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District Court 14 April 2023

R v Barrett; R v DM

[2023] NSWDC 114

Assault & violencePublic order & justice offences
SENTENCING RELEVANT FACTORS ON SENTENCE OFFENDERS JOINT SENTENCE PROCEEDINGS OBJECTIVE SERIOUSNESS AGGRAVATING FACTORS

Citation: R v Barrett; R v DM [2023] NSWDC 114
Court: District Court of New South Wales
Date: 14 April 2023
Judge(s): Coleman SC DCJ

Background

Two inmates at Mid North Coast Correctional Centre, referred to in these remarks as Barrett and DM, were sentenced jointly for offences committed on 19 December 2020. Both were serving existing custodial sentences at the time. Barrett was 23 years old and DM was 20 years old. DM was subject to a suppression order connecting him to separate children's proceedings and is identified only by initials throughout the judgment.

The offences arose from a violent ambush on two corrections officers, CO Fuller and CO Lansdowne, as they entered the pod office. The offenders rushed the officers from behind, armed with improvised sharpened weapons. DM took CO Fuller hostage at knifepoint, pressing the weapon against his neck, repeatedly striking him, and threatening to kill him over a period of approximately 30 minutes while demanding a buprenorphine injection. Barrett attacked CO Lansdowne and attempted to force his way back into the office. CO Fuller sustained serious facial injuries, including temporary loss of vision in one eye.

Each offender pleaded guilty to attempted specially aggravated detention in company with intent to obtain advantage, and to specially aggravated detention in company with intent to obtain advantage, both under the Crimes Act 1900 (NSW). Two counts of intentionally damaging property were also taken into account on a Form 1 (a procedural mechanism allowing additional related charges to be considered at sentencing without recording separate convictions).

  • What was the appropriate objective seriousness of each offence, given the context of a planned attack on corrections officers inside a correctional facility?
  • Whether gratuitous cruelty and substantial harm to the victims constituted aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How the principles of accumulation and totality applied to DM, who was already serving a lengthy sentence for murder committed as a child, with the new sentence to be served consecutively?
  • What weight should be given to each offender's deprived background, mental illness, and history of trauma, having regard to the principles in Bugmy v The Queen?
  • Whether special circumstances existed, justifying a departure from the standard ratio between non-parole period and balance of term?
  • What discount applied for early guilty pleas, and what was the appropriate aggregate sentence for each offender?

Decision

Coleman SC DCJ assessed the offending as objectively serious. The attack was planned, occurred in a corrections environment where officers had limited means of escape, involved the use of improvised weapons, and included sustained threats and physical violence against CO Fuller over an extended period. The court found that both gratuitous cruelty and substantial harm to the victims were established as aggravating features. CO Fuller suffered lasting physical and psychological injury.

The court accepted that both offenders came from severely deprived backgrounds and that each had significant mental health conditions and histories of trauma. Applying the principles from Bugmy, the court held that these matters remained relevant to moral culpability even where the offending was serious, though they did not operate to diminish the need for denunciation and general deterrence. DM's prior record, including the conviction for murder committed as a child, was relevant but could not be used to increase his sentence beyond what was proportionate to the current offences.

In considering totality for DM, the court was required to assess the combined effect of the new sentences running consecutively after his existing sentence, which does not expire until 2037. The court structured the new sentence to commence on the expiry of the existing non-parole period, with adjustments to reflect the principle that the total effective sentence must remain just and proportionate. Barrett's sentence was structured to commence in December 2022, near the time he would otherwise have been released on his existing sentence.

Special circumstances were found for both offenders. The court identified the risk of institutionalisation, each offender's mental health needs, the onerous conditions of their custody, and the complexity arising from the accumulation of sentences as justifying an extended parole period beyond the statutory norm. Each offender received a 25% discount for the utilitarian value of their early guilty pleas.

Orders Made

DM:
- Convicted of attempted specially aggravated detention in company (indicative term 3 years after discount)
- Convicted of specially aggravated detention in company, taking into account Form 1 matters (indicative term 12 years after discount)
- Aggregate sentence: 13 years imprisonment, with a non-parole period of 8 years and 6 months
- Sentence to commence 7 November 2037; first eligible for parole 6 May 2046; sentence expires 6 November 2050

Barrett:
- Convicted of attempted specially aggravated detention in company (indicative term 3 years after discount)
- Convicted of specially aggravated detention in company, taking into account Form 1 matters (indicative term 9 years after discount)
- Aggregate sentence: 10 years imprisonment, with a non-parole period of 6 years and 6 months
- Sentence to commence 21 December 2022; first eligible for parole 20 June 2029; sentence expires 20 December 2032

Key Takeaways

  • The District Court confirmed that a deprived background and mental illness remain relevant to moral culpability under Bugmy even in cases involving serious, planned violence against corrections officers, though they do not automatically reduce the sentence in proportion to their severity.
  • Gratuitous cruelty and substantial harm to victims were each established as statutory aggravating factors on the specific facts, where the offending involved prolonged physical assault, sustained threats of death, and lasting injury to a hostage inside a correctional facility.
  • Where a new sentence is to be served entirely after an existing lengthy sentence, the principles of accumulation and totality require the court to assess whether the combined effect remains just, and may inform findings of special circumstances as well as the structuring of the new sentence.
  • Special circumstances were found on the basis of multiple converging factors: risk of institutionalisation, mental health needs, the onerous nature of each offender's custodial environment, and the complexity of consecutive sentences spanning many years.
  • An early guilty plea attracted a 25% discount for utilitarian value under s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW), applied to the indicative term for each offence before the aggregate sentence was constructed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 195(1A), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v R (No 2) (1988) 164 CLR 465
- Johnson v The Queen [2004] HCA 15
- RH McL v The Queen (2000) 203 CLR 452
- DS v R; DM v R [2022] NSWCCA 156
- Hraichie v R [2022] NSWCCA 155
- DPP v De La Rosa [2010] NSWCCA 194
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- DG v R [2017] NSWCCA 139
- Ibbotson (A Pseudonym) v R [2020] NSWCCA 92
- McCullough v R [2009] NSWCCA 94
- R v MAK [2006] NSWCCA 381
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130