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

1. HOEBEN CJ at CL: I agree with Hidden J.

1. 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.

1. 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

1. 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 industry. On the other side of the building the area is set aside for inmates to work on the repair of car bumper bars.

Between those two areas there is a raised area for officers to observe the inmates' activities.

The Centre (at least insofar as the bumper bar area was concerned) had equipment capable to (sic) cutting metal.

Between 8.30am and 9am on a daily basis inmates are released from their cells. On 4 March 2009 Mr Steer was an inmate in cell unit 3/2.

Later in the morning of 4 March Mr Steer was observed by CCTV camera to enter the Industries Area. Although the entry to and exit from the Industries Area is monitored by continuous CCTV camera, there is no film footage of Mr Steer leaving that area.

The Industries Area was closed down between 1.30 and 2pm.

At approximately 3pm there was a muster, (in effect a head count) for unit 3. After this muster it was determined that Mr Steer was missing.

Steps were then taken within the Lithgow Correctional Centre for a thorough search to be conducted for Mr Steer.

In the course of that search the CCTV footage of the correctional centre was reviewed and in particular it was noted that there was CCTV footage showing Mr Steer entering but not leaving the Industries Area. He was last seen at approximately 1.35pm.

Two correctional officers (Mr Bradford and Mr Handley) searched the Industries Area later that evening. They went to an electrical switchboard cupboard, opened the door and saw a gap within the cupboard into the ceiling. Whilst in that position they heard a noise coming from the ceiling directly above the cupboard. These officers then communicated with the Western Security Unit which is a unit within the Department of Corrective Services especially dedicated to provide security for correctional centres.

Two officers from this unit (Mr Crisafi and Mr Dean) by means of a ladder then entered the roof cavity of the Industrial Area through the hole in the ceiling discovered by Mr Bradford and Mr Handley. They did this at approximately 8.45pm.

The ceiling area was not illuminated and consequently was in pitch darkness. Mr Crisafi and Mr Dean had one torch with them.

Upon entering the roof cavity these two officers discovered Mr Steer. Mr Steer must have been there from at least 3.30pm to 8.45pm but more likely was there from the time that the Industries Area closed at about 1.30pm.

Assuming that he was in the roof from 3.30pm, he was therefore in that dark place for at least five-and-one-quarter hours. Mr Steer was arrested and handcuffed and subsequently charged with the present offence.

He was interviewed by Mr Horan, a senior officer. Before being interviewed Mr Horan gave Mr Steer a caution. Mr Steer did not agree to be interviewed and exercised his right to silence."

1. His Honour described the relevant area of the prison as follows:

"The Industries Area is one of a number of buildings in the Lithgow Correctional Centre. The Centre is surrounded by two perimeter fences. The outer most perimeter fence is a high concrete wall possibly ten metres high on top of which is a roll.

The next perimeter fence is a mason steel fence also somewhere between six to ten metres high on top of which is razor wire.

Between the mason steel fence and the concrete wall is an area known as the 'sterile area'. Entry into that area alerts sensors and cameras as does the touching of the mason steel fence.

Obviously enough, vehicular access can be gained to the centre. In particular, vehicular access can be gained to the Industries Area of the centre. That vehicular access includes large semi-trailers and other such vehicles.

Access to the Industries Area is on a daily basis or at most every two days.

Obviously these vehicles are a potential method of escape and therefore there is high security and searches for both entry and exits to the Centre.

However no system is fool-proof and human error is not able to be excluded.

Furthermore a degree of desperation may also cause an inmate to take risks which prima facie seem a long-shot.

The roof of the Industries Area was a long-shot but an available possible means of access to these vehicles I have referred to."

1. His Honour then went on to make the finding of fact which is central to this application:

"To constitute 'an attempt', an accused must take steps towards the commission of the crime - not merely preparatory. In this context it does not matter that it would be ultimately impossible to commit the crime or it could only be achieved with a great deal of difficulty and/or luck.

In the present case, the entry into the roof cavity of the Industries Area and remaining there for at least five-and-a-quarter hours in pitch dark goes beyond preparation and is a step preparatory in my view to escape and I am satisfied of that matter beyond reasonable doubt."

His Honour also found that the applicant had the requisite intent, which is not challenged in this court.

1. The applicant did not give evidence at the trial. The case advanced for him was that there were a number of alternative explanations for his behaviour consistent with his innocence. His Honour found that none of those explanations was reasonably available on the evidence. In this court no issue is taken with that finding either.

Conviction application

1. In written submissions Mr Wendler addressed two grounds of appeal: firstly, that the trial judge erred in law in holding that the evidence of the applicant concealing himself in the roof cavity was more than merely preparatory without first finding whether his conduct was sufficiently proximate to the commission of the complete offence; and, secondly, that his Honour erred in finding to the requisite standard that the evidence of the applicant hiding himself in the roof cavity for a period in excess of five hours constituted an attempt to escape from lawful custody.

1. However, as refined in oral argument, Mr Wendler's contention was that his Honour's factual finding that the applicant's conduct was more than merely preparatory, and was proximate to the realisation of the offence, was not open. He did not take issue with his Honour's statement of the relevant law in the passage which I have cited above. That statement is consistent with that of Hodgson JA, with whom the other members of the court agreed, in R v Onuorah [2009] NSWCCA 238, 76 NSWLR 1. After a review of authority in relation to the common law notion of attempt, Hodgson JA said at [30] (10):

"... the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime."

1. Mr Wendler relied upon the exposition of the law of attempt by Lord Diplock in Director of Public Prosecutions v Stonehouse [1978] A.C. 55 at 68:

"The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence ... are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. As it was put in the locus classicus Reg. v. Eagleton (1855) Dears.C.C. 515, 538:

'The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ...'

In other words the offender must have crossed the Rubicon and burnt his boats."

1. Applying that test in the present case, Mr Wendler argued, it was not open to his Honour to find conduct of the applicant sufficiently proximate to the intended offence to amount to an attempt. As he put it in written submissions:

"The applicant submits that concealing himself in a high security prison such as Lithgow Prison, without more, was no more than a mere preparatory act remote and beyond the proximity of the completed crime of escape lawful custody. The place the applicant chose to hide was in the middle of the prison complex - a complex surrounded by two very high electronically monitored walls.

...

The applicant's concealment in the Industrial Area of the prison was not sufficiently proximate to the offence charged and thus did not go beyond mere preparation for an escape from the prison. ... the applicant's conduct had not progressed to the point where it could be said that there was nothing left for the applicant to do other than avoid being found hiding by the prison authorities."

1. Mr Wendler sought to call in aid a decision of the English Court of Appeal in Reg. v. Campbell (1991) 93 Cr.App.R. 350, in which the court quashed a conviction of attempted robbery. Put shortly, that appellant had been lurking in the vicinity of a sub-post office for some time. He had been riding a motor cycle, and was wearing a crash helmet and gloves. As he walked towards the post office he was arrested. He was searched, and an imitation gun, sunglasses and a threatening note were found on him. He admitted that he had been reconnoitring the post office and had intended to use the note to frighten an employee behind the counter. However, he maintained that he had decided not to carry out the robbery and had been arrested before he could return to his motor cycle to leave. The court held that his acts were indicative of mere preparation and that, as he had not entered the place where the offence might have been carried out, it was unlikely that he could be said to have performed an act properly characterised as an attempt.

1. By way of contrast, Mr Wendler referred to a decision of the same court in Reg. v Jones (1990) 91 Cr.App.R. 351, in which the court held that there was sufficient evidence to be left to the jury on a charge of attempted murder. In that case the appellant had had an affair with a woman for about 2 years, but she had terminated it and entered into a relationship with another man. The appellant disguised himself, sought out that man, who had just dropped his daughter at school, got into his car and pointed a loaded sawn-off shotgun at him. Fortunately, the man managed to disarm him.

1. Mr Wendler pointed out that in the latter case it was obvious that the acts of the appellant were sufficiently proximate to the offence of murder to amount to an attempt, whereas in the case of Campbell, despite a number of steps properly seen as preparatory to the offence of robbery, it was held that that proximity was not established.

1. Campbell turned on its own facts, and I do not find it of assistance in resolving the present application. The various expressions of the test in the authorities are necessarily in general terms. What is at issue here is their application to the facts of this case. The applicant entered the Industrial Area and managed to gain access to the roof cavity. There he remained, in darkness, for a lengthy period, missing the afternoon muster in the process. What he then proposed to do to get out of the prison complex is anyone's guess. It may be, as his Honour postulated, that he hoped to secrete himself in a vehicle which was leaving the Centre.

1. No doubt, it would have been difficult to achieve his purpose, but that is not to the point. It was clearly open to his Honour to conclude, adopting the language from Reg. v. Eagleton cited in D.P.P. v. Stonehouse, that the steps he did take were more than "remotely leading towards the commission of the offence", but were "immediately connected with it." Accordingly, the challenge to the conviction is not made out.

1. I would refuse leave to appeal against conviction.

Sentence application

1. By s 310D of the Crimes Act, the offence of attempting to escape from lawful custody carries a maximum sentence of imprisonment for 10 years. His Honour held that the effect of s 57 of the Crimes (Sentencing Procedure) Act 1999 was that the sentence he imposed must be directed to be served cumulatively upon the non-parole period of the sentence imposed upon the offender by Whealy J. His Honour took the view that the offence of attempting to escape from lawful custody was "an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre" within the meaning of subs (1) of that section. Mr Wendler did not take issue with that approach.

1. As I have said, his Honour imposed a fixed term of imprisonment of 13 months, to commence at the expiration of the applicant's non-parole period, that is, on 23 February 2029. Mr Wendler submitted that that sentence is manifestly excessive.

1. His Honour described the offence of attempting to escape from lawful custody as "extremely serious", referring to the maximum penalty prescribed for it. However, he accepted a submission made on behalf of the applicant that the steps taken by him, although adequate to establish the offence charged, "had not gone significantly towards completion of the enterprise." In terms of an attempt, his Honour characterised it as "at the low end of the scale."

1. In arriving at the sentence of 13 months, his Honour noted that the fact that he was imposing a fixed term required some reduction of what would otherwise have been the head sentence which, in his view, would have been 18 months. Mr Wendler did not appear for the applicant in the District Court. Counsel then appearing, in submissions on sentence, postulated an 18 month sentence but argued that a fixed term "equal to the length of a non-parole period" his Honour might have imposed would be appropriate. His submission was that, in all the circumstances, the fixed term should be "something under 12 months and in the vicinity of 6 to 12 months."

1. In submissions in this court, both Mr Wendler and the Crown prosecutor referred to R v Pham [2005] NSWCCA 94, a Crown appeal against a sentence for escaping from lawful custody. It is unnecessary to examine the facts of that case or the outcome. What is relevant for present purposes are the following statements of principle by Wood CJ at CL (with whom Hislop and Johnson JJ agreed) at [16]-[18].

"[16] 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.

[17] These considerations were noted, for example, in R v Thomson NSWCCA 21 May 1986 where, in a case decided before enactment of the Sentencing Act 1989, Street CJ observed that the ordinary sentence for an unremarkable escape 'could be expected to approximate two years' (at a time when the maximum penalty for the offence was imprisonment for 7 years); and also in R v Mathieson [2002] NSWCCA 97 at [27].

[18] 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, as was the case here, then the overall objective seriousness of his criminality is potentially increased: R v Plummer [2000] NSWCCA 363 at [34] and R v Josef Regina [2000] NSWCCA 100. 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: R v Butler [2000] NSWCCA 525 at [18] and R v Smith [2004] NSWCCA 69. That this is so is also demonstrated by the fact that the maximum penalty prescribed for the offence has been increased from imprisonment for 7 years to imprisonment for 10 years."

1. The Chief Judge's observations about the threat posed by escapes to the benefit of minimum security facilities is not germane to the present case. Lithgow Correctional Centre is a maximum security prison. Otherwise, the Crown prosecutor relied upon that passage to demonstrate the seriousness with which the courts view offences of escaping from lawful custody and attempts to do so. Mr Wendler relied upon it, particularly by contrast to the type of case referred to by Wood CJ at CL at [18], to emphasise his Honour's finding that the applicant's offence was at the low end of the scale of objective gravity. Mr Wendler also pointed out that the sentence for the attempted escape will commence years hence, at the expiration of a very long non-parole period. A sentence which would delay the applicant's eligibility for parole by more than a year, he submitted, is clearly more than was called for in all the circumstances.

1. The Crown prosecutor submitted that the sentence was within the proper bounds of his Honour's discretion, noting that it was only marginally outside the range of sentence suggested by the applicant's counsel. Mr Wendler argued that the concession of that range was "over generous." In written submissions he described the offence as "amateurish, optimistic and devoid of any prospect of success."

1. The issue of sentence in this case has troubled me, and I can see the force in Mr Wendler's submissions. Nevertheless, I am not persuaded that the sentence passed by his Honour should be disturbed.

1. A matter to which his Honour did not refer in his remarks should be noted. Among the material before him were the remarks on sentence of Whealy J for the offences of murder and armed robbery, together with some Corrective Services Department material before his Honour in those proceedings. That material alleged an escape attempt in 1996. It also disclosed that in June 2006, while on remand at Parklea Correctional Centre, the applicant was suspected of involvement in an escape plot. This led to his being placed on a segregation order. He appealed against that order to the Serious Offenders Review Council, but it was confirmed. This material is relevant for present purposes, but it should be assessed with some caution. In the proceedings before Whealy J the applicant denied involvement in an escape plan in 2006, and he was never convicted of any offence arising from either allegation.

1. It is true, as the Crown prosecutor noted, that the sentence in the present case is just outside the range submitted by the applicant's counsel. That is not necessarily decisive, but it is a significant matter. It was open to his Honour to have dealt with the applicant more leniently for the reasons articulated by Mr Wendler, but I am not satisfied that the sentence which was passed was beyond the bounds of the legitimate exercise of his Honour's discretion.

1. I would refuse leave to appeal against sentence.

1. DAVIES J: I agree with Hidden J.

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Decision last updated: 23 December 2014