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Court of Criminal Appeal 17 March 2000

R v ATTIE

[2000] NSWCCA 70

Public order & justice offences

Citation: R v Attie [2000] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 17 March 2000
Judge(s): Simpson J, Barr J

Background

The applicant was a prisoner serving a sentence for robbery at John Morony Correctional Centre, a minimum security institution at Windsor. On 29 June 1998, he walked away from the facility while permitted to collect branches for aviaries in nearby bushland. He and a fellow prisoner stole a car and fled the area. He was recaptured twenty-three days later.

The applicant's time in custody had been marked by severe and ongoing hardship. A false entry in his prison file labelled him a police informer and drug supplier, which exposed him to repeated bashings from other inmates. He also suffered from significant psychological illness stemming from witnessing a massacre in Lebanon as a teenager. On the morning of his escape, a fellow inmate produced a homemade knife and threatened to kill him that day if he did not bring drugs into the gaol.

The District Court sentenced the applicant to thirteen months' imprisonment, comprising a minimum term of five months and an additional term of eight months, to be served cumulatively upon his existing sentence. He applied to the Court of Criminal Appeal for leave to appeal against that sentence.

  • Whether the sentencing judge gave sufficient weight to the extraordinary mitigating circumstances surrounding the escape, including the immediate threat to the applicant's life and his severe psychological history.
  • Whether the imposition of a full-time custodial sentence fell outside the proper range of sentencing discretion in the circumstances.
  • The interplay between general deterrence for escapes from minimum security institutions and the need for rehabilitation in an exceptional case.

Decision

Barr J, with Simpson J agreeing, accepted that the sentencing judge's observations about deterrence were appropriate and accurate. Escapes from minimum security facilities do undermine the system of privilege within the Department of Correctional Services, and courts ordinarily need to impose sentences sufficient to deter such conduct.

However, Barr J found that the cumulative circumstances of this case placed it so far outside the ordinary range that the general need for deterrence had to yield to the need for the applicant's rehabilitation. Those circumstances included the false labelling of the applicant as an informer and drug supplier, the resulting sustained violence against him, the threat to his life on the morning of the escape, threats made against his wife and child, his untreated post-traumatic symptoms arising from witnessing a massacre, and his continued placement in twenty-three-hour daily solitary confinement following recapture.

The court found the applicant's criminality was significantly mitigated by what drove him to escape. In these exceptional circumstances, a full-time custodial sentence fell outside the proper exercise of sentencing discretion, and the appeal was allowed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court quashed.
  • Sentence deferred under section 558 of the Crimes Act 1900 upon the applicant entering into a recognisance without security in the sum of $1,000 to be of good behaviour for three years, and to come up for sentence if called upon within that period.

Key Takeaways

  • Where mitigating circumstances are sufficiently exceptional, the general sentencing principle of deterrence for escape from custody can give way to the goal of rehabilitation.
  • The Court of Criminal Appeal confirmed that observations about the importance of deterring escapes from minimum security institutions remain appropriate, but they are not determinative in every case.
  • A finding that full-time custody fell outside the proper range of sentencing discretion did not require the sentencing judge to have made a specific identifiable error; it was enough that the result was outside the proper range given the totality of the circumstances.
  • False information recorded in a prisoner's file, which exposed him to sustained violence and threats from other inmates, was treated as a significant and weighty mitigating factor.
  • Under section 447A of the Crimes Act 1900, time spent at large after an escape does not count toward the sentence being served, and the additional term is extended by the equivalent period.

Legislation and Cases Referenced

Legislation:
- Correctional Centres Act 1952 (NSW), s 34 (custodial sentence for escape to be served cumulatively)
- Crimes Act 1900 (NSW), s 447A (time at large does not run toward sentence; additional term extended accordingly)
- Crimes Act 1900 (NSW), s 558 (power to defer sentence upon entry into a recognisance)