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Local Court 27 March 2009

DPP v D'Arcy

[2009] NSWLC 1

Assault & violence
SENTENCE EXCESSIVE SELF DEFENCE EXTRA CURIAL PUNISHMENT GOOD CHARACTER

Citation: DPP v D'Arcy [2009] NSWLC 1
Court: Local Court of New South Wales (Downing Centre)
Date: 27 March 2009
Judge(s): Magistrate John Favretto

Background

The offender was a competitive swimmer who, on the night he was named to the Australian Olympic Team in March 2008, attended a bar in Sydney's CBD to celebrate. In the early hours of the morning, following an exchange of words, another patron slapped the offender across the face with an open hand. A witness described the slap as "not being too hard" but unexpected.

The offender, believing the patron was about to strike him again, stepped forward and punched him once in the face. The single punch caused severe facial fractures, including separation of tooth-bearing segments from the facial bones, fractures extending to the left orbital rim and eye socket, and a broken nose. The victim underwent surgery requiring the insertion of titanium plates and screws, and was undergoing orthodontic treatment for ongoing malocclusion at the time of sentencing.

The offender was charged with recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900. He entered a plea of guilty and the matter was dealt with in the Local Court at the DPP's election, which imposed a two-year jurisdictional cap on the maximum sentence available.

  • What was the appropriate sentence for an offence of recklessly causing grievous bodily harm, given the circumstances of excessive self-defence?
  • What weight should be given to the utilitarian discount arising from the guilty plea and the DPP's election to proceed in the Local Court?
  • How did the doctrine of excessive self-defence bear on the objective seriousness of the offending?
  • What role did extra-curial punishment (the loss of the offender's Olympic selection) play in sentencing?
  • Was the offender's good character a significant mitigating factor?
  • Should the sentence of imprisonment be suspended, and if so, whether a condition of total alcohol abstinence was warranted?

Decision

Magistrate Favretto assessed the objective seriousness of the offending as serious, given the devastating and permanent injuries inflicted by a single punch. However, the court found that the circumstances of excessive self-defence reduced that objective seriousness to some degree. The offender had in fact been slapped first and genuinely, if unreasonably, believed further physical contact was coming. His response was acknowledged by all parties as excessive, but it arose from a mistaken belief in the need for self-defence rather than from unprovoked aggression.

The court gave significant weight to several mitigating factors. The offender was of good character, had no prior record for violence, held genuine remorse, and had commenced psychological counselling with positive results. His prospects for rehabilitation were assessed as very good. The court also recognised that the offender had already suffered substantial extra-curial punishment through his removal from the Olympic team, the associated public humiliation, and the effective end of his competitive career at the elite level.

On the question of general deterrence, the court found its weight diminished in the particular circumstances. The offending occurred in a specific set of conditions: a young man of otherwise good character, in a highly charged emotional situation, who had consumed alcohol and reacted to a perceived threat. The need to protect the community from further offending was assessed as low, given the offender's character and engagement with treatment.

The court declined to impose a condition of total alcohol abstinence. Magistrate Favretto reasoned that such a condition was blunt, risked converting a minor lapse into a imprisonment-triggering breach, and would deprive the offender of the capacity to take personal ownership of his own rehabilitation. The question of whether abstinence was clinically appropriate was left to those supervising the offender.

Orders Made

  • The offender was convicted of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900.
  • Sentenced to 14 months and 12 days imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, on the following conditions:
  • Be of good behaviour.
  • Appear before the court if called upon to do so.
  • Inform the Registrar of any change of address.
  • Report to the Queensland Probation and Parole Service Maroochydore District Office within seven days and comply with all directions for alcohol, stress, and anger management rehabilitation and counselling, including continued counselling with Clinical Psychologist Mr Barry Kerr.

Key Takeaways

  • The Local Court confirmed that when the DPP elects to have a matter dealt with summarily, the two-year jurisdictional cap does not function as a de facto maximum for worst-case offending; the statutory maximum of the indictable offence remains the reference point for assessing objective seriousness.
  • Excessive self-defence, while not a complete defence, operates as a mitigating factor that reduces the objective gravity of the offending where the accused genuinely (if unreasonably) believed defensive force was necessary.
  • Extra-curial punishment, including the loss of a significant personal opportunity such as Olympic selection and the accompanying public consequences, is a recognised sentencing consideration capable of reducing the sentence that would otherwise be imposed.
  • Good character and the absence of prior violence, combined with demonstrated engagement in rehabilitation, can weigh substantially in favour of a non-custodial outcome even where the physical injuries sustained by a victim are serious and permanent.
  • A condition of total alcohol abstinence attached to a suspended sentence is not automatic where the offender is not a recidivist violent offender; the court in this matter declined to impose such a condition on the basis that therapeutic supervision was more appropriate than a blanket court order.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 37
- Criminal Procedure Act 1986 (NSW), s 267 and Table 1

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v El Masri [2005] NSWCCA 167
- R v Doan (2000) 50 NSWLR 115
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Hoare v R (1989) 167 CLR 348
- Dinsdale v R (2000) 202 CLR 321
- Haoui v R [2008] NSWCCA 209
- R v Christodoulou [2008] NSWCCA 102
- R v Daetz (2003) 139 A Crim R 398
- R v Oliver (1980) 7 A Crim R 174
- R v Dodd (1991) 57 A Crim R 349
- Waters v R [2007] NSWCCA 210
- Parker v DPP (1992) 28 NSWLR 282
- Channon v R (1978) 20 ALR 1
- R v Einfeld [2009] NSWSC 119
- R v Mitchell & Gallagher [2007] NSWCCA 296