Citation: Steer v R [2014] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 23 December 2014
Judges: Hoeben CJ at CL, Hidden J (with whom Hoeben CJ at CL and Davies J agreed), Davies J
Background
The applicant was an inmate at Lithgow Correctional Centre serving a lengthy aggregate sentence for murder and armed robbery, with a non-parole period not expiring until February 2029. On 4 March 2009, he was observed on CCTV entering the prison's Industries Area but was never captured on footage leaving it. When a muster later that afternoon revealed he was missing, a search eventually located him in the roof cavity of the Industries Area, where he had been concealed in complete darkness for at least five and a quarter hours.
Following a District Court trial by judge alone, the applicant was convicted of attempting to escape from lawful custody under s 310D(a) of the Crimes Act 1900 and sentenced to a fixed term of 13 months' imprisonment, to commence at the expiration of his current non-parole period. He sought leave to appeal both conviction and sentence, well outside the ordinary appeal timeframe. The delay was attributed to difficulties obtaining material for a Legal Aid grant and was not considered the applicant's fault.
The Court of Criminal Appeal agreed to hear argument on the merits but noted that leave out of time would be refused if no error was established.
Legal Issues
- Whether the applicant's conduct (concealing himself in the roof cavity) was sufficiently proximate to the completed offence of escape to constitute a criminal attempt, rather than merely preparatory conduct.
- Whether the trial judge erred in finding, to the requisite standard, that the applicant's actions went beyond mere preparation.
- Whether the sentence of 13 months' fixed term imprisonment was manifestly excessive in all the circumstances.
Decision
Conviction appeal
Hidden J confirmed the applicable legal test: to constitute an attempt, an accused must intend each element of the relevant crime and, in pursuance of that intention, do acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. This formulation, drawn from R v Onuorah [2009] NSWCCA 238, was not disputed by the applicant.
The applicant's challenge was a factual one: that the trial judge's finding of sufficient proximity was not open on the evidence. Hidden J rejected that argument. The trial judge had specifically found that the roof of the Industries Area afforded potential access to vehicles (including semi-trailers) that regularly entered and exited the centre, and that secreting himself there for more than five hours in pitch darkness went beyond mere preparation. The Court of Criminal Appeal held that finding was open and disclosed no error of law.
The Court also noted that the applicant had not challenged the trial judge's finding of the requisite intent, nor the rejection of alternative innocent explanations for his conduct.
Sentence appeal
Hidden J acknowledged the sentence raised genuine difficulty. The applicant's counsel characterised the escape attempt as "amateurish, optimistic and devoid of any prospect of success," placing it at the low end of objective gravity. A further complicating factor was that the 13-month fixed term would not commence until years hence, further delaying parole eligibility on the existing lengthy sentence.
Nonetheless, Hidden J was not persuaded the sentence fell outside the legitimate bounds of the sentencing judge's discretion. The sentence sat only marginally above the range the applicant's own counsel had conceded at first instance. The Court also noted, with appropriate caution, that material before the sentencing judge disclosed prior alleged escape-related conduct in 1996 and 2006, though the applicant had never been convicted of any offence arising from those allegations.
Orders Made
• Leave to appeal against sentence refused
Key Takeaways
- An accused commits a criminal attempt where, with the requisite intent, they perform acts that are not merely preparatory but are sufficiently proximate to the intended completion of the offence. Concealing oneself in a prison roof cavity for over five hours, in circumstances where that location afforded potential access to exit vehicles, satisfied that test.
- The Court of Criminal Appeal confirmed the formulation in R v Onuorah [2009] NSWCCA 238: the proximity question turns on whether the accused intended each element of the relevant crime and performed acts in pursuance of that intention that went beyond mere preparation.
- Impossibility or significant practical difficulty in completing the offence does not preclude a finding of attempt. The trial judge expressly found it did not matter that escape would have required considerable difficulty or luck.
- In dismissing the sentence appeal, the Court recognised that a sentence commencing well into the future (at the expiration of a long non-parole period) carries particular weight in assessing proportionality, but held that consideration alone did not render the sentence manifestly excessive.
- Prior uncharged conduct of a similar nature may be placed before a sentencing court as relevant background material, though the court must treat such material with caution where the accused was never convicted of any related offence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 310D(a) (attempting to escape from lawful custody)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Onuorah [2009] NSWCCA 238, 76 NSWLR 1
- Director of Public Prosecutions v Stonehouse [1978] AC 55
- R v Pham [2005] NSWCCA 94
- Reg v Jones (1990) 91 Cr App R 351
- Reg v Campbell (1991) 93 Cr App R 350