Citation: R v Tarchi [2025] NSWDC 290
Court: District Court of New South Wales
Date: 28 March 2025
Judge: D Barrow SC DCJ
Background
The appellant had pleaded guilty in the Local Court to two offences against the same neighbour. The first was a common assault arising from a dispute about how the victim had spoken to the appellant's partner. The appellant confronted the victim, a physical altercation ensued, and the appellant struck the victim with his fist and then with his belt. Police attended and the appellant made admissions at the scene.
The second and more serious offence occurred approximately three months later, while the appellant was on bail for the first matter. The two men encountered each other by chance while walking their dogs, and an argument erupted about an earlier incident. The victim pushed the appellant and lashed out at him; a bystander intervened. The appellant then punched the victim once to the head. The victim fell and struck his head on the pavement.
The consequences for the victim were profound and lasting. He suffered permanent deafness in one ear, chronic balance impairment, tinnitus, an inability to drive or work, and significant psychological harm including flashbacks and panic attacks. He had worked for over 20 years in the construction industry and was also completing an electrician's apprenticeship, both of which he could no longer pursue. The Local Court sentenced the appellant to two years imprisonment with a 12-month non-parole period. The appellant appealed the severity of that sentence to the District Court.
Legal Issues
- Whether the sentence imposed by the Local Court was manifestly excessive, warranting intervention on a de novo severity appeal
- Whether the common assault crossed the threshold under section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring a sentence of imprisonment
- What weight should be given to the appellant's pre-sentence custody, restrictive bail conditions akin to home detention, guilty pleas, mental health, and drug use
- Whether the recklessly inflict grievous bodily harm offence warranted a full-time custodial sentence, or whether a community-based order was appropriate
Decision
The District Court conducted a de novo review, meaning it considered the matter entirely afresh rather than simply reviewing the Local Court's reasoning for error. His Honour reduced the overall sentence, replacing full-time imprisonment with community-based orders for both offences.
On the common assault, the Court agreed with both parties that the offence did not cross the section 5 threshold requiring a term of imprisonment. The offence was characterised as petty, immature, and pointless, though not trivial. A Community Correction Order for three years was imposed instead.
On the recklessly inflict grievous bodily harm offence, the Court acknowledged significant aggravating features: the offence was committed while the appellant was on bail, and its consequences for the victim were severe and permanent. However, the Court also gave weight to the appellant's seven days of pre-sentence custody, more than six months on bail conditions equivalent to home detention, a 15% discount for the utilitarian value of the guilty pleas, and evidence of a diagnosed mental health condition and cocaine use that contributed to impulsivity. These factors collectively warranted a three-month reduction in the base sentence.
Critically, the Court determined that full-time imprisonment carried a real risk that the appellant would be released at the end of a non-parole period without having received the benefit of ongoing treatment, in poor mental health, and without adequate community support. Given his background, the Court considered him at genuine risk of violence within a correctional facility. For those reasons, the Court was satisfied that the sentence should be served in the community under an Intensive Correction Order, with substantial conditions attached.
Orders Made
Common assault (first offence):
- Community Correction Order for 3 years from 28 March 2025
- Conditions: not commit any further offence; appear before the court if called upon during the order period
Recklessly inflict grievous bodily harm (second offence):
- Term of imprisonment of 17 months from 28 March 2025, to be served by way of Intensive Correction Order
- Conditions include:
- Not commit any offence
- Submit to supervision by a Community Corrections Officer
- Complete 300 hours of community service
- Comply with the treatment plan proposed by the treating psychiatrist (Dr Henderson)
- Abstain from all prohibited drugs
- Report within seven days to the Office of Community Corrections in Sydney
The severity appeal was upheld and the orders of the Local Court were quashed.
Key Takeaways
- A de novo severity appeal in the District Court requires the court to sentence the offender entirely afresh, without deference to the reasoning of the court below.
- Time spent on restrictive bail conditions equivalent to home detention can warrant a tangible reduction in sentence, here assessed alongside pre-sentence custody at a combined three-month reduction.
- Where a mental health condition and substance use are established as contributing to the offending, these matters can bear on the appropriate form of sentence, particularly when ongoing treatment in the community is seen as reducing reoffending risk more effectively than full-time custody.
- The District Court found that the common assault, while involving a belt as an improvised implement, did not meet the section 5 threshold requiring imprisonment, making a Community Correction Order the appropriate outcome.
- Upholding the severity appeal did not mean a lighter overall outcome was inevitable: the Court imposed an Intensive Correction Order with 300 hours of community service and a mandatory treatment and supervision regime, reflecting the seriousness of harm caused to the victim despite the community-based form of the sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), sections 35(2) (recklessly inflict grievous bodily harm), 61 (common assault)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 5 (threshold for imprisonment), 8 (Community Correction Orders)
Cases cited: No specific cases were cited in the judgment.