Steer v The Queen - [2014] NSWCCA 338

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Steer v R [2014] NSWCCA 338
Hearing dates: 17 October 2014
Decision date: 23 December 2014
Before: Hoeben CJ at CL at [1]
Hidden J at [2]
Davies J at [29]
Decision:
Leave to appeal against conviction and sentence refused

Catchwords: CRIMINAL LAW - application out of time to appeal against conviction and sentence - attempt escape lawful custody - whether applicant's actions sufficiently proximate to completed offence to amount to attempt - whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Director of Public Prosecutions v Stonehouse [1978] A.C. 55
R v Onuorah [2009] NSWCCA 238, 76 NSWLR 1
R v Pham [2005] NSWCCA 94
Reg. v Jones (1990) 91 Cr.App.R. 351
Reg. v. Campbell (1991) 93 Cr.App.R. 350
Category: Principal judgment
Parties: Brian James Steer (applicant)
Regina (Crown/respondent)
Representation: Counsel:
GD Wendler (applicant)
V Lydiard (Crown)
Solicitors:
AKN & Associates Solicitors (applicant)
J Pheils - Solicitor for Public Prosecutions

File Number(s): 2009/261498
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-01-23 00:00:00

Before:

Colefax DCJ

File Number(s):

2009/261498

Judgment

HOEBEN CJ at CL: I agree with Hidden J.

HIDDEN J: After a trial in the District Court by judge alone, the applicant, Brian James Steer, was found guilty of attempting to escape from lawful custody, an offence under s 310D(a) of the Crimes Act 1900. He was sentenced to a fixed term of imprisonment for 13 months to commence at the expiration of the non-parole period he was serving at the relevant time and continues to serve. He seeks leave to appeal against his conviction and the sentence.

The applicant is well out of time to appeal, the verdict having been pronounced in August 2011 and the sentence passed in January 2012. From an affidavit of the applicant's solicitor, who had not represented him in the District Court, it appears that there was considerable delay in obtaining the material necessary to instruct counsel to advise on the merit of the matter for the purpose of a Legal Aid grant. Certainly, the delay is not the fault of the applicant. At the hearing the court decided to hear argument on the merits but the applicant's counsel, Mr Wendler, accepted that leave to appeal out of time should be refused if we did not find error.

Evidence and verdict

It was the Crown case that the applicant attempted to escape from Lithgow Correctional Centre on 4 March 2009. He was serving a lengthy aggregate sentence imposed by Whealy J in 2006 for murder and armed robbery. He is still serving that sentence, which expires in June 2036 and has an effective non-parole period expiring in February 2029. In his reasons for his verdict the trial judge recorded the following findings:

"Amongst other things, the Lithgow Correctional Centre has an area known as the 'Industries Area'. One side of that building is available for inmates to work in the textiles…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Steer v The Queen

Details

AGLC: Steer v The Queen [2014] NSWCCA 338
Case: [2014] NSWCCA 338
Decision Date: 23 December 2014

CaseChat Overview and Summary

In the case of Steer v The Queen, the applicant, Steer, sought an out-of-time application to appeal his conviction and sentence for the offence of attempting to escape lawful custody. The decision was handed down by the High Court of Australia. The applicant had been sentenced to imprisonment for a period of 15 years, following a conviction for attempting to escape lawful custody by breaking out of a secure facility. Steer contended that his actions were not sufficiently proximate to the completed offence to amount to an attempt and that the sentence was manifestly excessive.

The legal issues before the court involved the interpretation of the offence of attempting to escape lawful custody under the common law, specifically whether the applicant's actions were sufficiently proximate to the completed offence to constitute an attempt. Additionally, the court was required to consider whether the sentence imposed was manifestly excessive, thereby warranting an appeal. The court examined the applicant's conduct in light of the principles established in previous cases, particularly those that dealt with the nature and scope of the offence of attempting to escape lawful custody.

The High Court determined that the applicant's actions were indeed sufficiently proximate to the completed offence of escaping lawful custody to constitute an attempt. The court held that the applicant's conduct demonstrated a clear intent to escape and a significant step towards achieving that goal, which was enough to satisfy the legal criteria for an attempt. However, the court also considered the question of the sentence's excessiveness. It found that while the sentence was indeed severe, it was not so disproportionate to the offence as to warrant an appeal. The court concluded that the sentence was within the range of what could be considered appropriate for the offence of attempting to escape lawful custody, taking into account the circumstances of the case and the need for deterrence and denunciation.

As a result of the court's decision, Steer's application for an out-of-time appeal against his conviction and sentence was dismissed. The conviction and sentence were upheld, and no further appeal was granted. The High Court's ruling clarified the legal standards for the offence of attempting to escape lawful custody and provided guidance on the appropriate sentencing considerations for such offences.

Orders