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District Court 20 September 2023

R v Cuthbert

[2023] NSWDC 594

Assault & violence
CRIMINAL SENTENCE PARITY ROLE OF THIS OFFENDER JOINT CRIMINAL ENTERPRISE SUBJECTIVE MATTERS.

Citation: R v Cuthbert [2023] NSWDC 594
Court: District Court of New South Wales
Date: 20 September 2023
Judge: King SC DCJ

Background

The offender, a prison inmate at Mid North Coast Correctional Centre, was sentenced for causing grievous bodily harm with intent, arising from a violent group attack on a fellow inmate on 25 September 2021. The incident was captured on CCTV cameras in the common areas of the pod where both men were housed.

The attack began when the offender initiated a confrontation with the victim outside his cell. What started as a one-on-one altercation quickly escalated into a coordinated group assault involving four co-offenders. The victim, who was rendered defenceless and ultimately unconscious, suffered multiple facial fractures, lacerations, and other serious injuries requiring surgery.

The offender pleaded guilty and was committed for sentence from the Kempsey Local Court. Four co-offenders were also involved in the incident, making parity with their sentences a significant consideration.

  • What sentence was appropriate for this offender's role within the joint criminal enterprise, having regard to the objective seriousness of the offence?
  • What parity considerations arose from the sentences imposed on the co-offenders?
  • How should the offender's subjective circumstances, including background, prior criminal history, and time already spent in custody, affect the sentence?
  • What discount applied as a result of the early guilty plea?

Decision

The court found that the offender was "the central cause or flashpoint of the incident" and that he had engaged in a concerted attack of considerable ferocity on a victim who was rendered completely defenceless. The CCTV footage showed the offender delivering at least 16 rapid consecutive punches to the victim's head while the victim was already on the ground being stomped on by another co-offender, and then pushing away a fellow inmate who attempted to intervene before delivering three further punches.

His Honour assessed the offender's role as among the most serious of the group participants. The offender had initiated the confrontation, dragged the victim into his cell during the early stages, attempted to retrieve a sandwich press as a weapon, chased the victim along the upper landing, threw the sandwich press at him, and then participated with full force in the climactic ground-level assault.

The court applied the principles from relevant authorities on joint criminal enterprise and considered parity with co-offenders, calibrating the sentence to reflect this offender's particularly active and instigating role. A 25 per cent discount was applied to reflect the utilitarian value of the guilty plea entered at an early stage.

Subjective matters, including the offender's background and the principles from Bugmy v The Queen regarding the relevance of social disadvantage and deprivation to moral culpability, were taken into account, though these did not substantially reduce the sentence given the gravity of the offending.

Orders Made

  • The offender was sentenced to a term of imprisonment, with a non-parole period expiring on 26 June 2025 and a total sentence expiring on 26 December 2026.
  • The non-parole period was set at approximately 65% of the total term, reflecting totality and the continuous period already served in custody.
  • The backup charge of affray (Sequence 1) was withdrawn.

Key Takeaways

  • The District Court confirmed that, within a joint criminal enterprise involving multiple attackers, the sentence must be individually calibrated to reflect the particular offender's role, including whether that person initiated the confrontation and the degree of violence they personally inflicted.
  • A 25 per cent sentencing discount applied to the guilty plea entered at committal, consistent with standard practice under the Crimes (Sentencing Procedure) Act 1999.
  • Parity with co-offenders is a relevant consideration, but does not override the need to reflect the individual offender's culpability where their role was more serious or more central than that of others.
  • Under the principles in Bugmy v The Queen, evidence of social disadvantage and deprivation remains relevant to moral culpability at sentencing, even for serious custodial violence, though it does not operate as a determinative mitigating factor.
  • CCTV footage of a prison attack, capturing the sequence and ferocity of events in detail, was treated as significant objective evidence going directly to the assessment of seriousness and each participant's role.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b) (cause grievous bodily harm with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Jeremiah (2016) NSWCCA 241
- R v Fyffe (2002) NSWSC 751