R v Kuruppu

[2018] NSWDC 322

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Kuruppu [2018] NSWDC 322

Decision date:

13 April 2018

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Sentenced to a term of imprisonment of five years which will comprise a non-parole period of two years six months, and an additional term of two years six months. That sentence will commence on the expiration of the current non-parole period on 22 May 2020.

 

The non-parole period will accordingly expire on 21 November 2022.

 The additional term of two years six months will expire on 21 May 2025.

Catchwords:

SENTENCING — cause grievous bodily harm with intent to fellow inmate — offender on remand awaiting sentence or trial

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act

Cases Cited:

Banks v R [2018] NSWCCA 41
Brown v R [2014] NSWCCA 214
Cheung v R [2001] 209 CLR 1
Herron v R [2006] NSWCCA 215
Hili v R; Jones v R [2010 HCA 45 ; 242 CLR 520; Barbaro
R v Fyffe [2002] NSWSC 751
R v Jeremiah [2016] NSWCCA 241
R v Kanaan [2005] NSWCCA 385
R v Mitchell [2007] NSWCCA 296
R v Mitchell [2007] NSWCCA 296
R v Windle [2012] NSWCCA 222

Category:

Sentence

Parties:

Regina (Crown)
Sampath Kuruppu (Offender)

Representation:

Counsel:
Mr Young for the Crown
Ms Fanning for the Accused

File Number(s):

2016/00194535

Judgment

1. Sampath Kuruppu appears for sentence in respect of one count of inflicting grievous bodily harm with the intention of causing grievous bodily harm contrary to the provisions of s 33(1)(b) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and Parliament has specified a standard non-parole period of seven years imprisonment.

2. The offender was convicted following a trial before a jury at Penrith District Court. The trial commenced on 23 October 2017 and the jury returned a verdict of guilty on 26 October 2017.

3. The offender pleaded not guilty and there is accordingly no applicable discount with respect to the entry of a plea or any utilitarian value in such a plea.

4. The offence occurred on 28 April 2016 when the offender and the victim Sanad Jafari were both in custody at the John Marony Correctional Centre in Berkshire Park, New South Wales.

5. In proceeding to determine an appropriate sentence it is necessary that I set out the factual basis upon which such sentence will be predicated. My findings in relation to facts are required in order to assess the objective seriousness of the offending. I am obliged to determine the facts relevant to sentencing for myself. I am not to attempt to define the facts which may have been found by the jury as the basis of their verdict however the facts that I find must be consistent with the jury’s verdict and I am obliged to be satisfied of the existence of those facts beyond reasonable doubt - see R v Kanaan [2005] NSWCCA 385 at [185] and Cheung v R [2001] 209 CLR 1.

OBJECTIVE SERIOUSNESS

6. The offence occurred when the offender and Mr Jafari were locked in the cell that they shared sometime after 3pm on the afternoon of 28 April 2016. Mr Kuruppu was on remand at the time with respect to a number of offences with which he had been charged relating to incidents of domestic violence between himself and his then wife. Kuruppu and Jafari had been sharing a cell for some two weeks at the time of the commission of the present offence. The cell which the two remand inmates were sharing had a top and a bottom bunk, and a number of basic items which were permitted to be in the cell with respect to ordinary daily activities, notwithstanding their incarceration. These items included a single television set, tea and coffee making facility, including a kettle which could be boiled and a separate shower recess and a toilet.

7. In the course of the trial Mr Jafari gave evidence regarding the purchase of various comestibles by inmates described as ‘buy-ups’ using credit from their individual accounts. These ‘buy-ups’ including anything from foodstuffs such as milk and tuna to items of stationery, including envelopes. According to Mr Jafari there was a dispute that arose out of a conversation between the offender and Mr Jafari with respect to an envelope that had been purchased by Mr Jafari and which had apparently gone missing. Whatever the precise commencement of the disagreement between the two cellmates, I am satisfied that they ended up having heated words about an envelope and that in the course of such argument the offender took offence at in effect of being accused of having taken an envelope belonging to Mr Jafari. Following the verbal argument the offender picked up the kettle which had been boiled and poured or threw boiling water over the face and shoulders of the victim Mr Jafari.

8. Mr Jafari gave evidence, which I accept, that the offender said words to the effect of “here’s your envelope” at the time that the water was either poured or thrown onto Mr Jafari. In the course of giving evidence in the trial Mr Jafari demonstrated the water being thrown at him from the kettle which had been boiled. He demonstrated, effectively, an underarm throwing motion with the water being projected onto his face, chest and shoulders. He said that he felt instant pain and ran towards the shower recess intending to put cold water onto the area which had been burned. As he did so he said that he felt more hot water being thrown onto his back by the offender.

9. A deal of the trial was taken up on the question of whether or not the water was ‘poured’ or ‘thrown’. In my view little turns on this distinction.

10. I am satisfied beyond reasonable doubt that the accused intentionally caused water to be projected from the kettle in which it had but recently been boiled and that the water was intended to, and in fact did, come into contact with the skin of his cellmate Mr Jafari. The act was intentional and in my view nothing turns on the distinction sought to be drawn from the manner of its being projected from the kettle.

11. The victim’s application of cold running water from the shower to the areas of his body that had been burned ultimately played a significant part in the lessening of the long-term injury which he sustained from the application of the scalding water. Immediately following the assault with the water the offender pressed the emergency alarm button in the cell to summons Correctional officers. The comparatively prompt response by the Correctional officers also facilitated a lessening of the long‑term injuries sustained by the victim as a consequence of the subsequent early obtaining of medical assistance.

12. With respect to the objective seriousness of the offending a number of factors are required to be considered, these include:

a) The extent and nature of the injury sustained.

b) The circumstances of the commission of the offence, and

c) The degree of harm intended or foreseen by the offender.

THE EXTENT AND NATURE OF THE INJURIES

13. As I have already described the scalding water which was thrown on the victim caused immediate burn to his face, his anterior neck, both shoulders, his upper chest and also his upper back. Photographs of the burns were tendered and the victim described the intense pain which he felt at the time. He gave evidence of that both during the trial and subsequently in a victim impact statement which was tendered.

14. After taking the remedial step of putting himself under a cold water shower the victim was attended by Corrective officers until an ambulance arrived. The attending ambulance officers administered 25 milligrams of morphine which was described as “quite a significant dose” which was needed because of the extreme pain that the patient was in. Evidence called from one of the paramedics indicated a rough calculation that 15% to 18% of the body appeared to have sustained burns or scalding.

15. The medical director of the Burns Unit of Concord Hospital to which the victim was transported also gave evidence with regard to the injuries which he had sustained. Professor Maitz described the burns which were sustained were classified as “dermal” or “second degree burns”. This meant that the epidermal or outer layer of the skin was lost and the dermal layer, that is the deeper layer underneath the external skin, had been damaged to some extent but not entirely. The extent of the burns sustained were classified as severe because they involved the entire face as well as the back of his neck. Professor Maitz estimated that approximately 10% of the total body surface had been burned which, if it had remained untreated, was potentially life‑threatening. The burn wounds were typical of scald injuries and showed some rough marks on his shoulder, upper chest and back. The deepest wounds were located on the shoulders. In the opinion of Professor Maitz it was suggested that hot liquid, that is the boiling water, had run down the victim’s body losing heat, as the wounds were less deep and less severe as the water ran down. Various areas were debrided and had dressings applied.

16. The evidence at trial was that at the time the injury occurred it was properly characterised as ‘life-threatening’ but due to the victim taking the remedial step of putting the injuries under cold water and subsequently receiving proper treatment at the specialist Burns Unit there was a good outcome in relation to his long-term prognosis. Indeed, Professor Maitz was of the view that as judged by the American guidelines of “permanent impairment” he would expect the victim to have no long‑term impairment. Specialist treatment at the Burns Unit extended for a period of approximately one week and culminated in artificial skin being applied to various of the injured areas on the victim’s body.

17. He was subsequently discharged back to Long Bay Hospital for further treatment. At that time, he still had his wounds being required to be dressed and he was on multiple morphine-based medications for pain. In his victim impact statement Mr Jafari described the intense pain that he felt at the time and the agony that he felt during the course of some of the subsequent treatment. He described ongoing pain and claimed to still have some scars on his body and describe his skin as feeling fragile.

CIRCUMSTANCES OF THE COMMISSION OF THE OFFENCE

18. As has already been observed the offender and the victim shared a cell in a Corrective Facility. There was in that sense a forced or compulsory domestic situation as between them. Whatever level of verbal confrontation or dispute there had been leading up to the assault by the offender I do not accept the account given by the accused in the course of the trial that there was a degree of physical confrontation and provocation towards himself from the victim. The account given by Mr Jafari, which in general terms I accept, leads me to a conclusion that the physical attack is properly to be described as unprovoked. It was not in response to any threat of physical violence towards the offender. The attack did, however, not involve planning or much in the way of forward thinking. The Crown relies upon the proposition that based on the evidence from Mr Jafari it is indicated that it was the offender who had put the kettle on to boil. Whether that is so or not I would not be satisfied beyond reasonable doubt that the offender formed an intention to use the boiling water at the time the kettle was actually turned on. I note, in circumstances which I will outline shortly, that the offender contends that it was Mr Jafari who had put the kettle on and in due course he, that is the offender, took in effect a pre‑emptive strike. I should note in passing that the evidence of the offender, at trial of course, was that Mr Jafari had self‑inflicted the injuries which he sustained and had poured the boiling and scalding water from the kettle onto himself. The jury clearly rejected that account, as do I.

19. I am ultimately of the view that the physical attack was effectively spontaneous or “in the moment” and had arisen spontaneously following the verbal disagreement between the two men.

DEGREE OF HARM INTENDED BY THE OFFENDER

20. The throwing of boiling water into the face of a person is manifestly demonstrative of an intention to cause really serious harm. Such a finding is inevitable in light of the jury’s verdict.

CONCLUSION RE OBJECTIVE SERIOUSNESS

21. The description “grievous bodily harm” encompasses a potentially very wide range of injuries. In the context of a glassing which resulted in a “gaping wound to his facial area and under his throat” Hoeben J, as his Honour then was, President Mason and Justice Kirby agreeing, said in Herron v R [2006] NSWCCA 215 at para [54]

“Section 33 covers a wide variety of offences and a diversity of injuries, including permanent brain damage, loss of limbs, restriction of eye sight and many more which would have to be seen as considerably more serious than the (admittedly serious) injury suffered by the victim. Serious as the injury suffered by the victim was, this Court does see many cases of offences against s 33 which result in significantly greater injury. I doubt that the use of a glass such as occurred here should be equated in seriousness with the use of a knife or revolver. If one also takes into account the circumstances of this offence and in particular its spontaneous nature and the provocation involved, together with the other features found by his Honour which favoured the applicant, I am satisfied that the objective seriousness of this offence was not at the mid-range of objective seriousness for offences of this kind.”

22. I also take note of the observations of Howie J in the R v Mitchell [2007] NSWCCA 296 at [27] where his Honour said that:

“A very important aspect of an offence under s 33 is the result of the offender’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence.”

23. Given the above consideration the Crown has submitted that the offence falls below the midrange of objective seriousness and towards the lower end of the range. I agree.

SUBJECTIVE FEATURES OF THE OFFENDER

24. Information relating to the subjective circumstances of the offender has been placed before the Court in a number of different ways. A psychological report from Dr Anna Robilliard was tendered together with a letter of apology from the offender. In the course of the matter having been adjourned following a sentence hearing on 13 December 2017 the offender sent an eight page letter to the Court addressed to myself. That letter was delivered to my chambers by Registry and I have read the material in it.

25. In addition to information provided by the above-named a copy of the judgment of Judge Colefax SC who sentenced the offender for different matters on 17 March 2017 has also been perused.

26. The offender is now 52 years of age having been born in Sri Lanka in 1966. He was one of four children and his childhood was apparently unremarkable until his mid-teens. When he was about 14 or 15 his father died unexpectedly. It would appear that this may have given rise to long-term unresolved grief issues.

27. He left school following the equivalent of Year 10 in Sri Lanka. He obtained a Diploma in Hotel Management and Services before travelling to the United States and Canada where he worked variously in hospitality and also in accounting.

28. He migrated to Australia in 1999 when he was some 33 years of age. He married his wife in 2001. She was of Sri Lankan background and her family were predominantly located in New Zealand. In due course he completed degrees in IT and business studies and was ultimately employed for some nine years with Westpac Corporation. He and his wife built their first home together in Kellyville following their marriage and in due course moved and built a second home in 2012 in a suburb called The Ponds. The offender has two sons from the marriage who were born in 2004 and 2007 respectively.

29. The offender apparently has a history of excessive alcohol consumption which appears to date from when he was about 27 years of age prior to coming to Australia. Judge Colefax observed that this may be related to his unresolved grief issues following the death of his father. Apparently his consumption of alcohol increased when he came to Australia.

30. In the correspondence which the offender forwarded to me he expresses the view that he drank due to the pressures of his daily life and in particular that the lengthy shifts that he was obliged to perform during his employment at Westpac in the Merchant Business Solutions team. Whether or not he was drinking to cope with stress and perchance some unhappiness in the course of the marriage, his drinking was the catalyst for his early involvement with the criminal justice system when he found himself prosecuted for a midrange PCA offence in 2000.

31. On that first occasion he was fined and disqualified for driving for six months. According to the history recited in Judge Colefax’s Remarks on Sentence in March 2017 and also in Ms Robilliard’s report, and also referred in his own counsel’s written submissions which were received from Ms Fanning, there were similar such offences in 2006 and again in 2012. I have disregarded the reference to an offence in 2006 as it is not included in the printout of his criminal history tendered by the Crown before me. However, in 2012 in the records with which I have been provided he was convicted of a further midrange PCA offence together with a related traffic infringement which led to the imposition of a s 9 bond in addition to monetary penalties.

32. An appeal to the District Court was dismissed.

33. It would appear that by about 2014 there were serious difficulties in his marriage. Just precisely what caused the apparent disintegration of his marriage is unclear on the material that has been provided to me, although a combination of alcohol abuse, work stress and in due course anger management issues may well have provided a volatile cocktail of circumstances. It would appear that in about 2009 there had been some incident of domestic violence between the offender and his wife. No particular details have been provided to me in relation to such an issue. Other than a reference to this material in the remarks of Judge Colefax there is no information about this incident in the material which I have received.

34. The narrative relating to the breakup of the marriage is referred to in some detail in the written communication forwarded by the offender himself to the Court. In broad terms his narrative of sequential events regarding the marriage may be accepted. It would appear that the offender’s then wife originally resided in New Zealand where her parents and other members of her family predominantly continued to reside. Following a trip to New Zealand in late 2014 by the offender and his family he returned to Sydney apparently to get back to his work, presumably at Westpac. His wife and children remained in New Zealand for some time until the end of January 2015. According to the account provided by the offender there was nothing but problems following his wife’s return to Sydney. He asserts that an apprehended violence order was taken out by her against him in mid‑2015.

35. On 6 April 2015 there was an incident of domestic violence between the offender and his wife which led to charges of destroying or damaging property and also common assault.

36. Following those charges in August 2015 orders relating to domestic violence were made at Blacktown Local Court and the offender was placed on a s 9 bond for 12 months with recommendations for counselling and anger management, as well as attendance of the Domestic Violence Perpetrators Program.

37. In September 2015 an appeal by the offender to the Parramatta District Court against those orders was dismissed.

38. Following a further visit to New Zealand by his then wife at the end of December 2015 his wife subsequently returned to Sydney with her brother and discussions with respect to a permanent separation between herself and the offender were raised. The offender indicates a degree of surprise and shock at such a step which he had not anticipated. The offender and his wife in due course did separate and he moved from the premises at The Ponds on 6 January 2016.

24. The general sequence of events which has been recounted by the offender, and which I have indicated I generally accept, include that a further apprehended violence order was taken out against him on 14 January 2016. That AVO included conditions prohibiting contact between the offender and his wife. Notwithstanding the existence of the AVO on 22 February 2016 the offender contacted his wife on her mobile phone with respect to an expressed desire to take his younger son to buy school shoes. Following a series of messages between them police were contacted by the offender’s wife who attended upon her and obtained a statement with respect to the breach of the apprehended violence order which was in place following the incidents from the previous year.

25. In the early hours of 23 February 2016 the offender was observed in the backyard of the house where his wife and children were residing. In due course the offender picked up a brick paver and threw it through a window and climbed into the house through the smashed window. There was in due course a physical altercation between the offender and his wife which culminated in his intentionally choking her in the course of that physical interaction. The full detail of that incident is set out in a copy of the agreed facts which were tendered and included in the Crown sentence bundle in these proceedings.

26. With respect to that incident, Mr Kuruppu was in due course charged with three offences, namely, contravening the AVO, aggravated break and enter with intent to commit an indictable offence, namely intimidation, and intentionally choking another person with recklessness as to the injury sustained. The offender was also called up for breach of the s 9 bond which had been imposed in 2015.

27. The offender’s wife was hiding in the house while the offender was in the backyard and shortly before he threw the paver through the window she sent a message to her sister asking her sister to contact police. The sequence would appear to be that the window was then broken, the offender climbed through the window and the physical interaction that I have described then took place. However in due course police attended whilst Mr Kuruppu was still on the premises and after he had attempted to choke his wife. He had also, according to the agreed facts, threatened to kill her and to kill the kids. He was found by police in the house hiding under a bed. He was arrested and police found a role of silver duct tape in his pocket. The offender told police that he had in fact been picked up by his wife and taken to the house. He was asked the circumstances of his bleeding leg which he had obviously sustained whilst climbing through the broken window which he had smashed. He told police that his wife had done that to him. It is trite to observe that in fact he had cut himself climbing through the window that he had smashed and subsequently admitted as much to the police.

28. The offender was refused bail following his being charged with this series of offences. He was on remand awaiting sentence or trial, but ultimately sentence, with respect to them at the time of the offence committed against Mr Jafari on 28 April 2016 for which he now appears before me.

29. He subsequently appeared for sentence with respect to the offences committed against his wife on 24 February 2017. Judge Colefax passed sentence in March 2017 and imposed an aggregate sentence of seven years with a non-parole period of four years three months commencing on 23 February 2016 and expiring on 22 May 2020 with respect to those offences.

30. It would appear that the offender lost his employment at Westpac as a direct consequence of his arrest for the offences relating to his wife. Whilst I do not have any specific details it appears that there have also been family law proceedings and that his wife has subsequently relocated to New Zealand together with the two sons of the marriage. Although the offender has made passing reference to the circumstances derived from the Family Law Courts I have been provided with no detail of the final orders which are said to have been made on 26 October 2016. It would however appear that the offender has limited family support in Australia. He has lost his employment and most likely any prospect of re-employment in the same industry or profession, and has lost, most likely, direct contact with his children.

31. The report from the psychologist Ms Anna Robilliard dated 8 December 2017 noted that the offender avoided direct questions about his criminal history and in the opinion of the author of that report minimised his culpability and offered rationalised alternative explanations for past incidents. He denied problems in discussion with the psychologist with managing his anger. He asserted that he had continued to live with his wife “until he was arrested and imprisoned on unrelated offences”.

32. As has previously been observed he gave evidence in the trial before me in which he sought to blame the victim Mr Jafari for having inflicted the injuries on himself. Following the verdict of guilty by the jury and his subsequent conviction for the offence, the offender would appear to have belatedly moved to a position where he does now accept responsibility for causing the burn injuries. In the letter of apology dated 7 November 2017 which was tendered at the sentence hearing in December 2017, the offender expressed his extreme sorrow and described himself as “remorseful” and “embarrassed”. He asked the Court to accept his sincere apology of, as he termed it, his “poor judgment”. He humbly asks in that letter for mercy and to be given a lenient sentence or a long parole.

33. In the report of the psychologist Anna Robilliard, she observed “he was adamant that anger was not a factor in the commission of the index offence, rather he was scared and acted spontaneously when he poured boiling water over the victim and he was trying to calm him down”.

34. It is not insignificant that the psychologist came to the view that “until he undergoes treatment his potential for self and other directed aggression must be assumed to remain unchanged”. The reference to self-directed aggression relates to incidents claimed by the offender of having made a number of suicide attempts since his incarceration. Those attempts were also described in a psychologist’s report which was tendered before Judge Colefax which I have not seen but Judge Colefax referred to. As Judge Colefax SC noted, “The asserted suicide attempts were not otherwise the subject of any evidence”. I do note, however, that they were referred to in instructions given to Ms Fanning and she made reference to a number of apparent attempts at taking his own life in her written submissions to the Court. I also note an asserted history of self-harm noted in the Department of Corrective Services’ custody record.

35. In giving consideration to the evinced change of attitude and a belated expression of remorse I should note that in the eight-page letter forwarded to the Court dated 24 January 2018 the offender, in his own handwriting, has purported to express his changed attitude. That letter commenced by endeavouring to explain why he had given, on oath during his trial, false evidence. The first paragraph of that letter is as follows, ignoring spelling errors in the original, “Firstly, I would like to apologise to you for taking your Honour’s time from your busy schedule. As you understand very little about myself I thought this is the only way to address my guilt and my life story in a nutshell. Your Honour, I am not sure what it is in you but since the time I looked into your eyes and swear I wanted to do the right thing. Since I was on oath I wanted to change my initial statement which I given” - I think that should be ‘which I had given’ - “22 months ago. I did talk to my legal team in a roundabout way however I was scared to change as I was not sure what could have happened. Since I had gone ahead with the initial statement I feel guilty about it as I could picture myself in front of you”.

36. The offender went on later in that long correspondence to describe in precise detail his assertions with respect to the sequence of events including the proposition that Mr Jafari had lied in the trial about the lead-up to the water-throwing incident. The offender again asserts in that correspondence that Mr Jafari had put the kettle on and that that was why the offender wanted fingerprints taken from the kettle.

37. Whilst I have received the communication from the offender, and as I have earlier indicated, I have received it as tendered and I am prepared to accept some parts of the sequential narrative relating to his life history, I am not prepared to accept his account which effectively amounts to the proposition that he was in fear that Mr Jafari was going to throw the water on him. The offender maintained in his letter to the Court that Professor Maitz was wrong in expressing an opinion that the water was thrown rather than poured. He explained why he came to that particular conclusion. He also claimed that Mr Jafari had been speaking with the offender subsequently about the proposition that injuries such as Jafari sustained would help Jafari to get bail and also to claim compensation.

38. The offender went on to maintain in his correspondence that in addition to general remorse and contrition he is a changed person. He said, “Your Honour, this is the absolute truth I have written on this letter. More than the outcome of my sentence I wanted to be honest to you for me to get rid of my sins. I do not want to live with any guilt”.

39. With regard to finding facts relating to the commission of the offence I cannot place any significant weight on the account set out in the offender’s letter. It is contrary to his expressed evidence on oath at the trial. It is contrary to the sworn evidence of the victim Mr Jafari. It seeks to take issue with one of the foremost experts on burns in Australia whose expertise is recognised internationally. The jury clearly accepted the expert evidence of Professor Maitz, as do I. Whatever effect was felt by the offender by looking into my eyes, he thereafter proceeded to give what he now says was false testimony. Despite these observations and a lingering concern that the correspondence might properly be objectively characterised as manipulative, it is not inconsistent with a degree of self-reflection which might yet provide a glimmer of hope for some future appropriate rehabilitation.

40. The offender does express in his own handwriting a desire to get ongoing professional help for his personal issues such as alcohol use, anger and depression. He says there is no help in that regard in gaol and that he has done his best to do any programs which are available. He has done a course in English and also meditation. He has a job in the library. He says that he has been reading the Bible and that he now takes full responsibility for his actions. He continues to express a strong desire to be reunited with his aging mother, and as he describes them, his “darling boys”.

41. In addition to the material to which I have already referred, a letter from a doctor of the Colombo South Teaching Hospital in Sri Lanka dated 24 March 2017 was tendered to provide some evidence regarding the medical state of the offender’s mother who is now aged 79. The letter indicates that Mrs E. Kuruppu has obstructive pulmonary disease, pulmonary hypertension and aortic mitral valve disease. She apparently needs 24-hour care.

42. I also received a letter of completion with regard to a program conducted by Prison Fellowship International indicating Mr Kuruppu, successful completion of a program called The Prisoner’s Journey. That document would tend to support his having turned to aspects of teachings in the Bible. I should also note that a work program report from the manager of Industries at the Metropolitan Remand and Reception Centre dated 27 October 2016 corroborates that Mr Kuruppu was on a work program at the MRRC at Silverwater and that he had applied for work on a number of occasions in 2016. The glimmer of hope that one might entertain as a consequence of the offender now acknowledging the need for professional help leads me to a view that he will benefit from ongoing supervision. Accordingly, I propose to make, and do make, a finding of special circumstances.

CONSIDERATION

58. The offender presents as a man now in his middle age who other than the drink driving offences, whether they in fact be two or three, up until 2012, would otherwise appear to have been a hardworking and industrious member of the community with the only blemishes upon his character being the PCA offences, albeit that there is the incident that I do not have any detail of in 2009. Whilst I have not been provided with any particular details, he appears to have held down a responsible professional position within a large banking institution; to have been in a marriage with a person from the same culture; and to have two sons who by all assertions he adored; and to have, together with his wife, built not one but also a second family home with a view to bringing up his boys in a family environment. He would not be Robinson Crusoe in the community to have been working long and stressful hours and to have over-indulged in alcohol.

59. Beyond that gloss I have been provided with very little to reach firm conclusions regarding his otherwise apparent good character and the nature of his marriage. As I have indicated an apparent incident of domestic violence in 2009 would appear to have been the first hint of a potentially serious difficulty with anger management. Ultimately problems in that regard, almost undoubtedly fuelled by alcohol, have culminated in the firm sentence of imprisonment which has been imposed by another judge of this Court.

60. Against the above background and as I have indicated, whilst on remand in respect of those matters, his temper would appear to have again taken the better of him and to have led to the commission of the offence against Mr Jafari. It is to be noted that of course, being in custody, unless there was some illicit concoction that had been consumed I act on the basis that he was not under the influence of alcohol at the time of losing his temper in the events with Mr Jafari.

61. The occurrence of acts which are described in prison parlance as ‘jugging’ or ‘kettling’ is, it would appear, an all too frequent occurrence in disputes between inmates. The infliction of grievous bodily harm with the requisite intention to cause that harm is a serious offence of personal injury and is reflected as such in the maximum penalty of 25 years. The specification of a standard non-parole period of seven years further reflects the seriousness with which Parliament, acting on behalf of the community, views such an offence - see R v Zhang [2004] NSWCCA 358. Both the maximum penalty and the standard non-parole period operate as guideposts in the consideration of an appropriate sentence. In light of the finding that the objective seriousness of the instant offence falls to the lower end of a range below the midrange the standard non-parole period, whilst to be acknowledged, does not impose a straightjacket on the proper exercise of a sentencing discretion. However, a particular consideration in an offence committed between inmates arises pursuant to s 56 of the Crimes (Sentencing Procedure) Act. That is in the following terms:

56Sentencesfor offences involving assault byconvicted inmate

(1) This section applies to:

(a) asentenceof imprisonment imposed on anoffenderin relation to an offence involving an assault, or any other offence against the person, committed by theoffenderwhile aconvicted inmateof acorrectional centre, or

(b) asentenceof imprisonment imposed on anoffenderin relation to an offence involving an assault, or any other offence against the person, against ajuvenile justice officercommitted by theoffenderwhile aperson subject to control.

(2) In the absence of a direction under this section, asentenceof imprisonment imposed on anoffender:

(a) who, when beingsentenced, is subject toanother sentence of imprisonmentthat is yet to expire, or

(b) in respect of whomanother sentence of imprisonmenthas been imposed in the same proceedings, is to be served consecutively with theother sentence of imprisonmentor, if there is afurther sentence of imprisonmentyet to commence, with that furthersentence.

(3) Thecourtimposing thesentenceof imprisonment may instead direct that thesentenceis to be served concurrently (or partly concurrently and partly consecutively) with theother sentence of imprisonmentand anyfurther sentence of imprisonmentthat is yet to commence.

(3A) Such a direction may not be given in relation to:

(a) an offence involving an assault, or other offence against the person, against acorrectional officercommitted by theoffenderwhile aconvicted inmateof acorrectional centre, or

(b) an offence involving an assault, or other offence against the person, against ajuvenile justice officercommitted by theoffenderwhile aperson subject to control, unless thecourtis of the opinion that there are special circumstances justifying such a direction.

(4) A direction under this section has effect according to its terms.

(5) In this section, a reference to asentenceof imprisonment is taken to be a reference to:

(a) thenon-parole periodof thesentence, in the case of asentencefor which anon-parole periodhas been set, or

(b) the term of thesentence, in the case of asentencefor which anon-parole periodhas not been set.

(6) In this section, a reference to

"another sentence of imprisonment",

"other sentence of imprisonment"or

"further sentence of imprisonment"is taken to include a reference to a period for which a person is required to be detained in adetention centreunder an order referred to in section 33 (1) (g) of theChildren (Criminal Proceedings) Act1987.

62. It is important to observe that s 56(2)(a) does not have direct application because the offender was not actually serving a sentence of imprisonment that had not expired at the time of the sentence for the commission of the offence.

63. He was not serving a sentence. He was in custody bail refused as a remand prisoner.

64. However the Court of Criminal Appeal in R v Jeremiah [2016] NSWCCA 241 per Meagher JA, Davies and Fagan JJ, held that a full accumulation which the Court in that matter considered appropriate was “certainly not in tension with the objectives of s 56”.

65. The circumstances giving rise to s 56, which in terms applies to a convicted inmate, are clearly equally applicable to prisoners who are on remand. A sentence imposed must give effect to sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the Courts. That principle has been articulated in numerous cases, including the oft-cited observations of Justice Barr in R v Fyffe [2002] NSWSC 751 at para [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.”

66. Basten JA similarly noted in R v Windle [2012] NSWCCA 222 at [56] that:

“The offence was carried out whilst in gaol serving a separate sentence for a specially aggravated offence of entering a dwelling with intent to inflict grievous bodily harm. 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.”

67. Such observations of principle have been consistently articulated by the Court of Criminal Appeal.

68. There is however still a necessity to consider the question of totality, and I do so. In Banks v R [2018] NSWCCA 41 the Court, Simpson JA, RA Hulme J and Hidden AJ dealt with a wholly accumulated sentence with respect to an offence of reckless wounding in company following an attack on another prisoner at Parklea Correctional Centre. The offender was sentenced to four and a half years with a non-parole period of three years three months which was specified to commence at the conclusion of the non‑parole period that he was already serving. The non-parole period that he was already serving was ten years. The effect of that total accumulation meant that the total overall sentence became 14 and a half years with an effective non-parole period of 13 years three months. The effective total non-parole period was accordingly something in excess of 90% which is a ratio well in excess of that stipulated by the statutory ratio.

69. The Court in that case, that is Banks, recognised that an overall proportion relative to the statutory ratio of 75% might sometimes be achieved by finding special circumstances and reducing the non-parole period for an accumulated sentence. I observe that on other occasions the principle of totality may require what Sir Laurence Street used regularly to describe as a “degree of telescoping”.

70. In the outcome in Banks the Court of Criminal Appeal allowed the appeal, proceeded to resentence and partially accumulated the additional sentence by backdating it whilst having the non-parole period somewhat extended.

71. In the present matter I have had regard to the relevant Judicial Commission statistics. I remind myself that statistics are frequently and regularly described in the Court of Criminal Appeal as a “blunt tool”. It is appropriate to recall what Garling J said in Brown v R [2014] NSWCCA 214 at para [80] to [81]. His Honour said:

“It is important to note that the High Court has said in many cases that the consistency in sentencing which is sought from intermediate appellate courts--”

72. And I would interpolate first instance Courts.

“--is not numerical equivalence but rather consistency in the application of relevant legal principle: Hili v R; Jones v R [2010 HCA 45 ; 242 CLR 520 at [48]–[49]; Barbaro at [40].”

73. His Honour went on:

“In offences such as the one with which the court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad.”

74. I note that Brown related to an offence contrary to s 35(2) of the Crimes Act 1900 however the same observations can be made with equal force with respect to offences contrary to s 33(1)(b) of the Crimes Act.

75. In all of the above circumstances I have borne in mind the principle of totality and the overall effect of the accumulation of a sentence and non-parole period which I propose to impose.

76. Mr Kuruppu, you are sentenced to a term of imprisonment of five years which will comprise a non-parole period of two years six months, and an additional term of two years six months. That sentence will commence on the expiration of the current non-parole period on 22 May 2020.

77. The non-parole period will accordingly expire on 21 November 2022.

78. The additional term of two years six months will expire on 21 May 2025.

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Amendments

24 February 2021 - coversheet - corrected case name

Decision last updated: 24 February 2021