R v Hunt

[2025] NSWDC 403

District Court

New South Wales

Medium Neutral Citation:

R v Hunt [2025] NSWDC 403

Hearing dates:

8 August 2025

Date of orders:

14 August 2025

Decision date:

14 August 2025

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Sentence of 3 years and 3 months with a non-parole period of 2 years and 5 months, at [62]

Catchwords:

CRIME – Poison to injure person – Offence committed in custody – Cellmate’s drink spiked with drain cleaner – Alkaline burns to mouth, oesophagus, and stomach – Victim vulnerable due to old age and health issues – Offence potentially undercharged

SENTENCING – Form 1 offence – Possess identification information to commit serious indictable offence – Maximum penalty for Form 1 offence greater than principal offence

SENTENCING – Subjective circumstances – Plea of guilty – Guarded remorse and rehabilitation – Extensive and serious criminal history – Offender has spent most of adult life in custody – Offender institutionalised – Mental health issues – Obsessive Compulsive Disorder and Paedophilia

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW) ss 33, 35, 39, 41, 47, 192K

Crimes (Sentencing Procedure) Act 1999 (NSW) s 56

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Car v R [2009] NSWCCA 138

Davis v R [2018] NSWCCA 277

Kuruppu v R [2021] NSWCCA 261

R v AB [2006] NSWSC 69

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Dinh [2010] NSWCCA 74

R v Fyffe [2002] NSWSC 751

R v Kuruppu [2018] NSWDC 322

R v Loveridge [2020] NSWDC 256

R v Qutami [2001] NSWCCA 353

R v Windle [2012] NSWCCA 222

Satorre v R [2006] NSWCCA 298

Tan v R [2010] NSWCCA 207

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category:

Sentence

Parties:

Rex (Crown)
Michael / Micheal Shane Hunt (Offender)

Representation:

Counsel:
C Mayer (Crown)
L Connell (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2024/00329547

Publication restriction:

N/A

JUDGMENT

1. Michael Hunt (sometimes misspelt as Micheal Hunt in some official records) appears for sentence in respect of one offence of using poison to injure a person or cause distress or pain contrary to s 41 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 5 years imprisonment. The offender pleaded guilty at the earliest opportunity and will accordingly be entitled to the statutory discount of 25% from an otherwise appropriate sentence.

2. Attached to this offence on a Form 1 is an offence of possessing identification information with the intention to commit a serious indictable offence contrary to s 192K of the Crimes Act. This offence, if prosecuted separately, carries a maximum penalty of 7 years imprisonment. The Court is asked to take it into account in passing sentence for the poisoning offence.

FACTUAL BACKGROUND

3. From 6 June 2024 the offender and the victim, Victor Higgs, were inmates sharing a cell at Long Bay Correctional Centre. The offender was 59 years old and the victim was 87 years old at the time.

4. The offender had a normal placement at the gaol, meaning he could be placed in any cell by himself or with other persons. He was also trusted with various cleaning duties around the gaol.

5. The victim had a medical placement due to his advanced age and medical conditions, meaning that he needed and was required to share a cell with another person in case he suffered from a medical emergency overnight.

6. On 30 August 2024 the victim mixed one third of a litre of a powdered lime drink in a cup and left it to steep overnight in the cell. At some stage during the night the offender decanted about 10-15ml of drain cleaner into the victim’s cup.

7. On the morning of 31 August 2024 the victim woke up and drank some of the contaminated lime drink. He immediately felt his mouth burning and described a taste of acid. He began vomiting. The medical distress button in the cell was activated and Correctional Officers met the victim at the gate of that wing where he was struggling to speak. He was escorted to a medical clinic where nursing staff declared that emergency medical attention was required.

8. The victim was transported to hospital and treated for alkaline burns to his throat. He presented with swollen lips and tongue, and shedding skin. He had significant fluids in his airway and was bleeding from the roof of his mouth. He suffered burns to his stomach, supraglottic area, tongue, mouth, and oesophagus which required intubation. The Agreed Facts state that “following treatment, there were no further effects or ongoing injury.” There is no further evidence nor any information able to be provided from the Bar table as to the extent of the injuries or their effect on the victim nor the extent of the treatment. No victim impact statement was obtained.

9. The victim was later interviewed and noted that he had applied for a Medicare card but had not seen it for some time. He did not recall the offender having given him any milk or water after he felt his mouth burning.

10. Following the incident Correctional Officers secured the victim and offender’s cell. The offender was escorted out and attempted to take the cup with him but was asked to leave it behind. NSW Police spoke with the offender and during that conversation the offender:

1. At first suggested that the victim drank the lime drink on the evening prior to the incident;

2. Secondly suggested that people do not like the victim because he smells and he does not shower;

3. Thirdly agreed to having bleach in his cell; and

4. Fourthly said that he had given the victim water and milk on the morning of the incident.

11. On 5 September 2024 the offender was found by Correctional Officers to have the victim’s Medicare card and pocket diary in his possession. He indicated that he took the victim’s Medicare card with the intention to create a false ID in order to get a mobile phone when he was released. He ultimately conceded that he had put the drain cleaner in the victim’s cup.

SUBJECTIVE CIRCUMSTANCES

12. In assessing the offender’s subjective circumstances the Court had the benefit of the psychological report by Dr Sathish Dayalan dated 14 July 2025, a letter of apology written by the offender, a letter from the offender’s mother, and also the offender’s criminal history. A letter of apology by the offender to the victim was referenced in the Agreed Facts but not provided to the Court. A short extract was included in the Agreed Facts.

13. In his report Dr Dayalan outlined the offender’s psychiatric history including a childhood diagnosis of ADHD, his childhood experiences with bullying, and sexual abuse by another student at school. The offender recounted a positive relationship with his parents. The offender reported depressive and anxiety symptoms from 2003 when he was arrested for sexual offences. The offender stated that he believed that he had been diagnosed with Obsessive Compulsive Disorder and explained that he was particular about where his belongings were placed. He struggled to relax if they were out of place. He washed his hands at least 20 times a day and he wore gloves to eat or prepare certain food, and spent much of his time cleaning his cell.

14. In addition to this claimed diagnosis, Dr Dayalan noted previous diagnoses of Paedophilia and Substance Use Disorder in relation to cannabis.

15. During his periods in the community the offender reported having worked as a labourer, his longest period of consistent employment being a period of 18 months, after which he was terminated due to being slow at work, which he attributed to his Obsessive Compulsive Disorder.

16. Prior to the present offending the offender had not shared a cell with another inmate for the majority of his time in Correctional centres. He had been given a classification which noted that he ought not share a cell due to past issues between him and cellmates.

17. Around the time of this offence however, the offender did share the cell with the victim. As previously noted, the victim had a classification meaning that he, as an 87 year old, needed to share a cell with another person in case he suffered from a medical emergency. The offender reported to Dr Dayalan that whenever the victim was in his cell, the offender had to be in the cell. He described struggling to adapt to this, having to provide assistance to the victim due to his age and poor health, and feeling like a “babysitter”. He described the victim as a malodorous person of poor hygiene whose snoring kept the offender awake at night.

18. In relation to why he spiked the victim’s drink, the offender said he was “wanting a bit of time out…I needed a break…I stole an opportunity that came up…I took it whereas I shouldn’t have”. He stated that his poor impulse control and OCD contributed to his actions, and on reflection said that he was devastated by his actions.

19. In his letter of apology the offender described himself as haunted by the offence. He said he was getting help for his mental health issues and inquiring into courses in custody for the first time in his life. He expressed concern for his 84 and 90-year-old parents and feared that they might pass away while he is in custody. He stated that being in prison was not facilitating his rehabilitation and he believed there were more support programs available in the community.

20. In her letter of support the offender’s mother Mrs Janice Hunt provided some background to his life. She explained that he was adopted at 6 months of age after suffering gastroenteritis and septicaemia in infancy, which left him with lasting developmental issues. He was prescribed Ritalin at 3 years of age with increasing dosages up to the age of 10. While medicated he had difficulty interacting with others and difficulties with speech and bladder control. She stated that by the age of 15 he had poor social skills and no friends, even amongst his 4 younger siblings. She described him undertaking hormone treatment to help his physical development, around which time he began engaging in anti-social behaviour. He developed symptoms of obsessive compulsive behaviour including continued handwashing and having things in the right place.

21. She described that it was difficult for her and the offender’s father to deal with the offender’s criminal behaviour, but that they were there for him and when he is released, they intended to help him however they were able.

CRIMINAL HISTORY

22. The offender has an extensive and serious criminal history stretching back to the age of 18. The Court did not have details of his juvenile record but I note that he reported to Dr Dayalan that he completed year 10 and part of year 11 whilst in custody.

23. From 1983-1986 the offender was repeatedly charged with break, enter and steal offences for which he variously received fines and sentences of hard labour. In 1988 the offender was charged with and in 1989 convicted of murder and sentenced to 20 years imprisonment with a non-parole period of 15 years. That sentence was subject to a redetermination to take into account the remissions which would have applied at that time. Following the redetermination, the sentence was a term of approximately 12 years and 7 months with a non-parole period of approximately 9 years and 6 months. The offender was released to parole in October 1997. The offender reported to Dr Dayalan that this arose from a relationship of his that had lasted 6 months. He admitted killing his girlfriend three weeks after their separation.

24. In 2000 the offender was charged and convicted of abusing a child through neglect or ill treatment and he received the benefit of a s 9 bond. In 2003 he was charged with possessing child pornography, publishing child pornography, indecent assault of victims under the age of 10, and supplying a prohibited drug. For those offences he received an effective term of imprisonment of 8 years with an effective non-parole period of 7 years, which was due to expire in February 2010.

25. In mid-2010, and without having been released to parole, he was charged with historical offences of indecent assault of a child under 10 and 2 counts of sexual intercourse with a child under 10. He ultimately received an aggregate sentence of 14 years which was backdated to commence in 2003 and conclude in 2017, with a non-parole period of 12 years.

26. The offender reported to Dr Dayalan that aside from the above-mentioned girlfriend who he was convicted of murdering, the offender had only one other relationship in his life with a girlfriend of four months. That relationship ended when he sexually abused that girlfriend’s child.

27. Following his release in September 2017 the offender was repeatedly charged with breaching extended supervision orders, sentenced to terms of imprisonment, released with fresh extended supervision orders, and again charged with breaching those orders. The offender was approximately 14 weeks away from his parole date when the present offending took place. The offender has been remanded in custody for these offences since he was charged.

28. Ultimately it would appear the offender has spent approximately 31 out of the last 37 years of his life in custody. It is therefore unsurprising that Dr Dayalan formed the opinion that he was institutionalised.

DEFENCE SUBMISSIONS

29. In written submissions Ms Connell on behalf of the offender submitted that the offending fell at the mid-range of objective seriousness, noting that it involved some but limited planning, that it was unsophisticated and easily detected given the offender was the only other person in the cell, that the offender made full admissions, albeit in due course, and that the victim required treatment in hospital for injuries but according to the Agreed Facts, suffered no ongoing effects or ongoing injury.

30. The Defence conceded that the offender’s previous convictions and the victim’s vulnerability due to age and health were aggravating factors. The only identified mitigating factor was the remorse shown by the offender, said to be demonstrated by his early plea of guilty, his comments to Dr Dayalan that he was devastated by his offending, his letter to the Court, his letter to the victim, which, as I say, was not before the Court but was quoted in part. In the portion that was quoted he said:

“I must say how very sorry I am for what I did to you and do hope that you make a full and healthy recovery. I don’t know how I could ever do something like this to you, especially being an old man of 87 years old.

Every time I think I about what happened I get sick in my stomach, and to think if anyone did something like this to my parents, I would be literally devastated. So, I’m saying this again, I am so very sorry for how I hurt you Victor and PLEASE! I do hope that you have it in your heart to forgive me.”

31. In assessing the submission with respect to the offender’s remorse I have regard to the principle articulated in R v Qutami [2001] NSWCCA 353 that caution ought to be exercised in relying on or giving excessive weight to untested and self-serving statements by an offender.

32. In relation to pre-sentence custody, the Defence submitted that the sentence ought to be backdated to 7 December 2024, being the date on which the offender became eligible for parole in respect of his previous sentence. The Defence submissions reiterate much of the subjective material contained in Dr Dayalan’s report.

33. In oral submissions Ms Connell noted that there is extremely limited case law in relation to this offence, with the only cases decided resulting in non-full-time custodial sentences. She reinforced her submission that the offending fell in the mid-range, noting the difficulties in assessing objective seriousness without comparative cases to act as a touchstone.

CROWN SUBMISSIONS

34. In written submissions the Crown submitted that the offending fell on the higher end of the scale of objective seriousness for these kinds of offences, having regard to the premeditation, the offender’s offering water instead of calling for assistance thereby delaying treatment, the fact of the poison being drain cleaner, the physical impact on the victim, the victim’s vulnerability, and the offender’s abusing his position as a cellmate trusted with responsibility for facilitating help in a medical emergency. The submissions noted aggravating factors including the offender’s previous convictions for serious personal violence offences and the substantial injuries suffered by the victim.

35. In relation to pre-sentence custody, the Crown submitted that the sentence ought to be backdated to 7 April 2025, being the date on which the offender’s previous head sentence expired, some 4 months after the Defence argues that the sentence should commence.

36. In oral submissions Mr Mayer on behalf of the Crown noted that the offence was premeditated and involved some degree of planning to obtain the drain cleaner. The offence was easily detectable but only after the fact of its having been consumed by the victim.

37. In relation to subjective material, the Crown submitted that the offender’s letter of apology reflected remorse for the circumstances the offender had found himself in rather than remorse for the pain caused to the victim. I note the offender’s comments in his letter that to the effect that he was “literally devastated, disappointed and very remorseful that only having 12 weeks to go before having committed this terrible offence before my release in December 2024” and similar comments lends some support to the Crown’s submission.

38. The Crown noted that there was limited evidence to consider the likelihood of reoffending, noting the offender’s serious criminal record, the fact that any further change to his routine in custody might similarly provoke him, and the fact that although he expresses a desire to enrol in courses in custody, he has a long custodial history and has never made any efforts to engage in such courses in the past. Ultimately the Crown submitted that there is a high risk of re-offending.

39. In relation to the Form 1 offence, the Crown submitted that this was at a low level of objective seriousness, but that it was clearly with the intention of using the victim’s details to avoid restrictions in the community upon his release. In that regard I will remind myself of the offender’s history of breaching extended supervision orders and the fact of his being a registerable person under the Child Protection (Offenders Registration) Act 2000 (NSW). His intention was clearly to be able to acquire a mobile phone in another name so as to be able to access the internet undetected.

COMPARATIVE CASES

40. I am conscious of the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 that I cannot sentence the offender upon facts that may indicate a more serious offence than that which he has been charged with. There is little doubt that the offending conduct in this matter could potentially have been charged under other offences carrying more serious maximum penalties such as s 47 of the Crimes Act 1900 (NSW) which is the offence of using a corrosive fluid with intent to burn, maim, disfigure, disable, or to do grievous bodily harm, which attracts a maximum penalty of 25 years imprisonment; s 39 which is the offence of using poison to endanger life or inflict grievous bodily harm, which carries a maximum penalty of 10 years imprisonment; s 33 intentional wounding or causing grievous bodily harm, which carries a maximum penalty of 25 years imprisonment; or s 35 inflicting grievous bodily harm recklessly, which again carries a maximum penalty of 10 years’ imprisonment.

41. There are cases involving broadly similar factual circumstances to the present matter, which have typically been charged under those more serious offences. Although I am constrained by what has been charged, I make reference to the following comparative cases involving broadly similar factual scenarios in order to guide my assessment of the objective seriousness of the offence with which he has been charged.

40. In Kuruppu v R [2021] NSWCCA 261 the offender appealed against the severity of two separate sentences, one imposed by Judge Colefax SC and the other imposed by myself, including a sentence for intentionally causing grievous bodily harm. The offender and the victim were both in custody and shared a cell for a period of about 2 weeks. They shared a small television and a kettle. They had a verbal argument over missing items in the cell before the offender picked up a recently boiled kettle and threw or poured boiling water over the face and shoulders of the victim. The victim felt instant pain and ran towards the shower recess to put cold water on the burned areas. As he did so, he felt the offender throw more hot water on his back. The long-term injuries sustained by the victim were significantly lessened by his immediately applying cold water to the burns and by the offender having pressed the emergency alarm button, summoning Correctional Officers who promptly organised medical assistance. 15-18% of the victim’s body had been scalded and were classified as second degree burns. The medical practitioner who attended on the victim estimated that if the burns had remained untreated, they could potentially have been life threatening. The offence was held to fall below the mid-range of objective seriousness and towards the lower end of the range. The offender was ultimately sentenced to an aggregate of 5 years with a non-parole period of 2 years and 6 months, and had not received the benefit of any plea discount.

41. In R v Loveridge [2020] NSWDC 256 the offender pleaded guilty to one charge of assault occasioning actual bodily harm. The offender had been an inmate serving a lengthy term for a separate matter. Whilst in custody he had been involved in a number of physical altercations with other inmates, and was ultimately given a security classification which was intended to keep him separate from members of a particular outlaw motorcycle gang. He was nevertheless placed into a “Pod” with members of that gang, where he approached the president of the relevant outlaw motorcycle gang and punched him several times. Both the victim and the offender sustained minor injuries. The offender was then escorted by Correctional Officers to segregation, where he should originally have been placed. At sentence the Correctional Officers gave unconvincing evidence that his placement in the Pod was simply an administrative error. The offender stated that he acted as he did to provoke immediate action by Correctional Officers to remove him from the Pod. The offender was ultimately sentenced to a term of imprisonment of 12 months.

42. In R v AB [2006] NSWSC 69 the offender pleaded guilty to an offence of being an accessory before the fact to murder. A conspirator planned to have the victim, an accountant involved in a failed money laundering scheme, disfigured by an acid attack. The offender was approached for that purpose but introduced a friend who would do it instead. He located acid, loaned his friend a weapon to coerce the victim, arranged transport to the victim’s home, and held cash for payment of the friend on completion of the crime. That friend and another man attended the victim’s home and restrained the victim at gunpoint before hydrochloric acid was poured into his mouth. The pouring of the acid caused severe burns and permanent blindness. His pain was such that he was placed in an induced coma from which he did not awaken. AB was ultimately sentenced to 18 years with a non-parole period of 13 years and 6 months. In Satorre v R [2006] NSWCCA 298 an appeal against the sentence of one of the two principal offenders was dismissed and the sentence of 16 years imprisonment with a non-parole period of 12 years was confirmed. In Tan v R [2010] NSWCCA 207 an appeal against the other offender’s sentence of life imprisonment was also dismissed.

43. In R v Dinh [2010] NSWCCA 74 the Crown appealed against the inadequacy of an offender’s sentence for applying a corrosive fluid with intent to burn. The offender’s mother was jealous of her ex-husband’s new partner, the victim. The balaclava clad offender and a second offender approached the victim as she was leaving a wedding. The offender was armed with a knife and a spray bottle. The victim ran but the offender caught up with her and overpowered her. As she was held down an acidic substance was sprayed over her back, causing superficial partial thickness burns on her back and right arm. At first instance a sentence of 4 years and 6 months was imposed with a non-parole period of 2 years and 6 months. The Crown inadequacy appeal was successful and resulted in an increased term of imprisonment of 6 years with a non-parole period of 4 years.

44. In Car v R [2009] NSWCCA 138 the offender appealed against the severity of a sentence for maliciously causing a person to take poison, namely carbon monoxide, so as to endanger life. The offender’s marriage had broken down and he had a shared custody arrangement with his ex-wife for the care of their 13-month-old son. The offender had told the wife he would contact her around 5pm to arrange a custody changeover. She did not receive any contact from him until 7:15pm when he said in a text message “I just wanted to say goodbye” and “you are not seeing [the child] again”. Police were contacted and eventually located the offender’s vehicle in Blenheim State Forest. A grey conduit tube connected the exhaust pipe to the offside rear window and clothing had been used to fill the remaining window gap. The applicant was in the vehicle asleep with his son on his stomach. He explained that he had started the engine and the vehicle began to fill with carbon monoxide fumes. He had become dizzy and developed a headache before he had turned the engine off. He was unable to say how long the engine had been running. Both the offender and his son were taken to hospital but were largely unharmed and blood samples indicated that the carbon monoxide levels were not excessive. The offender, in relation to a charge of causing a person to take poison so as to endanger life, was ultimately sentenced to a term of imprisonment of 2 years with a non-parole period of 12 months. The appeal against severity was dismissed.

45. In Davis v R [2018] NSWCCA 277 the offender appealed against his conviction following a trial for a number of offences, including murder and administering poison with intent to murder. The offender worked in an aged care facility and was convicted of administering by injection high doses of insulin to three residents without a medical need for those doses, resulting in the death of two of the residents and serious health complications for a third. The offender was ultimately sentenced to an aggregate term of 40 years with a non-parole period of 30 years; comprising an indicative of 30 years with a non-parole period of 22 years and 6 months for each murder, and an indicative of 16 years with a non-parole period of 12 years for the administration of poison to the third and only surviving resident. The appeal was dismissed.

OBJECTIVE SERIOUSNESS

48. The offence for which the offender is to be sentenced is, as I have already noted, under s 41 which carries a maximum penalty of 5 years imprisonment. There is an absence of any case law directly on s 41. The Judicial Commission statistics record results for only four offences under this section, two of which were decided in the Local Court and two of which were decided in the District Court. Two of those cases resulted in Community Correction Orders and the other two each resulted in Intensive Correction Orders. None of them resulted in full time custodial sentences.

49. In the absence of any guidance from case law, I need to assess the objective seriousness of the offence by reference to the nature of the poison administered, the means by which it was administered, the vulnerability of the victim, and the injury, distress, and pain caused by the poison.

50. In relation to the nature of the poison, I note that drain cleaner is not only a poison but is a corrosive substance which is designed to break down organic material in pipes and drains. I am aware of documented incidents where drain cleaner consumption has resulted in death where the oesophagus had been completely burned through. There is no evidence in the present matter as to how much drain cleaner the victim actually ingested, but it is clear that the effect was immediate and catastrophic by virtue of the nature of the substance. The presence of the burns in his mouth and stomach and down his oesophagus indicate that he swallowed some amount of the drain cleaner before realising what it was. In my view the nature of the poison contributes to an assessment of objective seriousness at the uppermost end of the range.

51. In relation to the means by which it was administered, the facts state that the offender decanted 10-15ml of drain cleaner into the victim’s cup. There was a degree of pre-meditation not only in the obtaining of the drain cleaner and the bringing it back to his cell, but in the decanting of it into a cup of lime cordial that the victim had left to steep overnight.

52. I also note the vulnerability of the victim due to his advanced age, the unknown health issues which required him to be accompanied in the cell, and the fact that the offender had effectively been designated as a cellmate responsible for raising the alarm in the event of any medical emergencies. That said, the offending was unsophisticated. The victim could easily have abandoned or forgotten the cup. The cup and its remaining contents were easily discovered. The acid was not poured down his throat nor forced upon him. Although the offender occupied a role as the designated cellmate, that role does not reach the standard of being a position of particular trust or authority. In the circumstances, the means of administering the poison is not remarkable and is akin to the drink-spiking one sees occasionally committed in bars for different and ulterior purposes.

53. In relation to the injury, distress, and pain caused to the victim, the Agreed Facts state that the victim immediately felt his mouth burning and began vomiting. The victim presented with swollen lips and tongue, and shedding skin, had fluids in his airway and was bleeding from the roof of his mouth. The victim ultimately suffered burns to his stomach, mouth, and oesophagus which required intubation, a process by which a tube is inserted into one’s trachea to keep an airway open when it has been compromised. It is clear that there would have been immediate pain and distress to the victim as his airways filled with fluid and his internal organs burned. This is supported by the fact that on receiving the victim, nurses at the medical clinic declared that emergency medical attention was required and the victim was transported to hospital. As I have already indicated, the Agreed Facts state that “following treatment, there were no further effects or ongoing injury.” There is no detailed evidence before the Court in respect of the length of the stay in hospital nor the nature of the treatment which ultimately appears to have been a fully recovery, or the length of time that took. Notwithstanding the absence of those details, I nevertheless regard the immediate distress and pain and the necessity to be transported to emergency treatment as significant.

54. In my view the offence falls in the high range of objective seriousness, and is sufficiently grave to warrant the imposition of a penalty approaching the maximum for offences under this section (see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48).

DETERMINATION

55. The offender is entitled to a 25% discount on sentence for the utilitarian value of his early plea of guilty. I take into account the offence on the Form 1 which has a slight upward impact on the sentence for the principal offence, although I note in passing that the Form 1 offence has a higher maximum penalty than the principal offence contrary to the observations and expression of principle by his Honour Chief Justice Spigelman in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

56. With respect to the commission of the principal offence, I note the offender told Dr Dayalan that he believed his poor impulse control and Obsessive Compulsive Disorder contributed to his behaviour in committing the offence. In my view, the circumstance that the offender had been seeking to be reclassified as a “one out” so that he was not required to share his cell and the likely exacerbation of his Obsessive Compulsive Disorder, given the aged cellmate not attending to his personal hygiene, whilst providing an explanation for the conduct, I am not of the view that it reduces his criminal culpability.

57. I entertain a degree of reserve regarding his unsworn expressions of remorse and regret. Given his extensive criminal history and his level of institutionalisation, I view his prospects of rehabilitation as modest at best.

58. Neither party has directed the Court’s attention to s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section requires that in the absence of a direction by a sentencing Judge, a sentence of imprisonment imposed while a previous sentence is still being served with respect to, for example, an assault in gaol, is required to be served consecutively. However, section 56(3) permits the Court imposing the additional sentence of imprisonment to direct that the sentence is to be served concurrently, or partly concurrently and partly consecutively, with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence (See R v Kuruppu [2018] NSWDC 322).

59. I am cognisant of the expression of principle by Justice Barr in R v Fyffe [2002] NSWSC 751 at [33] where his Honour said:

“It is particularly important that Courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the Courts can afford them.”

60. I also note the observations of Basten JA in R v Windle [2012] NSWCCA 222 said at [56]:

“This Court has noted the importance of maintaining discipline within the prison system and protecting other offenders from criminal assaults by fellow inmates, a matter which is reflected in the general requirement for such offences to be the subject of cumulative sentences.”

61. I take into account the principle of totality.

62. After allowing the 25% discount, there will be a head sentence of 3 years and 3 months. In the interests of transparency, the starting point is a period of 4 years and 4 months including appropriate weight being given to the Form 1 offence. I do not find special circumstances. There will be a non-parole period (slightly rounded from the statutory ratio) of 2 years and 5 months. The sentence and non-parole period will be backdated to commence from the date he was eligible for parole on 7 December 2024. The non-parole period will accordingly expire on 6 May 2027 and the additional term of 10 months will expire on 6 March 2028.

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Decision last updated: 07 October 2025