Griffiths v Cowen [2015] NTSC 4

Gumurdul v Reinke [2006] NTSC 27; Mununggurr v The Queen [2006] NTCCA 16; R v Van Hong Pham [2005] NSWCCA 94, referred to

Respondent: North Australian Aboriginal Justice Agency

Griffiths v Cowen [2015] NTSC 4

[1] On 12 December 2013 Graham Michael Cowen was found guilty, following a trial by jury, of having sexual intercourse with a child under the age of 16. He also pleaded guilty to unlawfully supplying the same child with cannabis on the same date.

[2] On 20 December 2013 I sentenced him to a term of imprisonment for a period of three years eight months from 28 November 2013 and fixed a non-parole period of two years six months and 12 days.

[3] By Tuesday 11 March 2014 Mr Cowen was housed within the minimum security section of the Berrimah Correctional Facility and was working in the horticultural section under minimum supervision. Prisoners in that section are checked once an hour.

[4] On that date, Mr Cowen and another inmate, Ronald Kelly, together escaped from lawful custody. They walked through the open gates of the horticultural section to the boundary mesh fence at the corner of Tivendale Road and Tiger Brennan Drive, and climbed over the fence.

[5] Mr Cowen remained at large for 17 days. On the night of 27 March 2014 he was recaptured. Police found him asleep in a hammock in bushland about 34 kilometres west of Katherine off the Victoria Highway. He was arrested without incident and returned to the Berrimah Correctional Facility. Considerable expense was incurred in recapturing him, including the cost of setting up a police road block in the Acacia Hills area, which Mr Cowen evaded.

[6] On 1 May 2014 the respondent pleaded guilty in the Court of Summary Jurisdiction in Darwin to one count of escaping lawful custody following conviction for an offence, contrary to s 112(1)(a) of the Criminal Code. The maximum penalty for this offence is imprisonment for three years. The learned sentencing magistrate convicted the respondent and sentenced him to serve 14 days imprisonment.

[7] On the same date the respondent's co offender, Ronald Kelly, was sentenced by the same magistrate and he was also given a term of 14 days imprisonment.

[8] On 27 May 2014 Christine Featherstone pleaded guilty to harbouring Graham Cowen whilst he was at large pursuant to s 114 of the Criminal Code which carries a maximum of two years imprisonment. She was sentenced by Dr Lowndes CSM on 30 May 2014 to a period of three months imprisonment suspended forthwith with an operational period of 12 months.

[9] The Crown has brought this appeal against the sentence imposed on Mr Cowen, the sole ground of appeal being that the sentence imposed was manifestly inadequate.

Principles relating to appeals against sentence

[10] An appellate court will only interfere if it is shown that the sentencing magistrate was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. It is not necessary that some definite or specific error be identified. The nature of the sentence in the circumstances may be enough to demonstrate that in some way the exercise of the discretion has been unsound. [1]

[11] "Crown appeals enable the courts to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views and to correct sentences which are so disproportionate to the seriousness of the crime as to 'shock the public conscience'. The Crown is entitled to have sentences corrected which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards".[2]

[12] The appellant contends that the sentence in this matter is disproportionate to the seriousness and gravity of the offence as to be manifestly inadequate. I agree.

[13] Counsel for the appellant contends that the following factors demonstrate the objective seriousness of the offending.

• (a) The respondent was serving a significant sentence for a serious matter at the Correctional Centre at the time of his escape.

• (b) There was a breach of trust bestowed upon the respondent by Corrections in the form of low security status and minimal supervision.

• (c) The respondent was in the company of another prisoner which is an aggravating factor pursuant to s 6A of the Sentencing Act, and whilst there is nothing in the facts to demonstrate any pre planning, some discussion must have occurred for them to have a meeting of minds with respect to leaving the prison in company.

• (d) There was at least a consideration by the respondent of the opportune time within the hour between minimal supervision checks to escape.

• (e) The respondent purposely walked through open gates and scaled a chain mesh fence.

• (f) The respondent actively evaded police for an extended period of time, namely 17 days.

• (g) The respondent went to great lengths to avoid detection, evading a road block and hiding in the bush away from the city.

• (h) Police went to considerable effort and incurred considerable expense in re-capturing him.

[14] In support of the contention that the sentence was manifestly inadequate, counsel for the appellant submitted that the sentencing magistrate had placed too much weight on matters personal to the respondent, in particular the submission by defence counsel at the sentencing hearing that Mr Cowen was, at the time, suffering from a variety of different mental disorders such as depression, anxiety and post-traumatic stress disorder. However no evidence of these matters was adduced, and in particular no evidence that any mental illness he may have had was causally linked to the offence or should otherwise be a relevant mitigating factor in sentencing in accordance with principles outlined by this Court in Mununggurr v The Queen.[3]

[15] Counsel for the respondent relied upon Gumurdul v Reinke[4] in which the court noted:

"... [I]t has long been the accepted practice in the criminal jurisdiction to accept and act on factual statements (particularly as to the personal background of an offender) advanced from the bar table, unless they are disputed as to their accuracy or otherwise questioned by the prosecution, or, in the circumstances of the case, there is some positive, apparent reason to doubt their accuracy.

Were it otherwise, the courts would grind to a halt."[5]

[16] This is an undoubtedly sensible and efficient practice. Counsel for the appellant submitted that it did not (or ought not) extend to matters which should properly be the subject of expert evidence, such as the psychiatric history of an accused. However it is not appropriate to lay down rules or guidelines in these matters which must be left to the discretion of the sentencing judicial officer. One might expect that many, if not most times, a prosecutor would object to defence counsel making assertions about the mental health of an accused without being able to establish an evidentiary basis for it, but there may be occasions on which some statement about the accused's mental or physical health is not objected to and the sentencing judicial officer sees no reason not to accept it. In this case the assertions from the bar table about Mr Cowen's alleged mental illnesses were not objected to by the prosecutor and it was not an error of law for the sentencing magistrate to accept and act upon that information.

[17] Nevertheless, I am of the view that the sentence was manifestly inadequate.

[18] The offence of escaping from lawful custody is a serious one which (where the person has been arrested in relation to, or convicted of, a crime) carries a maximum penalty of imprisonment for three years. Where the person has been arrested in relation to, or convicted of, a simple or regulatory offence, the maximum penalty is imprisonment for one year. Mr Cowen had been convicted of several crimes and sentenced to a term of imprisonment for three years and eight months.

[19] Although Mr Cowen did not use violence against either people or property in escaping, his escape was in breach of the trust placed in him by the prison authorities as a low security prisoner. As the New South Wales Court of Criminal Appeal said in R v Van Hong Pham:[6]

"The offence of escape has been regarded by the courts as a serious offence, which potentially jeopardises the future of minimum security facilities and threatens the continued provision to prisoners of beneficial and humanitarian custodial arrangements and opportunities. It may lead to additional restrictions being placed upon their access to external medical treatment, and it may also impede the progress of rehabilitation for offenders with favourable prospects, if conditions of detention are strengthened, in order to prevent escapes.[7]

Where the offender has remained at large for a very lengthy period or has used the opportunity of being at large to commit further offences, ... then the overall objective seriousness of his criminality is potentially increased. The elements of both personal and general deterrence are also important, it being essential that prisoners understand that any offence of escape or attempted escape will result in a meaningful overall increase in their detention".[8]

[20] In this case, Mr Cowen remained at large for 17 days, and although he committed no further offences while at large, he took active steps to avoid detection during that time.

[21] The offence was committed in company and must have involved at least minimal planning to take advantage of the known gaps in the surveillance of the low security prisoners in the horticultural section. Mr Cowen also involved another person in harbouring him during his time at large.

[22] So far as factors personal to Mr Cowen are concerned, he was 37 years old at the time of committing this offence. He had a lengthy criminal history over a period of 25 years including convictions for traffic matters, dishonesty offences, assault, criminal damage, drug offences, a sexual offence and (importantly) two offences of escaping from lawful custody. There has been no significant gap in his offending which is not referrable to his being in prison.

[23] Whilst an offender should not be punished twice for his prior offending, his criminal history is relevant to show whether the offence in question is an uncharacteristic aberration or is indicative of a continuing attitude of disobedience to the law. It is relevant when considering the need for personal deterrence and community protection. [9] Mr Cowen's offence was not an uncharacteristic aberration.

[24] I was referred by counsel to a range of other sentences imposed for offences against s 112 of the Criminal Code. A comparison of the sentence handed down to Mr Cowen with these other sentences demonstrates that Mr Cowen's sentence is clearly out of the established range of sentences for offences of this nature. In none of the other cases did the offender remain at large for anything like the length of time Mr Cowen remained free. They range from a few hours to about a day - slightly more or less. The sentences range from two months to a year. The lowest sentence - a term of imprisonment for two months - was given to a young person who fled on the way back to his cell after being taken to the doctor. No violence was involved and he effectively gave himself up: his dad took him to the police station the next morning. Another offender who fled while being taken to the doctor had been arrested on but not yet convicted of a sexual offence. He pleaded guilty to escaping lawful custody and, on that charge, was sentenced to a term of imprisonment for six months, cumulative upon his sentence for rape. He was free for a few hours or less. The highest sentences of imprisonment for one year (totally cumulative with the sentences given for other offences) were given to a young man who kicked a security officer while escaping from court and a youth who assaulted a guard taking him back to Don Dale, stole his keys and drove away. Each of them was free for a few hours only.

[25] Given both the objective and subjective factors operating in the present case, I am of the view that the sentence of imprisonment for 14 days was manifestly inadequate. It was so disproportionate to the seriousness of the offence as to shock the public conscience. The appeal is allowed.

[1] See Salmon v Chute [1994] NTSC 21; (1994) 94 NTR 1 at 24-25

[2] The Queen v Renwick & Johnston [2013] NTCCA 3 at [3] per Mildren ACJ, Kelly and Blokland JJ

[3] [2006] NTCCA 16 at [18]- [20]

[4] [2006] NTSC 27

[6] [2005] NSWCCA 94

[9] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477