New South Wales Court of Criminal Appeal CITATION : R v ATTIE [2000] NSWCCA 70 FILE NUMBER(S) : CCA 60652/99 HEARING DATE(S) : 15/03/00 JUDGMENT DATE : 17 March 2000 PARTIES : REGINA v Fred ATTIE JUDGMENT OF : Simpson J at 1; Barr J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1325 LOWER COURT JUDICIAL Payne DCJ OFFICER : COUNSEL : Crown: DC Frearson Applicant: J Nicholson SC SOLICITORS : Crown: SE O'Connor Applicant: TA Murphy LEGISLATION CITED : Correctional Centres Act 1952 s 34 Crimes Act 1900 ss 447A, 558 DECISION : See paragraph 25. IN THE COURT OF CRIMINAL APPEAL 60652/99 SIMPSON J BARR J Friday 17 March 2000 REGINA v FRED ATTIE JUDGMENT SIMPSON J : 1 I agree with the orders proposed by Justice Barr and with his reasons therefor. IN THE COURT OF CRIMINAL APPEAL 60652/99 SIMPSON J BARR J Friday, 17 March 2000 REGINA v Fred ATTIE JUDGMENT 2 BARR J: Fred Attie applies for leave to appeal against a sentence imposed upon him in the District Court on 29 October 1999. The applicant was sentenced to imprisonment for thirteen months, comprising a minimum term of five months and an additional term of eight months. 3 The applicant was a prisoner serving a sentence for robbery. His minimum term was due to expire on 20 February 2000. On 29 June 1998 he and a fellow prisoner were inmates of the John Morony Correctional Centre at Windsor. That was a minimum security institution and the prisoner and his colleague were concerned in the care and maintenance of a wildlife centre there. They were permitted to go into bushland near the correctional institution to collect branches for aviaries. Instead of returning they ran off, stole a car and got away from the area. Somebody recognised the applicant twenty-three days later on 21 July 1998 and he was recaptured. 4 The maximum penalty for the offence of escaping from lawful custody is ten years' imprisonment. Any custodial sentence is to be served cumulatively upon the sentence being served at the time of the escape. S 34 Correctional Centres Act. When a prisoner escapes during the service of a sentence time does not run during the period at large and the additional term is extended by a period equivalent to the time at large. S 447A Crimes Act. Accordingly, the minimum term of the applicant's existing sentence was extended so that it did not expire until 14 March 2000. The sentence appealed from commenced on 15 March 2000. 5 For reasons which were not clear, the co-offender was dealt with in the Local Court. Unfortunately, when imposing sentence the magistrate failed to allow for the extension of the minimum term of the sentence that that offender was serving when he escaped. Although he sentenced the offender to imprisonment for nine months, the practical effect was that he only had to serve about six months. 6 At the time of his escape the applicant was serving the minimum term of three years six months of a sentence for robbery. For reasons which were no fault of his he suffered a lamentable experience in the prison system. It is often said that offenders are sent to prison not for punishment but as punishment, but the treatment of the applicant during his time in prison must have made him wonder about that. 7 The applicant was born on 15 February 1972. He was brought up in Sydney in a good Lebanese family and did well at school. Half way through year 11 he was run down by a car on a pedestrian crossing. He was unconscious for four hours. Two weeks later he was repeatedly beaten with baseball bats. As a result of these experiences he became anxious and nervous and his family were worried about him. They took him to Lebanon in the hope that he would recover. Whilst he was in Lebanon he behaved himself and did not abuse drugs or alcohol. 8 One day, when he was staying in a village with his family, there was a raid by members of the Syrian militia. The villagers, including the applicant and his family, tried to get away but were herded into the village square. There the armed attackers selected the villagers at random and hacked them to death with knives. Seventeen were killed altogether, from children of the age of three months to seventy year old men. The massacre lasted for half an hour and the applicant saw it all. He and others had to clean up the square and dispose of the bodies, which included members of his own family. A baby died in his arms. The applicant's recollection of what he did after that is unclear. He was petrified and remained in the bush among the olive groves for two days, fearful of returning to the village. Eventually his father found him and brought him back to the village and then a few days later back to Australia. 9 The applicant did not recover, fled from his family and lived on the streets. He knew that his parents were looking for him but avoided them. He started getting into trouble. When he was seventeen and a half he was sent to a boys' home for a year. When he was released he returned to live with his friends on the streets. His anxiety was as bad as ever and his experience in witnessing the massacre had a profound effect on him. He developed the risk of killing or harming himself. 10 He started making tentative contacts with his family but his grandfather died and he broke off contact again. He kept on getting into trouble and being sent to institutions. 11 Dr Carne, psychiatrist, saw him at Long Bay on 17 October 1995. He reported that the applicant was repeatedly troubled by nightmares of the massacre, flashbacks in which he felt that it was being re-run before his eyes. He was suffering from high levels of anxiety, difficulty in controlling his bladder and lack of appetite. He had twice attempted to kill himself. 12 In a report dated 8 February 1996 Dr Carne recommended that the applicant have a brain scan and psychometric testing to determine whether the injuries he suffered at the age of seventeen had any permanent effect on his mental functioning, though he thought it more likely that the applicant's symptoms resulted from his witnessing the massacre. 13 During his stay in prison in 1997 the applicant contracted hepatitis C, he believed through a barber's shears. 14 In January 1998 he became aware that his case file had been shown to other prisoners. He also became aware that it contained an entirely false statement about him, namely that in 1994 he was an "informant" at Bathurst gaol and that that put his safety in jeopardy. The sentencing judge accepted that he had never spent more than a day at Bathurst gaol and was not a prison informer. 15 The applicant tried to reassure those who came and spoke to him about the contents of the file, but his protests were futile. He became known as a "dog". 16 Inmates began to assault him. First four of them and after that the applicant could not remember how many. They told him that they were assaulting him because he was a dog and that they had paperwork to prove it. They told him they were going to bash him to get him transferred away from them or that he would be "shivved", that is, stabbed. 17 Other references in his file falsely stated that he was a supplier of drugs. 18 The applicant sought the assistance of the gaol authorities and a uniformed member of the Intelligence Department told him that he would assist him if he would inform on the Lebanese inmates. He refused and received no help. After another bashing he was transferred to Long Bay Prison Hospital. 19 The applicant was in an impossible position. He could apply for segregation and obtain protection against these attacks, but that would only increase the appearance that he was a prison informer. 20 Eventually he managed to be moved to Silverwater and then to Windsor. There the name calling and threats continued. He was slapped around the head and asked to bring drugs into gaol. His wife and child were coming to visit him every week and he became afraid for their safety. He started putting them off with different excuses why they should not visit him. On a day in June, not long before his escape, he received a visit from another inmate who believed that it was at the applicant's instigation that one of his friends or cousins had been put in segregation. He threatened to attack the applicant's wife and child. The applicant told his wife about it as soon as he could and advised her to pack up and move out of Sydney. She did so the next day, taking the child. 21 On the morning of his escape one of the inmates pulled out a gaol-made knife and told him that if he did not bring in drugs that day he would be killed. 22 That was the last straw and he walked out. 23 Apart from a few weeks in the prison hospital, the applicant has been kept in segregation ever since his recapture. In practice that has meant that he has been locked up by himself for twenty-three hours each day. That, it seems to me, is an entirely inappropriate way to treat a human being who suffers from the applicant's psychological illnesses. 24 The sentencing judge referred to the need to impose sentences for escaping from lawful custody sufficient to deter others from escaping and attempting to escape, especially from minimum security institutions, and to the risks that such escapes present to the system of privilege which operates in the Department of Correctional Services. Notwithstanding the criticism made of them on the hearing of this application, these observations, it seems to me, were appropriate and accurate. However, it seems to me that the circumstances which I have summarised place this case so far out of the ordinary that the general need to deter wrongdoers must give way to society's need to have this applicant rehabilitated. His criminality in escaping was significantly mitigated by the circumstances which drove him to do so. I think that in this exceptional case the imposition of a sentence of full-time custody fell outside the proper range of sentencing discretion. 25 I propose that leave to appeal be granted, that the appeal be allowed and that the sentence be quashed. I propose that sentence be deferred under the provisions of s 558 Crimes Act upon the applicant's 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 to do so within that period. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.