GREEN CJ This is an application for leave to appeal against a sentence of five months' imprisonment imposed upon the applicant's conviction for escape. The escape was committed when the applicant was in custody on remand pending his trial on charges of aggravated burglary and related crimes. Whilst the applicant was travelling with other prisoners in a prison van from Launceston to Hobart one of the prisoners forced a metal grille off the window and broke a window. Upon the prison officers stopping the van to investigate the applicant escaped through the broken rear window. The applicant had not planned to escape but did so on the spur of the moment when the opportunity suddenly presented itself. He was apprehended by a prison officer after running not much further than the width of the Midlands highway.

2. The following chronology of proceedings involving the applicant is relevant:

23 March 1992: applicant remanded in custody upon charges of

aggravated burglary and related crimes;

13 May 1992: applicant escaped and recaptured;

22 May 1992: applicant charged with escape and remanded in

custody upon that charge;

25 June 1992: applicant acquitted of the charges in respect

of which he had originally been remanded in custody and

discharged from custody;

25 November 1992: applicant sentenced to five months'

imprisonment;

9 December 1992: applicant released on bail pending the

determination of this application.

3. Whether the applicant was in custody between 13 May and 22 May in respect of the charge of escape was not made clear to the trial judge.

4. In her plea in mitigation counsel for the applicant submitted that in determining sentence the trial judge should take into account the whole period the applicant had spent in custody and in particular that he should take into account the period he spent in custody following the escape. When passing sentence the learned trial judge made the following comments:

"Mr Carr I take into account what your counsel has said. It

is relevant among other things that this escape was

committed at a time when you were on remand and not serving

time as a result of a conviction for an offence. I also

take into account that your moment of freedom was brief and

that you were quickly recaptured. It is reasonable to also

take into account that you were acquitted of the charges for

which you were in custody on remand. That acquittal obliges

me to accept as a matter of law that you were not guilty of

those charges. If instead you had been found guilty of

them, the penalty for this escape would have been more

severe.

At the same time however, there must be taken into account

the need to deter prisoners from escaping. Generally

speaking, for most cases of escape the punishment should be

one of imprisonment and in your case it is of particular

significance that you have escaped before and been sentenced

to imprisonment for it.

And so all of these matters must be weighed up against each

other. I do not accept the submission made by Miss Gibson

that the sentence should be reduced in severity because you

served time in custody on remand for charges for which you

were subsequently found not guilty.

In all these circumstances the sentence of the court is one

of imprisonment for five months."

"1 The learned Judge erred in law in that he imposed a

sentence which was manifestly excessive in all the

circumstances.

2 The learned Judge erred in law in that he failed to take

into account the fact that, between the 23rd day of March

1992 and the 25th day of June 1992, during which time the

Appellant committed the said crime of escape, he was in

custody awaiting trial on charges in relation to which he

was acquitted.

3 The learned Judge erred in law in that he failed to take

into account the fact that, between the date of the

commission of the said crime of escape, namely the 13th day

of May 1992 and the 25th day of June 1992, he was in custody

in relation to that crime.

4 The learned Judge erred in law in that he gave undue

weight to the fact that the Appellant had a prior conviction

for escape."

6. Pursuant to the Criminal Code, s408(3) the learned trial judge furnished a report which was furnished to the parties pursuant to the Rules of Court, OVII, r14. The report was in the following terms:

"In expressing my reasons for sentence I stated:

'I do not accept the submission made by Miss Gibson that the

sentence should be reduced in severity because you served

time in custody on remand for charges for which you were

subsequently found not guilty.'

This statement should be read in the context of the earlier

statement:

'It is reasonable to also take into account that you were

acquitted of the charges for which you were in custody on

remand. That acquittal obliges me to accept as a matter of

law that you were not guilty of those charges. If instead

you had been found guilty of them, the penalty for this

escape would have been more severe.'

By the first of the above statements I intended to express

that the appellant was not entitled to have the term of

imprisonment which would otherwise have been appropriate in

his case, reduced by the period of time he had spent in

custody while on remand or by some proportion of that

period. Notwithstanding this however I considered it

appropriate to deal with his case as one of escape from

custody while on remand for crimes of which he was

subsequently acquitted and therefore to deal with him more

leniently than would have been appropriate if he had

subsequently been convicted of those crimes. That was and

is my view."

7. During the hearing of this application there was some discussion as to how his Honour's comment that he rejected the submission that the sentence should be reduced in severity because of the period the applicant had spent in custody in respect of the charges of which he was acquitted could be reconciled with his other comment that he had dealt with the applicant more leniently than would have been appropriate had he been convicted of those charges. With respect I think the effect of the learned trial judge's observations was clear. His Honour was indicating that although he was not prepared to make allowance for the period that the applicant had spent in custody he was prepared to have regard to the circumstances of the custody from which he escaped when he was assessing the seriousness of the crime and that included in those circumstances was the fact that the applicant was eventually acquitted of the charges in respect of which he was in custody. Taking into account that latter consideration is in accord with the principle accepted in this Court that the type of custody from which an accused escapes is a relevant factor: see Warner, Sentencing in Tasmania 12.1107.

8. There is no principle which imposed upon the learned trial judge an obligation to take into account the period which the accused had spent in custody from 23 March to 13 May although it is possible that in some cases overriding considerations of fairness might make such a period relevant. However it is clear that his Honour did take into account the fact that the custody from which the applicant escaped was in respect of charges of which he was eventually acquitted and I am not persuaded that it is manifest that he gave that consideration insufficient weight. I would reject ground 2.

9. In my opinion the period during which the applicant was in custody following the escape fell into a different category. The fact that during this period he was also in custody pursuant to the orders made in respect of the other charges does not alter the fact that he was in custody in respect of the charge for which he was eventually sentenced. Further it should be noted that for most of that period he was kept in what was virtually solitary confinement in what is known as N Division in the prison.

10. In most cases a judge who is imposing sentence is obliged to have regard to the fact that the accused has already spent time in custody in respect of the charge for which he is being sentenced although the weight he gives to that consideration and the way in which he takes it into account is a matter of discretion to be exercised in the light of the particular circumstances of each case. In my view this was plainly a case in which the period during which the applicant was in custody for the escape was a matter which ought to have been taken into account but with respect I have concluded from the materials before us that the learned trial judge did not take that period of custody into account when imposing sentence. Counsel for the applicant had referred to both periods of custody in her submissions. In his comments on passing sentence and in his report the trial judge specifically referred to the custody arising out of the applicant's remand on the original charges but made no mention of the custody arising out of the applicant's remand on the charge of escape. Had his Honour made no mention of either period it might be the case that no inference should be drawn but the fact that he specifically referred to one period of custody but made no reference to the other suggests that his Honour paid no regard to that other period. That inference is reinforced by the fact that the trial judge's report was given in the context of a notice of appeal which contained grounds which made specific and separate reference to each period of custody. Further, the conclusion expressed by the learned trial judge in his report that he did not accept that the applicant was entitled to have the term of imprisonment which would otherwise have been appropriate reduced by "the period of time he had spent in custody while on remand" without referring to the changed character of that remand after the escape also suggests that his Honour was not differentiating between the two periods. I am not satisfied that the learned trial judge's general statement that he had taken into account what the applicant's counsel had said is sufficient to rebut the conclusion which I think should be drawn from the above considerations. I would uphold ground 3.

11. I do not find it necessary to consider ground 1 as a separate ground. I am not satisfied that ground 4 has been made out: plainly the applicant's prior conviction for escape was relevant and I am not satisfied that the learned trial judge gave it undue weight.

12. I would grant the application, allow the appeal and set aside the sentence of five months' imprisonment.

13. In exercising my discretion as to what sentence should be imposed in lieu of the sentence imposed in the court below I am conscious of the need to deter other prisoners who might be tempted to escape and of the fact that the applicant had amongst other convictions a prior conviction for escape. However I am also particularly influenced by the following countervailing considerations:

1 the prior conviction for escape was over ten years before

when the applicant was only 18 years of age;

2 this was a totally unplanned crime committed impulsively

which only resulted in the applicant being at large for a

matter of seconds;

3 the applicant has already been in custody for this charge

for some seven to eight weeks during which time he spent

some six weeks in an especially punitive form of custody;

4 in addition to the periods he has spent in custody the

applicant has been subject to the criminal process and had

his liberty curtailed for some ten months.

14. In my view in the circumstances as they now obtain I think that the Court should impose what it regards as an appropriate sentence but that it would not be appropriate to require the applicant to return to custody yet again. Accordingly I think that the Court should order that the applicant be sentenced to a term of two months' imprisonment commencing on 18 January 1993.

UNDERWOOD J For the reasons expressed by the Chief Justice I agree that the application should be granted, the appeal allowed and the order of imprisonment set aside.

2. I agree that the Court should order that the applicant be sentenced to a term of two months' imprisonment commencing on 18 January 1 1993.

WRIGHT J I have had the advantage of reading in draft form the reasons just published by the Chief Justice. I agree with what he has said in concluding that the applicant has demonstrated a specific error by the sentencing judge and for this reason too would uphold ground 3 of the application. In many circumstances the fact that an accused person is remanded in custody on a particular charge whilst he is in custody in respect of other alleged offences, would have little, if any, impact upon a sentencing judge's discretion. Here of course, the applicant was acquitted of the other charges in respect of which he was detained in custody. there was therefore no chance that the period in custody could be notionally credited against an otherwise appropriate sentence unless the sentence chosen for that exercise was the sentence imposed in respect of the charge of escape. As the applicant has been deprived of that opportunity by the way in which the learned sentencing judge approached the matter, think it is appropriate that this Court should grant the application and allow the appeal.

2. Whilst there is not necessarily a direct correlation between the period spent in custody and the period by which an otherwise appropriate sentence should be reduced, I think the solution proposed by the learned Chief Justice is the appropriate one in all of the circumstances of this case, although I have come to this conclusion on the basis of broad considerations of clemency and fairness rather than the four countervailing considerations specifically enumerated by the learned Chief Justice. I am in agreement with the order which the learned Chief Justice proposes.