R v Barrett; R v DM

[2023] NSWDC 114

District Court

New South Wales

Medium Neutral Citation:

R v Barrett; R v DM [2023] NSWDC 114

Hearing dates:

6 April 2023

Decision date:

14 April 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

In regard to the offender Noel Barrett:

(1) The offender is sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months, commencing on 21 December 2022.

(2) The first date the offender will be eligible for release to parole is 20 June 2029.

(3) The sentence expires on 20 December 2032.

(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount):

(i) 3 years for the offence of attempted specially aggravated detain in company.

(ii) 9 years for the offence of specially aggravated detain in company.

In regard to the offender DM:

(1) The offender is sentenced to an aggregate term of imprisonment of 13 years, with a non-parole period of 8 years and 6 months, commencing on 7 November 2037.

(2) The first date the offender will be eligible for release to parole is 6 May 2046.

(3) The sentence expires on 6 November 2050.

(4) Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates that the sentences that would have been imposed for each offence are (following the application of the 25% discount):

(i) 3 years for the offence of attempted specially aggravated detain in company.

(ii) 12 years for the offence of specially aggravated detain in company.

Catchwords:

SENTENCING – Relevant factors on sentence – Co-offenders – Joint sentence proceedings - Specially aggravated detain in company with intent to obtain advantage – Objective seriousness – Aggravating factors - Gratuitous cruelty – Substantial harm, injury, loss or damage - Conditions of custody – Moral culpability - Deprived upbringing – Mental illness – Special circumstances

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518

Bugmy v The Queen (2013) 249 CLR 571

DG v R [2017] NSWCCA 139

DPP v De La Rosa [2010] NSWCCA 194

DS v R; DM v R [2022] NSWCCA 156

Hraichie v R [2022] NSWCCA 155

Ibbotson (A Pseudonym) v R [2020] NSWCCA 92

Johnson v The Queen [2004] HCA 15

McCullough v R [2009] NSWCCA 94

Muldrock v The Queen (2011) 244 CLR 120

R v MAK [2006] NSWCCA 381

R v Newell [2004] NSWCCA 183

R v Speechley [2012] NSWCCA 130

RH McL v The Queen (2000) 203 CLR 452

Veen v R (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Noel Barrett (Offender)
DM (Offender)

Representation:

Counsel:
Mr J Stanhope (Crown)
Mr P Johnson (Noel Barrett)
Ms C Akthar (DM)

Solicitors:
ODPP (Crown)
Lamond Legal (Noel Barrett)
Legal Aid NSW (DM)

File Number(s):

2021/00032131 & 2021/00032169

Publication restriction:

By operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the name of the offender anonymised in these reasons as DM must not be published or broadcast in a way which connects that person with the criminal proceedings for which he is serving a sentence of imprisonment expiring on 6 April 2044.

JUDGMENT

1. The offenders, DM and Noel Barrett, are each to be sentenced today for the following two offences to which they have pleaded guilty:

1. The offence of attempted specially aggravated detain in company with intent to obtain advantage, an offence under ss 86(3) and 344A(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’).

2. The offence of specially aggravated detain in company with intent to obtain advantage, contrary to s 86(3) of the Crimes Act.

2. The maximum penalty for each of those offences is 25 years imprisonment, with no standard non-parole period. I note that for the attempt offence, s 344A(1) of the Crimes Act has the effect that the penalty for the attempt to detain offence is the same as the penalty for the detain offence.

3. In sentencing for the detain offence, each offender asks the Court to take into account two matters on the Form 1, being two counts of intentionally damage property, contrary to s 195(1A) of the Crimes Act.

4. Each of the offenders pleaded guilty at an early stage and are entitled to a 25% discount on their sentences to reflect the utilitarian value of the early plea, pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’).

5. As will become apparent, the offender DM is currently serving a significant sentence for murder and other offences committed when he was a child. It is necessary to make reference to that matter in these sentencing remarks. By operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), his name must not be published in a way that connects him with those proceedings. In the interests of ensuring easier compliance with that section, I will refer to him at all times in these remarks as DM.

Facts

6. There are agreed facts for these sentences. It is necessary to describe in length the detail of the factual matters which indicate the seriousness of the offending. This includes details, sometimes graphic, of the brutal attacks on the victims, particularly CO Fuller. To summarise the factual matters and omitting parts of the events as they unfolded may have led to a misconception as to the seriousness and persistent nature of the offending.

7. In December 2020, both offenders were convicted inmates being held at A Pod in the Mid North Coast Correctional Centre.

8. The offender Barrett was 23 years of age and was serving a sentence with an earliest release date of 11 June 2022. The offender DM was 20 years of age and was serving a sentence with an earliest release date of 6 November 2037.

9. A Pod consists of approximately 30 cells. The cells are on two levels, the upper level being accessed by stairs. At the centre of the lower level is a common area with tables and chairs. Adjacent to the common area on the bottom level is an office utilised by corrections officers to supervise the pod.

10. The office contains equipment, including communications devices and computer terminals. The office has one door that allows access to staff from outside the pod, and another door that opens into the common area of the pod. There are large windows that give a clear view of the pod area. The office is kept locked, and inmates do not have access.

11. Generally, the pod is supervised by at least two Corrective Services officers operating from within the pod office. The officers do not leave the office and enter the pod unless there is a specific reason to do so and, in that event, they are required to enter the pod together.

18 December 2020 – Offenders Seek Buprenorphine

12. On 18 December 2020, Barrett approached the pod office window and asked CO Lansdowne when he would be going to the clinic at the gaol to receive a buprenorphine injection. DM was behind Barrett at the time. CO Lansdowne said he would make inquiries, and later told Barrett that the Justice Health nurse on duty was not available but he would ask again later.

13. Later that day, CO Lansdowne heard DM talking about Justice Health and the injections and saying: “If this don’t get sorted, I’ll fuck up”. At that time, neither offender had been assessed for buprenorphine treatment.

Events of 19 December 2020

14. On 19 December 2020, the two officers rostered to the A pod from 8:00am were:

1. Correctional Officer Nathan Fuller, who had worked at Mid North Coast Correctional Centre for 4 years; and

2. Correctional Officer Matthew Lansdowne, who had over 3 years’ experience at the Mid North Coast Correctional Centre.

15. At about 12:03pm, CO Lansdowne and CO Fuller were entering the pod office from the common area. CO Fuller unlocked the office door. He walked in, with CO Lansdowne following him. As Lansdowne walked through the office door, DM and Barrett ran from the cell directly opposite the door and attacked the officers from behind, pushing them both forcefully further into the office. One of the offenders yelled “You c**** are dead!” or “You c**** are gonna die!”.

16. Lansdowne felt repeated blows to the back of his head. He was struck with some object, and the blows resulted in two puncture wounds to the back of his head or the top of his neck.

17. DM grabbed CO Fuller from behind, placing his arm around the officer’s neck and propelling him further into the office. DM was pressing a gaol made weapon against the right side of CO Fuller’s neck, piercing his skin. The weapon was white metal, about 20cm long, 2cm wide, and sharpened to a point.

18. CO Fuller ended up on the ground of the office with DM over the top of him. Meanwhile, Barrett was punching and lunging at Lansdowne while holding a light-coloured, sharp weapon in his right fist. Barrett struck Lansdowne several times to his forehead, the left side of the head and the right side of the jaw.

19. While defending himself against Barrett’s assault, CO Lansdowne managed to press his duress button on his belt and call for assistance. CO Lansdowne pushed Barrett back outside the office door and closed the door but could not lock it as he had to use both hands and all his strength to prevent Barrett from re-entering. Barrett kept bashing against the door trying to get back in, yelling “You’re fucking dead, dog”.

20. After about a minute, CO Taylor came into the office via a separate door and assisted CO Lansdowne to lock the door, leaving Barrett outside the office in the pod common area. Barrett then joined the other inmates who were watching the events inside the office. He was seen secreting some object inside his shorts.

21. Meanwhile DM had placed CO Fuller in a kneeling position, with his shirt wrapped around his neck, and was pressing the gaol weapon into his neck. Fuller attempted to grab the weapon a few times, but DM punched him to the right side of his head and face. CO Lansdowne stepped towards DM, who screamed: “I’ll fucking stab him. I’ll fucking kill him. Get the fuck out. Get the fuck out c***”. Fearing for Fuller’s life, CO Lansdowne and CO Taylor left the office through the staff access door.

22. As other corrections staff came into the area of the pod, CO Lansdowne called out to Barrett to get on the ground, but Barrett ran into the yard with the other inmates.

23. Having heard DM’s threats to kill him and being familiar with inmate records, CO Fuller believed DM was capable of carrying out such threats. CO Fuller had also lost effective vision in one eye as a result of the blows to his face from DM. CO Fuller did not offer any further resistance to the offenders from the point in time that CO Lansdowne left the office.

24. At about 12:05pm, CO McMurray began speaking with DM through the windows of the office trying to calm him down. His body worn camera recorded the events.

25. At the outset, CO McMurray asked DM why he was behaving in this manner, to which DM replied: “I want my bupe injection”. He threatened to stab and kill Fuller if it was not provided. CO McMurray told DM he would need time, and DM replied: “I’ve got plenty of time”. DM struck Fuller in the side of his head and right eye with his fist while threatening to cut his throat, stab him, and kill him. He told CO McMurray he was not joking, and that McMurray had 10 minutes, otherwise DM would kill Fuller.

26. DM directed Fuller to get on his knees and put his hands behind his back. He stood behind Fuller, holding him firmly and pressing the weapon into his neck. He kept asking Fuller: “do you want to die? I’ll stick it into you right now”. Fuller was in an uncomfortable position, but every time he moved he was struck by DM, who kept threatening to cut his throat.

27. At about 12:10pm, Senior CO Jones entered the pod and tried to negotiate with DM. DM again demanded the injections, threatening to “stick it right through his fucking throat” as he pulled Fuller’s head up and pressed the weapon to his neck. He punched Fuller to the right side of the face, saying “I’ll end him…I’ve killed before and I’ll kill again. I don’t give a fuck.”

28. At about 12:11pm, Barrett approached SCO Jones, telling him that he could help disarm DM. SCO Jones allowed Barrett to re-enter the pod area and to approach the office door. Barrett said to DM: “Calm down brother, let me come in there”. DM demanded that Barrett be let into the office, at the same time punching Fuller to the head. Fearing for Fuller’s life, SCO Jones unlocked the office door and let Barrett in.

29. Barrett went straight to join DM. Both offenders began laughing at the officers and calling out to them, demanding injections. SCO Jones attempted to enter the office, however Barrett armed himself with a squash racket and raised it as if he was going to hit SCO Jones with it. DM threatened to kill Fuller if the door wasn’t closed. SCO Jones shut the door.

30. Barrett took a skipping rope and tied CO Fuller’s hands behind his back. DM and Barrett continued to demand injections of buprenorphine, making threats to kill Fuller unless their demands were met. DM also continued to assault Fuller by punching and kneeing him. DM threatened to “smash” CO Fuller with a fire extinguisher.

31. SCO Jones left to speak to the nurses while CO McMurray continued to try to speak to the offenders. DM looked at Fuller and said: “Look at me cocksucker. Do you want to die?”. He said to McMurray: “I will end him. I have nothing to lose…I will cut his fucking throat”, holding the weapon to his throat. He smashed a box at the counter, right next to Fuller’s head. At the same time, Barrett was demanding injections.

32. At about 12:18pm, CO Myers approached the office to assist, thinking he had a good rapport with DM. At this stage, Fuller was on his knees and had bruising and swelling to the right side of his face, with his right eye closing. DM yelled out to Myers that he’s been pushed too far and that he would “stick it in his [Fuller’s] head unless I get the injections”. He punched Fuller while holding the weapon. He had a continuous hold on Fuller’s head and neck, letting go of him for the first time around 12:30pm. Myers tried talking DM down.

33. During the incidents, DM and Barrett were concerned about armed officers coming into the office. The offenders caused damage to the office equipment in order to obtain items to barricade the doors, including at 12:44pm when DM pulled the door off a cupboard. DM also picked up a cricket bat from time to time and waved it around near Fuller’s head, smashing it against items. They snapped Lansdowne’s car key. These events gave rise to the matters on the Form 1 of intentionally damage property.

34. At around 12:37pm, DM said: “I’ll make him drink Fincol too so you don’t think I’m fucking around”. Fincol is a chemical agent that is generally diluted with water for use as a disinfectant. A 4L container of undiluted Fincol was stored in the office in a locked cabinet. The cabinet had been broken open.

35. DM grabbed the 4L bottle of Fincol, which was about one third full, and poured the contents over CO Fuller, laughing as he did so. He then put a cardboard box on Fuller’s head. Barrett told Fuller he was lucky they didn’t make him drink the Fincol. DM laughed and said, “yeah make him drink it.” When the Fincol was poured over CO Fuller, it caused him painful chemical burns.

36. DM asked Fuller if he wanted a drink of water. He gave Barrett the bottle to give it to Fuller. Barrett took the box from Fuller’s head and gave him a little to drink. DM said, “that’s enough”, and put the box back over his head. A few minutes later, they poured a little water on Fuller’s face and then put the box back on his head.

37. DM and Barrett continued to demand buprenorphine injections, as well as cigarettes, negotiators and media access. DM threatened to stab Fuller in the neck. At one point, DM took the box off Fuller’s head, held a weapon to his neck, and threatened and then spat on Fuller. Soon after, Barrett said “this mother fucker’s going to die…”.

38. DM appeared to be upset about the presence of other officers outside the office. He took the box off CO Fuller’s head and sprayed him with insect repellent, threatening to set him alight. CO Fuller believed that DM would carry out this threat to set him alight.

39. At about 12:49pm, Barrett told the other corrections officers outside the office that Fuller would die unless the buprenorphine injections were provided. He was told inquiries were being made with Justice Health about the buprenorphine program, but the officers didn’t know how long it would take. Barrett demanded a nurse attend the office. DM said: “Fuck it. I’m gonna kill him. I’m just gonna stab him”. He walked up to Fuller and struck him, saying that he wasn’t getting out for 35 years and he had nothing to lose.

40. At 12:52pm, DM said: “If we don’t get what we want, I’m gonna burn him…I’ll start a fire”, and sprayed Fuller with the insect repellent again. He reminded the corrections officer outside the office about a different siege situation at Mid North Coast Correctional Centre earlier in the year and said that the offender at that time was successful in getting the injections.

41. DM pulled a door off an electrical cabinet and removed a large metal hinge with a locking bolt. He struck it at or near Fuller once and gave it to Barrett, who kept it as a weapon for the duration of the incident. The agreed facts contain photos depicting CO Fuller restrained and with the box over his head.

42. DM demonstrated how sharp his own weapon was by poking Fuller in the neck with it and showing the marks on Fuller’s neck.

43. At about 12:55pm, Fuller asked for water as his eyes were burning. DM yelled at him, “look at me; look at me”, and tipped a little water over his face, saying “that’s all”. Barrett asked if he wanted more water. Fuller said “thank you” a few times and that he can’t open his eyes, and DM told him: “stop saying thank you, that’s not gonna help ya”. He then placed the box back over his head.

44. Senior CO Moogan, a trained negotiator, arrived at about 12:57pm.

45. Both offenders told SCO Moogan they were demanding buprenorphine injections, access to the media and cigarettes. DM told Moogan he had been waiting 3 months for buprenorphine; Barrett said he had been told in previous days he would get the injections. Both threatened to kill Fuller if they didn’t get what they wanted. DM kicked Fuller to reinforce the claim.

46. For the next few minutes, SCO Moogan tried to talk with CO Fuller; however, DM punched and kicked Fuller, and yelled at SCO Moogan: “Don’t talk to him. Talk to me. I’m the one with the blade here. Do you want me to kill him?”.

47. At around 1pm, DM took a tool from Fuller’s belt, known as the 911 tool, removed the box from his head, put the 911 tool next to his ear and said: “Do you want me to cut his fucking ear off to show you how serious I am?”. He cut the back of Fuller’s shirt open with the 911 tool, before placing the box back on his head.

48. At about 1:02pm, Barrett slapped the door hinge across his own hand while standing behind Fuller, then banged it on an object near him. He said: “You have 10 seconds or I’ll fuckin’ knock him in the head”. DM threatened to stab Fuller in the neck so he would bleed out. DM walked up to Fuller and forced Fuller’s head to the side exposing his neck. He held a sharp object against CO Fuller’s neck. He jabbed CO Fuller in the neck a few times but did not break the skin.

49. Barrett told SCO Moogan to hurry up, and Moogan left the area to make inquiries with other staff. DM and Barrett then tried to open another section of the office, banging at the door and looking for a key. SCO Moogan returned and informed DM and Barrett that he had asked for them to be assessed for injections. DM punched Fuller, then punched the window, and told Moogan to tell the nurse he would stab Fuller in the throat unless the injections were given that day. Moogan left the area again.

15. Barrett then wanted to log onto the computer, and told CO Fuller to stand up and type his password in. DM said, “nah, he’s not standing up, I’ll stab him”. Despite that, DM directed Fuller to stand up. CO Fuller said, “I’m trying to, I can’t”. DM helped Fuller stand up and held him from behind with a blade to his neck, while Fuller told Barrett the password to type into the computer. When the password didn’t work, DM slapped CO Fuller.

16. SCO Moogan returned at 1:11pm and told DM and Barrett that he was still working on what they had asked for. DM told Barrett, “they’re fucking us around”. He said to Moogan that he would kill Fuller if their demands weren’t met and he kicked Fuller twice. They both kept referring to a hostage siege incident earlier that year at Mid North Coast Correctional Centre, saying that person was given the injections he had demanded.

17. At 1:25pm to 1:29pm, after DM again threatened to harm CO Fuller, another officer told DM he would not get what he wanted if he stabbed Fuller. DM said, “Let’s find out” and stood over Fuller again, poking Fuller repeatedly with the weapon to his back. He firstly told the officer that he had stabbed Fuller, then told him he had only pricked Fuller. He directed SCO Moogan to get out to attend to their demands. SCO Moogan left the area for about 10 minutes.

18. After Moogan returned, DM said to CO Fuller: “tell the negotiator to get the bupe injections down here”. Fuller said to SCO Moogan: “Do whatever you can to help me out here mate…get the bupe injections”.

19. CO Fuller said to DM, “I don’t want to die”. DM said: “I’m not promising nothing coz if I don’t get what I want I’ll stab you in the neck…You got kids?...You got a missus? Do you want to go home to your missus?...Then tell them to hurry up with the bupe injections”.

20. At about 1:55pm, DM asked Fuller if he wanted a drink and to wash his eyes out. He stood over Fuller holding a cricket bat. SCO Moogan asked about a lump over Fuller’s eye, and Barrett said: “Who gives a fuck? There’ll be another one if we don’t get what we want in a minute”.

21. A few minutes later, DM used a fluorescent light from the office area to strike Fuller 5 times over the head. Each time, DM said “get the injections”. The tube broke and pieces of glass and white powder from the tube stuck into Fuller’s hair and head. Barrett yelled: “Hurry the fuck up, we want the injections you motherfucker”. DM told Fuller to again tell Moogan to hurry up and bring their buprenorphine injections. CO Fuller did so.

22. Moogan came back and said he doesn’t have answers yet. DM said: “Look at this, he’s bleeding there. Do you want me to hurt him more?”. Barrett yelled in agreement. Fuller made eye contact with Moogan who said to him, “are you alright mate?”. This aggravated DM who stood up and screamed: “Don’t fucking talk to him dickhead. Fuck off”.

23. At about 2:04pm, Barrett gave CO Fuller another drink of water. DM said, “look I’m being nice to this c*** for you.” He paced across the office and said, “I just want to hurt this c***”. Jones said, “that’s the last thing we want you to do mate, we are here to help you”. DM said, “well it’s not helping me. I still want to smash him in the face with the blade”.

24. Over the next half hour, they attempted to use the radio to contact the other gaols and to log onto the computer in the office, demanding passwords from CO Fuller whilst DM was threatening to hurt him.

25. At around 2:20pm, DM saw officers with gas guns outside which he thought were real guns. He got angry and worried they would come in. He demanded they “fuck off or he will end him [Fuller]”. Officers tried to calm him down. DM said: “Tell them to come in and they’ll see what will happen”. He hit CO Fuller. Barrett threatened CO Fuller too. DM said he was willing to die in there.

26. At about 2:35pm, Barrett located a gaol made sharp object (referred to as a “shiv”) that had been confiscated on a prior occasion and left in the office. Barrett gave the shiv to DM. It was a metal spike of about 15cm in length and 5mm in diameter, sharpened to a point, with green material wrapped around the handle. DM showed it to the corrections officers outside the office and said, “…that spike, it’ll go straight through his throat”.

27. Further negotiations between Moogan and the offenders occurred. At one point, Moogan said: “C’mon guys…over a bupe injection”.

28. DM continued to assault CO Fuller and threaten to kill him. He said at one point, “he doesn’t have much time left”.

29. Barrett told the officers that he and DM wanted to complete their sentences whilst they were “stoned and off our faces”. He said he didn’t care if he was in segregation as long as he had his “bupe”.

30. From about 3:35pm to 3:55pm, Fuller was made to wear the box over his head again. When Moogan asked them to take the box off, DM said: “There’s plenty of room under there. He can breathe. Every time I look at his face, I want to kill the c***, so you make the call”.

31. Fuller was then tied to an office chair by the offenders, the box was removed for about 10 minutes, then put back on Fuller’s head at 4:16pm. The box was left on his head until about 4:59pm, when DM struck Fuller from behind, causing the box to fall off. He struck Fuller a few more times.

32. At about 4pm, an agreement was reached that DM and Barrett would release Fuller in exchange for a letter assuring their assessment for the buprenorphine program but without a guarantee they would be accepted. DM consulted with Barrett before agreeing to the terms.

33. At about 5pm, camera footage shows CO Fuller tied to the chair with the rope across his chest and with his hands tied behind his back. His shirt is ripped open. He is bleeding from a puncture wound to the left side of his chest and lower right side of his chest. His right eye is black and shut swollen, and his face is bloody. DM is seated behind CO Fuller with the sharp object in his hand. Barrett is sitting in a chair on the right-hand side of the image, holding the metal hinge.

34. Despite the agreement that had been negotiated, DM then slapped Fuller across the head and placed the box back on his head at about 5:01pm. It remained there for the next 20 or so minutes, while DM paced around holding both weapons in his hands, and then sat down and spoke to Barrett. During the conversation between the offenders, they discussed the previous hostage situation at the gaol. DM said: “His wasn’t as bad as this was it; he didn’t do this”, indicating Fuller.

35. At about 5:23pm, DM became agitated again. He set off a can of Glen20 and threw it into the outer part of the office. Corrections officers assured him that no one was coming into the office, but DM punched the box off Fuller’s head and began pricking Fuller in the neck with the pointy weapon.

36. At about 5:25pm, DM placed the box back on Fuller’s head and said: “Let’s just start fucking him up”. An officer reminded Fuller they needed time to organise things. DM took the box off at 5:28pm. Throughout this, Barrett was holding the metal hinge pin and pacing around the office.

37. Shortly afterwards, Moogan suggested that instead of waiting for the letter to be drafted and delivered, the offenders could have a teleconference with an independent doctor. The conference could take place as soon as Fuller was released. Barrett and DM discussed the proposal with each other and decided to accept it.

38. At around 5:52pm, Barrett untied Fuller from the chair and got him to stand up. DM removed the barricade from the door, but then hesitated and stated: “I think I’m just going to kill him”. DM and Barrett then surrendered their weapons through the slot in the office glass and laid face down on the floor. At 5:55pm, corrections officers entered the office area and removed Fuller, before securing DM and Barrett.

39. The offenders were both subsequently transferred to the Goulburn High Risk Offenders Centre.

Injuries sustained by CO Fuller and CO Lansdowne

75. CO Fuller’s ordeal lasted just under 6 hours, and he was in significant physical pain throughout that period. He had not resisted or provoked the offenders and he had complied with their directions during this time.

76. CO Fuller was initially treated by ambulance officers and then conveyed to Port Macquarie Hospital, where the following injuries were noted:

1. A swollen and closed right eye with associated redness;

2. A small stab wound to the left chest;

3. Small lacerations to the back and neck;

4. A lip laceration and soreness to the body;

5. Bruises to the scrotum and penis;

6. Chemical burns to his face, neck, back, upper arms, lower abdomen, almost the full length of the side rib cage and flanks, his groin and perineum; and

7. Splash injuries to both eyes, with his right eye closed shut and visual acuity in his left eye at 6/12.

77. He was later transferred to Royal North Shore Hospital for specialist burn care, where he remained until 4 January 2021. The burns injuries were described as superficial to mid dermal burns covering 10% of the total body surface area. On 28 December 2020, he underwent surgery for the insertion of skin grafts to 1% of his total body area. As at April 2021, CO Fuller reported that he was still receiving dressings for the burns, was continuing to experience pain, and the chemical burns to his eyes continued to affect his vision.

78. Officer Lansdowne sustained the following injuries:

1. Bruising, swelling, grazes and small puncture wounds to the back of his head;

2. Ongoing headaches and vertigo;

3. Persistent neck pain and knee injury; and

4. Ongoing psychological distress.

Objective Seriousness

79. There can be no doubt that the offences committed by the offenders were grave. That is particularly so with the detain offence. The statutory guidepost of the very significant maximum penalties with respect to the s 86 offences indicate the seriousness with which the legislature rightly regards such offences.

80. I have been referred to the decision of R v Speechley [2012] NSWCCA 130 where Johnson J referred to R v Newell [2004] NSWCCA 183 and considered offences against s 86 and said (at [54]-[55]) that the gravamen of the offence for the purposes of sentencing was the unlawful detaining of a person. His Honour said that factors that bear upon an assessment of the seriousness of an offence include the period of the detention, the circumstances of the detention, the person being detained and the purposes of the detention, although the nature of the advantage that the offender sought to obtain is not conclusive as to the seriousness of the offence.

81. In respect to the attempt offence where the victim was CO Lansdowne, he was assaulted during the attempt to detain him. It must have been a terrifying experience for him being attacked without warning. The Crown accepts he was not effectively detained. There are aggravating features which I will refer to below, but overall, the circumstances indicate that this was a moderately serious example of this type of offending despite it being an attempt offence.

82. As to the offence where CO Fuller was the victim, the offending is significantly more serious. The agreed facts that I have recited above show that:

1. The duration of the detention was for about 6 hours – this is obviously a relatively lengthy period.

2. The circumstances of the detention involved CO Fuller being repeatedly and violently assaulted with weapons, fists, knees and chemicals whilst restrained in a chair with his hands tied and a box on his head. He was persistently beaten and stabbed. He had a box placed over his head which was removed from time to time whilst further assaults were rained upon him and threats to his life were made. Weapons were used which is an aggravating factor under s 21A(2)(c) of the CSPA, which I deal with below. Completely understandably, CO Fuller believed he would be killed.

3. Both CO Lansdowne in the attempt offence, and CO Fuller in the actual detain offence, were correctional officers. The offences arose because of their occupation – this too is an aggravating factor under s 21A(2)(a) of the CSPA.

4. The purpose of the attempted and actual detention was because the offenders appeared to believe that they were entitled to buprenorphine injections without any delay. This was in circumstances where neither had been assessed at the facility at which they were then being held for prescriptions for the substance. They were not prepared to wait and appeared frustrated at perceived delays in them getting access to the drug. I accept the Crown submissions that the circumstances indicate that this was an attack on the discipline and good order of the corrective system and its practices where the offenders were not prepared to allow the procedures for assessment to take place in the usual way.

83. The circumstances of aggravation as part of the elements of the s 86(3) offence are that the offenders were acting in company and at the time of the offence, actual bodily harm was inflicted. Thus, those matters cannot be taken to be statutory aggravating factors or there would be “double counting”.

84. I accept the Crown submissions, however, that the nature and severity of the bodily harm caused to CO Fuller is relevant to the assessment of the seriousness of the offending. The physical injuries to CO Lansdowne were those that may be typical for this type of offence. Those inflicted on CO Fuller, however, were much more severe. I have had regard to the photographs in the Crown material which depict the nature and the extent of the injuries inflicted on him. They are, in my opinion, towards the upper end of the types of injuries which constitute actual bodily harm. This makes the offending against him more serious.

85. Overall, the matters in the agreed facts and those I have sought to detail above give rise to a finding that the detain offence with respect to CO Fuller was an extremely serious example of offending of this type.

86. It would be apparent from the facts that I have recited that there is a difference between the roles and participation in the offending by the respective offenders. This is a matter that I will return to when dealing with the sentence for each offender, but I mention it briefly now because it should not be thought that each offender’s criminal conduct was of the same seriousness.

87. It was accepted by counsel for DM that his offending was much more serious than that of Barrett. That is because of the prominence of his role in the detention of CO Fuller. It was DM who was responsible for the very great majority of threats to CO Fuller, although some were made by Barrett. DM was the one who inflicted the physical assaults with the weapons and by pouring the chemical agent on CO Fuller.

88. Whilst Barrett was involved in the assault of CO Lansdowne, and willingly participated in the criminal detention of CO Fuller, he was not the perpetrator of the majority of the conduct towards CO Fuller. Barrett did tie Fuller’s hands and made verbal threats to harm or kill him and held a large metal object for much of the detention which he banged on the table from time to time. It is clear he participated in the detention but was, in a sense, subordinate to DM in the execution of the violence on CO Fuller. Barrett did not hit, punch or stab CO Fuller.

89. The difference in the conduct between the offenders is, in my opinion, significant and will result in markedly different sentences for the detain offence to reflect their different criminality.

Aggravating and Mitigating Factors under s 21A of the CSPA

Aggravating Factors

90. I have referred to several statutory aggravating factors above which are relevant and known and will be taken into account in determining the appropriate sentences to be imposed.

91. Additionally, the following aggravating factors were referred to and my findings with respect to them are:

1. I have mentioned that the victims were correctional officers, which is an aggravating factor under s 21A(2)(a). The Crown suggested that the victims were also vulnerable because of their occupation which would be an aggravating factor under s 21A(2)(l). I do not think that aggravating factor applies as it would, in effect, be double counting the effect of the occupation of the victims as correctional officers for the purposes of considering aggravating factors.

2. The offending involved actual or threatened use of violence: s 21A(2)(b).

3. The offending involved the use of weapons: s 21A(2)(c).

4. The Crown submitted that the offenders are being sentenced for serious personal violence offences and each have prior offences of this type so as to engage the aggravating factor under s 21A(2)(d). In respect to DM, the Crown submitted that his record of prior offences squarely attracts the application of Veen v R (No 2) (1988) 164 CLR 465. DM’s record includes prior assaults on juvenile detention officers and correctional officers. I accept the Crown’s submission. I do regard the offender DM’s record of prior convictions as indicating that the offending was not an uncharacteristic aberration and manifests a continuing attitude of disobedience of the law. Subject to what I say about the impact of subjective matters on his moral culpability, this indicates that the purposes of sentencing of retribution, deterrence and protection of society will warrant a more severe penalty, although the sentence cannot be disproportionate to the offence. With respect to Barrett, the Crown accepts that his record is not as serious as DM’s, however, it may be regarded, it said, as attracting the statutory aggravating factor as it is his second offence against s 86(3). I do not accept this. Barrett’s record, whilst not a matter which is in his favour, is not as severe as DM’s and does not have the same effect. It does not, however, entitle him to any leniency.

5. The Crown submitted that the offending against CO Fuller involved gratuitous cruelty so as to be an aggravating factor: s 21A(2)(f). It was submitted that the nature, repetitiveness and cruelty of the assaults against CO Fuller effectively amounted to torture. Counsel for DM submitted that the circumstances of the offending against CO Fuller, whilst very serious and relevant to the overall gravity of the offending, do not satisfy the requirements of s 21A(2)(f). Counsel referred to McCullough v R [2009] NSWCCA 94 at [28]-[33] where Howie J, with whom McClellan CJ at CL and Simpson J agreed, discussed what was required for the aggravating factor of gratuitous cruelty to be made out. At [30], his Honour said:

Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain.

6. Counsel for DM submitted that here, whilst there was repeated violence and assaults against CO Fuller, that was to bring about the aim of the detention, namely to get access to the buprenorphine injections. Therefore, she submitted, the violence (which inflicted the actual bodily harm on CO Fuller) did not fit the criteria of gratuitous cruelty as described in McCullough. It seems to me that there were gratuitous attacks on CO Fuller which may be considered over and above the attacks on him said to be for the purpose of getting the authorities to comply with the offenders’ demands for access to buprenorphine. Whilst I think it is artificial to try to separate the attacks on CO Fuller which were repeated and persistent, the better view in light of the authority I have mentioned is that the statutory aggravating factor has not been made out. By making such a finding, however, it should not be thought that the nature, viciousness and persistence of the attacks has been ignored in the sentencing process. It has not. It has formed part of the matters considered by me as assessing the objective seriousness of the detain offence as being an extremely serious example of an offence of this type.

6. It is accepted by counsel for DM that the injury and emotional harm caused to CO Fuller was substantial so as to be an aggravating factor: s 21A(2)(g). To be such an aggravating factor, these matters must be proved beyond reasonable doubt. I have received victim impact statements and psychological reports with respect to each of the victims. I will refer to them in more detail below. There was no objection to the receipt of those statements or reports, or submissions as to the limitations as to their use. Counsel for Barrett did submit that the circumstances relating to CO Fuller and the evidence in the psychologist’s report did establish this aggravating factor with respect to him. He submitted, however, that with respect to CO Lansdowne, although there is an ongoing psychological impact upon him and he has been diagnosed with PTSD, the Court would not find that the impact on him was substantial. I reject that submission. The victim impact statement and the psychological report that I will set out below establish, beyond reasonable doubt, that the emotional harm caused to him by the offence in which he was a victim, although that offence was short in duration, was substantial.

7. Whilst there was some degree of planning in that the offenders got together in a cell before storming the office when the COs went in, it was not particularly sophisticated planning, nor does it amount to being part of a planned or organised criminal activity so as to be an aggravating factor under s 21A(2)(n).

Mitigating Factors

92. With respect to each offender, a mitigating factor is the entry of a plea of guilty: see s 21A(3)(k).

93. In terms of remorse, there have been some expressions of remorse by each of the offenders. In his affidavit, Barrett says that he is sorry and accepts what happened should not have happened. He says he feels bad for the pain and suffering the officers endured. He said he genuinely regrets what happened to them. I accept that he is remorseful in this sense and he was not cross-examined on his affidavit.

94. As to DM, he too swore an affidavit, but it was as to his background and it contained no expressions of remorse. There was a relatively minor expression of remorse to the psychologist Vanessa Edwige. It was that he feels sorry for the officer who was hurt. I do not give this much weight. He does not appear to accept responsibility for his actions.

95. This conclusion is fortified by a letter he sent to the co-offender Barrett, which is in evidence, which talks about the need to come to court and express remorse, but then tries to blame what happened on allegations (completely unsupported by the evidence) that corrections officers used derogatory and racist language to the offenders, thus causing the offending conduct. I do not accept that DM has expressed any remorse or is remorseful.

Conditions of Custody

96. Each of the offenders has made submissions with respect to the onerous and harsh nature of the conditions of custody. Each offender is now housed at the High Risk Offender Management Correctional Centre (HRMCC) at Goulburn. As was, in her words, tritely observed by counsel for DM, this appears to be as a direct result of the offences for which they each now appear for sentence.

97. I was referred to Zahab v R [2021] NSWCCA 7 where Bathurst CJ at [47] said that the fact that an offender will be subject to onerous conditions of custody is a factor which can be taken into account as a mitigating factor on sentence.

98. I accept that the conditions of custody at the HRMCC are onerous. They involve conditions akin to solitary confinement with very limited yard time. There have been numerous lockdowns for lengthy periods.

99. I accept that whilst the offenders are housed at that facility, the conditions of custody will be more onerous than if they were in the general prison population.

100. I will take this matter into account in the instinctive synthesis of the sentencing process.

Subjective Features

Noel Barrett

101. In regard to the offender Barrett, I have been provided with the report of Dr Richard Furst dated 16 November 2022, a concise summary of which was contained in the submissions of Mr Barrett’s counsel, from which I quote.

102. The offender was born in Albury on 26 June 1997. He is currently aged 25 years of age and was 23 at the time of the offences. He is an Aboriginal man, and the sixth of eight children. His parents’ relationship was marred by domestic violence by his father towards his mother, for which his father was eventually sent to gaol.

103. The offender’s exposure to that environment, and neglect of him by his parents, led to DOCS removing him (and his siblings) from the family home when he was aged six or seven, and he was sent to Narrandera where a maternal uncle and aunt lived. His aunt and uncle were both alcoholics, and he spent the next four years raised in a community of drug and alcohol abuse, and exposure to violence.

104. He returned at age 11 to Albury to live with his mother, whose own drug issues continued, so after a few months he was taken in by an older sister. He then lived between both homes.

105. The offender attended multiple primary schools as a child. His school education appears to have ended at Year 7. He had a history of learning difficulties and could barely read or write by the time he left school. He truanted and avoided going to school. He reported behavioural symptoms that Dr Furst considered were highly suggestive of ADHD.

106. He became a father at the age of 15, and has a son now aged 10 years old.

107. He began drinking alcohol and smoking cannabis at age 13 and was using ice by the age of 16. He has also used heroin and benzodiazepines. Although in subsequent years his time in the community has been limited to months here and there, his poly drug use continued, and his main associates were other drug-using and pro-criminal peers. In custody he is currently prescribed buprenorphine.

108. Dr Furst diagnosed that the offender met the criteria for a Substance Use Disorder, a Personality Disorder, and an Intellectual Disability in the mild to borderline range, and an Attention Deficit Hyperactivity Disorder.

DM

109. With regard to the offender DM, I have been provided with the reports of Dr Danny Sullivan and Ms Vanessa Edwige, dated 30 July 2021 and 15 March 2023 respectively. I will not detail all of the matters in those reports, but list the salient subjective matters relevant to my considerations.

110. The offender is an Aboriginal man who is currently 22 years of age. The eldest of eight siblings, he was born in Cowra where he and his family lived on the Aboriginal mission called Erambie Mission. The offender reported that his parents consumed significant amounts of alcohol, and used marijuana, speed, ice and heroin. He reported that his father was frequently incarcerated throughout his childhood, including when the offender was born.

111. The offender reported that he witnessed significant and regular physical abuse perpetrated by his father against his mother which escalated when his father was looking for drugs or alcohol. The offender reported one incident, when he was aged approximately 10 or 11 years old, when his father kicked the stomach of the offender’s mother whilst she was heavily pregnant and she went into labour. He also reported being subject to his father’s violence, including once where his father held his head down under water until he lost consciousness and, on another occasion, where he forced the offender to stab him with a knife.

112. Child protection authorities were frequently involved in the offender’s childhood, and he was removed from his parent’s care on one occasion when he lived with a non-indigenous family for 6-7 months.

113. The offender lived on the Erambie Mission until he was approximately 9 or 10 years of age when the family moved to Young, followed by a move to Forster when he was around age 12. Upon moving to Forster, the offender’s family was temporarily homeless and slept in tents on the oval before being provided with public housing.

114. At this time, the offender started to associate with peers who were involved in criminal activity, and he was first sent to a juvenile justice centre at the age of 13. DM reported that he was sexually abused on three occasions at Reiby Juvenile Justice Centre at the age of 14 by a female officer who told him she could get him out of the centre, and that he had been sexually abused on other occasions by other officers in juvenile justice centres.

115. The offender was in and out of juvenile justice centres until the age of 16, when he was arrested for murder in Queanbeyan, and has been incarcerated since.

116. DM reported that he started smoking cannabis at the age of 10, followed by drinking alcohol at the age of 11, using crystal methamphetamine at 13, and using heroin at the age of 15.

117. He reported a significant history of self-harm beginning at the age of 13 in juvenile detention, the most recent occasion being on his birthday last year when he swallowed razor blades and was taken to hospital. He reported that he was hospitalized for three months at the Austinmer Adolescent Unit at the Forensic Hospital in Malabar following the murder offence. Dr Sullivan notes that during this admission, DM was diagnosed with schizophrenia; a severe conduct disorder with limited prosocial emotions; and alcohol, nicotine, cannabis and methamphetamine use disorders.

118. Dr Sullivan opined that the offender most likely has a mild intellectual disability, or is sufficiently cognitively impaired to function just above the level of a mild intellectual disability. Ms Edwige concurred with Dr Sullivan’s assessment of the offender’s cognitive impairment.

119. Dr Sullivan considered that there was sufficient information available to confirm a diagnosis of personality disorder with antisocial and borderline elements, manifested in his interpersonal difficulties, poorly formed consistent sense of self-identity, impulsivity, self-harm with both instrumental and self-soothing motivation, poor emotional regulation, and deficits in empathic capacity.

120. Dr Sullivan also opined that DM meets the criteria for a severe substance use disorder including alcohol, cannabis, stimulants and opiates, and concurs with a previous diagnosis of complex post-traumatic stress disorder, reflecting significant childhood trauma and its persisting effects on the development of emotional regulation and identity.

121. Ms Edwige also concurs with both these diagnoses and noted that the offender meets the DSM-5 diagnostic criteria for these disorders. She further opined that these disorders significantly contributed to his offending behaviour, along with his impaired cognitive functioning. She considered that DM’s complex development trauma, PTSD and substance misuse disorder impaired his ability to make reasoned judgments, think clearly, regulate his behaviour and fully appreciate the wrongfulness of his actions.

Moral Culpability

122. As can be seen from the discussion as to the offenders’ subjective cases and their backgrounds, they have each suffered significant deprivation and disadvantage in their upbringings. Each has, to differing degrees, psychiatric or psychological conditions.

123. I have been referred to the authorities which each of the co-offenders rely on to submit that the effect of the deprived upbringing on them should be found to reduce their moral culpability: Bugmy v The Queen (2013) 249 CLR 571. I do not need to find that the circumstances of their upbringing and the effects this had were causally related to the offending to give effect to the principles in Bugmy: see Dungay v R [2020] NSWCCA 209. I do accept that for each of the offenders the circumstances of their backgrounds are such that the principles of Bugmy do apply. I will give their deprived background full weight in the sentencing synthesis to be undertaken.

124. The question is: what is the effect on the sentences for these offenders of the proper application of the principles enunciated in Bugmy and the many cases which have applied it? I will deal briefly with this issue for each offender separately and also consider the impact of their respective mental health issues on their moral culpability.

DM

125. There is little doubt that DM has a significant subjective case. He suffered significant disadvantage and trauma in his upbringing. As has been mentioned, he is presently serving a lengthy sentence for a murder he committed when he was 16 years of age.

126. The evidence in this case with respect to his mental health also indicates that he has, and has had for some time, significant mental health issues as set out in the psychological report I’ve referred to including schizophrenia, complex post-traumatic stress disorder and a severe substance use disorder. He has a mild intellectual disability. I am satisfied that these matters substantially lessen his moral culpability for the offending. This may reduce, but in my opinion does not eliminate, the purposes of sentencing of deterrence and retribution. I accept that the discussion of an offender with a mild intellectual disability such as DM as in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [50]-[55] is applicable in this case.

127. I accept that these factors must have the effect of reducing his moral culpability for the offending conduct in this case. However, as the High Court said in Bugmy (at [44]), DM’s deprived background does not have the same relevance for all purposes of punishment. Here, it may explain his inability to control himself when he was frustrated at what he perceived to be the delay in obtaining access to buprenorphine. His moral culpability for that inability to control himself is therefore reduced. This also moderates the application of the purposes of sentencing of deterrence – but it does not eliminate it. Additionally, the inability to control those impulses and his mental health conditions also mean that there is an increased emphasis in his case in the importance of the sentencing purpose of protecting the community from him.

128. The mitigating factors of the impact of his deprived background and his mental health conditions on his moral culpability will be given appropriate weight in the sentencing synthesis. However, they cannot lead to a sentence which is disproportionate to the gravity of the offending in this case: see Munda v State of Western Australia (2013) 249 CLR 600 at [53]. That is particularly so here with respect to the detain offence involving Mr Fuller.

129. I note that in the Court of Criminal Appeal decision with respect to DM of DS v R; DM v R [2022] NSWCCA 156, it was said (at [184]):

…the combination of DM’s dysfunctional background, schizophrenia, and youth reduces his moral culpability and warrants lesser weight being attributed to general deterrence… One factor to be considered is the necessity to protect the community from him…

Barrett

130. I also accept that in this offender’s case his deprived background and disadvantaged childhood with a life of neglect and absence of appropriate parental input attracts the principles in Bugmy so as to reduce his moral culpability. This will mean a moderation of the principles of deterrence in the sentencing exercise.

131. Additionally, the material before me indicates he has an intellectual disability in the mild to borderline range and is thereby prone to impulsive behaviour. I accept counsel for the offender’s submissions that the principles discussed in DPP v De La Rosa [2010] NSWCCA 194 at [177] are applicable such that his moral culpability is reduced, thereby moderating the application of the principle of general deterrence. I note the offender’s counsel accepted that, given his anti-social personality, the Court may have to give some consideration to the protection of the public and I accept that this is so.

Prospects of Rehabilitation

132. There is little, if any, evidence for either offender as to their prospects of rehabilitation.

133. As for Barrett, his counsel accepts his offending is escalating in seriousness. It is submitted his affidavit shows he has some insight into his behaviour, but he has committed further breaches of the prison discipline system since the offending. He apparently has support from his mother and a sister, and he is now on the buprenorphine program. I find he has very guarded prospects of rehabilitation and it is at a high risk of re-offending.

134. As for DM, there does not appear to be any evidence with respect to his prospects of rehabilitation that is relied upon by his counsel. I find that he has very poor prospects of rehabilitation. He will have spent a very significant part of his life in prison when he becomes eligible for release for these offences. I find his prospects of re-offending are high.

Victim Impact Statements

135. I have received from each of CO Lansdowne and CO Fuller victim impact statements. I have also received psychologist reports for each of them: Renee Walker for Mr Lansdowne and Karen Moorhouse for Mr Fuller.

136. Each of those men speak with devastating clarity about the profound adverse impact that the offending conduct has had on them and their lives. They bravely recount the detail of the ongoing trauma they suffer and the effect the offending has had on them, their families and their careers. What should have been an ordinary day at work where they serve the community in the corrections service has ended with what may be lifelong psychological consequences and limited career prospects for each of them as a result of the brazen criminality of the offending.

137. Mr Fuller suffered significant injuries. He has ongoing psychological effects from the trauma wantonly inflicted on him. As I have found above, the injury and emotional harm caused to him by the offending was substantial.

138. Mr Lansdowne did not suffer the same level of physical injuries as Mr Fuller. However, this does not mean that he was able to escape the consequences of the offending on him. The attempt to detain him may have been brief, but the psychologist confirms it will most likely have lifelong devastating effects. I found that the emotional harm caused to him by the offending was substantial.

Sentencing Principles

139. I have had regard to the purposes of sentencing in s 3A of the CSPA. As I have indicated in the discussion as to the offenders’ moral culpability, the reduction in each offenders’ moral culpability means that the application of the purpose of deterrence is moderated but it is not eliminated. Further, particularly in DM’s case, the purpose of protection of the community plays a significant role in his sentence.

140. The community is entitled to expect that offences such as these, which challenge the discipline and order of the prison system by offenders who were unjustifiably frustrated at not having access to a drug replacement program, will be met with condign punishment. The sentences should recognise the harm such offending does if not appropriately punished to the community itself, which is entitled to expect the running of an efficient and safe corrections service to house convicted inmates and fulfill the purposes of punishment and foster rehabilitation. The behaviour of the offenders in engaging in violence against corrections officers in order to get their way when they want it is antithetical to the running of a safe and efficient corrective service and cannot be tolerated.

141. I have referred to the differences in the seriousness of the respective co-offenders’ criminality in the offending conduct. As I have said, I find that the offending of DM is significantly more serious than that of Barrett in respect to the detain offence.

142. This does not mean that Barrett must not also receive a sentence appropriate to the conduct he engaged in with respect to Lansdowne and his role in the more serious offending against Fuller. He was in the room with DM when he was perpetrating most of the violence against CO Fuller. He did nothing to stop it nor to discourage DM. He was complicit in that sense. His sentence will, however, be less than that imposed on DM.

139. DM was the lead offender with respect to the offending against CO Fuller. He engaged in repeated and persistent violent physical assaults on CO Fuller often using weapons. There were multiple threats on CO Fuller’s life. DM’s offending was of the most serious nature. Even accounting for the reduction in his moral culpability in the manner I accept is appropriate, he faces a significant sentence.

140. I should add for completeness that there is no question that the circumstances and seriousness of the offending means that the s 5 threshold has been crossed and no sentence other than one of full-time imprisonment is appropriate for each offender.

Application of s 56 of the CSPA

145. There is no dispute that s 56 of the CSPA applies. This section deals with sentences for offences involving assaults by convicted inmates. There is no dispute between the parties that the section applies so that:

1. The sentence for DM is to commence at the expiry of the non-parole period of the sentence for murder which he is currently serving, namely 7 November 2037.

2. The sentence for Barrett is to commence from the date he became eligible for parole for the offence he was serving at the time of these offences, namely 21 December 2022.

146. No party made a submission that special circumstances exist as required by s 56(3A) which would justify a direction under s 56(3).

147. No party submitted that the Court was, by reason of the operation of s 56 of the CSPA, precluded from imposing an aggregate sentence for the offences presently before the Court. Indeed, each counsel for the offenders submitted that would be an appropriate method of sentencing in the circumstances and the Crown did not suggest otherwise.

Aggregate Sentence and Totality

148. I do propose to impose an aggregate sentence on each offender, pursuant to s 53A of the CSPA. I am therefore required to set out the indicative sentence for each offence.

149. As the offenders have pleaded guilty to each of the offences, the 25% discount to be applied to the sentence will be reflected in each of the indicative sentences, rather than in the aggregate sentences that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.

150. I accept that in determining the overall sentences I impose on the offenders, I must have regard to the principle of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate.

151. I must look at the totality of the criminal behaviour of the offenders, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

152. The exercise here is more difficult having regard to the operation of s 56 and particularly in respect to DM, where there is a relatively young offender already serving a very lengthy prison sentence.

153. Counsel for DM submitted that the Court must have regard to the fact that DM has been in prison continuously since 7 April 2017. It must consider what sentence is appropriate for the totality of the offending for which DM is imprisoned.

154. Each of counsel for DM and the Crown referred me to Hraichie v The Queen [2022] NSWCCA 155. In particular I was referred to the discussion by Beech-Jones CJ at CL at [69]-[73] and [96]-[98] where his Honour discussed the application of principles of accumulation and totality.

155. I note that, at [73], his Honour stated that the totality principle, including any necessity to avoid a crushing sentence, is not a basis to avoid the imposition of a sentence that is “just and appropriate”. Omitting references to authority, his Honour said:

That a sentence may be “crushing” in the sense of “induc[ing] a feeling of hopelessness and destroy[ing] any expectation of a useful life after release” is “but one of the matters that is taken into account in determining whether [a particular sentence] is beyond the range of sentences properly available…”

156. I note here that in sentencing DM I have had regard to the fact that he has been in custody since April 2017 and will serve a very long prison sentence. I note s 56 dictates that the sentence I impose must commence at the expiry of the non-parole period for the sentence of murder for which he is currently serving. I will make a finding of special circumstances including to reflect the effect of accumulation of non-parole periods upon the proportion that any parole period DM may serve to his overall sentence.

Form 1

157. With respect to the matters on the Form 1, I have had regard to these matters in setting the penalties for the detain offence. I do not, in this case, regard the Form 1 matters as having a significant impact on the ultimate sentence to be imposed for that offence. I note that I am not imposing a sentence on the offenders for the Form 1 offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.

Special Circumstances

158. Each offender has made submissions that there should be a finding of special circumstances so as to vary the statutory ratio with respect to the non-parole period and the balance of term.

159. Each rely on the nature of the risk of institutionalisation, the mental health conditions and the onerous nature of the custodial environment on the offenders for such a finding. Barrett additionally relies on the need for an extended period of monitoring and support in the community as he is vulnerable to negative influences and lacks coping skills.

160. I will in this case make a finding of special circumstances for each offender. In addition to the matters raised by their counsel in support of such a finding, I consider that the matters relevant to the principles of accumulation of the sentences to be served by Barrett and being served by DM and the principle of totality (which I have discussed above) warrant such a finding.

Sentence

161. DM:

1. For the offences to which you have pleaded guilty, you are convicted.

2. For the offence of attempted specially aggravated detain in company (sequence 8), I set an indicative term of 4 years which, after the discount of 25% for your early guilty plea, is an indicative term of 3 years.

3. For the offence of specially aggravated detain in company (sequence 9) and taking into account the matters on the Form 1, I set an indicative term of 16 years which, after the 25% discount, is an indicative term of 12 years.

4. I sentence you to an aggregate term of imprisonment of 13 years with a non-parole period of 8 years and 6 months.

5. The sentence will commence on 7 November 2037.

6. The first date you will be eligible for release to parole will be 6 May 2046.

7. The sentence will expire on 6 November 2050.

162. Mr Barrett:

1. For the offences to which you have pleaded guilty, you are convicted.

2. For the offence of attempted specially aggravated detain in company (sequence 8), I set an indicative term of 4 years which, after the discount of 25% for your early guilty plea, is an indicative term of 3 years.

3. For the offence of specially aggravated detain in company (sequence 9) and taking into account the matters on the Form 1, I set an indicative term of 12 years which, after the 25% discount, is an indicative term of 9 years.

4. I sentence you to an aggregate term of imprisonment of 10 years with a non-parole period of 6 years and 6 months.

5. The sentence will commence on 21 December 2022.

6. The first date you will be eligible for release to parole will be 20 June 2029.

7. The sentence will expire on 20 December 2032.

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Decision last updated: 24 April 2023