Steer v R

Evidence and verdict 4It 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." 5His 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." 6His 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. 7The 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.

Sentence application 18By 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. 19As 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. 20His 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." 21In 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." 22In 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." 23The 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. 24The 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." 25The 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. 26A 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. 27It 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. 28I would refuse leave to appeal against sentence. 29DAVIES J: I agree with Hidden J.

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