R v SHEPPERBOTTOM No. SCCRM-00-250 [2001] SASC 31

Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ

1 DOYLE CJ. This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court.

2 The High Court has held that leave should be granted to the prosecution to appeal against sentence only in a "rare and exceptional case": Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 - 300. The Court has affirmed remarks by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 to the effect that an appeal should be allowed to be brought only

"to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

3 In other words, leave should not be granted to the Director simply for the purpose of correcting an error, even a clear error. Leave should be granted only when it is necessary to do so to establish a principle, or to ensure that adequate sentencing standards are maintained. It is not always necessary to correct an error to achieve this purpose.

4 This Court has consistently applied the principles stated by King CJ in R v Osenkowski (1982) 30 SASR 212 at 212 - 213. As King CJ said there, the purpose of a prosecution appeal is "to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

5 The respondent pleaded guilty to escaping from lawful custody. At the time of the escape he was prisoner at Cadell, a low security prison. He simply walked out of the prison.

6 The respondent was serving a sentence of 46 months imprisonment imposed in October 1999. A non-parole period of nine months had been fixed. He had only served about six weeks when he escaped on 27 November 1999. The non-parole period is due to expire on 18 May 2001, after taking account of the six days for which he was at large, and time spent in prison in Victoria, in which state he served a sentence of imprisonment after he escaped.

7 The respondent is about 38 years of age. He has a very bad criminal record, stretching back to 1975. He has breaking offences, vehicle offences, drug offences, dishonesty offences and some offences involving violence. He has served a number of terms of imprisonment.

8 The Judge accepted that for many years the respondent had a "chronic heroin habit", and that much of his offending was linked to that habit. The Judge also accepted significantly, that the respondent had gone to Cadell for a 15 week drug course, and that the respondent was making a real attempt to break his drug habit. This was obviously a significant factor in the Judge's mind.

9 The Judge also accepted the reason given for the escape, as did the Director of Public Prosecutions. In brief, it was this. The respondent has a young daughter, in whose welfare he is genuinely interested. She was in the care of his de facto. The circumstances in which she was were far from satisfactory. The de facto told the respondent that she was going to Queensland, and then possibly to New Zealand. The respondent was concerned for the welfare of his child, if she was taken away by the de facto, and also concerned that he might completely lose contact with his daughter. This had happened to him in the past, in relation to a son.

10 Acting on the spur of the moment, the respondent walked out of the prison. He intended to ensure that his de facto did not simply remove his daughter beyond his reach, and to ensure that she was kept in satisfactory circumstances. He achieved what he set out to do.

11 When found by the police he offered no resistance.

12 The Judge recognised the seriousness of the offence, but regarded the case as exceptional. He referred to the fact that the respondent was genuinely trying to reform. The reason given for the escape was not inconsistent with his wish to reform. The Judge said:

"What I am doing is exceptional and it should not be taken as being the run of the mill decision in this court, but I regard your case as exceptional. I want to give you some opportunity to put into practice what you say you wish to put into practice; that is to get over your habit. I am going to try and encourage you to do so by not giving you a further period for you to remain in custody."

13 The Judge sentenced him to a further term of imprisonment of seven months, to be served at the expiry of the existing sentence. That sentence took account of a 25% discount for the respondent's plea of guilty. The Judge must have worked from a starting point of about nine months. The Judge did not extend the non-parole period. It remained at 18 May 2001.

14 The offence of escaping from custody is a serious offence. It will always call for a deterrent penalty. The fact that Cadell is a low security prison does not diminish the seriousness of the offence. While, in one sense, the escape may seem less serious in those circumstances, the essence of the offence is in the fact of the escape, not the difficulty experienced in making the escape. In any event it might be said that an escape from a prison like Cadell involves a greater breach of trust. Accordingly, this is an offence which calls for a deterrent punishment.

15 This Court has held in a number of decisions that the offence of escaping from lawful custody will usually attract severe punishment: see R v Cox (1996) 66 SASR 152 at 156, and the cases there referred to, and see also R v Forrest (1986) 46 SASR 75 and R v Heaton (1994) 177 LSJS 342. Sentences of about two years' imprisonment are quite common, when there are no particular aggravating circumstances. There have been higher and lower sentences, of course: see, for example, Marshall v R (Unreported, Court of Criminal Appeal, 22 September 1995, Judgment No S5282).

16 It should be noted that when Knight and Forrest were decided, the maximum sentence for this offence was imprisonment for five years. The maximum sentence was increased to imprisonment for seven years by the Statute Law Revision Act 1989.

17 It should also be borne in mind, as King CJ said in Forrest at 77, that "[T]here is far less scope for a parole component in such a sentence than is the case with sentences for other crimes". In other words, a person who escapes from custody will usually have difficulty in arguing that he or she should be permitted to serve a significant proportion of the sentence on parole.

18 Having said that, a sentencing court must not overlook the fact that these decisions do no more than establish a pattern or standard to be considered in the light of all of the circumstances of the case. A sentencing standard established by decisions of this Court can never be precise, nor can it be applied automatically or like the rule of thumb.

19 The standard established by these cases was not drawn to the attention of the sentencing Judge. Counsel for the respondent, in the course of his submissions, made a passing reference to R v Turner & Clarke (1992) 65 A Crim R 178, but only with reference to the need for a deterrent sentence. In the course of the sentencing submissions the sentencing Judge remarked that "one would normally sentence someone to somewhere between six and twelve months for escaping from custody". This indicates that the sentencing Judge had in mind an inappropriately low standard, and that was not corrected by counsel before him.

20 I return to the sentence that the sentencing Judge imposed. It is an unusually low sentence. The Judge's starting point of about 9 months was well below what I would regard as an appropriate starting point, before considering mitigating factors. An appropriate starting point would be a sentence of about 18 months or two years' imprisonment.

21 Is the present case, nevertheless, one in which it was appropriate to impose such a low sentence?

22 The Judge obviously considered that unusual leniency was warranted. To my mind, the reason for the escape is not of great significance. It is not uncommon in these cases for a pressing family reason to be given for the escape. The Judge rightly focussed on the fact that there were real signs that the respondent was making a genuine attempt to change his life, and on the fact that the circumstances of the escape did not erode the claim that he was on the road to reform. In the case of a man like the respondent, with a bad record, this is something of particular significance. The sentencing Judge was satisfied that there was a real chance that, finally, the respondent was about to change.

23 However, even when allowance is made for all those factors, I consider that the sentence is so low as to be erroneous. The offence remains a serious one, and the need for deterrence must still be taken into account. In my opinion, a sentence of less than twelve months' imprisonment could not be justified even with the benefit of a discount for a plea of guilty. Even that can be regarded as unusually low.

24 I turn to the question of the non-parole period. The Judge did not extend the non-parole period. Section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 provides that when a court sentences a person to imprisonment, the Court must:

"(b) If the person is subject to an existing non-parole period - review the non-parole period and extend it by such a period as the Court thinks fit...".

25 In light of that provision, was it open to the Judge to decline to extend the non-parole period?

26 Heal v Police (1999) 75 SASR 331, [1999] SASC 374 is a case in which, in effect, a Magistrate had reduced an existing non-parole period when sentencing a person to imprisonment, that person being a person subject to an existing non-parole period. It was held that the Magistrate did not have power to do so. In the course of so deciding, Duggan J said at [11], referring to s 32(1)(b):

"The Court is required to extend the non-parole period under this provision. It is not permitted to allow the existing non-parole period to remain as it is; nor is it permitted to reduce the period."

Section 58(4) of the Criminal Law (Sentencing) Act ("the sentencing Act") permits a court to reduce a non-parole period, but only in circumstances not relevant here. Lander J did not deal expressly with this point, but his remarks may well reflect the same view as that expressed by Duggan J. He said (at [39]):

"The section does not allow for a reduction in the non-parole period and that is because it may be assumed that the further conviction or convictions, which have caused the need to reconsider the existing non-parole period, could only serve to increase the previous non-parole period set."

Millhouse J agreed with the reasons of Duggan J and Lander J.

27 In Holland v SA Police (1994) 178 LSJS 310, Perry J considered the power of a court under s 32(1)(b) to decline to set a non-parole period, and to extinguish an existing non-parole period. He held that a court had power to do neither of these. His remarks (at 311 and 312) reflect the view that there is an obligation to extend the non-parole period, but once again the obligation to extend the non-parole period was not the issue before the Court.

28 In Bromley v Police (1999) 202 LSJS 91, [1999] SASC 106, Lander J disagreed with one aspect of the views of Perry J. He said that under s 32(1)(b) a court had power to decline to fix a non-parole period: at 95. It is not necessary for me to enter into this controversy. If a person is serving a sentence of imprisonment, has an existing non-parole period, and is sentenced to a further sentence of imprisonment, a decision under s 32(5)(c) of the Sentencing Act to refuse to fix a non-parole period would have the paradoxical effect, it seems, that the prisoner would be entitled to be released at the expiry of the existing non-parole period. In other words, the result arrived at by the sentencing Judge in the present case would be achieved. It may be that Lander J contemplated that in that situation the sentencing court is entitled to terminate the existing non-parole period, and then refuse to fix a non-parole period, producing a situation in which the prisoner no longer has a non-parole period.

29 I consider that the Court is not bound by the views expressed in Heal and in Holland. In neither case was the precise issue now under consideration before the Court. Nevertheless, there is good reason to adhere to views expressed by other members of the Court, unless I am satisfied that those views are not correct.

30 The language used in s 32(1)(b) does suggest that the Court must extend an existing non-parole period. Had Parliament intended otherwise, it could have provided that the Court should review the non-parole period and extend it, if it sees fit, by such a period as the Court thinks fit. But I do not consider that the terms used exclude that meaning. A power to extend a non-parole period by such a period as the Court thinks fit could cover a situation in which the Court thinks that no period of extension is appropriate. As well, one might have expected Parliament to intend the Court to be able to do whatever the interests of justice and general sentencing principles might require in the particular case. If Parliament so intended it would empower the Court to decide, in a particular case, that the non-parole period should not be extended. I do not find it difficult to envisage cases in which that might be an appropriate decision.

31 Although I can see arguments either way, the arguments in favour of treating s 32(1)(b) as permitting the Court to decline to extend a non-parole period are not sufficiently strong to persuade me that the Court should depart from previously expressed views to the contrary. Accordingly, I would follow those views. It follows that I do not accept the view expressed by Lander J in Bromley.

32 It follows from this that the sentencing Judge erred in failing to extend the non-parole period. His error is an error of law. He failed to impose the sentence required by law, in failing to extend the non-parole period.

33 It follows that in my opinion the head sentence was manifestly inadequate, and the sentence is one not authorised by law.

34 Assuming that the Court is obliged to extend the non-parole period, I consider that in the circumstances of this case, an extension of six months would be appropriate. That relatively short extension of the non-parole period reflects the circumstances to which the Judge adverted, and the element of double jeopardy that the respondent faces in having the sentence increased now.

35 A circumstance of particular significance is the choice that Mr Shepperbottom has made to try to end his drug habit and to remain drug free in the future. One of the purposes of punishment is to provide an opportunity for reform and change. It is appropriate to encourage Mr Shepperbottom to pursue his choice.

36 The fact that the Judge has erred does not lead to the conclusion that the Court should grant leave to appeal to the Director. I return to the matters which I dealt with at the beginning of these reasons.

37 It is not necessary to grant leave in order to establish an adequate standard of punishment. Previous decisions have done that. All that has happened is that the Judge has departed from those decisions. Nor, in my opinion, could the sentence be described as one which is so disproportionate to the seriousness of the crime as to shock the public conscience.

38 Is a grant of leave to appeal appropriate with a view to maintaining adequate standards of punishment? It cannot be the case that every decision which reflects a failure to observe an adequate standard of punishment calls for a grant of leave. If that were so, the grant of leave would be made whenever error is found. It is difficult to be precise about this, but it seems to me that a grant of leave on this basis is called for when the error is a significant one, or if there is reason to think that appropriate standards are in some way in danger. An example of the latter would be a decision found to be part of a course of decisions in a particular court. This Court, on appeal, might take the view that leave should be granted to enable an inappropriate sentencing trend to be reversed. As to that, there is no reason to think that sentences generally for this offence are not observing adequate standards.

39 To my mind, the case for the grant of leave in this case turns in part on whether the departure from what are adequate standards is so significant as to require correction, even though this an isolated case. When deciding this point, it is necessary also to consider the position of the respondent. The restrictive approach taken to prosecution appeals rests on the view that ordinarily a person who has been sentenced by a court should not, at the instance of the State, have to face the prospect of a reconsideration of that sentence with a view to it being increased.

40 In my opinion the departure from the required sentencing standard is significant, but of itself not, perhaps, enough to call for the grant of leave to appeal.

41 The fact that the sentence is not one authorised by law is sufficient, in my opinion, to support a grant of leave to appeal, and to cause the Court to intervene.

42 The Court should do so even though the Prosecutor failed to bring to the Judge's attention that the sentencing standard the Judge contemplated was too low, or that the Judge was obliged to extend the non-parole period. In some cases a failure by the Prosecutor to bring a relevant matter to the Judge's attention will be a reason to refuse to grant leave to appeal. In the present case that failure is outweighed by the need to maintain adequate standards, and by the fact that the sentence is not one authorised by law.

43 For those reasons I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the District Court, substitute a sentence of 12 months imprisonment, to be served cumulatively upon the existing sentence of 46 months imprisonment, and extend the existing non-parole by six months, so that it will (on the information available), expire on 18 November 2001.

44 DUGGAN J. I would grant leave to the Director of Public Prosecutions to appeal against the sentence imposed in the District Court and I would allow the appeal. I agree with the orders proposed by the learned Chief Justice and I am in substantial agreement with his reasons. I wish to add the following comments on the question as to whether a court is empowered to refuse to set a non-parole period in circumstances such as those which exist in the present case.

45 In so far as it is relevant, s 32 of the Criminal Law (Sentencing) Act, 1988 provides as follows:

"(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must -

(a) if the person is not subject to an existing non-parole period - fix a non-parole period; or

(b) if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or

(c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period - fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.

(2) Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.

(5) The above provisions are subject to the following qualifications:

(a) a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year;

(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of -

(i) the gravity of the offence or the circumstances surrounding the offence; or

(iii) the behaviour of the person during any previous period of release on parole or conditional release; or

46 In a case where the court decides not to set a non-parole period, the prisoner will be required to serve the head sentence in prison. The power in s 32(5)(c) is "a power to do something adverse to the person sentenced to imprisonment" (R v Ashdown (1994) A Crim R 63 at 68) and the criteria set out in s 32(5)(c)(i), (ii) and (iii) reflect this consideration. I do not think it was ever intended that the power could be used in order to extend leniency to a prisoner being sentenced to imprisonment on a subsequent occasion by confining the non-parole period to that which was set in relation to a previous head sentence.

47 It is my view that ss 32(1)(b) and 32(5)(c) deal with two quite different situations. Section 32(1)(b) addresses the situation where there is an existing non-parole period; s 32(5)(c) empowers a court not to impose a non-parole period, a power which has no relevance to the case of a person who is already subject to an existing non-parole period.

48 The appellant was subject to a non-parole period at the time he was sentenced for the present offence. The non-parole period had been fixed in relation to the head sentence imposed for the previous offence. When the sentence of imprisonment for seven months was imposed for the present offence, it was ordered to be served cumulatively upon the previous sentence. This resulted in a head sentence of imprisonment for four years and five months. The non-parole period of nine months remained in existence although a portion of it had been served.

49 When a person is sentenced to a period of imprisonment to be served cumulatively upon an existing sentence, a non-parole period is not imposed in respect of the individual sentences. At the end of the day only one non-parole period can be imposed. Accordingly, in the present case it was not a matter of deciding whether to impose a non-parole period in respect of the additional sentence of imprisonment for seven months. As I have pointed out, the existing non-parole period, until altered, was the non-parole period for whatever head sentence the appellant was currently serving.

50 Section 32(1)(c) was included in the legislation to address the situation where, as here, the prisoner is subject to an existing non-parole period. There is no power given to the court to cancel an existing non-parole period and commence afresh. The legislation has chosen to deal with cases in which a person is sentenced to a term of imprisonment in addition to an existing term and an existing non-parole period by requiring the court to extend the existing non-parole period. In such cases, it cannot be said in any relevant sense that the court can decline to fix a non-parole period. A non-parole period is already in existence and the Act requires that it be extended.

51 The learned sentencing judge was of the view that he had a discretion not to extend the existing non-parole period. In my respectful view he was in error in so deciding.