to escapes from open or minimum security institutions is that there needs to be an even greater element of deterrence in such cases than the significant deterrent which must generally attach to escape from penal institutions generally.
The authorities are also clear that a sentence of imprisonment for this offence should generally be cumulative upon any other sentence imposed. (Authority omitted). Of course the particular circumstances of a particular case may make such a sentence inappropriate and there is no principle or authority which takes away from the court its discretion to order a concurrent term in an appropriate case."
I have not been able to find any authorities which indicate the range of penalties which indicate the standard of sentencing for the offence of escaping lawful custody. I have had regard to the authorities which have been provided to me by the parties and to my own experience in respect to sentencing offenders for escaping lawful custody.
Another relevant matter for a judicial officer to consider when sentencing an offender for this offence is the effect of the Sentence Administration Act, s 8 which states that a term does not elapse while a prisoner is at large, having escaped from lawful custody while serving it. Secondly, it states that a prisoner who is returned to lawful custody after having escaped from it while serving a fixed term must serve the part of the term he or she had yet to serve at the time of escaping plus one‑third of the lesser of the period which he or she was absent from lawful custody or the period beginning on the date of escape and ending on the date when, but for the escape, the fixed term would have ended, in addition to any term imposed for escaping lawful custody.
Consequently, the appellant not only has to serve the period of his sentence which did not elapse whilst he was at large; he also has to serve an additional 21 days on his sentence pursuant to s 8(2). This 21 days is a penalty in addition to any penalty imposed by the Magistrate or by myself. Whilst this statutory provision does not obviate the need for a judicial officer to impose an appropriate penalty on an offender, I am of the view that it is another matter that should be taken into account when determining the appropriate sentence for an offender for this offence.
The effect of the Magistrate's decision and the appellant's escape from custody was that the appellant would have to spend an additional six months and 22 days in custody and he lost his right to be released on parole in respect to the sentence he was then serving. If the appellant had not escaped from custody and he simply served his term, he would have had an earliest date for release of 18 November 2006 and his sentence would have expired on 4 April 2007.
As a consequence of being sentenced to imprisonment for the escaping from custody, the appellant lost his right to be released after serving half of the sentence for the breach of bail. He had to serve all of that term of imprisonment, the 6 months and 1 day sentence for which he was not eligible for release either and approximately 21 days that was imposed pursuant to the Sentence Administration Act, s 8. Thus, his earliest date for release and the date upon which all his sentences and penalties would have expired, but for this appeal, is 29 December 2007.
As I have said, in my opinion, taking all those matters into account, a sentence of 6 months and 1 day was outside the range of appropriate penalties for this offence.
I now turn and consider, having regard to other personal circumstances of the offender, the appropriate sentence for this offence. The appellant's personal circumstances are that he is 35 years of age. He has a significant prior criminal history. He does not have any convictions for escaping lawful custody but he does have offences for breaching bail and breaching a recognisance. Other than that, his offences are mainly dishonesty offences of stealing, burglary and unlawful use of motor vehicles. The appellant did not commit any offences whilst at liberty.
The appellant's explanation for why he escaped was that he had found out that his partner had cancer and he wanted to spend some time with her. The other explanation for his escape was that he had found out that an auntie and a cousin had passed away and he wanted to spend some time with his family.
The appellant has seven children between the ages of seven and 17. The younger children are residing with a relative until the appellant is released from custody. The appellant's partner, aged 36, has received treatment for cancer and it appears that that treatment may well have been successful. However, she is suffering from depression and is currently on medication.
The offence was mitigated by the appellant's plea of guilty made at the earliest opportunity.
The respondent relies upon the specific sentencing principles applicable to the offence of escaping lawful custody. He also says that the offence was aggravated by the fact that the appellant escaped on the first day of his transfer to an open prison and by the length of time which the appellant was at large.
Taking all these matters into account, an appropriate sentence is 3 months' imprisonment, which should be ordered to be served cumulatively on the sentence imposed on 10 July 2006.
As is apparent from this appeal, the Sentencing Act, s 89(3), prohibits a parole order being made in respect to the total sentence, or the individual sentence, in any event. Consequently, there will be no parole order.
In my view, there would be a miscarriage of justice if time was not extended to enable the appellant to appeal.
My orders are:
1.There be an extension of time within which to appeal to the date of the filing of the notice of appeal;
2.The appellant has leave to appeal on the ground contained in the appeal notice dated 12 April 2007;
3.The appeal is allowed; and
4.The sentence imposed by the Magistrate on 23 September 2006 for escaping lawful custody is set aside and in lieu thereof, the appellant is sentenced to 3 months' imprisonment, cumulative on the sentence imposed for breach of bail on 10 July 2006.
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