Director of Public Prosecutions v D'Arcy

[2009] NSWLC 1

Local Court of New South Wales

CITATION:	DPP v D'Arcy [2009] NSWLC 1
JURISDICTION:	Criminal
PARTIES:	Director of Public Prosecutions D'Arcy
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	03/27/2009
MAGISTRATE:	Magistrate Favretto
CATCHWORDS:	Sentence-Recklessly Cause Grievous Bodily Harm (s35 (2) Crimes Act 1900) - Utilitarian discount after plea of guilty and unelection - Excessive Self-defence - Extra-curial punishment - Good Character - Suspended Sentence.
LEGISLATION CITED:	Crimes Act 1990 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (Guideline Judgment on High Range Prescribed Concentration of Alcohol Offences) [2004] NSWCCA 303 Channon v R (1978) 20 ALR 1 Dinsdale v R (2000) 202 CLR 321 Haoui v R [2008] NSWCCA 209 Hoare v R (1989) 167 CLR 348 Parker v DPP (1992) 28 NSWLR 282 Veen v The Queen (No 2) (1988) 164 CLR 465 Waters v R [2007] NSWCCA 210 R v Allpass (1993) 72 A Crim R 561 R v Christodoulou [2008] NSWCCA 102 R v Daetz (2003) 139 A Crim R 398 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Oliver (1980) 7 A Crim R 174 R v Einfeld [2009] NSWSC 119 R v El Masri [2005] NSWCCA 167 R v Kruger (1977) 17 SASR 214 R v Ma 92004) 145 A Crim R 434 R v Mitchell & Gallagher [2007] NSWCCA 296 R v Newman [2004] NSWCCA 113 R v Niass [2004] NSWCCA 149 R v O’Connor (1986) 23 A Crim R 50 R v Oliver (1980) 7 A Crim R 174 R v Niass [2004] NSWCCA 149 R v Rushby [1977] 1 NSWLR 594 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Valentini and Garvie (1980) 48 FLR 416 R v Zamagias [2002] NSWCCA 17
TEXTS CITED:
REPRESENTATION:	DPP - P. Aitken Offender - Richard Jankowski, Counsel instructed by Ryan Bosscher Lawyers
ORDERS:

ORDERS

For the reasons that follow the offender is convicted and sentenced to a term of imprisonment of 14 months and 12 days suspended under s12 Crimes (Sentencing Procedure) Act 1999 on the following conditions:

1. Be of Good Behaviour.

2. Appear before the Court if called upon to do so.

3. Inform the Registrar of this Court of any change in the offender’s address.

4. Report to the Queensland Probation and Parole Service Maroochydore District Office within 7 days and comply with all directions for alcohol, stress and anger management rehabilitation and counselling, including but not limited to his continued counselling with Clinical Psychologist Mr. Barry Kerr.

REASONS FOR DECISION

The Charge

1. The maximum penalty for the offence of Recklessly Cause Grievous Bodily Harm under s35 (2), Crimes Act 1900 is 10 years imprisonment. The starting point in assessing the gravity of the offence is the maximum penalty: R v Oliver (1980) 7 A Crim R 174, Street CJ at 177.

2. However, as the DPP determined that the matter be dealt with in the Local Court there is a jurisdictional limit on the Court and the maximum penalty that can be imposed is 2 years imprisonment: s267 and Table 1 Criminal Procedure Act 1986. The jurisdictional limit does not mean that it is a form of maximum sentence reserved for a worst case: R v El Masri [2005] NSWCCA 167 and the maximum penalty prescribed remains in assessing the objective seriousness: R v Doan (2000) 50 NSWLR 115.

The Agreed Facts between the DPP and the Offender

3. The court is bound to proceed on the Agreed Facts presented to the court by the parties:

“The Offender, Nicholas D’Arcy, is a swimmer and competed at the Sydney Aquatic Centre in March 2008 in the Australian Swimming Championships which also doubled as the selection trials for the Summer Olympic Games held in Beijing during August 2008.

D’Arcy won the 200m butterfly men’s event and recorded a time under the qualifying time specified in order to be eligible for selection.

Accordingly on 29 March 2008, D’Arcy was named as part of the Australian Olympic Swimming Team and participated in a ceremony at the Aquatic Centre that evening.

After about 10.30pm the offender left the centre and was driven to the Sydney CBD. He first went to the Loft Bar and consumed a number of alcoholic drinks there before proceeding to the Cargo Bar to attend a private party and celebrate with the Australian Swimming Team and associated friends.

At about 1.30am the offender then returned to the Loft Bar and continued to consume alcoholic drinks with friends.

It was in the Loft Bar that the offender met up with Eamon Sullivan and Joshua Krogh. The victim, Simon Cowley, who had also consumed numerous alcoholic drinks, was talking to Sullivan and they were all seated together near the bar area. Cowley attended the swimming meet earlier in the evening to watch a friend. Cowley had not met the offender before this night.

The offender offered Sullivan a drink but Sullivan declined. The offender replied to Sullivan, “What’s happened to yourself, you used to be the champ, come on lets go get another drink” but Sullivan did not respond.

The content of any further conversation is unclear however, Kenrick Monk reports Cowley saying to the offender “settle down mate no need for that”.

Cowley then leant across and slapped the offender across the face with an open hand. One witness later describes the slap as “not being to hard” but that it was unexpected. As a result of this physical contact the offender stepped backwards and was observed by a witness to be shocked. Joshua Krogh said to the offender, “Why did he do that for?” The offender did not reply. Cowley remembers standing intending to shake hands with the offender. The offender however, believing that Cowley was going to have further physical contact with him, took one or two steps towards Cowley and punched Cowley in the face with his right fist. The response by the offender is acknowledged as being excessive in the circumstances.

Cowley felt immediate pain to his face. The offender was taken away from Cowley and Staff at the bar called an ambulance and police.

Cowley was taken initially by ambulance to St Vincent’s Hospital but due to the long waiting time he was taken to St George Hospital.

On 30th March Cowley was treated for significant facial fracture resulting in tooth bearing segments of his face being separated from the remainder of his facial bones. On the left side the facial fractures extended to the left orbital rim below the eye. This involved the eye socket. In addition to these breaks, Cowley’s nose was broken.

On 4th April Cowley underwent an operation to correct injuries sustained from the assault committed on him. During the procedure the surgeon inserted several titanium plates and screws placed in order to reposition the facial bones in their correct position. Cowley is currently undergoing orthodontic treatment to correct a persistent malocclusion that developed as a result of the assault and is anticipated to be wearing braces for a period of two years.

Cowley continues to be troubled by decreased feeling over the skin beneath the left and right eyes extending and involving the upper lip and lateral side of the nose. This is slowly improving and may resolve.

The offender was arrested in 31 March 2008 and participated in an ERISP with the investigating police where he admitted hitting Cowley but maintained it was in self-defence after Cowley had slapped the offender. He was then charged with the matters now before the court.”

4. The parties submit that to the extent there is any variation between the Agreed Facts and any other evidence before the Court that the Agreed Facts are to prevail. In this regard the Court notes that Mr. Cowley in his Victim Impact Statement, which he read out in Court, said he has “no memory of the events which occurred immediately before I was attacked.”. Given that the Agreed Facts form the basis of the plea of guilty the Court will proceed on those facts. However, there is one aspect of the facts that requires elaboration. The facts record “Cowley remembers standing intending to shake hands with the offender.” but the facts do not elaborate what he did, if anything, to cause the offender to believe “ that Cowley was going to have further physical contact with him, took one or two steps towards Cowley and punched Cowley in the face with his right fist.” In the medical report of Dr. Reddy (Exhibit 4) he records that he saw Mr. Cowley about nine hours after the assault at the Emergency Department of St. George Public Hospital. Dr. Reddy records that “Mr. Cowley told me that he had been punched in the face after having tried to shake hands with another individual.” That account is consistent with the facts and clarifies what occurred, at least from Mr. Cowley’s point of view. It is also evidence before the Court. However, the nature of Mr. Cowley’s action is not described in any evidence before the Court. Accordingly, the Court proposes to use that evidence to fill in the gap between the slap and punch to give context in the facts to Mr. Cowley’s intention and the offender’s response but only to the extent that there was some intermediate physical act without the need to determine the nature of that act.

The objective seriousness of the offence and aggravating factors under s21A (2)

5. Generally, in cases involving serious personal violence offences the most important factor in assessing the objective seriousness of the offence is the nature of the injury and degree of violence used. Courts need to be cautious in sentencing offenders under s35 (2). The considerable and serious injuries suffered by Mr. Cowley were the consequence of a reckless act to cause some physical harm, not the extent of that harm. If the nature and extent of the injury had been intended then the offender would have been liable for the more serious offence under s33 of Cause Grievous Bodily Harm With Intent To Cause Grievous Bodily Harm which carries a maximum penalty of 25 years imprisonment. Simply understood, the same injury accompanied by a specific intention to cause serious bodily harm carries an additional penalty of 15 years. As the DPP has accepted a plea of guilty to the offence under s35 (2) the Court cannot take into consideration that the offender intended to cause the very injuries suffered by Mr. Cowley, only that he intended to cause some physical harm.

6. However, the offender is still liable to be sentenced on the nature and extent of Mr. Cowley’s injuries, which resulted as a consequence of his reckless act. The Court is therefore bound to assess the objective seriousness on the Agreed Facts, which establish the following:

(a) An act (the one punch intending to cause some physical harm) which was reckless in the circumstances, namely an excessive response to his perception that Mr. Cowley was about to initiate “further physical contact with him” after having slapped the offender to the face; and

(b) The act caused grievous bodily harm.

The injuries and Victim Impact Statement

7. In his medical report of 15 August 2008 Dr. Reddy, St. George Public Hospital records that Mr. Cowley attended the Hospital on 30 March 2008 with extensive fractures involving the upper jaw, eye socket and nasal bones. The injuries required surgical intervention on 4 April 2008. As Mr. Cowley said in his Victim Impact Statement the surgery lasted 5 hours with five titanium plates and twenty screws being inserted to stabilize the facial fractures. “Arch bars” were imbedded into his lower and upper gums to hold his jaw in position and prevent any movement. His jaw was wired shut and his nose realigned. On 19 May 2008 he under went further surgery to remove the arch bars. The assault upon Mr. Cowley has had a profound effect upon him both physically and emotionally and upon his family. He suffered extreme pain for the five days after the assault while waiting for the surgery and thereafter while convalescing at home. He was heavily medicated and slept 16 hours a day. For the period 8 April and 19 May 2008 he could only consume food in a liquid form through the use of a straw and lost about 12kg. He experienced difficulties with his bite resulting in Orthodontic braces to be fitted in September 2008, which will remain in place for 2 years. He finds it distressing to wear braces at this stage of his life. He has at this stage residual numbness to parts of his face, which are slowly improving and may resolve. Because of the period of hospitalisation and convalescing he was not able to work for several weeks and lost the opportunity to take up a promotion for several months because of his limited capacity to work as a financial planner, which involved face to face meetings with clients. He and his family have come under intense media scrutiny, some of which he says has been insensitive. Because the incident happened in a public place he is now anxious in going out into the city and being in crowded social situations fearful he may be attacked again.

8. While there are graduations of injury to be considered under s35 (2) it must be borne in mind that even at the lowest end of graduation the injury must still constitute grievous bodily harm which has been held to mean “really serious injury”: Haoui v R [2008] NSWCCA 209. Upon a consideration of the medical evidence the injuries suffered by Mr. Cowley fall within the mid-range of extent of injury.

The degree of recklessness and violence used

9. While the offender threw only one punch it must have been with considerable force given the extent of injury. The offender was a very fit elite swimmer and from the rigorous training regime swimmers undertake at that level no doubt he had considerable upper body strength. That to some extent explains the level of injury one would not normally expect from one punch. The offender was heavily intoxicated at the time. That does not in any way excuse his conduct but does indicate that the offence was impulsive, unplanned and his capacity to exercise judgment was impaired: Waters v R [2007] NSWCCA 219 at [38]; R v Mitchell & Gallagher [2007] NSWCCA 296 at [34].

10.There is no doubt that the offender was provoked by Mr. Cowley who only a very short time (the inference from the facts is a few seconds at most) before the punch had slapped the offender to the face leaving the offender shocked. The issue of provocation is a matter the Court must consider in mitigation under s21A (3) (c) but provocation per se is not a matter to take into consideration in assessing the objective seriousness. However, in assessing the degree of recklessness the DPP acknowledges that the issue of the offender believing he needed to defend himself was a very real issue at trial and conceded as much but maintains (which the offender admits) that the response by punching Mr. Cowley was excessive in the circumstances. That response to a significant extent reduces the offender’s moral culpability although the considerable force that he used remains as a matter of real objective seriousness.

11.The response by the offender on the facts before the Court was spontaneous. There was no planning, premeditation or motive for striking Mr. Cowley. He was not the initial aggressor. Unlike many other offences under s35 (2), which often come before the Courts, there was no use of a weapon or prolonged series of acts of violence such as repeated punching, kicking or stomping to the head or body.

12.Other than for the fact that the offender has a prior criminal record (albeit only one prior offence of a minor nature and none for violence) there are no aggravating factors under s21A (2) of the Crimes (Sentencing Procedure) Act 1999. The prior offence of itself does not aggravate the offence but needs to be considered when imposing the sentence itself. The level of injury suffered by Mr. Cowley is an element of the offence so does not fall within s21A (2) as an aggravating factor.

Conclusion objective seriousness

13.Having reflected upon the considerations regarding the objective seriousness the Court concludes that the offence falls towards the upper end of the lower range. The Court notes that s54D of the Crimes (Sentencing Procedure) Act 1999 provides a Standard Non-Parole Period of 4 years for the offence under s35 (2) where the offence falls within the middle range of objective seriousness. While the Standard Non-Parole Period does not apply to proceedings dealt with in the Local Court (s54D (2) it nevertheless does provide a guide.

The Plea of Guilty

14.The offender entered a plea of guilty on 25 November 2008 seven months after the proceedings had first become before the Court. At the first appearance before the Court the DPP elected to deal with the matter on indictment, that is the matter would proceed by way of committal proceedings to the District Court for trial. An election having been made Local Court Practice Note 9 (the Practice Note operates as a legal requirement) required that a brief be served which was duly done. The DPP does not seek to rely upon the assembling of the brief per se at this stage as automatically disentitling the offender to any reduction of his sentence. On 31 July 2008 the proceedings were fixed for a two day committal hearing on 2 and 3 December 2008. A number of witnesses were required to give evidence. On 25 November 2008 at the mention to confirm the hearing the offender pleaded guilty to the charge on the Agreed Facts and at the same time the DPP withdrew its election for the matter to proceed to the District Court. The proceedings were then fixed for sentence.

15.Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires the Court to take into account the fact that an offender has pleaded guilty, when the plea was entered or first indicated and accordingly may impose a lesser sentence than it would have otherwise imposed. The utilitarian discount as it is called is a legal requirement the Court must take into account when imposing the sentence to reflect the saving and benefit to the resources of the criminal justice system.

16.The DPP does not dispute that the offender is entitled to a substantial discount within the range of 10-25% identified in R v Thomson & Houlton (2000) 49 NSWLR 383 at [154-155] but leaves the precise percentage for the Court’s discretion. The offender submits that as the plea of guilty was entered at the same time as the DPP withdrew its election for trial the offender is entitled to the 25% maximum discount available. If the proceedings had continued to trial in the District Court the trial estimate was about 2 weeks. In R v Newman [2004] NSWCCA 113, Wood CJ at CL considered a plea of guilty entered in the Local Court in committal proceedings and subsequent committal for sentence. While in that matter the proceedings continued on indictment but as a committal for sentence there is no basis to differentiate a plea of guilty and committal for sentence and what occurred in these proceedings. The only difference is where the offender is to be sentenced. What s22 is concerned with is the utilitarian value of the plea when it is entered or first indicated, not when or where the sentence is determined. At pars [11-14] Wood CJ at CL observed:

“11 Some attention was given, in the course of the submissions, to whether, as a matter of principle, any plea offered in the Local Court should be regarded as one offered at the earliest possible moment, and as one attracting the maximum discount which was referred to in the guideline judgment, irrespective of any antecedent delays in that court.

12 In my view, it is proper for the utilitarian value of a plea to be assessed in the continuum of the justice system, from the time of charging to disposition, and in the light of the fact that the amount of the discount is a discretionary matter, there being no entitlement, or presumption, that an offender should receive any particular amount by way of a discount in any particular factual situation: R v Scott [2003] NSWCCA 286 per Howie J at para 28.

13 Any other approach would involve an unduly rigid approach to the discretion which is involved, and would fail to pay regard to the fact that considerable savings in time, expense and inconvenience to investigators, the DPP, witnesses and the Court, will occur if pleas are offered, for example, at the first mention. Where that does not occur, considerable time, expense and inconvenience can be occasioned at the Local Court stage, in the assembly of evidence, in mentions, in conducting a committal, in applications for stays, appeals and the like, before the matter reaches the District Court or Supreme Court. It would be unrealistic to ignore those circumstances when assessing the utilitarian value of a plea, and it would be artificial to assume, without more, that a plea entered in the Local Court should inevitably attract the maximum discount.

14 That is not to say that a plea entered in the Local Court would not normally attract greater weight than one offered after arraignment in the District Court, but even that may depend upon the particular circumstances of the case, and of the individual offender, as there may well be good reasons for some delay. As appears from Regina v Dib [2003] NSWCCA 117 what is of relevance is the practical extent of the advantage, which the plea provides, for the administration of justice.”

17.From the utilitarian aspect the earliest time when the plea could have been entered in these proceedings to attract the maximum 25% discount was on 31 July 2008. That does not mean that the maximum 25% discount for a plea of guilty entered after that day is still not available. The brief of evidence had by then been served and the matter was then fixed for committal hearing. The plea of guilty was not entered until about 2 weeks before the hearing date. By then two days of limited and valuable Court time had been allocated and DPP and police resources spent in preparing the matter for hearing and marshalling witnesses. The vacation of the hearing date two weeks ahead of the hearing would have at least freed up DPP and police time and saved witnesses the inconvenience of attending the hearing as well as saving the time and expense of a two week trial in the District Court.

18. Considering the history of the proceedings and criminal justice resources spent, to the time the plea of guilty was entered, the appropriate utilitarian discount is 20%.

The subjective features of the offender and mitigating factors under s21A (3)

19.The offender was called to give evidence essentially to establish his prospects of rehabilitation and remorse. In addition tendered to the Court was a Pre-sentence Report of 20 February 2009 prepared by Ms. Jacqui Ball from the Queensland Probation and Parole Service (Exhibit 2), a Psychological Report of 6 February 2009 (and addendum of 20 February 2009) from Mr. Barry Kerr (Exhibit 6), a number of references (Exhibit 7) and the offender’s Curriculum Vitae (Exhibit 9).

20.The offender is 21 years of age and was 20 years of age when he committed the offence. He still resides with his family on the Sunshine Coast in Queensland. He had a stable and happy family upbringing, which he continues to enjoy with his parents and siblings. The offender reports having a good social network of friends and a current relationship with a young woman who resides in Sydney. Because of his swimming and study commitments he has limited time to form any long-term relationship. He has achieved a high standard of education and excelled as a sportsman. The offender is an elite swimmer having been chosen to represent Australia in his chosen event (the Butterfly) for the 2008 Beijing Olympics (he was subsequently withdrawn from the team because of this incident) and most recently chosen to again represent Australia in the FINA World Championship Titles in Rome later this year. He has maintained part-time tertiary studies and has been accepted to commence a Bachelor of Applied Science-Radiation Technology 2009, Queensland University of Technology. His ultimate aim is to become a medical practitioner like his father. Ms. Ball described the offender “as a fit and healthy young man with a positive attitude to life.”. Mr. Kerr made similar observations. Before the Court are a number of references attesting to his good character and charitable work.

21.The offender was called to give evidence and said he “deeply regretted” his actions and apologised in person to Mr. Cowley. He said that he did not apologise earlier in person to Mr. Cowley on legal advice. The Court notes that as early as 2 April 2008 (2 days after the offence) in a released statement (part of Exhibit 8) he expressed his regret for the incident and injury to Mr. Cowley. Further expressions of his remorse were made to his Psychologist, Mr. Kerr and to Ms. Ball from the Queensland Probation and Parole Service. Ms. Ball who provided as very objective report records in her report that “In addition, Mr. D’Arcy was able to articulate, with what appeared to be genuine concern, the extent of the facial injuries suffered by the victim, and the subsequent treatment that was required. He reported feeling remorseful for his actions on the night of the offence and regretted the outcome.” The Court accepts that by his plea of guilty and on the evidence before the Court that he is genuinely remorseful.

22.The offender does not have a criminal record for violence. He has only one prior recorded offence in Queensland for Public Nuisance on 1 April 2007 when he was 19 years of age. The Maroochydore Magistrates Court did not record a conviction and fined him the sum of $200. The offender said in his evidence that this offence was alcohol related. It appears from the Pre-sentence Report and the facts extracted from the Queensland Police Force that the offender was seen by police to be physically removed from The Wharf Tavern, Mooloolaba by bouncers. The offender appeared to be in an intoxicated and agitated state and was yelling obscenities and raising his arms in a threatening manner at the bouncers and later the police. This court is not aware of what matters the Maroochydore Magistrates Court took into account but having regard to the minor penalty imposed and nature of the offence the offender may still be regarded as someone of good character. That incident, and the more recent one at the Eastern Hotel in Sydney on 3 January 2009 are particularly relevant to the issues of his likeliness of re-offending and his prospects of rehabilitation rather than to the issue of objective seriousness of the offence.

23.Since the offence and more recently and in his evidence the offender now realises that he has poor impulse control when intoxicated which can lead him into conflict. He has commenced regular counselling sessions with Mr. Kerr. The Queensland offence and the recent incident at the Eastern Hotel were both alcohol related. Ms. Ball and Mr. Kerr both say in their reports that his excessive alcohol consumption together with his poor impulse control require intervention to prevent any further offending of a like nature. Mr. Kerr says “he is immature for his age…and become stressed with poor impulse control. This may explain that, with excessive amounts of alcohol and being provoked, he acts out accordingly.” In the more recent incident at the Eastern Hotel the offender was asked to leave the Hotel and was physically taken hold off by the bouncer. There is a dearth of evidence before the court as to what occurred and whether it was necessary for the bouncer to take a hold of the offender. The offender says he was on his way out with the bouncer when he was taken a hold of. Verbal insults were exchanged and the offender admits to having said words to the effect “one punch is all it takes”. Mr. Aitken for the DPP put to him that this was a reference to the incident with Mr. Cowley. The offender responded that that was not what was going through his mind at the time but others could perceive it that way. The DPP submits that those words evince a lack of remorse for the offence. The inference is there that it was but then there is a substantial amount of evidence, which predates this incident that shows his remorse, and the Court is not dissuaded from that finding. The incident is more relevant to the issue of his rehabilitation and likelihood of re-offending. While it seems he was acting inappropriately at the Hotel the offender walked away from the bouncer without using any violence. That indicates that he has started to come to terms with his poor impulse control when intoxicated. As the offender said in his evidence he has now learnt to walk away from situations of potential escalation.

24.The evidence before the court does not establish that the offender has a regular pattern of binge drinking. There are long periods of alcohol abstinence while undertaking rigorous and disciplined training. At the time he gave evidence he had not consumed alcohol for a lengthy period of time. Rather, it seems that he and many other of his team members after such periods of abstinence when celebrating the completion of an event embark on a session of binge drinking. He acknowledged that if it were recommended that he abstain from alcohol completely as part of a rehabilitation program he would do so as well as alcohol urinalysis.

25. On balance the Court is satisfied that the offender has very good prospects of rehabilitation and with his growing maturity and continued counselling his likelihood of re-offending unlikely.

Extra-curial punishment

26.A court may, and should consider when imposing a sentence that an offender has already suffered or may suffer some serious loss or detriment as a result of having committed the offence, quite apart from any punishment imposed by the court: R v Einfeld [2009] NSWSC 119 at [154-162] (public humiliation and vilification); R v Allpass (1993) 72 A Crim R 561 (campaign of abuse, harassment and serious threats to person and property); R v Daetz (2003) 139 A Crim R 398 (private persons extracting retribution or revenge); Christodoulou v R [2008] NSWCCA 102 (self-injection of acid bound up with the offence); Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act (Guideline Judgment on High Range Prescribed Concentration of Alcohol Offences) [2004] NSWCCA 303 (effect of licence disqualification). There are other instances of courts taking into account extra-curial punishment. What weight is to be given to any extra-curial punishment is a factor for the Court to consider on the particular facts and circumstances of a matter before it.

27.The offender submits that the Court should take into account two aspects of extra-curial punishment that the offender has suffered as a result of this offence; the offender’s exclusion from the Australian Olympic Team for the Beijing Olympics as a result of his involvement in the offence; and, the media harassment that followed.

Exclusion from the Beijing Olympics

28.Olympic selection is the ultimate aim and reward for an elite athlete after long years of rigorous training and discipline. It can also bring substantial financial reward. For some, it is a once in a lifetime opportunity and for others the start of such opportunity. The offender’s exclusion for the Beijing Olympics had a devastating effect upon him and any member of the community would acknowledge that he has suffered a serious detriment. As recorded in Mr. Kerr’s report over the last 15 years he had trained hard at his sport and, always, had the “dream goal” of representing his country at an Olympic Games. He may still have opportunities in the future but the fact remains he was excluded from the Beijing Olympics because of this offence. I consider that this aspect of extra-curial punishment was significant and will be taken into account.

Media harassment

29.The offender submits that from the time of the offence he has been the subject of constant and intense media attention, not only the reporting of the matter but also with direct media contact. Exhibit 8 contains a number of media articles, some with photographs of the offender that could be described as embarrassing. Some of the articles pillory the offender with such headlines as “Beijing is not the place for blockhead swimmer” (with a cartoon of the offender standing on a starting block with half of his head into a brick wall); “Floats like a butterfly, stings like a bee, but pub fracas could sink D’Arcy” (with photographs of the offender from his Facebook site); “D’Arcy’s dream sunk-Disgraced swimmer kicked off Olympic team.”. Other articles in Exhibit 8 are either balanced or supportive such as “D’Arcy sorry for ‘how it turned out’-FAMILY LEFT IN SHOCK”; “I’m still struggling to come to terms with it, D’Arcy says of dismissal”;” D’Arcy swims against waves of rejection”; “Seconds that changed sportsman’s life forever”; “Nick D’Arcy dives in to help kids” (with a photograph of the offender and a young girl); “Nick D’Arcy earns himself another chance.” Exhibit 8 also contains a full statement concerning the incident released to the media by the offender two days after the offence and was reported.

30.In R v Einfeld Justice James at [162] took into account “the public opprobrium Mr. Einfeld has sustained and the public destruction of his reputation.” That is not the case here on the evidence before the court. While the offender has been the subject of intense media coverage the evidence before the court does not justify it amounting to extra-curial punishment.

The sentence

31.The applicable sentencing principles are found in s3A of the Crimes (Sentencing Procedure) Act 1999 and the Common Law. In R v Ma (2004) 145 A Crim R 434 the NSW Court of Criminal Appeal observed that s3A “is in substance a codification and elaboration of the purposes of criminal punishment described in Veen v The Queen (No. 2).”. The purpose of criminal punishment has been traditionally stated as: “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”: Veen v R (No 2) (1988) 164 CLR 465 at 476. In Channon v R (1978) 20 ALR 1 at 5, Brennan J (then sitting as a judge of the Federal Court of Australia) observed: “Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose.”

32.In R v Valentini and Garvie (1980) 48 FLR 416 at 420; 2 A Crim R 170 at 174, the Full Court of the Federal Court of Australia (Bowen CJ, Muirhead and Evatt JJ) observed:

“To achieve this (protection of the community), the sentencing judge must balance retribution — in the sense of the infliction of a just punishment to express the moral outrage of the community: deterrence — of the particular offender and others in the community who may consider similar action: and rehabilitation — ensuring that the sentence imposed is consistent, if possible, with the offender's returning to society as a contributing member … But it is the interaction of the facts with the perception of societary circumstances that in each case provides the sentence which the judge considers will best protect and reassure society.”

33.Ultimately, any sentence imposed is subject to the principle of proportionality that each sentence of imprisonment imposed by a Court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v R (1989) 167 CLR 348 at 354; Veen v R (No 2) (1988) 164 CLR 465 at 472, 485–6, 490–1, 496.

34.Imprisonment is to be seen as a sentence of last resort and then the shortest possible sentence is to be imposed: Parker v DPP (1992) 28 NSWLR 282 at 296; 65 A Crim R 209; R v James (1985) 14 A Crim R 364; R v O'Connor (1986) 23 A Crim R 50 ; s5(1) Crimes (Sentencing Procedure) Act 1999; s 17A Crimes Act 1914 (CTH). The offender's subjective considerations are subsidiary to the dominant purpose of the protection of the public: R v Rushby [1977] 1 NSWLR 594 at 597–8; R v Dodd (1991) 57 A Crim R 349 at 354.

35.The DPP submits that a sentence of imprisonment is called for because of the need for General Deterrence. The DPP further submitted that service of the sentence of imprisonment fell within the range of Full-time imprisonment, Periodic Detention and a Suspended Sentence but did not seek to indicate the actual sentence leaving that for the Court’s discretion.

36.Offences of this nature are highly prevalent particularly where they involve intoxicated young men who commit offences of serious personal violence inside and outside licensed premises. Sentences for these offences “carry a very significant degree of general deterrence”: R v Mitchell and Gallagher at [29]. Ultimately, the objective seriousness is such that it is necessary to impose a term of imprisonment having regard to the serious injuries suffered by Mr. Cowley and the obvious considerable force that was used which caused those injuries. However, the Court has not lost sight of the fact that Mr. Cowley was the initial aggressor and that the offender’s response was in a belief he needed to act in self-defence but was excessive in the circumstances, albeit by a single punch. To some extent that diminishes the application of General Deterrence on the particular facts and circumstances of this matter.

37.The court considers that the minimum sentence of imprisonment that should be imposed is 18 months but with the utilitarian discount of 20% the sentence is reduced to one of 14 months and 12 days.

How is the sentence to be served?

38.The Court must now determine the manner in which such a sentence is to be served. The Crimes (Sentencing Procedure) Act 1999 provides that are four options available to the Court, which it must consider. Of those four options, Periodic Detention and Home Detention are not available as the offender lives in Queensland. The available options the Court has left to consider is a sentence of fulltime imprisonment or whether it is appropriate to exercise its discretion pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999 and suspend the execution of the sentence. The approach to be adopted was considered in R-v- Zamagias [2002] NSWCCA 17 the Court observed at [32]:

“a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the face that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. It is perhaps trite to observe that although the purpose of punishment is the protection of the community that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

39.Section 12 of the Crimes (Sentencing Procedure) Act 1999 does not set out any criteria that the Court must consider in exercising its discretion to suspend a sentence. The primary purpose of a suspended sentence is to convey the seriousness of the offence, and the consequences of offending, while providing the offender with an opportunity to avoid those consequences by displaying good behaviour. In some circumstances, a suspended sentence will be an appropriate means of rehabilitating the offender though it may be at the expense of deterrence, retribution and denunciation: R v Niass BC200402679; [2004] NSWCCA 149. A suspended sentence is not a “soft option” and should not be thought of as such; nor is the power to suspend confined to considerations wholly, mainly or specially directed to rehabilitation: Dinsdale v R (2000) 202 CLR 321; 175 ALR 315; [2000] HCA 54 per Kirby J at [79].

40.In Dinsdale v R, Kirby J (Gaudron and Gummow JJ agreeing) (see esp. at [18]), set out the nature of suspended sentences:

“[76] Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.

[79] The common failure of parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”.

[80] The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.

[81] A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.

[84] In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.

[85] Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of “all the circumstances”. This necessitates the attribution of “double weight” to all of the factors relevant both to the offence and to the offender — whether aggravating or mitigating — which may influence the decision whether to suspend the term of imprisonment.

[86] Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence.”

41.The considerations referred to by the High Court in the context of the Western Australian legislation are applicable to the statutory framework of Suspended Sentences in New South Wales. A Suspended Sentence may also be used where it is not appropriate to send an offender gaol for the first time: R v Kruger (1977) 17 SASR 214 at 221-2.

42.Reflecting again on the objective and mitigating features of this matter the question before the Court is whether a Suspended Sentence strikes the necessary balance between protection of the community and rehabilitation of the offender at the expense of Deterrence, Retribution and Denunciation. While the injuries to Mr. Cowley were serious and considerable force was used by the offender the response was impulsive, unplanned and his capacity to exercise judgment was impaired in circumstances where he had the belief he needed to defend himself and struck out with one punch. In the particular circumstances of the matter the need for General Deterrence is diminished. The offender is a young man with no prior record for violence and other than for the Public Nuisance offence is of good character. There is nothing to suggest that he presents a continuing danger to the community. The offender has commenced a course of counselling with Mr. Kerr and has been compliant and responsive to treatment and his prospects of rehabilitation are very good. The DPP submits that a sentence of imprisonment is required and that a Suspended Sentence is within the bottom of the range but does not advocate how the sentence should be served.

43.Upon a consideration of all those matters the balance falls in favour of exercising my discretion to suspend the execution of the sentence in this matter.

44.As part of any conditions of the bond the DPP submitted it is appropriate to impose a condition that he not consume alcohol. The offender acknowledged in his evidence that if those who will be supervising him require him to do so he will comply. Mr. Kerr has set abstinence as one of the offender’s behavioural gaols and will monitor the situation. The offender is not a recidivist violent offender who commits offences of serious personal violence while intoxicated and in the past has been afforded alcohol rehabilitation but continues to offend such that a condition in those terms is warranted to ensure no further offending for the protection of the community. At this stage whether such a condition is warranted is a matter for expert clinical and therapeutic assessment by those supervising the offender rather than through the blunt instrument of a court order. The offender may fully and faithfully comply with all other conditions of the bond, not re-offend but if he has one drink he would breach his bond were there such a condition and be liable to be imprisoned. Further, with the realisation of his problem with excessive drinking, continuing counselling and growing maturity such a condition takes away from the offender any ownership of his own steps towards rehabilitation. The opportunity for the offender to be able to responsibly consume alcohol should he wish (subject to any direction otherwise by those supervising him) assists in his rehabilitation at this time. The court is of the view that such a condition is not warranted.

Magistrate John Favretto

Downing Centre Local Court

27 March 2009