R v Loveridge

[2020] NSWDC 256

District Court

New South Wales

Medium Neutral Citation:	R v Loveridge [2020] NSWDC 256
Hearing dates:	15 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Fixed-term of 12 months to commence on 18 June 2022 and expire 17 June 2023
Catchwords:	CRIME — Violent offences — Assault occasioning actual bodily harm – Assault in custody – Provocation – Duress as mitigation – diminished moral culpability
Legislation Cited:	Correctional Centres Act 1952 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Prisons Act 1952
Cases Cited:	R v Abusafiah (1991) 24 NSWLR 531 R v Fyffe [2002] NSWCS 751 R v Kuruppu [2018] NSWDC 322 R v Loveridge [2013] NSWSC 1638 R v Loveridge [2014] NSWCCA 120 R v Windle [2012] NSWCCA 222
Texts Cited:	Report of the Inquiry into the Central Industrial Prison, August 1988 (Judge A.G. Muir Q.C.)
Category:	Sentence
Parties:	Regina (Crown) Kieran Loveridge (Offender)
Representation:	Counsel: Mr A. Djemal (Counsel for the Offender) Ms M. Knowles (DPP)
File Number(s):	2018/00096771
Publication restriction:	2018/00096771

Judgment

1. Kieran Loveridge appears for sentence following his plea of guilty to one charge of assault occasioning actual bodily harm contrary to the provisions of section 59(1) of the Crimes Act 1900. Such an offence carries a maximum penalty of five years imprisonment. There is no standard non-parole period. The offence was committed on 26 February 2018. Mr Loveridge entered a plea of guilty in the Local Court and was committed to the District Court for sentence. In the circumstances his plea of guilty attracts a reduction of 25% from an otherwise appropriate sentence.

2. The circumstances in which the offence was committed were both unusual and highly unfortunate.

Background

3. In February 2018, Kieran Loveridge was an inmate in the custody of the NSW Department of Corrective Services. Loveridge was, and is, serving a lengthy term of imprisonment following his highly publicised manslaughter of a young man, Thomas Kelly, in July 2012.

4. The offender and his victim, Mr Kelly, were both only 18 years of age at the time. Loveridge also assaulted four other members of the public during his alcohol-fuelled rampage through Kings Cross. Mr Loveridge subsequently achieved a degree of notoriety as a consequence of the tragic death of Mr Kelly and the publicity surrounding what were described as “one punch” offences and the subsequent introduction of the so-called “lockout laws” in the Sydney CBD.

5. In the event, Loveridge was sentenced by the original sentencing judge in the Supreme Court, in November 2013, to terms of imprisonment which comprised a total effective sentence of 7 years and 2 months and an effective non-parole period of 5 years and 2 months: R v Loveridge [2013] NSWSC 1638.

6. Following a successful Crown appeal against the inadequacy of the sentence, in July 2014 Loveridge was re-sentenced in the Court of Criminal Appeal to a substantially increased effective sentence of 13 years and 8 months with a non-parole period of 10 years and 2 months. Mr Loveridge’s earliest date for release was, accordingly, 17 November 2022: R v Loveridge [2014] NSWCCA 120.

7. His time in custody, however, has not been free from further transgression of either the criminal law or gaol rules and regulations.

8. During the almost 8 years that he has been incarcerated, he has been involved in a number of assaults or other physical interactions with other inmates. The question of his ongoing propensity to violence is a relevant factor for consideration in the determination of the current proceedings.

9. Following his being subjected to violence at a young age in the home environment, Loveridge himself became involved in juvenile criminal behaviour from the age of 14. In addition to offences relating to being conveyed in stolen cars, he was charged with assaulting an officer and an affray at the age of 15. At the age of 17 he was charged with respect to an assault which occurred after he and other young men gate-crashed a party. That matter came before the Children’s Court where he received the benefit of a probation order when the matter was eventually dealt with in that jurisdiction approximately one month before the assaults at Kings Cross in July 2012.

10. He went into custody following his arrest in July 2012 at the age of 18 years and four months. His breach of the probation order ultimately resulted in his first two months in custody being attributed to that breach. He has remained in custody since his arrest.

11. In April 2013 he was charged internally within Corrective Services with involvement in assaults whilst in custody and was confined to his cell for 3 days. I should note in passing that such determinations in custody do not necessarily involve any hearing and often participants in an assault are punished without any resolution as to whether somebody was the assailant or whether they were defending themselves.

12. In March 2015 he and another inmate were together involved in an assault on another prisoner at Cessnock. The two offenders went into the other prisoner’s cell where the victim was punched violently and sustained a broken jaw. It was not ascertained as to which of the two actually caused the injury. That incident led to an external criminal charge of assault occasioning actual bodily harm in respect of which Loveridge was sentenced in the District Court at Port Macquarie in 2016 to a fixed term of 12 months imprisonment. His Honour Judge Haesler SC, no doubt because of considerations of totality, directed that the 12-month term would be served partially concurrently with the sentence already being served. Accordingly, Mr Loveridge’s earliest release date, when he would become eligible for parole, was extended by 6 months, to 17 May 2023.

13. Following that assault, Loveridge’s classification within the prison system was regressed to an A2 security classification and he was transferred to Goulburn High Risk Management Correctional Centre. A psychological assessment was conducted following his arrival at Goulburn. He was 21 years of age at that time and I will make further reference to that assessment later in these Remarks.

14. He had also been involved in a further fight in October 2015, before he appeared for sentence with respect to the broken jaw incident, which fight again resulted in a confinement to cells for 3 days.

15. It would be clear from this narrative that not all assaults which occur whilst persons are in custody necessarily result in the laying of criminal charges. Some assaults lead to charges being laid under the relevant regulations or prison rules and punishment may consist of a deprivation of privileges or a confinement to cells. As has been seen in the course of Mr Loveridge’s custody, on two occasions he was confined to cells whilst on another he was charged criminally and sentenced to a term of imprisonment which lengthened his time in custody.

16. No doubt the decision to bring criminal charges is likely to be tempered by the extent of the injuries sustained by any victim and the ability of the authorities to ascertain how an assault may have been initiated. It is well known that frequently the victims of assaults within the prison system itself choose to either not make complaint at all or, even in cases where serious injury has been sustained, to not provide a statement identifying the perpetrator.

17. Within the prison system inmates are classified in accordance with a descending classification system based on a Corrective Services assessment. The classification descends from the highest need for security concerns which is classification A2 and descends through classification B to the lowest category, namely a C classification. Classification up or down may be affected by good behaviour and good assessments on the one hand, or by breaches of prison rules and bad behaviour on the other.

18. In the period of years that Loveridge has been in custody he was originally classified A2 following his initial reception. He went into protection, in part because of the publicity surrounding his offences and his consequent notoriety. In due course he progressed to a B classification until the assault in March 2015 took place. He was then regressed to an A2 classification for approximately 2 years before his reports in custody were noted as having improved for the better and he was again progressed to a B classification in April 2017. Although he has had a number of comparatively minor transgressions of prison rules since that time, up until the present matter there were no further incidents of violence.

The present offence

19. The bare facts of the present matter are both stark and superficially simple. On 26 February 2018 the offender was to be transferred from Cessnock Correctional Facility where he had been for some time, to Nowra Correctional Facility. He had been on B classification for some 10 months and would have been coming up for a 12-month review in approximately April 2018.

20. Mr Loveridge’s unchallenged evidence before me was that he had been advised by the authorities that he was to be transferred to Nowra with a view to being promoted in due course to a C classification.

21. The offender was brought from Cessnock to Silverwater en route to Nowra. It is uncertain as to precisely how long it was intended that he would be kept in Silverwater pending his transfer to Nowra. For reasons which I will examine in more detail shortly, numerous alerts within Corrective Services made it clear that the offender was not to be housed within the prison system with members of the Rebels Outlaw Motorcycle Gang (OMCG).

22. Notwithstanding such a clear alert, the offender was placed into a section in the prison described as a Pod at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater which was occupied by numerous members of the Rebels. Just how and why that occurred is a matter of considerable concern. The fact of him being placed with sworn enemies of the Lone Wolf OMCG, of which Mr Loveridge was identified as an associate or member, played a direct causative part in what unfolded.

23. As I noted earlier, the bare facts are quite simple. They are depicted in the CCTV recording which has been tendered. That video recording clearly shows Loveridge, shortly after being placed in the Pod, walking across the common area of the Pod to where the President of the Rebels OMCG, one Mathew Rymer, was seated on a milk crate with his back to the wall whilst talking on the telephone. This was at a location, as best I can estimate, perhaps 10 metres or so from a glass office in which were located a substantial number of Corrective Service Officers.

24. Mr Loveridge is clearly observed in the recorded video to walk up to the president of the Rebels who, whilst seated on the milk crate, was facing towards him. Loveridge immediately, and without warning, commenced to punch Rymer to the head. Following a flurry of punches, at least one or possibly two of which appeared to connect, the two men grabbed hold of each other and fell to the floor where they continued wrestling and fighting with each other. A considerable number of Corrective Service Officers immediately ran from the adjacent office and broke up the struggle between the two men.

25. Loveridge was manhandled away first while the victim of his assault, Rymer, returned to the phone, which had been left dangling by its cord, and resumed his conversation. A recording of that call, which continued both before and after the assault, has been tendered in these proceedings.

26. Loveridge was escorted by the officers into the adjacent office, and then into a hallway, apparently to be placed into a separate cell. Meanwhile, after completing his phone call, Rymer ran into the hallway and is observed from a different camera to attempt to assault Loveridge in retribution for the initial assault. Rymer was tackled to the ground by a number of Corrective Service Officers and restrained before he could strike Loveridge. Both men were then physically removed from the scene before being conveyed separately for medical treatment.

27. Rymer had sustained a laceration to his eyebrow in the initial altercation with Loveridge which required a number of sutures. Loveridge sustained bruising to his eyelids and a finger and minor grazes.

28. Loveridge was subsequently, as he should have been in the first place, put into segregation.

Objective seriousness

29. An assessment of objective seriousness of an assault occasioning actual bodily harm requires a consideration of the extent of injury sustained.

30. Notwithstanding the Corrective Services notations as both inmates having suffered minor injuries, it is clear that the lacerations sustained by Mr Rymer required a number of sutures. Submissions were made on behalf of Mr Loveridge with regard to the question as to whether or not that laceration occurred as a consequence of an actual punch or a clash of heads whilst wrestling on the ground. In my view this is a distinction without a difference. It was a consequence of the assault initiated by Mr Loveridge.

31. However, in a consideration of the broad spectrum of injuries sustained in an assault occasioning actual bodily harm, this offence falls well below mid-range.

How did Loveridge come to be placed, contrary to specific alerts in relation to him, in a Pod known to be occupied by members of an outlaw motorcycle gang?

32. This question is concerning. From the time of the founding of the colony of New South Wales the question of discipline and violence within the prison system has always been a serious problem for the authorities. This is not the occasion for a sentencing judge at first instance to undertake a detailed or comprehensive review of this topic.

33. However, the importance of steps put in place for the protection of prison officers themselves and for the protection of prisoners against attacks by other prisoners are matters of significance in a consideration of the present matter. They are significant for those within the system, whether they be Corrective Service Officers or prisoners, and they are significant for the administration of justice, which includes the proper governing of the means of punishment in a civilised society.

34. On some occasions historically, Parliament has had the need to intervene with amendments to the law to ensure the safety of prisoners or some categories of prisoner. I make reference to some particular matters only. Various changes to prison practices and procedures occurred after the Royal Commission conducted by Mr Justice Nagle in 1979. Many of those changes were for the protection of inmates.

35. In 1987 the then 18-year-old Jamie Partlic, was sent to gaol for four days because of his failure to pay traffic fines of a little over $1000. Partlic was placed in a section of the then Central Industrial Prison together with hardened and violent criminals. He was assaulted by two of them and bashed senseless. He sustained profound brain damage and was left with permanent quadriplegia.

36. Following a public outcry after the assault, amendments to the law enacted by the NSW Parliament no longer required fine defaulters to be imprisoned. In a subsequent Commission of Inquiry into the Central Industrial Prison conducted by his Honour Judge AG Muir QC in 1987-88, it was noted: “Violence within prisons is not a new phenomenon, it is a daily threat that prisoners face from their fellow prisoners”.

37. The consequence of the existence of such a real and constant threat within prisons, has led to Parliament affording to Governors of prisons, Commissioners of Corrective Services, and other appropriate executive officers, the power to segregate prisoners, the power to make non-association orders, and the authority to keep separate and apart different classes and types of prisoners: see, by way of example, section 22 of the Prisons Act 1952 (now repealed); section 22AC of the Correctional Centres Act1952 (now repealed); and section 10 of the Crimes (Administration of Sentences) Act 1999 with respect to the current power to put a prisoner into segregation.

38. Against this general background, I turn to the specific evidence before me with respect to Mr Loveridge. His Custody Record indicates that as early as August 2012 there were OMCG alerts noted on his New South Wales Department of Corrective Services records. Such an alert was placed because of his association with the Lone Wolf Outlaw Motorcycle Gang.

39. One of the many difficulties confronting Corrective Service authorities is, undoubtedly, to identify membership of, association with, or affiliation to different groups, different ethnicities, and different religions. The potential of violence between such different groups or between different opposing and feuding motorcycle gangs must be a real and ongoing difficulty for those charged with the administration of correctional institutions. No doubt because of such concerns, alerts of the kind placed on the record of Kieran Loveridge when he first went into the system are important, both for protection of the individual and for the protection of other prisoners.

40. As I indicated earlier in these Remarks, Loveridge was transferred to the Goulburn High Risk Management Correctional Centre in 2015 following the assault on another prisoner at Cessnock. A psychological assessment was carried out by the Senior Specialist Psychologist within Corrective Services NSW at Goulburn, Mr John Flockton. Loveridge had just turned 21 years of age at the time of the assessment.

41. In the course of that interview and assessment process he appeared agitated and his speech was described as “pressured” when he became preoccupied in requesting information about possible placement options within the prison system. The psychologist noted in June 2015 that this preoccupation “related primarily to his concerns should he be exposed to Rebels OMCG members.” The psychologist noted an expectation that this situation would provoke violence where Loveridge would have to immediately defend himself. The psychologist set out what were described as “Case Plan considerations” relating to Mr Loveridge and noted that his affiliation with the Lone Wolf OMCG was continuing in custody. He was perceived as having a vulnerability to gang influence.

42. Corrective Services NSW maintains within its records a specific Inmate Profile with respect to every prisoner. A copy of the Inmate Profile Document with respect to Kieran Loveridge, which has been tendered by the defence in these proceedings, contains a heading: “Groups Not to Associate with”. Under that heading is clearly stated: “OMCG Rebels”.

43. In addition to the Inmate Profile Document, Corrective Services NSW maintains within its computerised records specific drop-down files which include Alerts and also Non-Association notations. A printout of such a record has also been tendered in the defence bundle.

44. Such a clear alert is not only included in the Inmate Profile and in the computerised drop-down files, but is also recorded on physical documents which accompany a prisoner when he or she is moved from one prison or Correctional Facility to another. Prisoners are, of course, only moved pursuant to appropriate lawful authorisation. A warrant is required, for example, to bring a prisoner to court. Similarly, an order under the authority of, or delegated authority from, the Commissioner of Corrective Services is required to move an inmate from one Correctional Centre to another. Such an order is physically printed and clearly includes on its face any specific alerts which are in place.

45. The unequivocal and unchallenged evidence before me is that an alert that Kieran Loveridge should not be placed with members of the Rebels outlaw motorcycle gang was in place and obvious not only in the computer records but also on the face of the documents accompanying his transfer on 26 February 2018.

32. In a telephone call with his cousin the day before his transfer, which like all gaol calls was recorded, Loveridge told his cousin that he expected to be placed in segregation during the stopover at Silverwater and hence might not be able to get a visit. He explained that he expected to be in segregation because he couldn’t be placed with members of the Rebels. In his own words, he said: “I’ll probably be in segro, cause I can’t mix with Rebs.”

33. This recorded conversation objectively makes clear the expectation that Mr Loveridge held that he could not be placed with the members of the Rebels and that the Alert was still in place.

34. He subsequently gave a detailed account to the Clinical and Forensic Psychologist, Dr Paul Pusey, whose reports of 11 May 2019 and 8 May 2020 have been tendered, in which he described conversations that he had following his arrival at Silverwater. In short, Mr Loveridge claims that quite apart from alerts on the system and on documentation in the warrant folder accompanying his travel, he told the officers at Silverwater that he could not be placed in with the Rebels. In broad terms, I accept his evidence in this respect.

35. The Crown called oral evidence from Officer Paul Coyne who is the Manager of Security at the MRRC at Silverwater. Officer Coyne has been the Manager for the last two years. He was, in fact, the Acting Manager on the date of the assault, 26 February 2018.

36. Officer Coyne gave evidence regarding the procedure for the reception of an Inter-centre transfer inmate at the MRRC. He said that as offenders arrive, officers would: “See what alerts or what non-associations that they have, and then they place them appropriately after that.”

37. The Crown Prosecutor asked Mr Coyne (T 11: 15 May 2020): “And I think it’s agreed, so don’t feel reticent to say anything, but it was a mistake placing Mr Loveridge in Pod 14, is that correct?” Mr Coyne’s answer, somewhat surprisingly, was: “I don’t know”.

38. In the course of cross-examination Mr Coyne agreed with Mr Djemal, counsel for Mr Loveridge, that any Alerts would be checked. He agreed that the section 23 document, that is the document authorising the movement from one Correctional Centre to another, would have any current Alerts notified on the actual physical document. Mr Coyne said that the physical document would go in a warrant folder with the offender which would accompany him during the transfer.

39. With respect to the logical possibilities that what occurred was either an error or that it could possibly have been deliberate, Mr Coyne suggested that it would be an error and not deliberate. He was asked: “How would such an error occur?”, to which he replied: “I don’t know your Honour”.

40. In the course of preparation for what was initially intended to be a contested fact hearing on this plea, the Crown held a conference with one of the officers who had been on duty and who had been involved in physically breaking up the fight between Rymer and Loveridge. The notes from that conference, with Officer Lesko, were provided by the Crown to the defence pursuant to the Crown’s duty of disclosure. A copy of those notes has been tendered in the defence tender bundle.

41. The evidence able to be given by that officer, who was present in the Pod on the day, was recorded in the email sent from the Crown to the defence as follows:

Rebels are known to be housed at MRRC

Technically Lone Wolfs need to be held separately because they are at war.

There were Rebels in Pod 14. MRRC is a Rebels gaol.

Loveridge should not have been put in that Pod but he was not known to be a Lone Wolf at the time. He only claimed to be a Lone Wolf since coming into the jail.

It is true though that certain gangs aren’t meant to mix together.

Does not know if Rymer needed stitches for the cut above his eye but she did not think so. Did not have access to those records. Justice Health would need to be asked.

When Loveridge arrived at MRRC he was with others in the Grille. Did not think he would have been separated from anyone. The only reason he would have been separated is if he was protected from inmates. He wasn’t on protection. Pod 14 is for normal (non-protected) inmates.

Cannot recall if she was aware of any alerts but it is not her job to check for alerts.

56. In the event, evidence was not called orally from the officer.

57. To the extent that the note of her proposed evidence would have corroborated the proposition that Pod 14 was known to be a place where the Rebels were located, and that it was known that members of the Lone Wolf OMCG were not to be placed with them, I accept the accuracy and truth of those out-of-court assertions.

58. To the extent that the officer asserted that Mr Loveridge was not known to be a Lone Wolf at the time, and that he only subsequently claimed that he was, is simply not accurate. His evidence before me, contrary to the statement by Officer Lesko, is that he in fact was separated from other prisoners on arrival, he was not challenged by the Crown in cross-examination on that aspect of his evidence. Similarly the proposition that Loveridge was, in effect, appropriately placed in the Pod, is simply not true and is contrary to the Agreed Facts. These aspects of the assertions contained in the notes of the conference with the officer fly in the face of the clear objective evidence.

59. Following the incident between Loveridge and Rymer, a Report Form with respect to the Use of Force on Inmates by Corrective Officers was completed. That report, which has been tendered, described injuries to both Rymer and Loveridge and the fact that Loveridge had been placed in segregation immediately after the incident “due to OMCG issues”.

60. A subsequent review of this report by the Manager of Security was completed the following day. It noted what were described as only “minor injuries” with respect to both men and recorded the following: “The incident occurred as a result of an opposing OMCG group member being placed in G block directly from intake, despite ACTIVE alerts being on the system”. I note in passing that the word ‘active’ is recorded in capital letters in that report. The recommendation was that a review was required in terms of ascertaining definitive responsibility with respect to what had occurred.

61. That recommendation was then the subject of a Determination by the General Manager, who noted on the document that the Assistant Manager should discuss the issue regarding the alerts which had been in place, with the staff. The relevant document with these notations is also included in the defence tender bundle.

62. Mr Coyne in the course of giving evidence was not able to assist with what, if anything, happened as a consequence and whether any such discussion with staff had taken place. It would appear that no enquiry was pursued, or at least none that is in evidence before me, with respect to ascertaining responsibility for what had occurred.

63. Mr Loveridge, subsequent to the event, expressed an opinion to the psychologist, Dr Pusey, that he believed the incident had happened deliberately. Loveridge told Dr Pusey:

“I honestly believe that this happened to me because they still believe that I had an affair with an officer in 2015. I think that the officers are targeting me and I think they thought this was a chance for me to get my karma. I had told them that I had dramas with the Rebels and they put me in with them anyways.”

64. I note in passing that the suspension and subsequent termination of employment of a female Correctives Officer with respect to such an alleged interaction was the subject of wide-spread publicity in 2015.

65. In a series of telephone calls which were recorded in the days following the assault, Mr Loveridge repeatedly expressed his belief that what had taken place had been deliberate. I will ignore the majority of the adjectival expletives scattered through the conversations. The day after the incident he told his mother: “They fucked up.” They put me in the Pod with the (fucking) Rebels, the dogs.”

66. In a phone call with his mother the next day he told her: “What a (fuckin’) set up, they put me in the whole Pod full of them”. Later in the conversation he said: “And they just put me straight in segro after it. Then they realised, they go, see you (fucking) idiots, we (fucking) shouldn’t have (fucking) put him in here, you’se (fucking) idiots fucked up. I think they done it on purpose.” His mother replied: “Yep. Oh, of course they would have, Kieran.” The offender replied: “Yeah, damn straight, I think they done it on purpose.”

67. In a later conversation with another person, Loveridge said: “They stitched me up. The dogs put me in Pod 14.” In yet a further subsequent conversation he told another person “They set me up brother.”

68. Loveridge also recounted a conversation with an officer which allegedly had occurred subsequently in which an unidentified officer told him: “The whole wing knew you were comin’ there and they all knew you couldn’t go there.”

69. Mr Loveridge gave sworn testimony before me in these proceedings. As I indicated earlier in these Remarks, in broad terms, the fact that he said something to an officer or officers to the effect that he should not be placed in with the Rebels before he was physically put into the Pod, I accept.

70. I am not holding an enquiry to conclusively determine the circumstances which led to Mr Loveridge being put into the Pod containing prisoners with whom there was a clear alert he was not to be placed with. Whilst there is an obvious possibility that it could have been deliberate, it was at the least an error which ought never to have occurred. Whether it occurred through malice or recklessness, or what part the imminent approach of the 2:30 pm muster may have played in the placement, the Court is not in a position to determine with certainty.

What actually motivated the assault?

71. In the series of telephone calls by Mr Loveridge to members of his family and other persons in the days following the assault, he gave a number of descriptions of the circumstances of the assault. In those various conversations he repeatedly described a conversation between himself and Rymer before the physical assault commenced. He also told a number of people that he “started kinging him”. The learned Crown, in her written submissions, has focused on those various conversations and has submitted that they are consistent with boastful behaviour regarding what had actually happened.

72. A major thrust of the Crown’s submissions sought to deal with the question of whether or not Mr Loveridge had said anything to any officer about not being placed in the Pod before he was put there. The Crown submitted that the various recorded telephone conversations subsequently illuminated the true level of Loveridge’s insight, or lack thereof, into his offending behaviour.

73. I am satisfied that his boastful conversations regarding the circumstances of the assault of Mathew Rymer as recorded in the telephone conversations were nothing more and nothing less than braggadocio. His claimed conversation with Rymer before the assault never took place as is clear from the vision on the CCTV and from the recording of the telephone conversation itself which Rymer was engaged in at the very time of the assault. The claim by Loveridge in those conversations of having thrown eight punches was simply untrue. I accept what he told the psychologist when he explained what he said in those telephone calls. He told Dr Pusey: “I couldn’t show my true feelings to the boys. They’d be like, look at this girl. A man’s got his pride.” He said further: “I didn’t want them to know the truth, that I was set up and I panicked and shit myself even if that was the truth.”

74. The Crown’s written submissions take issue with the proposition that Correctives had indicated they did not care that he was sent to a Pod containing Rebels, which was part of the conversation alleged by Mr Loveridge, and that a distinction should be drawn between that position and “the offender acting as he did to get out of the Pod immediately because a mistake was made (which the Crown accepts).”

75. Although neither clearly stated, nor put to Mr Loveridge in cross-examination, the position adopted by the Crown appeared, implicitly, to be that Mr Loveridge simply took an opportunity which fortuitously presented itself to assault the President of an opposing outlaw motorcycle gang.

76. The defence case, in contrast, was that having mistakenly and wrongly been placed into a Pod with members of the Rebels, the offender was motivated by fear of being hurt or seriously injured by the Rebels and he deliberately carried out an assault within eyesight and a short distance physically from the officers who were in the adjacent office, as a means of being physically removed from this perceived threatening situation.

77. Mr Loveridge himself gave evidence that he raised the fact that he was meant to be separated both at the initial reception area at the MRRC and again with the officer who walked him to the Pod. He said that as he was walked to the Pod and said that he was not meant to be put there he was told words to the effect of: “Well just try and do your best.” He said that the officers were in a rush because of lock-in or muster which happens at 2:30 in the afternoon. He said that he was told that there were no more requests because of the time. He said when he got into the Pod he thought: “I got to get out of here you know.” He said that he thought that he had to try, in his words, to “get in front of them” or they were going to “jump” him. He said, “I just panicked, I seen Rymer on the phone... and I thought I’m just gonna go for him like.”

78. The clinical psychologist, Dr Pusey, referred to what he described as “the unique nature of the contextual and perceptual contexts which have led to this offence.” It was the psychologist’s opinion that Mr Loveridge’s perception of and response to the severity of the risk posed to him by the members of the Rebel Motorcyle Club in the Pod provided the most likely explanation for his offending behaviour. Dr Pusey went further and expressed the opinion that Mr Loveridge exhibited symptoms consistent with a diagnosis of an acute stress disorder.

79. The Crown described Dr Pusey’s report and his conclusions as being based on self-serving statements by Mr Loveridge. However, Mr Loveridge gave sworn evidence attesting to the truth of what he had told Dr Pusey and was subjected to cross-examination, the primary focus of which appeared to be whether the conversations claimed to have been had with officers before the placement in the Pod had in fact occurred.

80. I have carefully considered the competing positions and the evidence given by Mr Loveridge in these proceedings and the detailed account he gave to Dr Pusey.

81. I have also taken into account the obvious fact that the offender was a considerably smaller man, both in height and weight, than Mr Rymer .

82. I am satisfied that the assault which Loveridge carried out in the full view and immediate proximity of numerous Corrective Service Officers was done as a means which would guarantee his immediate removal from that Pod. I am satisfied that he held genuine fears for his safety were he to be left in that Pod and placed in a cell overnight.

83. It is self-evident that fears of violence by or towards the offender from members of the Rebels was the very reason for the alerts which had been raised years earlier and which were noted throughout the various Corrective Services records.

Assessment of criminality and moral culpability

84. As a matter of first principle, the moral culpability of an offender may be either aggravated or mitigated by a variety of factors. The motivation for the commission of an offence can play an important part in a consideration of criminality. An assault motivated by fear where there is an imminent threat of physical violence to one’s self may, depending upon the reasonableness of the response, provide a defence. The concept of self-defence is well known to the criminal law.

85. Provocation can, in some circumstances, reduce murder to manslaughter. It does not, however, play any part in a consideration of the justification of an assault per se.

86. The perception of a threat to one’s self, although not necessarily justifying a claim of self-defence, may give rise to a consideration of what is described at law as duress. In R v Abusafiah (1991) 24 NSWLR 531 (at [541]) Hunt J explained the concept:

In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits.

87. The question of duress in the sense that it is understood at law was not raised in these proceedings. By the plea of guilty which has been entered, as Mr Djemal indicated in his written submissions, the offender “accepts, notwithstanding his actions being motivated by fear, that his actions were not reasonable.”

88. It is also appropriate to take into account that provocation and duress are both identified as mitigating factors in the statutory considerations set out in section 21A of the Crimes (Sentencing Procedure) Act 1999.

89. I am satisfied on all of the evidence that the position in which Mr Loveridge found himself, in a Pod containing some 14 members of the Rebels outlaw motorcycle gang, would have caused a level of apprehension and fear in him which was both predictable and justifiable.

90. I am satisfied that the position in which he was placed operated to provoke him to react in the way that he did. I am satisfied that his reaction was occasioned by fear of what might happen were he to remain in the Pod and that in the mitigating sense that the term is used in the relevant statutory provision, he was acting under duress because of the fear which he perceived existed.

91. I am satisfied that his actions were a deliberate means of ensuring his removal from that Pod. I am also satisfied that any verbal request within the Pod to be removed because of the existence of an alert was on the evidence before me unlikely to have been acted on in the circumstances.

92. In my view his moral culpability with respect to the commission of the assault is substantially reduced as a consequence.

Subjective features

93. It would be abundantly clear from the narrative earlier in these Remarks with respect to Mr Loveridge’s childhood and past history, that he has both been subjected to violence and has himself been an offender in such offences on numerous occasions. Without examining them in detail, Bugmy-type considerations go some way to an understanding of his present predicament.

94. Whilst his record in custody has been far from perfect, there have been some positive indications, particularly in more recent times. Notwithstanding the assault which is the subject of these present proceedings, it would appear that Corrective Services did not thereafter regress Mr Loveridge’s B classification.

95. I accept his evidence that he was advised that he would retain his B classification after this assault because of the error which had been made by the officers in placing him in the Pod with the Rebels. He has now been on B classification, with this charge still pending, for some 3 years. He has incurred some minor infractions of prison regulations in that time, none of which include any fights or physical assaults.

96. These somewhat minor but positive aspects reflect a good level of insight in the opinion of the forensic psychologist Dr Pusey. A reference from a young lady who has known him for some 10 years, and who describes having developed an emotional relationship with him in the past year, indicates a change in attitude by Mr Loveridge since the incident in the Pod at Silverwater. She describes his desire to work positively towards his release from prison and his desire to pursue a normal life once he is released.

93. A second reference from a family friend, who has known and visited Mr Loveridge over the past five years, describes his expressions of remorse and regret for his actions.

94. A Sentencing Assessment Report prepared late last year confirmed Mr Loveridge had expressed a willingness to undertake any recommended interventions on his eventual return to the community. In evidence before me, Mr Loveridge indicated a willingness to participate in such programs as may become available to him whilst he is still in custody. Some of these will depend on his ultimate progression to a C classification which has apparently been put on hold pending the outcome of these proceedings.

95. The psychologist Dr Pusey, with some degree of perspicacity, expresses the view that the most significant risk with respect to Mr Loveridge’s eventual effective transition into the community will arise as a consequence of the notoriety he will likely, continue to experience during the process of his release.

Consideration

100. The particular circumstances of the present offence substantially diminish the need for specific deterrence. The spontaneous response to the predicament into which he had been placed by the officers is highly unlikely to occur again. To the extent that there is a necessity for him to be yet again reminded that a resort to violence is rarely warranted or justified, I take into account the fact that this assault occurred within a correctional institution.

101. That fact of itself requires a particular consideration of general deterrence.

102. In the circumstances of the location in which the assault occurred, notwithstanding that it falls well below a mid-range of objective seriousness, and considering the length of the sentence presently being served, I am of the view that there is no appropriate alternative to the imposition of a term of imprisonment.

103. Neither party has directed the Court’s attention to section 56 of the Crimes (Sentencing Procedure) Act 1999. 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, for example, to 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).

104. I am cognisant of the expression of principle by Justice Barr in R v Fyffe [2002] NSWCS 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.

105. I also note that 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.

106. In the present matter, the importance of protecting prisoners from criminal assaults by fellow inmates was reflected in the alerts and non-association status of Mr Loveridge vis-a-vis members of the Rebels OMCG. The assault which took place occurred as a direct consequence of the actions of the officers who caused him to be placed into that Pod.

107. Mr Rymer was also entitled to protection from other prisoners and he become a victim of the assault as a consequence of Mr Loveridge having been placed into the Pod.

108. In all of the circumstances I am of the view that an appropriate sentence, particularly given the need for general deterrence within the prison population, is a fixed-term of 12 months.

109. Whilst I have given considerable thought to directing that the entire period be served concurrently with his present sentence, I have ultimately come to the view that there should be some level of partial accumulation to further reflect the need for general deterrence, notwithstanding the exceptional circumstances surrounding this assault.

110. Mr Loveridge you are convicted. You are directed to serve a fixed-term of imprisonment for 12 months. That sentence will commence on 18 June 2022 and expire on 17 June 2023. This will maintain the extended period during which he will be required to be under supervision until 17 May 2026.

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Decision last updated: 02 June 2020