Citation: R v Grassi [2025] NSWDC 165
Court: District Court of New South Wales
Date: 5 May 2025
Judge: Fitzsimmons SC DCJ
Background
The offender was convicted by jury of one count of causing grievous bodily harm recklessly, contrary to s 35(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment and a standard non-parole period of four years. The offence arose from a street altercation in the early hours of 8 June 2022, following a State of Origin night at a hotel in Matraville.
The victim and his friends had an earlier heated exchange with the offender inside the hotel before both groups were separated by security. Later that night, at approximately 1:20 am, the groups crossed paths again outside a nearby takeaway shop. A verbal exchange escalated into a consensual fight, which was captured on CCTV.
The offender initiated the physical confrontation by pushing the victim and then delivering a series of kicks and punches to the victim's head and torso. The final kick to the victim's head rendered the victim unconscious. The victim was observed bleeding from his ears and nose. The offender, rather than showing concern, was found to have bragged to the victim's companions about having taken the victim down with one hand.
Legal Issues
- What findings of fact should be made for sentencing purposes, consistent with the jury's guilty verdict?
- Was the offender's claim of self-defence available, and how did its rejection at trial bear on sentencing?
- What objective seriousness should be attributed to the offence?
- What weight should be given to mitigating factors, including the offender's mental health, upbringing, drug addiction, and claimed remorse?
- How should periods spent at a residential rehabilitation facility (The Glen) be treated as "quasi custody" for the purpose of backdating the sentence?
Decision
Fitzsimmons SC DCJ made detailed factual findings based on the CCTV evidence and witness testimony. The court found that the offender, not the victim, was the aggressor throughout. The offender had initiated the fight, egged the victim on when the victim attempted to disengage, and delivered the final and most serious kick while the victim was merely trying to regain his balance rather than acting aggressively. The offender's self-defence claim, which the jury rejected, could not be relied upon at sentencing.
The victim sustained a traumatic brain injury as a result of the assault. Evidence from the victim's Disability Support Coordinator and the victim's own impact statement indicated that the injury has had a lasting effect on his life. The court characterised the offending as street violence exhibiting a marked lack of regard for the victim's wellbeing, and assessed it as above the midrange of objective seriousness for the offence type.
On subjective matters, the court acknowledged the offender's troubled upbringing, drug addiction, and mental health issues. The principles in Bugmy v R were applied in relation to the offender's background. However, the court declined to accept the offender's expressed remorse as genuine, noting it was inconsistent with the offender's conduct immediately after the assault. The offender's criminal history was treated as insignificant.
On the question of quasi custody, the court accepted that the offender's time at The Glen residential rehabilitation program partially qualified. For the intensive 12-week program periods, the court allowed 50% of the time for backdating purposes. For the transition period, during which the offender had greater freedom including external work placements, only 25% was allowed, consistent with the approach in LA v R [2021] NSWCCA 136. In total, the sentence was backdated by 320 days.
Orders Made
- The offender is convicted of the offence.
- The offender is sentenced to 4 years imprisonment, commencing 19 June 2024 and expiring 18 June 2028.
- A non-parole period of 2 years and 7 months is imposed, expiring 18 January 2027.
- The earliest possible date of release is 18 January 2027.
Key Takeaways
- The District Court assessed the offence as above the midrange of objective seriousness, given the sustained and escalating nature of the attack, the vulnerability of the victim when the final blow was struck, and the lasting traumatic brain injury suffered by the victim.
- A jury's rejection of self-defence is carried through to sentencing: the sentencing court cannot treat rejected defences as mitigating factors or use them to soften findings of fact adverse to the offender.
- Claims of remorse will not be accepted where they are inconsistent with the offender's conduct immediately following the offence. Here, the court found the offender had bragged about the assault rather than showing concern for the unconscious victim.
- Under the quasi custody framework, the proportion of rehabilitation program time credited toward sentence backdating depends on the degree of restriction actually imposed. Intensive residential program phases attracted 50%, while a transition phase allowing external work attracted only 25%, applying LA v R [2021] NSWCCA 136.
- Applying Bugmy v R, the offender's deprived background and mental health difficulties were taken into account as mitigating factors, though they did not displace the need for a sentence reflecting the objective gravity of serious street violence causing permanent injury.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B
Cases:
- Bugmy v R (2013) 249 CLR 571
- DC v R [2023] NSWCCA 82
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- Hoskins v R [2021] NSWCCA 169
- Klajic v R [2023] NSWCCA 225
- LA v R [2021] NSWCCA 136
- Leigh Brown v R [2014] NSWCCA 335
- Muldrock v R (2011) 244 CLR 120
- R v De Simoni (1981) 147 CLR 383
- R v Henry [1999] NSWCCA 111
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- Regina v Mitchell; Regina v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
- Waterfall v R [2019] NSWCCA 281