Benson, R v [1998] EWCA Crim 3187 (9th November, 1998)

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COLIN JOSEPH BENSON, R v. [1998] EWCA Crim 3187 (9th November, 1998)

MR JUSTICE ALLIOTT: On 22nd July 1998, at the Crown Court at Preston, before His Honour Judge Turner, the appellant pleaded guilty to escaping from lawful custody and was sentenced to 15 months' imprisonment consecutive to his existing sentence. He appeals against sentence by leave of the Single Judge.

On 9th November 1995, in the Crown Court at Preston, the appellant had been sentenced to 6 years' imprisonment for possession of Class A drugs with intent to supply. On 11th July 1997 he was transferred to Sudbury Prison which is an open prison. At about 5.30 am on 20th July 1997 he was found to be missing from his room.

On the morning of 14th April 1998 police officers engaged in observations at an address in Oldham. He saw the appellant go to a motorcar parked in the driveway of the house. The appellant was arrested before he could drive off.

When interviewed the appellant said he had been moved from prison to prison as a security matter; and the reasons he had been moved had been leaked to other inmates in the prison. His life had been threatened as a result and he decided to abscond from prison as he feared for his own safety. The governors of the prison he had been in could confirm the details of his movements and why he had been moved.

The appellant was born on 16th November 1965. His only significant conviction was the one already narrated. Before the sentencing judge was a letter to the Parole Board, dated 24th May 1998, which gives insight into his frame of mind when the defendant walked out of Her Majesty's Prison at Sudbury.

We understand from Mr Woodall, who appears for the appellant this morning that he has been moved some 24 times in all. We suspect most of those would be as described by the then governor of Latchmoor House in his letter to this Court dated 14th October 1998.

"...escape from an open prison requires not the kind of planning or methods that are required to escape from a more closed form of prison... the other aggravating feature is that you were then at large for almost 9 months...

It appears - and I sentence you on this basis - that you had, for whatever reasons, some personal concern for your safety in prison whichever prison you found yourself in... But, nevertheless, any offence of escape always is likely to be followed by a custodial sentence...

Not only by way of punishment for the offence but also by way of whatever the law can do to seek to deter others from following the same path...

In all the circumstances of this case, the appropriate sentence is one of 15 months' imprisonment to be served consecutively to the sentence you are currently serving."

Mr Woodall has helpfully drawn our attention to the case of R v Coughtrey [1997] 2 Cr App R(S) 269. During the judgment of the Court, McCowan LJ, at page 271 said this:

"If the offender is serving a determinate sentence, a consecutive sentence should almost invariably be imposed. Obviously if he is serving a life sentence the sentence for breaking prison will have to be served concurrently. But the length of it should be the same as it would have been had he been serving a determinate sentence.

The factors to be taken into account in determining the length of sentence will include (i) the nature and the circumstances of the crime for which he was in prison; (ii) his conduct while in prison; (iii) the methods employed in effecting escape and in particular, whether any violence was involved and whether there was extensive planning and outside assistance; (iv) whether he surrendered himself and how soon and (v) a plea of guilty."

Mr Whitehall endeavoured to persuade this Court that, in all the circumstances of this case, it was not necessary to order a term to be served consecutively. In the light of that authority, this Court finds it quite impossible to accede to that submission.

However, in the alternative, Mr Woodall contended that the sentence of 15 months consecutive to the then term of 6 years was, in all the circumstances, manifestly excessive. This Court is prepared to accede to that submission.

We have in mind the extreme hardship of this appellant's time spent in custody. We have before us the information that was before the learned judge, updated to today's date. That is a matter that has to be reflected in the term passed.

We, on the other hand, note that whilst it may well be that this appellant had good reason for going unlawfully at large, he did not thereafter go to a solicitor to seek advice or surrender, but remained unlawfully at large for a period of 9 months, including a time spent abroad, before he was spotted by the police and re-arrested, as we have narrated.

Balancing all the factors in this case, as best we may, we have come to the conclusion that it is appropriate to quash the term of 15 months' imprisonment and substitute therefor a term of 3 months' imprisonment. That will be served consecutively to the sentence of 6 years. To that extent this appeal is allowed.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Benson, R v [1998] EWCA Crim 3187 (9th November, 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/3187.html Cite as: [1998] EWCA Crim 3187

England and Wales Court of Appeal (Criminal Division) Decisions

COLIN JOSEPH BENSON, R v. [1998] EWCA Crim 3187 (9th November, 1998)