25 The commencing point for the assessment of an appropriate penalty is a consideration of the objective seriousness of the offence.
26 In submissions concerning the seriousness of the offence, the prosecutor referred to the fact
that the defendant knew or should have known that inmate Little posed a serious risk to the health and safety of employees at Silverwater, yet the defendant allowed its employees to be exposed to that serious risk of harm and failed to implement adequate measures to deal with it …. The risk was not only reasonably foreseeable, but the defendant was plainly aware of the risk.
In making this submission, the prosecutor relied on a number of documents which were in evidence in the proceedings. One of these documents was the Information Report that was brought to the attention of senior officers in the defendant's organisation on 10 December 2006, following the monitoring of the telephone conversations to which I have already referred. That report set out the details of the telephone conversations and also contained these observations:
Little has an extensive history of violence and assaults, both within custody and in the community. Little has previously been listed as a high security inmate while in custody. He has many breaches of discipline with regards to intimidation and fighting.
There is then reference to a stabbing incident whilst Mr Little was in custody on 4 October 2005 in which he stabbed an inmate. The report continued:
Little has a large number of recorded assault related offences, some being, Assault Police x 5, Resist Police Officer in Execution of Duty x 2, Malicious Injury x 1, Assault Occasioning Actual Bodily Harm x 3, Maliciously Inflict Grievous Bodily Harm x 2 and Assault x 1. Little is currently serving Balance of Parole (1 year 7 months 22 days) which commenced 04 September 2005 and to expire 25 April 2007.
27 Certainly, there is evidence within that document that Mr Little had physically assaulted police officers.
28 Furthermore, there was evidence available to the defendant and those attending the CMT meeting disclosing the details of some of the incidents that were referred to in a general way in the Information Report.
29 No good purpose would be served in setting out in detail the long and sorry history of violence both outside and within the prison system that has been committed by Mr Little. There are a number of instances where Mr Little has acted violently towards police officers and correctional officers. Some of these date back to 1995 but others are more relatively recent. These occurred in 2002 and 2003. Mr Little was transferred to Lithgow Correctional Centre in October 2005 following the stabbing incident at another correctional centre earlier that month.
30 I should add that there was an incident on 26 February 2003 where Mr Little physically attacked four SERT officers after he had refused to obey a direction to move away from a particular area. In addition to punching and kneeing officers, Mr Little put his finger in the eye of one officer attempting to gouge it out.
31 The defendant relied on Mr Little's apparent rehabilitation. There is a notation in the defendant's records that indicates that Mr Little had undertaken a program whilst being detained in the High Risk Management Unit at Goulburn Correctional Complex and was considered on 28 November 2003 as being suitable for transfer to Lithgow Correctional Centre, albeit with a maximum security classification. The defendant noted that Mr Little had not come under adverse notice whilst at Lithgow and he was subsequently reclassified from an A2 classification to a C1 classification when transferred to Silverwater. In response, the prosecutor pointed out that Lithgow was a maximum security correctional centre and that there was a much higher degree of control over inmates and their movements. Accordingly, opportunities for misbehaviour were limited and restricted, as conceded by Mr Grant in cross-examination.
32 No evidence was adduced concerning the circumstances in which Mr Little was reclassified to a C1 category that attended his transfer to Silverwater. It may only be inferred that in some way he had demonstrated behaviour that warranted such a reclassification.
33 I agree with the prosecutor's submission that the assault incidents which occurred whilst at Silverwater, one of which was verified in Mr Little's telephone conversation on 7 November 2006, should have raised some concern in the minds of responsible officers in the defendant's organisation that whatever behavioural modification Mr Little had undergone was incomplete or he had regressed. This is particularly so having regard to the descriptive words used by Mr Little to which I have earlier referred. Indeed, the defendant conceded this for the purpose of the proceedings. The defendant, however, asserted that it could not be said that it was on notice that Mr Little would have engaged in the extreme violent conduct that occurred on 11 December 2006 and that resulted in the savage physical attacked on Mr Smith and the assault of other officers. I agree with this submission and the prosecutor did not contend otherwise.
34 I conclude, therefore, that the defendant, as acknowledged by its plea of guilty, should have taken appropriate measures to guard against some form of physical violence from Mr Little, but not the kind of extreme violence that accompanied his savage attack on Mr Smith.
35 In assessing the objective seriousness of the offence, the defendant submitted that any risk posed by Mr Little had been taken into account and an appropriate plan had been put in place, albeit that it had not been executed as envisaged. Reliance was placed upon the direction given by Senior Officer Yarnton who had, on the evidence, directed Mr Holmes to ensure that Mr Little was removed to a holding cell and that in doing so he was appropriately escorted. Such a direction had been given by Senior Officer Yarnton following a communication to her by Mr Holmes. It was Mr Holmes' evidence, as contained within statements made by him, that it was his intention to have Mr Little secured in the holding cell and that he would assist Mr Smith in escorting Mr Little to that cell. There is, of course, the concession made by Mr Holmes that he may not have made this position sufficiently clear to Mr Little.
36 The prosecutor sought to call into question the evidence about Mr Holmes' intentions. This was based primarily on a statement made by Bernadette O'Connor, the then General Manager of the SMCC, given to investigating police on 12 April 2007. In the course of that statement Ms O'Connor said:
I am aware after the event that Wayne (referring to Mr Smith) had a conversation with Assistant Superintendent John Holmes about the reclassification of inmate Little. I understand from John that he had arranged for Wayne to radio him after the meeting should he require assistance. I'm of the belief that Wayne made a decision that the inmate was calm and did not require John's assistance ….
37 It was submitted by the defendant that this recollection of Ms O'Connor concerning a conversation that she had had with Mr Holmes after the event cast doubt on the creation of a plan to accommodate the oversight of Mr Little after the termination of the CMT meeting.
38 In an affidavit sworn 25 March 2010 and tendered in these proceedings, Ms O'Connor said, in relation to that part of her statement given to the investigating police officers:
19. In relation to my statement of 12 April 2007 I have read paragraph 15 where I indicate an understanding from AS Holmes that he had arranged for Wayne to radio him after the CMT meeting, should Wayne require assistance. I did not ever make a note of that conversation. At the time AS Holmes spoke to me I was very busy attending to the multiple matters arising from the incident. The conversation I had with John Holmes was shortly after the ambulance had left Silverwater on 11 December 2006. I do recall John Holmes said to me words to the effect "I do not want to get Wayne into trouble. Wayne was supposed to contact me". I advised John to set out in his report accurately what occurred on the morning. During that conversation John Holmes did not give me a detailed account of what had happened.
39 I do not think that any useful purpose would be served in examining in minute detail the statements which Mr Holmes made and comparing them in the same detail with what Ms O'Connor said she recollected that Mr Holmes had said to her, in the context in which that conversation took place. This is especially so given the circumstances that prevailed at the time as were described by Ms O'Connor in her affidavit extracted above.
40 I accept that a direction had been given by Senior Officer Yarnton to Mr Holmes but that direction was not carried out as intended. Furthermore, no good purpose would be served in examining the conduct, whether by way of act or omission, of the persons involved in this unfortunate and tragic incident. On one view of it, and a view which I favour on the evidence, it may be inferred that the plan as formulated was frustrated when Mr Little peremptorily terminated his interview with the members of the CMT and, on the evidence, stood up, placed his chair near the desk and left the room, forcing Mr Smith to follow him.
41 The fact is, as conceded by the defendant by its plea of guilty and its submissions, there was a failure to have Mr Little appropriately escorted by two correctional officers and a failure in all the circumstances to have him handcuffed.
42 The defendant relied upon the fact that the officers who were directly involved in the matter, namely Messrs Holmes and Smith, were longstanding, experienced and responsible officers. This was to be contrasted with a scenario, say, where inexperienced or probationary officers had been contemplated to have been utilised to escort Mr Little.
43 The defendant also relied upon the fact that Mr Little's violent conduct could not have been reasonably predicted. I have already dealt with this matter and concluded that, given the two assaults upon inmates which had been reported to the defendant as having been perpetrated by Mr Little, and given the language used by Mr Little in describing one of them in his telephone conversation, the defendant should reasonably have anticipated that Mr Little might undertake some physical form of misconduct, albeit not the savage and brutal assault that he perpetrated on Mr Smith.
44 The defendant also relied upon evidence given by Assistant Commissioner Grant to the effect that there was an extremely low incidence of serious assaults upon officers within its operations. This evidence was given against background evidence concerning the overall operations of the defendant. Mr Grant said that in 2006 there were 6400 employees of whom 4405 were operational staff working in correctional centres and courts. The total number of inmates in full-time custody in New South Wales as at 10 December 2006 was 9434. As at 10 December 2006, there were 493 inmates at SMCC managed by 105 custodial staff and approximately 50 non-custodial staff.
45 Mr Grant gave evidence that he had examined statistics kept for "serious assaults by prisoners on prison officers." A serious assault was defined "as an act of physical violence requiring medical treatment and assessment by a medical officer resulting in overnight hospitalisation in a medical facility or requiring extended periods of medical treatment …." For the years 1999 to 2009, there were six such incidents, two in the 1999/00 year, three in 2001/02 and one in 2006/07, being Mr Smith.
46 As Mr Grant conceded in cross-examination, the recording of one incident for the 2006/07 year did not cover a number of other correctional officers who had received injuries in the melee which resulted from the incident initiated by Mr Little. Furthermore, the evidence concerning the serious injuries suffered in 2003 by at least one correctional officer at the hands of Mr Little, to which I have earlier referred, is not included within these figures. Even on this limited basis, I would consider this part of the evidence of Mr Grant with some caution.
47 Whatever the statistical situation, however, it does not detract from the circumstances surrounding dealings with Mr Little on 11 December 2006 given Mr Little's known history and in particular the assaults which had occurred some little time before.
48 In all the circumstances, I would assess, objectively, the offence to which the defendant pleaded guilty as being of a most serious kind.
Deterrence
49 In fixing an appropriate penalty, it is also necessary that I take into account the deterrent effect that such a penalty will have both generally within the community and specifically with respect to this particular defendant. However, in considering the deterrent effect on this defendant I take into account the evidence given in the proceedings of only five prior convictions for breaches of the Act, ranging from 30 October 1996 to 15 July 2005. This is, given the nature of the defendant's undertaking, the number of establishments under its control and the number of employees, an excellent record, as was properly conceded by the prosecutor.
S 21A Crimes (Sentencing Procedure) Act 1999
50 The prosecutor also submitted that the Court should take into account in assessing penalty, as an aggravating factor, the matter referred to in s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
51 Relevantly, s 21A of that Act is in the following terms:
21A Aggravating, mitigating and other factors in sentencing