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District Court 28 October 2026

R v Mottram

[2026] NSWDC 391

Assault & violence
CRIME SENTENCING SERVING LENGTHY SENTENCE FOR MURDER SECTION 5 THRESHOLD JUST MET LOW OBJECTIVE SERIOUSNESS OF ASSAULT

Citation: R v Mottram [2026] NSWDC 391
Court: District Court of NSW
Date: 28 October 2026
Judge(s): Newlinds SC DCJ

Background

The offender was an inmate at Clarence Correctional Centre, serving an 18-year sentence for murder with a non-parole period expiring in April 2029. On 11 December 2024, he approached a fellow inmate in the prison kitchen, pretended to hug him, then bit the victim on the left cheek, causing pain. He immediately described the act to bystanders as a joke.

The offender pleaded guilty to one count of common assault under s 61 of the Crimes Act 1900 (NSW), which carries a maximum penalty of two years' imprisonment. He was entitled to a 25% discount on sentence for the early guilty plea.

The central contest at sentencing was not the facts but the appropriate form of sentence: both the Crown and the defence submitted that the s 5 threshold for imprisonment had not been crossed, and that a Community Corrections Order was appropriate. The sentencing judge disagreed with both parties.

Legal Issues

  • Whether the s 5 threshold requiring a court to be satisfied that no other sentence is appropriate before imposing imprisonment had been crossed in the circumstances.
  • Whether a Community Corrections Order could lawfully and meaningfully be served by an offender who was already in custody.
  • What weight general and specific deterrence should carry when an inmate commits a criminal offence in custody, particularly an offence of violence.
  • Whether the sentence should be cumulative on the existing murder sentence or run concurrently.

Decision

Issue 1: Objective seriousness and the s 5 threshold

The court accepted that the offending fell at the very lowest end of objective seriousness for common assault, noting the limited degree of violence, the absence of significant injury, and the likelihood that the act was intended as a misguided joke (at [4], [8], [11]). Despite both parties submitting the s 5 threshold had not been crossed, the court concluded otherwise, finding that a term of imprisonment was the only sentence capable of meaningful effect in the circumstances (at [8], [14]).

Issue 2: Availability and utility of a Community Corrections Order

The court expressed significant doubt about whether a Community Corrections Order could properly be served by a person already in custody, noting that the conditions available under s 89(2) of the Crimes (Sentencing Procedure) Act 1999 would be rendered meaningless for someone already incarcerated (at [10]). Assuming in the offender's favour that such an order was legally available, the court nonetheless rejected it as appropriate punishment, characterising it as effectively a bond requiring good behaviour in a setting where good behaviour is already compulsory (at [10], [11]).

Issue 3: Deterrence and denunciation

The court placed decisive weight on general deterrence, holding that inmates who commit criminal offences in custody must understand there will be a real consequence (at [13]). Although the court acknowledged the offender's difficult background, mental health history, positive conduct in custody, and low assessed risk of reoffending, it found those factors could not displace the need for a sentence that carried genuine punitive and denunciatory effect (at [7], [13], [14], [17]).

Issue 4: Concurrent or consecutive term

The court determined that a concurrent sentence would be no punishment at all and that the term should commence on the date the offender first becomes eligible for parole on his existing murder sentence, that is, 18 April 2029 (at [15]). The effect of s 56 of the Crimes (Sentencing Procedure) Act 1999 supported a consecutive rather than concurrent approach (at [15]).

Orders Made

  • Fixed term of imprisonment of 1 month (after applying the 25% guilty plea discount), commencing 18 April 2029 and expiring 17 May 2029.

Key Takeaways

  • The District Court held that general deterrence can independently justify imposing a term of imprisonment even where the offending is at the lowest end of objective seriousness, when the offender commits a criminal act while already in custody (at [13], [17]).

  • A Community Corrections Order served during an existing custodial sentence was treated by the court as an inadequate sentencing response, on the basis that requiring good behaviour in custody adds nothing to obligations the offender already bears, regardless of whether such an order is technically available (at [11]).

  • Where an offender is already serving a lengthy sentence, a concurrent custodial term was found to be equally inadequate: the court reasoned that a sentence without independent punitive effect cannot satisfy the purposes of deterrence and denunciation (at [13], [15]).

  • Positive custodial conduct, including completing educational courses, maintaining employment within the prison, and low assessed reoffending risk, did not displace the court's conclusion that custody was required, but those matters were expressly flagged for the parole board's consideration when the offender's release is considered in 2029 (at [7], [16], [17]).

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999, a sentence for an offence committed in custody does not automatically run concurrently, and the court exercised its discretion to impose the term consecutively on the existing non-parole period (at [15]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5; 89(2)

Cases
- R v Mottram [2018] NSWSC 873