R v Cuthbert

[2023] NSWDC 594

District Court

New South Wales

Medium Neutral Citation:

R v Cuthbert [2023] NSWDC 594

Hearing dates:

8 September 2023, 19 September 2023

Date of orders:

20 September 2023

Decision date:

20 September 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

002: Convicted. Special circumstances found - Bugmy factors, institutionalisation, drug & alcohol issues, need for an extended period of supervised parole to assist him with rehabilitation and to reintegrate in the community.

Sentenced to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 9 months to commence on 27 September 2022 and to expire on 26 June 2025, and a balance of term of 1 year and 6 months to commence on 27 June 2025 and to expire on 26 December 2026.Eligible for release to parole on 26 June 2025.

001: Withdrawn.

Catchwords:

CRIMINAL – sentence - cause grievous bodily harm with intent to cause grievous bodily harm – gaol attack by group of inmates occasioning substantial injuries to victim, recorded on CCTV – parity – role of this offender – “the central cause or flashpoint of the incident” [who] “engaged in a concerted attack of considerable ferocity on a victim who became defenceless while being similarly attacked by others “– joint criminal enterprise – subjective matters.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmyv The Queen [2013] HCA 37

R v Jeremiah (2016) NSWCCA 241

R v Fyffe (2002) NSWSC 751

Category:

Sentence

Parties:

Rex
Cuthbert, James

Representation:

Counsel:
Defence: Ms S Kluss

Solicitors:
Crown: Ms E Anderson – ODPP
Defence: Mr A Miller – Ross Hill & Associate Solicitors

File Number(s):

2022/00001305

JUDGMENT

1. HIS HONOUR: James Cuthbert appears for sentence in respect of a single offence, being cause grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900.  The maximum penalty provided is 25 years’ imprisonment and there is a relevant standard non‑parole period of seven years.  He was committed for sentence on 22 February 2023 from the Kempsey Local Court and is accordingly entitled to a 25% discount for the utility of the plea.  Such a discount will be provided.

2. The facts are agreed and are as follows.

1.  As of 25 September 2021, the five offenders, James Cuthbert, Ty White, Kalib Toko, Sateki Siale, Sakeasi Maile and the victim, Peter Abdelmeseeh, were all inmates at the Mid North Coast Correctional Centre housed in Area 4 of Pod V2A.

2.  The pod is equipped with CCTV cameras in common areas which captured the following incident.  There are no cameras in the individual cells.

3.  At 2.52pm on Saturday, 25 September 2021, the victim, Peter Abdelmeseeh was standing in front of his cell, 505, when Cuthbert approached him and started talking to him.  Cell 505 is directly adjacent to a set of stairs.  Two other inmates approached and joined in the conversation for a short time.  They then left and walked into Cell 504.  The co‑offender Toko and another two inmates walked up the stairs and enter cell 504.  Maile ran up the stairs and walked into Cell 504 as well.

4.  The victim walked into his cell.  Cuthbert moved forward and stood in the doorway of the cell, holding the door open with one hand and continuing to talk.  Cuthbert moved into the victim's cell and pulled the door.  The door swung back open.  The victim pushed Cuthbert out of the cell back into the doorway, preventing him from entering the cell.

5.  The victim and Cuthbert continued to speak.  The victim was in the doorway of the cell with Cuthbert in front of him.  The victim was gesturing.  Cuthbert was holding the door with his left hand.  Cuthbert then pushed the victim in the chest with his right hand.  They continued to speak for nine seconds.

6.  The victim punched Cuthbert to the face with his right fist.  The victim continued punching Cuthbert some eight or nine times.  Cuthbert started punching back, with both men throwing punches.  Inmates from Cell 504 walked out and approached the fighting men.  One of them opened the door to the victim's cell.

7.  Cuthbert grabbed the victim's shirt and dragged him to the ground.  Cuthbert dragged the victim into the victim's cell.  Toko closed the cell door and stood in front of it holding it shut.  Maile walked back into Cell 504, had a drink and rejoined the men in front of the victim's cell.  A number of other inmates walked up the stairs and approached the cell.  Toko pointed to the cell.

8.  The victim came out of the cell without his shirt and ran along the upper landing and away from the cell, stopping outside Cells 506 and 507, and leaning onto the railing.

9.  Cuthbert stood in the doorway of the victim's cell looking towards the victim.  Several other inmates gathered on the upper landing.  Cuthbert walked back into the victim's cell, grabbed a sandwich press, walked out and started walking towards the victim.  Toko pulled him back by the shirt, hugged him and pulled him back to the victim's cell.  Cuthbert walked back into the victim's cell.  Another inmate took the sandwich press from Cuthbert and put it on the victim's bed.

10.  Toko walked into Cell 504, took something from a tub under the bed and walked downstairs, walking into a cell next to the stairs on the ground floor.  As he was walking into the cell he turned around and appeared to be speaking in the direction of White and another inmate.  White started running up the stairs.

11.  Cuthbert took his shirt off and wiped his face with it while pacing in the victim's cell with some other inmates.  He took the sandwich press again.  Maile stopped him from walking out of the cell twice.  Cuthbert walked past Maile, walked out of the cell and moved towards the victim.  The victim ran along the upper landing.  Cuthbert chased him and threw the sandwich press at the victim.  The press hit the guardrail, falling to the ground level and smashing.  Cuthbert continued to chase the victim, stopping and turning back as the victim approached the stairs on the other side of the pod.

12.  The victim ran down the stairs.  The co‑offenders Siale and Toko walked out of the cell at the bottom of the other flight of stairs (which Toko entered when he walked downstairs).  Siale started walking up the stairs and blocked the victim from passing.  The victim was on the fifth step from the bottom as Siale stood on the first step.  The victim raised his hands in a defensive manner and said something to Siale.  Siale blocked the victim.  Toko walked up to them and stood behind Siale.  Cuthbert, seeing that the victim had been blocked, continued again to run along the landing and down the stairs towards the victim.  White started running down the other set of stairs.

13.  The victim turned and observed Cuthbert running down the stairs towards him.  The victim attempted to get past Siale.  Siale took hold of him.  Toko punched the victim to the head.

14.  White ran from behind Siale and Toko.  While Siale and Toko had hold of the victim, White grabbed the victim by the hair and started pulling him.  Cuthbert also took hold of the victim.  Siale released his hold and stood nearby while the following events unfolded.

15.  The following took place relatively simultaneously;

a) White was pulling the victim to the ground by his hair.

b) The victim was falling to his knees and to the ground.

c) White punched the victim twice in the head with his right fist in an upper cut motion.

d) Cuthbert was holding the victim with his left hand while he punched the victim's head four times with his right fist.

e) Toko moved away slightly.

f) The victim turned in the process of falling and landed on his side.

g) White stomped on the victim's head three times.

h) Maile ran in and kicked the victim's head while White was stomping on it.

i) The victim rolled onto his back as a result of punches and kicks.

j) White kicked the victim's head once.

k) The whole time while White was stomping on the victim's head Cuthbert was leaning over the victim and punching him in the head in fast consecutive punches with both fists (at least 16 punches).

l) Another inmate tried to intervene and stop Cuthbert.  Cuthbert pushed him away and punched the victim's head three more times.

m) Toko and another inmate pushed Cuthbert away.  Cuthbert pushed against them, trying to get to the victim.  He ran around them and approached the victim again.  A few other inmates intervened and blocked him and walked him away.  Siale was one of those.

n) Corrective Services Officers walked into the pod.

o) The victim was unconscious the whole time, offering no resistance at all, his head and body bounced off the floor as he was getting punched and kicked.

16.  Corrective Services moved to secure the inmates.  Cuthbert said to a Corrective Services Officer, "He's a dog and if you want a go, I'll have you all."

17.  The victim remained unconscious for another couple of minutes before he was seen moving his hand.  He was attended to by the officers and a Justice Health nurse until an ambulance arrived.

18.  Corrective Service Officers locked down the pod and secured the scene.  White, Maile and Cuthbert were apprehended.  Toko refused to be handcuffed as he was led from the yard.  He commenced throwing punches at another inmate, Khallouf, requiring CSOs to intervene and restrain them.  Maile and White's clothing were seized.

19.  Police obtained the CCTV recording of the incident which has been provided to the Court on sentence.

INJURIES

20.  The victim was transported to Port Macquarie Hospital and then to John Hunter Hospital for surgery.

21.  He initially presented with a GCM of 13/15.  He had multiple visible injuries to his face, including;

a) Swelling.

b) Abrasions.

c) Multiple scalp and face contusions.

d) A 2-centimetre jagged laceration just superior to the left eyebrow.

e) A 1.5-centimetre laceration to the right upper lip through the vermilion border.

22.  He had grazes and pain to the right knee and sore ribs.

23.  A CT scan revealed multiple facial fractures, including;

a) Comminuted nasal bone fracture with a slight translation to the right (nose)

b) A mildly displaced right zygomaticomaxillary complex fracture extending through the anterior and posterior lateral walls, maxillary sinus, lateral orbital wall (right cheek and eye)

c) Minimally displaced left angle of mandible fracture extending through 38 socket (left jaw).

24.  There was moderate fluid/secretions to the left maxillary sinus and mild mucosal thickening, paranasal sinuses elsewhere.

25.  On 25 September his lacerations were washed out and sutured. 

• Four sutures to the eyebrow laceration, four external and three internal stitches to the lip laceration.

3. 26.  On 27 September at John Hunter Hospital he underwent surgery.

a) Open reduction and internal fixation of the mandible fracture which included extended wards incision, reduction of the fracture, handheld occlusion.

b) A Stryker four hole straight non‑spaced 1.25-millimetre plate was inserted and secured with four, non‑locking, monocortical screws (2 millimetre).

c) One tooth was removed.

d) Oropharynx was suctioned and reduced.

27.  He was to have another surgery in three months to remove the hardware and screws and was on a strictly soft diet for five weeks.

28.  He was discharged on 28 September with prescriptions for antibiotics and painkillers.

POLICE DEALINGS WITH THE PARTIES

29.  Police attended to speak with the victim while he was at Port Macquarie Hospital.  He indicated he did not wish to speak to police.  Police attempted to speak to him again on 24 October 2021, but he declined to assist.

30.  Cuthbert was charged by way of future CAN as s 25 orders were unable to be arranged. I note in relation to the particular pod that there were two levels of cells.  The upper level of cells was serviced by stairs which led from the floor of the pod up to a walkway which ran around three sides of the pod, before reaching another stairway which led back again to the floor of the pod.  There is no explanation before the Court as to the cause for the altercation but clearly it started the confrontation between the offender and the victim in the vicinity of the victim's cell.  As to any possible cause I note that the offender stated to a Corrective Services officer, "He's a dog and if you want a go, I'll have you all."

4. In the language of offenders, persons who provide information about other offenders or inmates are generally referred to by the prison population as “dogs.” There is however no information that such was the case in this matter.  The injuries were extensive and there is no information before the Court because the victim was not prepared to cooperate as to any consequential problems or continuing need for medical intervention.

5. While on the facts it appears that the group of offenders spontaneously coalesced to attack the victim when he had almost reached the bottom of the stairs to return to the floor of the pod, of note is that a number of the persons who then attacked him were the same persons who had been in the vicinity of the victim's cell at the commencement of the activity.

6. A number of participants have already been dealt with in respect of their participation. Sakeasi Maile and Ty White were both charged with offences of the same nature as this offender, that is s 33(1)(b). Sateki Siale has also been charged but has not yet been sentenced. Kalib Toko was charged with a less serious offence contrary to s 35(1) of the Crimes Act.

7. It is necessary eventually to take into account the sentences imposed on those persons in relation to the principle of parity.  I note that Kalib Toko, charged with a lesser offence, received a discount of 25% for an early plea and received a sentence of three years with a 15 month non‑parole period, from Flannery DCJ.  However, because of the fact that he was charged with a less serious offence, while parity is still relevant it is less useful in consideration of parity on the sentences imposed on Maile and White.  Each of those offenders were sentenced by O'Rourke DCJ.  Sorry, I should have said that in relation to the sentencing of Toko by Flannery DCJ, that was on 3 November 2022.

8. Judge O'Rourke SC sentenced Ty White on 18 August 2023 and sentenced him to a period of imprisonment of four years nine months, with a non‑parole period of two years, seven months, after a discount of 5%, it being a late plea on the first day of trial.  Accordingly, on my calculation her Honour's starting point was a sentence of five years reduced by 5% to four years, nine months.  Her reasons on sentence are before me.

9. In respect of Sakeasi Maile, Judge O'Rourke SC, after similarly providing him with a 5% discount for a plea on the first day of trial, provided a sentence of four years and three months, with a two year, three months non‑parole period.  There was some concurrency with a previously existing sentence of three months.  On my calculation. her Honour's starting point before the 5% discount was approximately four years and six months.

10. While her Honour's full reasons are before me in relation to Ty White, her reasons on sentence were not available at the time this matter came before me, as she sentenced Maile on 1 September 2023.  My associate contacted her Honour's associate, and we were able to be supplied, with her Honour's permission, with her notes on sentence which I have, and have considered.  However, as they were not settled reasons on sentence they have not been provided to the parties.  But I have nonetheless taken them into account as the notes appear to be fairly full.

11. In respect of Maile, her Honour noted the maximum penalty and standard non‑parole period, that the offending occurred in a correctional centre and that all of the offenders were inmates, that Maile was 26 years of age at the time, that the victim had done nothing to Maile and any acrimony was between the victim and another inmate, apparently being Mr Cuthbert, and that there was no rhyme or reason for Mr Maile to have been involved in the assault, on the facts before her.  She also noted that the victim was vulnerable due to others becoming involved to block his escape and that he was held.  She also said that the offender, Maile, must have known others were also involved in assaulting the victim or were imminently about to be involved.

12. Maile had joined the vicious assault upon the victim when he was laying helpless on the ground, and he ran in and commenced kicking the victim to the face.  The kicks inflicted were with considerable force and ferocity.  He desisted when Corrective Services officers became present.  She noted the injuries sustained were significant.  She found there was an absence of planning and pre‑meditation, as relevant to objective gravity.  She referred to the offences as, "involving an unprovoked, uncalled for and unjustified attack" being a factor which elevated its objective gravity, citing Matzick v R (2007) NSWCCA 92 23.

13. She referred to the assault as being, "ferocious, violent and confronting and that it must have terrified the victim" , noting that there was no update on the victim's health because he failed to provide a statement and they had not been able to locate him after his release.  She referred to the violence in her opinion as being, "quite extreme" and taking all of those matters into account found that the objective seriousness of the offence fell below the mid‑range.  She also noted that assaults upon inmates required significant general deterrence and set out the individual subjective matters relevant to that offender, as well as considering the sentence imposed by Flannery DCJ on Toko.

14. She referred to the fact that the offence was committed in company as an aggravating factor, that Mr Maile had an extensive criminal history disentitling him to leniency, and that he was at the time of sentence 28 years of age, and noted again that the assault was not part of a planned or organised criminal activity, rather to be a spontaneous attack.  I will not otherwise set out any of the other circumstances, however, she found there was some level of genuine remorse and that the prospects of rehabilitation were guarded.  In relation to his mental health, she found special circumstances were relevant to take into account and that they inter‑connected with his childhood deprivation and youth to reduce his moral culpability and moderate the importance of general deterrence in the sentencing exercise to an extent.

15. In sentencing the offender Ty White, she found that he had pulled the victim to the ground by his hair and punched him twice to the head and stomped on his head three times as the victim lay helpless on the ground, while others were simultaneously violently assaulting him, and then kicked him one more time to the head with considerable force and ferocity.  Again, she found that there was an absence of planning and pre‑meditation as relevant to objective gravity, again describing it as "ferocious, violent and very confronting" from watching the CCTV footage and found that the objective seriousness in relation to Mr White fell at least within the mid‑range.

16. She found that Mr Maile, in terms of subjective matters had been subjected to years of violence and drug and alcohol exposure, as well as domestic violence at a young age.  His mother was apparently an alcoholic and drug addict, and his step‑father was a drug user.  His second step‑father was violent to him but incarcerated when the offender was ten, then after being incarcerated tried to re‑enter the offender's mother's life when the offender was 13, at which time he was then sent in a taxi to Queensland to live with his biological father.  That lasted for a year before he was sent back to his mother at approximately 14 years of age.  However, he was placed in foster care and remained a ward of the State until he was 18, and he was sexually abused while living in foster care and during his time in a boy's home.

4. From the age of 14 he had spent most of his life incarcerated. Apart from approximately some 62 weeks, he had spent the rest of his time in a custodial setting, as well as being homeless in the course of his adolescence.  He did not have any children.  He had been educated from kindergarten through to part of Year 8, often getting into trouble at school and commenced using alcohol at the age of 13.  At the age of 14 he was introduced to cannabis and soon after, ice, which he used regularly up until his then current incarceration and was a regular user of ice from that period up until his current arrest, having not undergone any treatment programs.  He was found to have suffered from anxiety and depressive symptoms for as long as he could remember and having been diagnosed with ADHD and depression at around the age of 12, when he was placed on Ritalin and mood stabilisers, which he did not take consistently.

5. He was found by a psychologist to be suffering from severe levels of depression and extremely severe levels of anxiety, with ADHD and generalised anxiety disorder and persistent depressive disorder and substance abuse disorder, which had led to an impairment in his decision-making ability, which contributed to the offending before the Court.  The offender had expressed regret to the psychologist for being involved in the offending, and had written a letter to the Court in which he expressed remorse and shame for his actions and acknowledged that his behaviour was unacceptable.

6. Her Honour referred to him as having an extensive criminal history for one so young, but she did not find that to be an aggravating feature.  However, it disentitles him to leniency.  Again, she found that this offending was not part of a planned or organised criminal activity, but rather a relatively impulsive and spontaneous attack when the offender, Mr Maile, was 23 years of age, accepting that his level of maturity in judgment as according to the psychologist was around the age of 20.  She found his deprived childhood came within the terms of the Bugmy factors, that he had very little familial support, his parents having failed to fill their obligations as parents and being poor role models.  All of those matters, together with his having been sexually abused, as previously referred to, meant that she accepted that those factors reduced his moral culpability.  As to remorse, she accepted that there was some level of genuine remorse.  As to the prospect of rehabilitation, she stated that it was impossible for her to say anything more than that his prospects were guarded.  As to his mental health, she indicated that she had taken that into account in relation to finding special circumstances.

7. Ms Kluss, on behalf of the offender, has submitted that the offending falls within the mid‑range of objective criminality for offences of this kind.  The Crown has submitted that the offending falls above the mid‑range of objective criminality for offences of this kind.  I note the reference to Fyffe, a recent decision in line with a number of past decisions of the Court of Criminal Appeal suggesting that it is not necessary any more to continue to assess offences that have standard non-parole periods attached to them on some scale of objective seriousness. I would simply say in relation to this offending that it was a very serious offence resulting in very serious injuries. In relation to the offender's role, by contrast with the others involved, this offender was the central cause or flashpoint of what occurred.  It is clear from viewing the CCTV footage that once he had chased the victim part way around the gallery he could have stopped and then observed that the victim was to be headed off when he went down the stairs at the other end of the gallery.  He then recommenced his pursuit, running around the gallery and down the stairs to come back into contact with the victim and the other persons who had already prevented the victim from running onto the floor of the pod from the gallery.  But this offender engaged in a concerted attack of considerable ferocity on a victim who became defenceless while being similarly attacked by others, being apparent colleagues of this offender with a like interest in executing some sort of punishment on the victim.  For what, no one can tell because no one is prepared to say why, including this offender.

8. It is not infrequently that matters come before the Court where a group of males elect to attack an individual person or victim and conduct themselves in very much the same manner as these offenders did on this occasion.  An aggravating circumstance is of course that this was, in effect, although perhaps relatively spontaneously organised or coming into being, a joint criminal enterprise to inflict grievous bodily harm, which in fact did inflict grievous bodily harm.  In that sense this can be readily seen as a very serious incidence of such an offence, and this offender's role was substantially more significant than that of any of the other participants, He, like them, is responsible, as a result of it being in effect a joint criminal enterprise, for all of the injuries inflicted.  I note however, that because of the fact that there were a number of persons either stomping or kicking the victim's head or body, it cannot be determined who was in fact responsible for any of the individual injuries.  But as I have said, joint criminal enterprise makes each of them liable for all.

9. In R v Jeremiah (2016) NSWCCA 241 it was observed at 26:

"Where a group of men make an attack upon a single victim the latter would usually have no chance to defend himself adequately, will be at risk of sustaining severe injury and will likely only suffer worse if he resists because of the probability of being overwhelmed."

23. In this matter, not only was the victim overwhelmed but he was at least unconscious during part of the attack, while being variously kicked and/or punched.

24. As to subjective matters before the Court there is the offender's criminal history; the New South Wales Department of Corrective Services Conviction, Sentences and Appeals Report; a Sentence Assessment Report under the hand of Phillipa Press, dated 11 May 2023; a letter from the offender, undated, but I would take it to be relatively recent; a reference from Robert Shaw, the overseer of the Furniture East business unit at the Mid North Coast Correctional Centre, dated 31 August 2023; and a psychological report from Dr Paul Pusey dated 3 May 2023.  In addition to that material, the offender gave evidence on sentence.

25. As to the offender's criminal history, he has what is referred to by way of summary in the Sentence Assessment Report, as:

"a consistent offending history commencing when he was a juvenile aged 14 years.  His anti‑social history is predominated by matters involving property, particularly break and enters, in addition to drug, domestic violence and driving related offences."

26. Having perused his criminal history I accept that as a reasonable description of his history, noting that apart from what violence might be implied by being convicted for domestic violence type offences, that the offender has had only one actual sentence which clearly involves violence, that being an offence committed on 21 June 2019, dealt with at the Penrith Local Court on 25 February 2020, being assault occasioning actual bodily harm, in relation to which he received a sentence of ten months’ imprisonment with a non‑parole period of seven months.  In other words, in terms of violent offences the offender's record is very limited, although not entirely blemish-free.

27. I note from the Department of Corrective Services Conviction, Sentences and Appeals Report that as an adult, from 24 April 2013 through to date, the offender has spent significant periods of time in custody and only short periods of time at liberty in the community when he was freed on parole or on completion of a sentence, but has only managed to remain for relatively short periods at liberty.  In my view, it is appropriate to find that his prison history indicates a degree of institutionalisation, as he appears unable to function in the community without committing further offences within a short period of release.

28. He was 26 years of age at the time of the offending, or almost 27.  He is now 28 or almost 29.  As I noted on sentence, the offender's letter to the Court is not a matter of significant weight.  Without trying to be offensive, it reads to some extent like the stock in trade submissions of many counsel on sentence, including cliches such as, "I am standing at a crossroads in my life", blaming his conduct on his poor decision-making, apologising wholeheartedly for his conduct to everyone, and to some extent blaming his conduct on an assertion that he had severe drug issues leading up to the day of the offending.  I note that he was in custody at the time.  He referred to himself as, "being in a downward spiral with no sense of direction in my life, a never‑ending cycle of destruction", and stating that his partner and younger brother had both been remanded into custody, so he no longer had any outside support.

29. He also stated that he had been exposed to the prison system and:

"Slowly I feel myself becoming more and more institutionalised, which I honestly really don't want for myself...I'm ready to make the change in my life...I do not want gaol to be my entire life...I have a young son who needs a father and role model."

30. And he claims having had a drug problem in the past and certainly up to the day of the offending.  He has now managed that drug problem by taking part in the Buprenorphine Program while in custody and being now, "fully sober and non‑dependent."  He also stated that he was:

"not asking for sympathy just for a chance.  An opportunity to take steps into the right direction.  No man was born perfect.  No man never made mistakes, but a good man can hold himself accountable and correct himself...Please give me a last chance to do better."

31. In his evidence on sentence, he adopted what he had said to the psychologist, indicated that he was concerned that he did not get to see his son because he was in custody.  I note that his son is now approximately seven years of age and is the son of not a current partner but some past partner.  There is little evidence of the offender having contact with his son since birth, he having spent most of his time since then in custody.

32. Although he accepted that he was the flashpoint for the general group offending, he claimed that he did not recall what started it or what it was over.  That is an assertion which is extremely difficult to accept in the circumstances where he participated in a group assault of considerable violence.Just like the victim would not provide a statement, complying with the general rule of offenders whether in custody or not: that they do not, as they call it, "rat on their mates" or provide real information about what they or others have done.  In my view, the offender's statement that he did not recall what started it or what it was over is simply complying with the prisoner ethos of not assisting the authorities.

33. Although his evidence on oath was not to any great extent more convincing than his letter to the Court, I am at least prepared to find that there is at least some evidence of remorse which I will take into account, particularly, as I note he pleaded guilty at the earliest opportunity, although noting of course, that that was in circumstances where there was a full CCTV recording in which he could be clearly seen committing the offence, together with his co‑offenders.  That is an overwhelming Crown case.  Nonetheless, unlike some of his colleagues, he accepted that he had committed the offence at an early stage.  Pleading guilty is not necessarily an indication of remorse, but in the circumstances of this matter and the early plea I will accept that it indicates there is some level of remorse.

34. Dr Pusey said the offender informed him, "This was my mistake, it was supposed to be a one‑on‑one thing.  I don't know why the other boys got involved."  "...it was not a planned thing, but I accept the punishment that I will be getting for it.  I'm 100% responsible for this, I just wish that it didn't happen, but it ultimately did."  "I feel sorry for him (the victim of his offending) and the boys who got caught up in this.  I feel sorry for everyone involved."  "...I have no excuse for what I did and I'm not denying that I did it."

35. As to his history, he said he was the seventh child of eight children, with three brothers and four sisters, having been raised by his father and step‑mother after his mother suffered a stroke.  He said his father had moved to Perth when he was 17 years of age because of a fight the offender had had with his then step‑mother.  His only contact with his father was on birthdays and when his father flew over from Perth for Christmas.  However, as he has usually been in gaol, he has not seen him on many of those occasions.  He said his father was in fact, "a stranger to me"  and he had not spoken to him face‑to‑face for seven years.

36. He referred to his relationship with his step‑mother as being non‑existent and that he had had no relationship with his older brothers for a while.  An older brother who had lived with him in the past was, "In and out of gaol all the time.  I used to want to be like him.  Growing up, I related to his lifestyle."  He reported, "Two older brothers committed criminal offences and did seven years and eight years in gaol respectively, before being deported to New Zealand",   that occurring when he was 20 to 21.  While he had some initial continuing contact, he eventually lost touch.  As to his four sisters, he said he had a solid relationship, particularly when he was doing good, they would support him.  But when he was not, the door was shut.

37. He had been born in Queensland and moved to Sydney at the age of one, living in Auburn from the age of four through to 18, when he met an ex‑partner and lived with her in Penrith.  There had been intermittent domestic violence between his father and step‑mother.  In respect of education, he finished Year 10 at school and left to work with his father, who had a scaffolding business.  However, the business went under, and he then started working with friends before then losing all motivation to work.  He had experienced multiple suspensions and expulsions during high school, being expelled twice from two different high schools in Year 8 and Year 9, and he only completed Year 10 because he was at a behavioural school run by the Exodus Foundation in Ashfield.  He had been expelled in Year 8 for truancy and because he would not listen to the teachers.

38. He went to Arthur Phillip High School in Parramatta for Year 8 and the Granville Boys for Year 9 but was expelled from Granville Boys because he was caught selling cigarettes and Viagra in the school toilets.  Subsequent to leaving school, he started TAFE courses for being an electrician and hairdressing, but he stopped both because of lack of motivation, as well as for financial reasons.  He was said to be unemployed at the time of the offence, and of course he was actually in custody, but not to have worked for maybe five or six years, which would have been the result of his being in custody for most of that period.  As to not working, he said it was just laziness.  When he first got out, "I was just looking for work, but I would start using, then everything would go out the window."  He said he did not have any meaningful social relationships, just people that he kicked back with and used drugs with.

39. As to the other offenders, "They were just Islander boys in the pod."  He said:

"What I did that day and the decisions I made that day were all mine.  I had no self‑respect because I don't feel comfortable enough in myself to be around normal people.  I feel like they judge me, and I don't belong in that environment.  That's why I don't work because I struggle to be around non‑users, people who don't have tattoos or people who have been to gaol."

40. As to his ex‑partner, he indicated that she was presently in custody, but due to be released in June 2023.  As to his seven-year-old son, he had not had any consistent contact with him because of an AVO currently in place and had had no contact for five years.  He indicated that his relationship with his son's mother had ended because he kept going to gaol, and he did not feel that he was in the correct headspace to reach out to his son.  He claimed that having engaged in the Buprenorphine Program, some one and a‑half months before the psychological report of 3 May 2023, that he had not engaged in any substance use since that time.

41. Prior to his current episode of incarceration, he said he was using ice daily and had started shooting up and smoking it four months prior to his last period of incarceration, doing it at least three times per day, three points per time.  He said he commenced using substances at the age of 14 when he began smoking cigarettes and marijuana.  He commenced using ice between the ages of 16 and 17 and had progressed to daily use by the time he was 18.  He has previously done Drug Court at the age of 18, but said:

42. "I wasn't ready to do it.  I reconnected with associates who use and failed a urine sample.  I attempted rehab but I was only there for one day and then I left.  I was young and stupid.  I was smoking and gaol was cool for me at the time because of how I grew up."

43. He has, apparently, as to his medical history, had Hepatitis C while in custody but has been treated successfully in that respect.  He did not present with any overt symptoms of any mental health disorder at the time of assessment and denied currently experiencing depression.  In respect of this behaviour, he claimed that it was out of character, in effect, because he was angry not violent.

44. Dr Pursey opined that:

"He was suffering a major depressive disorder and that his capacity for coping and emotion regulation would almost certainly have been immediately impacted by the mental health pathology he was experiencing at the time of this offence."

45. However, at the time of his presentation Dr Pusey said that he did not meet the diagnostic criteria for a mental health disorder.  Dr Pusey, having considered his personality patterns, anti‑social associates and his anti‑social social cognition, stated that he found that his risk of recidivism was moderate and significantly dependent on his ability to address the risk factors as cited by Dr Pusey in his report.

46. The sentencing assessment officer assessed him as being "a high risk of reoffending."  He claimed to the sentence assessment officer that the victim had started the incident and was unable to explain why he continued to attack the victim, despite the victim's attempts to escape the assault, the efforts of other persons to stop him and the victim's eventual loss of consciousness.

47. "He would appear to normalise anti‑social behaviour as a legitimate means to meet his immediate needs.  Mr Cuthbert stated he did not consider the potential consequences of his aggression and 'just wanted to fight' the victim.  Mr Cuthbert appeared to minimise the assault, stating it looked worse in the (surveillance camera) video than he remembered it at the time, and he did not intend to hurt the victim 'that badly'."

48. As to the offence being in company, the report states, "This being a demonstrated pattern relating to prior offences" … "he denied orchestration of the group assault and maintained his co‑offenders participated of their own volition.  He denied the assault was underpinned by any gaol gang activity."  He is said to have limited pro‑social associates and as stated by Dr Pusey, "he finds it difficult to relate to or associate with people who have not been involved in the criminal justice system."  He claimed at the time of the offence he was affected by using illicit Buprenorphine and had consumed hand sanitiser and gaol‑made alcohol.  From watching the CCTV footage there is no evidence that the offender was physically disadvantaged by the consumption of either hand sanitiser or gaol alcohol: that is, he was able to run in a coordinated fashion, including when reaching the set of stairs where the victim was being delayed, to rapidly descend them step by step in a highly coordinated fashion.  He blamed his violence on his alleged intoxication.

45. I accept, as referred to in the report, that the index offence represents a sudden and significant escalation in this type of offending behaviour.  He stated that he felt at the time that he "could not stop himself from continuing his violence against the victim."  He claimed that:

"He felt stupid for committing the offence and regretted his actions ostensibly [due] to the detrimental consequences to his own personal circumstances.  He couldn't really tell what the impacts of the violence may have been for the victim and failed to articulate appropriate victim empathy."

50. I note in relation to, as previously referred to, his past involvement with the Drug Court, that he failed to complete an order successfully due to his non‑compliance and re‑offence.  Accordingly, I accept the assessment that he is a high risk of re‑offending.

51. I note while in custody he has been working in the furniture business unit and the overseer, Mr Robert Shaw, holds him in high regard.  He has apparently worked there for some eight months.  He attended work every day that the workshop was open and performed his tasks as directed and could work well unsupervised.  When new inmates came into the workshop, he would take it upon himself to teach them what tasks were required to be carried out and he always showed Mr Shaw and fellow officers proper respect and courtesy.  He had not been involved in any conflict or drama within the workshop during the last eight months, or during the time that he had been in the furniture workshop.

52. In that regard I note, however, that the Corrective Services Conviction, Sentence and Appeals Report indicates that since the commission of this offence on 25 September 2021, he has been in breach of prison regulations on six occasions for offences of throw article, intimidation, assaults, possess offensive weapon/instrument, possess drug and again, possess offensive weapon, those all taking place between 20 January 2022 and 19 March 2023.  He has at least been able to stay out of trouble with prison regulations since mid‑March 2023.

53. I have taken all of the matters referred to into account, and I also take into account the principles of sentencing as referred to in s 3A of the Crimes (Sentencing Procedure) Act.  As I have said, I am prepared to accept that there is some evidence of genuine remorse.  As to the prospect of rehabilitation, in the circumstances of his past history and this offending I find that his prospect of rehabilitation can only be referred to as guarded.  That is not to say, of course, that there is no prospect of rehabilitation.  It cannot be said that there is a low prospect of reoffending in the circumstances.

54. I note that at the time of this offending the offender was in custody, and s 56 of the Crimes (Sentencing Procedure) Act 1999 applies to this offence, being an assault while in custody. Section 56 provides that assaults in custody would be wholly cumulative on the sentence being served by the inmate at the time, and a sentence of imprisonment, as referred to in that section, is in fact a reference to the non‑parole period of the existing sentence. S 56(5)(a).

55. As to the principles underpinning the provision in R v Jeremiah (2016) NSWCCA 9 to 10, stated:

"Accompanying the need to reflect total criminality is the Court's concern to maintain public confidence in the administration of criminal justice.  The concurrence ordered by his Honour, if allowed to stand, would undermine that confidence and give rise instead to a perception that a person who has committed a serious offence has escaped effective punishment.  R v Wheeler (2000) NSWCCA 34 at 36 to 37; Pannowitz v R (2016) NSWCCA 13 at 40. A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence of any degree (and if so what degree) will be consistent with the imposition of a sufficient penalty overall. Namely, the sentence must affect sufficient general deterrence to demonstrate that violence and disorder between the prisoners in custody will not be tolerated by the courts. R v Fyffe (2002) NSWSC 751 at 33; R v Hoskins (2004) NSWCCA 236 at 62 to 63, and R v Windle (2012) NSWCCA 222 at 56."

56. This offender was serving a sentence of 12 months imprisonment for an offence of taking drive conveyance without consent.  The date from 27 May 2021, with a non‑parole period of seven months which would expire on 26 December 2021.  That is, after the date of the commission of this offence.  However, after the commission of this offence he was subsequently sentenced on 7 October 2021 at the Bankstown Local Court to 18 months imprisonment for an offence of break, enter and steal.  That sentence was backdated to commence on 27 September 2021, with a non‑parole period of 12 months, expiring on 26 September 2022.  And on that date, he was formally refused bail in respect of this offence, following a detention application.

57. In my view the result of the legislation indicates that any sentence in respect of this offender should commence from 27 September 2022.  In particular, as previously indicated, I have had to take into account the sentences imposed, and in particular in relation to Mr Maile and Mr White.  The starting point, in my view, for this offender has to be a higher sentence that was imposed as the starting point for either of those offenders, due to his far more significant role as being the flashpoint, and involving him in some 23 punches or blows to the head of the victim, while he was being simultaneously kicked and punched by others.  Viewing the CCTV footage shows that the offender was highly agitated and very aggressive and angry, and raining blows, it would seem, with as much strength as he could muster, on a man who must at least in the latter part of that been defenceless.  He had to be dragged away or stopped by other inmates then present before he could inflict even more serious injury.

58. In my view, taking into account parity, the starting point before the application of any discount is a sentence of five years and eight months for the term of the sentence.  Applying a discount of 25% to that results in a term of four years, three months.  I would find special circumstances in relation to the statutory relationship between the non‑parole period and the balance of term, based on my observation that he appears to have become institutionalised or is becoming institutionalised, and afford him a longer period of parole to assist in reintegrating into the community, and a longer period of supervision for the purposes of rehabilitation.  I have also taken into account the period of custody between 27 May 2021 and 26 September 2022 on the principle of totality.

59. So, I have determined a non‑parole period of two years, nine months.  As previously said, the sentence will commence on 27 September 2022.  He will then be first eligible for parole on 26 June 2025.  The balance of term is one year and six months, and the total sentence will expire on 26 December 2026.  I note that the non‑parole period that I have specified is approximately 65% of the term of sentence to accommodate the matters that I have referred to by way of totality and considering the continuous period of time in custody.

60. Is there anything that I have omitted that you can think of, Ms Anderson?

ANDERSON: No, your Honour, not from the Crown's perspective.

HIS HONOUR: Ms Kluss, you're still with us?

KLUSS: I am, your Honour.  There's nothing that I wish to raise.

HIS HONOUR: Yes, what's that?

KLUSS: There's nothing.

HIS HONOUR: Nothing, sorry.  Sorry, there is a matter to be withdrawn of affray which was charged in the alternative, and that's to be withdrawn, Ms Anderson, Sequence 1.

ANDERSON: Yes, your Honour, that backup offence is to be withdrawn.

61. HIS HONOUR: Yes.  I will withdraw the backup charge of affray.

ANDERSON: Thank your Honour's associate.

KLUSS: Would your Honour mind if I just say in open court that we will contact Mr Cuthbert when he gets back to the gaol tomorrow, because I don't think the facilities are available for me to speak to him this afternoon.

62. HIS HONOUR: No, that is a problem here.  Yes, all right, he heard you say that, so he knows you're going to contact him tomorrow.  Mr Cuthbert, you have a lot of experience of being in gaol, so you know that you won't be released on 26 June 2025 unless you behave yourself.

63. OFFENDER: Yes, your Honour.

64. HIS HONOUR: You know, you need to stop breaching the prison regulations.  You also need to do as many courses as you can while you're in gaol to get yourself some work skills.  You know, use the time productively because otherwise you're going to find yourself on the revolving door of the justice system, always getting out for a short period of time and then returning to gaol because you've committed some offence.  And one of the greatest causes of released prisoners committing further offences is if they have alcohol problems or, alternatively, if they have drug problems.  Once you have a drug problem and you haven't dealt with that while you're in custody and you're released you very rapidly find prisoners returning to the use of drugs, needing to support them by committing criminal offences.  You know, you are now almost ‑ well you will be 29 on 20 November this year, it's time to stop.

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Decision last updated: 08 February 2024