R v Shane Leslie Darcy

[2017] NSWDC 403

District Court

New South Wales

Medium Neutral Citation:	R v Shane Leslie DARCY [2017] NSWDC 403
Hearing dates:	14 November 2017
Date of orders:	14 November 2017
Decision date:	14 November 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Special circumstances found – need for extended period of parole to assist with addressing drug & alcohol issues via residential rehabilitation and assistance within the community, and in respect of mental health issues. Sentenced to a term of imprisonment of 8 years comprising of a NPP of 5 years to commence on 17/3/16 and to expire on or about 16/3/21 and a balance of term of 3 years to commence on 17/3/21 and to expire on 16/3/24. Eligible for release to parole on 16/3/21.
Catchwords:	CRIMINAL – Sentence – wounding with intent to cause grievous bodily harm – subjective matters - homelessness – mental illness - drug and alcohol abuse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing, Procedure) Act 1999
Cases Cited:	R v Thomson & Houlton (2000) 49 NSWLR 383 Bugmy v the Queen [2013] HCA 37 R v Fernando (1992) 76 A Crim R 58
Category:	Sentence
Parties:	REGINA Shane Leslie DARCY
Representation:	Solicitors: CROWN: Mr A Florance F/W: Mr J Elliott (ALS)
File Number(s):	2016/00084489

Judgment:

1. Shane Darcy appears for sentence in respect of a single offence, being an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. The maximum penalty provided is 25 years imprisonment and there is a standard non-parole period of seven years.

2. He was committed for sentence on 1 December 2016 from Central Local Court, and it is accepted that his plea was entered at the earliest opportunity and he is therefore entitled to a 25 per cent discount for the utility of the plea alone as referred to in R v Thomson & Houlton (2000) 49 NSWLR 383.

3. The facts are as follows:

1. The offender and the victim, Christopher Barratt, have known each other from living on the streets around the Sydney CBD. In January 2016 Mr Barratt told the offender he no longer wanted to purchase and use heroin with the offender. Mr Barratt does not know of any other dispute with the offender.

2. At 11.30pm on 9 March 2016, Barratt settled himself to sleep on the footpath outside 60 Carrington Street, Sydney. This shop location is directly opposite Wynyard Park and Wynyard bus terminal. Barratt talked with a friend for some time before falling asleep sometime after midnight.

3. At 12.50am on 10 March 2016, CCTV footage recorded the offender walking around Carrington Street, Wynyard Park, and the bus terminal. The offender had a distinctive handlebar moustache and dark unkempt hair. He was recorded wearing a dark coloured hooded jacket with a white mark on the left breast, jeans, a distinctive blue backpack and blue New Balance shoes. Over the following two and a half hours the offender was recorded walking around in the vicinity of the victim. During this time, the offender put a pink towel over his head, shoulders and backpack.

4. At 3.08am the offender positioned himself behind a stack of crates that had been delivered earlier and left outside 60 Carrington Street. The offender was then no more than five metres from the sleeping victim.

5. At 3.25am the offender approached the victim, who was covered by a blanket. The offender reached down and, using an unknown sharp implement in his left hand, wounded Barratt across the right side of his neck. This resulted in a 12 centimetre long laceration extending through all layers of the skin, with an estimated blood loss of 200ml.

6. The offender then hastily walked from Carrington Street towards Wynyard Street. He made no attempt to render any assistance to the victim.

7. Barratt immediately woke up, feeling immense pain from the laceration to his throat. He felt warm blood flowing freely from the wound and he realised his throat had been cut. The victim had not seen the offender and he had no idea how the injury occurred. Barratt woke his friend sleeping nearby and his friend called for an ambulance. The offence was captured on CCTV footage from a number of venues.

8. Barratt was taken to St Vincent's Hospital where he underwent a number of surgical procedures. The 12 centimetre wound to his throat was sutured and then after surgery Barratt was no longer considered to be in a serious condition.

9. Attending police established a crime scene. An extensive canvas by investigators tracked the movements of the offender from Carrington Street to Sydney Central Railway Station. The offender was captured on CCTV footage walking across George Street into Martin Place onto Pitt Street and into Pitt Street Mall. At a trash can in Pitt Street Mall the offender disposed of the pink towel. The police were unable to retrieve the pink towel.

10. The offender walked down from Pitt Street Mall onto Market Street to George Street and on George Street to Bathurst Street, then again onto Pitt Street. He walked along Pitt Street to Belmore Park opposite Central Railway Station. There the offender stopped at the southern end behind a tree. He removed his dark hooded jacket with a white mark on the left breast and put it in his backpack. The offender wore a dark t-shirt with a motif on the front.

11. The offender walked across Eddie Avenue and into Central Railway Station. He was captured again by CCTV with his distinctive handlebar moustache, dark unkempt hair and a series of tattoos on his left and right arms. He walked around Central Railway Station for some time before boarding a train to Redfern Railway Station.

12. On 17 March 2016 the offender was identified by investigators. At 2.45pm that day he was located and arrested at the intersection of George and King Streets, Sydney. He was cautioned and taken to City Central Police Station. There he was informed of his rights and he spoke with the Aboriginal Legal Service by telephone.

13. The offender participated in a recorded interview. He said he was in Redfern Park on the morning of the offence, and he denied being at any of the locations showing his movements on CCTV. The offender denied wounding the complainant. When the offender was shown a number of still CCTV images he initially identified himself as being the person in the image with the moustache, tattoos and backpack. However, he then retracted this admission. During the recorded interview the offender was noted to be left handed whilst signing documents. He consented to forensic procedures and he was then charged.

4. There is no Victim Impact Statement. The Crown bundle contains photographs of the injury occasioned to Mr Barratt both before and after the wound had been sutured. It is clear from the photograph taken before the suturing that the cut made to Barratt's neck, in addition to being some 12 centimetres in length, had clearly penetrated through both layers of the skin and some of the internal tissue. It appears to have been a significant and deep cut. Although there is no Victim Impact Statement, it is clear from the length and depth of the cut that Mr Barratt was exceedingly fortunate that it was of no greater depth, as that would have been likely to cause a far more significant result. Mr Barratt was at the time a vulnerable person asleep in a public street at night.

5. While wounds may be inflicted by different means, in this case it is clear a cutting implement was used. The offender on sentence has said that he used a box cutter, which he generally carried for the purpose of cutting up cardboard boxes to sleep on. It is clear from the CCTV recording of his activity before cutting the victim's throat that he was in the vicinity, contemplating what action he would carry out. Having inflicted a very serious injury, he immediately departed from the area and took steps to try and minimise the risk that his conduct would be detected and that he would be arrested. He disposed of the pink towel after leaving the scene and when he reached Belmore Park, he further continued to make himself unidentifiable by changing out of the black hooded jacket or jumper that he had been wearing at the time.

6. The victim knew of no reason why the offender would attack him in such a fashion.

7. Tendered to the Court on sentence on behalf of the offender is a report from Dr Kerri Eagle, psychiatrist. It contains the following,

“Mr Darcy said that when living on the streets, 'We had a pact going, whatever one does, we all do. One decided to go on methadone so we all done it.' He said his pact involved mates from the streets. He said that they slept in the same location. He said the victim was not part of the pact. He said he used to be a friend. He stated, 'I stopped being mates with him. He just got on me nerves’."

8. There is no other explanation provided for the offence other than the offender's comments to the psychiatrist, and in evidence about hearing voices telling him to hurt people on this occasion and in the past; although his evidence was that in the past he had been able to resist complying with any such voices.

9. It has been submitted by Mr Elliott on behalf of the offender that while the Court would not find that it was at the lowest end of objective seriousness, that it was not so serious as to be regarded in the mid-range of objective seriousness. That is a submission which I reject. This was a very serious injury, deliberately inflicted on a sleeping man in a vulnerable position. As I have previously referred to, it was fortunate that it did not result in far more significant consequences. The offender by his plea and in his evidence on sentence accepted that he intended to inflict grievous bodily harm. It was premeditated, and, in the circumstances of his fleeing the scene and attempting to make himself unrecognisable by abandoning the pink towel and changing his clothing, he was fully aware that what he was doing was committing a serious criminal offence which might have serious consequences for him if he was apprehended.

10. The offence was, although not at the highest end of range of objective seriousness, certainly above the mid-range of objective seriousness.

SUBJECTIVE MATTERS

11. Before the Court is a report from Dr Kerri Eagle, psychiatrist, dated 21 June 2017, tendered on behalf of the offender. In addition, the Crown has tendered his criminal history and a New South Wales Department of Corrective Services “Conviction, Sentence and Appeals Report”. The offender gave evidence on sentence. Subjective matters are drawn from that material.

12. He was approximately 39 years of age at the time of the offending and he is now 41 years of age. At the time of the offending he was unemployed and living on the streets as a homeless person. He had separated from his partner approximately two years prior to the offence after a relationship spanning approximately 10 years. There is one daughter of the relationship who is approximately seven years of age.

13. He was born in Blacktown. Both of his parents are deceased, his father dying when the offender was 13. He has some six siblings and he informed the psychiatrist that his mother was a victim of domestic violence as a result of his father's consumption of alcohol. There is nothing in the psychiatrist's report which indicates that the offender's social conditions in his early history are such as to come within the terms of Bugmy or Fernando. He attended primary school in Dubbo and Coonamble, having never been expelled or suspended. He didn't engage in fights. He did not do well at school because he did not try, and he left schooling at around the age of 12. This was because of the movement of his parents. Although he informed the psychiatrist he was unable to read or write, his evidence today was that he can get by in those respects.

14. He obtained fork lift certification and apparently worked as a fork lift driver for approximately five or six years before the company downsized. It was after losing his job that he broke up with his partner. Thereafter, he had some limited casual work with the council before becoming homeless. Part of the reason for the breakdown of the relationship was because of his temper causing problems. He is said to be only close to be one of his brothers, Rodney, and to having contact with a nephew, but he has no other friends or support. As a child he was not subject to any childhood abuse, including sexual abuse.

15. He claims to have been diagnosed with schizophrenia some three years prior to the index offence at Shell Harbour, having been taken to hospital, assessed and sent home for follow up by the Community Mental Health Team. He was prescribed Quetiapine, being an antipsychotic medication. He apparently started to hear voices at the age of 17 or 18 which became worse when he started using methamphetamines. The Shell Harbour Hospital records are referred to in the psychiatric report, which confirms his admission and referral to the Community Mental Health Team with a history of auditory hallucinations, including having said at the time,

“I don't know what they are saying but sometimes they tell me to hurt people...they are outside my head...I look around and no one is there."

16. There is said to have been a strong family history of mental illness. Although he was to wait for a psychiatric review, it is not clear from the records whether he ultimately saw a psychiatrist. On 27 June 2014 he was noted to have been referred for mental health case management and noted that he was "using amphetamines, heroin, alcohol and THC and disclosing that he hears voices which may tell him to stab someone." On 4 July 2014 the records indicate that attempts were made to follow up and arrange a psychiatric review, but unfortunately there was no further record.

17. He started using cannabis when he was 10 years of age and drinking alcohol at 14, and then drinking every day. He started using amphetamines and intravenous heroin from the age of 15, and using heroin on a daily basis. He commenced using methamphetamines intravenously approximately three years ago and he has over time also taken ecstasy, Xanax, Serapor, Valium, Oxycodone, and he stated, "I take everything that's available." He was said to have commenced to use methadone again prior to the index offence, although, as I understand from his evidence today, that was for a limited period. He claimed to have attempted to enter rehabilitation but to have been rejected. There is no information as to why he was rejected, but of course if he was at the time he sought assistance continuing to use prohibited drugs, he would have been rejected. He claims that he has only managed in the past to be absent from the use of all substances for about a month a while ago. No further information is provided as to when.

18. He further stated in relation to the offence that, "The victim used heroin and would overdose frequently." He stated, "I got sick of bringing him back to life every day." He stated, "I was feeling down. The voices told me to take him out." He stated the voices said, "He's human rubbish, you have to take him out or they will take you out."

19. It is apparent from what he told the psychiatrist of the victim, that he had some animosity towards him for whatever reason. He informed the psychiatrist that he had not been on any medication for two years and that he had been experiencing the voices every day while using heroin and methamphetamines. He had been injecting about 2 grams of methamphetamine on a daily basis and had not slept for days prior to the offence. He also stated that he used heroin to come down from the methamphetamines.

20. I note that at the time of the consultation with the psychiatrist he was affected by methadone, as he was today when giving evidence. Dr Eagle opined:

“Mr Darcy had little insight into his mental disorder. He accepted the need for medication. He was aware that he had substance use problems. He did not demonstrate an understanding of realistic strategies to address his substance use, however, he expressed a motivation to attend a rehabilitation facility. He has limited insight into his offending conduct.”

21. As to a diagnosis, he opined that:

“It is likely that Mr Darcy has a substance induced psychotic disorder. He has described symptoms of psychosis in the context of heavy substance use including methylamphetamines and other stimulant use. He may have an underlying psychotic disorder such as schizophrenia.”

22. The doctor went on to opine that it was not possible in the circumstances of his substance use to make a determination as to whether there was an underlying psychotic disorder. He also stated that the offender “has a severe polysubstance use disorder currently being maintained by therapy with methadone” and he described his past use of prohibited drugs and other substances as demonstrating a history of pervasive heavy illicit substance use since childhood resulting in psychological difficulties and substantial psychosocial dysfunction. Past attempts made to address or control his substance use have been unsuccessful. “His substance use has given rise to his offending conduct and resulted in unemployment and homelessness."

23. I take it that the reference at that point to offending conduct is a reference to his criminal history rather than specifically the present offence.

24. The doctor also opined that his “history and behaviour satisfied the criteria for antisocial personality disorder” and was suggestive of a history of conduct disorder prior to the age of 15. On the basis of the information before the doctor, he opined that at the time of the offence the offender, "was intoxicated on methylamphetamines, sleep deprived and experiencing psychotic symptoms likely secondary to the use of amphetamines. He was living a marginal existence on the streets. The combination of these factors probably played a role in his offending conduct", and he noted that psychosis and methamphetamine intoxication may both give rise to severe impairment and judgment disinhibition and reduced impulse control combined with his auditory hallucinations, which he refers to as providing an overall impairment of his judgment. However, he further went on to state:

“There is nothing to suggest he was not aware of the consequences of his actions at the time except to the extent that his overall judgment was impaired.”

25. As to his future, he opined that:

“Mr Darcy's primary difficulty is his substance use disorder. No treatment for his mental health condition is likely to have been effective unless he were able to maintain abstinence from illicit substances."

26. As to the risk of further offending, having referred to the relevant factors, he stated:

“These factors correlate with a moderate to high risk of re-offending in the short to medium term ... Until the cycle of illicit substance use and psychosocial dysfunction is able to be suspended in a non-custodial setting with adequate supports and interventions, Mr Darcy will remain at risk of violent re-offending."

27. It is not surprising that on the basis of that assessment he indicated that the offender needed a significant period of residential drug and alcohol rehabilitation following custody as well as further ongoing contact with community drug and alcohol services for a sustained period of abstinence after undergoing residential rehabilitation.

28. The offender was aware of the effects of his use of prohibited drugs and was aware of his own psychological state. He has a significant criminal history commencing as a juvenile with offences of break enter and steal and assault with intent to rob and stealing. As an adult he has regularly been before the courts in relation to offending conduct and over time the seriousness of the offences has escalated.

29. In his early years as an adult there were offences of larceny and malicious damage, attempts to steal from a motor vehicle, self-administer prohibited drug, stealing, possess implement capable of entering conveyance, steal motor vehicle, fail to appear and a number of offences relating to the use of motor vehicles and their theft. By 1998 he was committing serious offences such as robbery while armed with a dangerous weapon on more than one occasion for which he received terms of imprisonment, although not the first terms of imprisonment he had received. There were further offences, and I will only refer to the more serious ones, assault officer in the execution of duty, robbery, robbery armed with an offensive weapon, common assault, resist officer in the execution of duty, assault occasioning actual bodily harm, custody of a knife in a public place in 2014.

27. The Corrective Services report indicates a number of periods of custody as an adult commencing in about 1996 and continuing through to his arrest in respect of this matter, although there is a period from about 30 May 2003 until 20 February 2013 during which he managed to mostly stay out of gaol. From February 2013 he was back in gaol on a number of occasions prior to being arrested in respect of this matter, although one period from 20 February 2013 to 16 April 2014 was in relation to a matter that he was in fact acquitted of. His longest period of custody appears to be from 3 October 1999 through to 2 April 2001.

28. There is no indication in the psychiatric report that he has expressed remorse or contrition for his conduct. When asked in giving evidence on sentence how he now felt he responded that he now felt remorse for doing it and indicated that he would apologise to the victim if he could. Even allowing for the fact that when giving evidence he was affected by methadone, his evidence was not what could be regarded as very convincing. It was no more than a single bland statement.

29. I note that he has indicated that he is prepared to enter rehabilitation, but, of course, his criminal history indicates that assistance has been ordered in the past and that he has been for some periods subject to parole. It is evident that whatever assistance, if any, he has received, it has not had any significant impact.

30. He claims now, in the circumstances of being in custody, to be free of prohibited drugs and is participating in the methadone programme. There can be little doubt, as opined by the psychiatrist, that his primary problem is his substance use disorder and that his mental health condition is not likely to be addressed in the absence of completely ceasing the use of illicit substances. In the absence of managing to completely curb his use of illicit substances and the effect that they have in relation to drug induced psychosis, I accept the psychiatrist's view that there is a moderate to high risk of violent re-offending.

31. I accept that the offender requires a significant degree of assistance as well as making the personal determination to cease use in order to effect any rehabilitation. For that reason, I will find special circumstances when setting the sentence. However, I do not have a great deal of confidence in the offender's ability to not use prohibited drugs and/or non-prescribed drugs in the future, considering his current age and that he has indulged in prohibited and restricted drugs not prescribed for him for most of his life since his teenage years.

32. It has been accepted by Mr Elliott on behalf of the accused that his mental health condition was not a causative matter in relation to his offending conduct. I do, however, accept in the circumstances that there is some lessening of moral culpability arising from the offender’s lifetime history of abuse of prohibited and non-prescribed drugs.

33. His criminal history is such as to disentitle him to leniency. The prospect of rehabilitation must in the circumstances be extremely guarded and, in my view, he must be regarded as a significant ongoing risk to the community, however, such a conclusion cannot lead to any extension of an appropriate penalty for the offence to provide preventative detention for the protection of society.

34. For the purpose of sentencing, I have had regard to s.3A of the Crimes (Sentencing, Procedure) Act 1999. I must take into account s.21A(2) and (3). I have already referred to the relevant matters as well as other relevant factors. Any sentence imposed must reflect the seriousness of the offence as well as the need for both general and specific deterrence. In my view, in this matter both general and specific deterrence are significant factors. I am satisfied pursuant to s.5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate and I note that that has been accepted on the offender's behalf by Mr Elliott, who appears for him.

35. Mr Darcy, you are convicted in relation to the offence of wounding with intention to cause grievous bodily harm. You are sentenced to a term of imprisonment with a non-parole period of five years to commence from the date of your arrest, being 10 March 2016. The non-parole period will expire on or about 9 March 2021 and you will be first eligible for parole at that time.

36. Having found special circumstances, as I perceive on the basis of the material before me that you require a significant period of assistance, both in relation to residential rehabilitation and further ongoing supervision in the community to assist you with your drug and mental health issues, as well as to assist you in relation to determining not to commit offences in the future, I have found special circumstances on that basis.

37. The balance of term is three years. That is a total sentence of eight years’ imprisonment with a five year non-parole period. The sentence itself will expire on 9 March 2024. As I have indicated, the non-parole period makes you first eligible for parole on 9 March 2021.

38. Whether you are released on that date or not will depend on your performance while in custody. It will be a matter for the authorities to determine whether you are in fact released on that date, and I leave the consideration of the terms on which you are released to the authorities to determine at such time as you are released. I am sure in relation to the fact that you have previously served periods of time in custody and on parole that you fully understand that if you breach the parole period by way of not complying with the conditions of your parole or committing further offences that you will end up back in gaol serving the balance of term. I am sure you understand that.

HIS HONOUR: Is there anything I have omitted?

FLORANCE: Your Honour, might I just clarify something. The offence occurred on 10 March and he came into custody on 17 March.

ELLIOTT: That's correct, your Honour.

HIS HONOUR: Yes, 17 March. Sorry. The sentence will commence on 17 March 2016 and you are first eligible for parole on 16 March 2021 and the sentence of eight years, having commenced on 17 March 2016, will be concluded on 16 March 2024. Thank you, Mr Crown. I obviously picked up the wrong date.

FLORANCE: Thank you, your Honour

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Decision last updated: 15 February 2018