District Court New South Wales Medium Neutral Citation: R v Wright [2022] NSWDC 203 Hearing dates: 03/06/2022 Date of orders: 09/06/2022 Decision date: 09 June 2022 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See Order Below [72] Catchwords: CRIME — Public order offences — Affray CRIME — Violent offences — Recklessly Cause grievous bodily harm Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Muldrock 244 CLR 120 R v Kama (2000) 110 A Crim R 47 Zecevic v DPP (1987) 162 CLR 645 R v Quinlin [2021] NSWCCA 284 La v R [2021] NSWCCA 136 Bonett v R [2013] NSWCCA 234 Mandranis v R [2021] NSWCCA 97 Alferink [2021] NSWDC 473 R v Leete [2001] NSWCCA 337 Blanch v R [2019] NSWCCA 304 Texts Cited: Nil Category: Principal judgment Parties: Regina (Crown) Wright (Offender) Representation: Franklin Crown Prosecutor for the Director of Public Prosecutions Anderson Counsel for the Offender Greg Coombes Solicitor for the Offender File Number(s): 2020/00359543 Publication restriction: Unrestricted. Introduction 1. Ethan Wright appears for sentence for two offences. Both offences arise out of the same events on 12 December 2020. One offence is of recklessly causing grievous bodily harm in contravention of section 35(2) of the Crimes Act. That offence has a maximum penalty of 10 years imprisonment and a standard non-parole period of four years. The other offence is of affray under section 93C(1) of the Crimes Act for which the maximum sentence is 10 years. 2. The maximum sentence and in the case of the section 35(2) offence the standard non-parole period, are legislative guideposts to assist in arriving at the appropriate sentence. They indicate the view of the legislature as to the seriousness of the offending. In respect of the standard non-parole period I note the provisions of section 54A(2) and that it represents the non-parole period for an offence that is in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence. By section 54B(2) the standard non-parole period for an offence is a matter to be taken into account in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence. 3. In this case both parties agreed that the offending objectively was in the middle of the range of seriousness. I note the statements in Muldrock at [27] that the function of the standard non-parole period as a legislative guidepost operates whether the objective seriousness assessment is low or mid or high. That the assessment here may be considered in the middle of the range of seriousness perhaps makes considerations clearer but arguably does not give the standard non-parole period any greater weight. 4. There are no matters to be considered by way of the Form 1 procedure, nor are there any matters to be dealt with by way of a section 166 certificate. 5. The offender was arrested on 18 December 2020 and was held in custody until 26 June 2021, a period of six months and eight days. The offender was not on conditional liberty at the time of the offence and indeed putting aside a juvenile matter which is argued should not be considered, this is his first offending. The offender was born on 1 January 1999 so that he was 21 at the time of the offending and is now 23. Upon his release from custody he was placed on bail conditions which included a curfew prohibiting him from being away from his residence from the evening to the following morning. The facts 1. On 12 December 2020, the offender was out with Allan Anderson and Zach Burke. On the evidence given by the offender on the sentencing hearing they had much to drink and had taken drugs before going out. They attended a tavern until about 8 PM when they were given an order to leave due to their level of intoxication. Shortly after at approximately 8:30 PM they were refused entry to the Pacific hotel. 2. Also at approximately 8:30 PM what the facts referred to as the "victim's group" also made their way to or to the vicinity of the Pacific hotel. They had drinks at 6.30pm at the Bowling club and then went to a Mexican restaurant and had dinner and drinks there. The victim's group in smaller groups made their way up a hill towards the Pacific hotel. The last of those smaller groups had a confrontation with the offender and his two companions. The exchange was verbal only and was mainly between people other than the offender. The parties passed each other in opposite directions. One of the offender or his two friends then said "let's get them cunts" and then walked towards the other group. The offender ran at one of the others and said "let's go then cunt". The offender pulled out a black flick knife. He held it down by his side. CCTV vision of this event was shown to the court and shows two groups of males posturing and shaping up for a fight and clearly shows the offender brandishing the knife. 3. One of the victim's group tried to calm things down. The offender said "I don't want to hurt you I just want him to stop starting shit" being a reference to one of the others of the victim's group. Mr Burke then punches one of the victim's group, Mr Bloom, to the left side of his face. Mr Bloom yelled out to watch "red jacket" being the offender as he had a knife. 4. Others from the larger victim's group saw what was happening including the victim Mr Callum O'Laughlin. The victim ran over to the group and tried to separate them and calm the situation. The victim is 6 foot six and can be seen on the CCTV to be doing just this. He said "go away boys we don't want any problems". Initially, it appeared the matter had been defused. Some pushing then resumed and the offender punched the victim in the face with his right hand. This led to retaliation by the victim and a fight between the victim and the offender. The victim based on both the written facts and the CCTV appears to be getting the better of the offender, throwing punches at him. At this time the victim is progressing towards the offender down a slope and with the offender facing the victim with one hand outreached and with the other brandishing a knife and moving backwards down the slope. At this point the offender stabbed the victim three times, twice to the left groin area and once to the upper left side of his abdomen. This all happens in a matter of seconds with the time between the initial punch of the victim by the offender and the stabbing of the victim by the offender being 10 seconds. I will return to this aspect of the facts as it is the subject of what was phrased as a disputed fact matter but really is a question of interpretation of the facts. 5. The victim can soon be seen walking or trotting up the slope and then is assisted by friends. Prior to him apparently realising his injury the offender had stopped fighting with the victim and held his arms out as though it was all over. The agreed fact is that at the time that happened the victim had not yet realised he had been stabbed and did not know why the offender just stopped. Nevertheless having stopped the offender ran around the victim and up towards the rest of the group and joined back in the fighting. The notable point is that when the offender did show that he would stop fighting the victim, the was easily able to avoid the victim. 6. The entire incident from when the scuffling or posturing commenced before the victim arrived at the scene to its conclusion lasted approximately 3 to 4 minutes. The offender and his two companions then walked away to a bottle shop. The knife was never found and for the first time the offender disclosed at the hearing that he had thrown the knife down a drain. That clearly suggests he was aware that he had wounded the victim. 7. The victim's friends applied pressure to his wounds and called an ambulance. He was in a lot of pain, groaning and vomiting and unable to speak. Some of the victim's friends in effect carried out a citizen's arrest of the offender. When police arrived he denied the assertions of others that he had stabbed the victim. 8. An ambulance arrived. Paramedics assessed the wound as being a significant injury to the upper left abdomen with unknown underlying organ involvement. IV fluids were administered, the wound was dressed and pain relief was given. The paramedics coordinated a team including a critical care paramedic and a doctor to meet them at the Harwood Bridge to take over the care of the victim as he was transported to Lismore base hospital. That doctor considered the victim to be in 10/10 pain but haemodynamically stable. Intra-abdominal bleeding was detected. Blood resuscitation was required. The doctor described the victim's injuries as significant and life-threatening. 9. The stab wounds are described as a 5 to 6 cm laceration to the upper left quadrant of the abdomen and two smaller lacerations of about 2 cm each to the left groin area with arterial bleeding between the aorta and descending. Surgery was carried out at 2:30 AM. About a litre of blood was drained from the abdominal cavity. The abdominal stab wound was within a very short margin of the abdominal aorta. The two wounds to the left groin were also serious. They were within centimetres of the femoral vessel. Had that been injured it was possibly life ending. The second doctor described the victim as being "all in all an incredibly lucky individual" due to the life-threatening nature of the injuries. 10. The victim was in the intensive care unit until 14 December so for two days and on review on 19 December an incisional hernia was detected requiring a second round of surgery. He was discharged on 24 December 2020. 11. The victim has been left with permanent scarring from the wounds and the surgery with the surgery wound being one that runs from just below his chest to the top of his groin area and therefore obviously significant. In a victim impact statement this scarring has turned into a keloid scar causing it to stand out even more. 12. When the offender was first questioned he denied that he stabbed anybody or that he had a knife. He was released pending further investigation and was then arrested on 18 December. One of the offenders' companions stated to police that the accused said after the event "I just stabbed someone" and showed him the knife and he could see blood on the tip of the blade. Objective seriousness 1. A significant matter to consider in this regard is the extent and nature of the injuries. The nature of the attack and surrounding circumstances are also highly relevant. The seriousness of an offence under section 35 may be assessed by reference to the viciousness of the attack and the severity of the consequences; see R v Kama (2000) 110 A Crim R 47 at [16]. As well as the extent and nature of the injuries and the degree of violence the mental element of the offence is also relevant in assessing objective gravity. 2. It is the last of these factors that was the subject of what had initially been referred to as a disputed fact. The argument for the offender in this regard was to suggest that he had acted in self defence although admittedly in an excessive way. The argument seemed to simply boil down to the evidence that was led from the offender to the effect that at the time that he struck out with the knife to stab the victim he was scared. It was said that having found himself in the position that he was in he feared for his safety and fearfully struck out causing the injury. 3. In my view an aggressor who is met with appropriate retaliation by the victim does not turn into a defender of the situation simply because he becomes scared. In my view particularly having had the benefit of the video and the short period of time between the initial aggression of the offender and the stabbing of the victim it cannot be said that the victim has passed to become the attacker. 4. The Crown submission on this point was to say that an unreasonable use of force while acting in self defence even if found is not capable of mitigating a sentence. It was said that only if the matter was one of provocation will a potential mitigating feature arise and reference was made to section 21A of the Crimes (Sentencing Procedure) Act (CSPA). In my view if a matter was to be found to be an act in self defence but excessively so that would impact objectively on the assessment of seriousness of the offending. Whether beyond that objective assessment there is then some mitigation of sentence for that offence is another question. 5. In Zecevic v DPP (1987) 162 CLR 645 at 663 the High Court made specific reference to the situation of an accused person raising a plea of self defence where the accused was the original aggressor and induced or provoked the assault against which he then claims the right to defend himself. In such a case it is for the jury, or other factfinder, "to consider whether the original aggression had ceased so as to have enabled the accused to form a belief upon reasonable grounds that his actions were necessary in self defence. For this purpose it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it". 6. It was not terribly clear just to what extent the offender sought to fit himself within the description of an original aggressor who then found himself in a position creating a right to defend himself, or whether he simply relied on the fact of being scared and acting out as he did. In my view this is not a case where self defence would be open to the offender. What occurred was simply that he was plainly the aggressor by striking the victim in the head, a man who was 6 foot six, who then descended upon the offender and gained the ascendancy in the fight whilst all the time the offender sought to go on with it although in a way that appeared tactically doomed. There is no point in that brief encounter that it could sensibly be said that the victim has passed to become the aggressor in such a way as to entitle self defence. Further, that the offender stopped at a time when the victim was unaware of being stabbed and put up his hands and was able to disengage strongly suggests that he was able to do this before that point. He chose not to. I do take into account however the fact that the offender almost immediately desisted upon the stabbing occurring, though any benefit to the offender for that reason is to be balanced against the fact of there being 3 stabbings. 7. The mental element attributable to the offender is therefore that as alleged, as being reckless in the circumstances described above, and with no benefit to him of it being able to be said to be an act of self defence albeit excessive. In assessing the objective seriousness I note that it was the offender who brought with him a knife and displayed a willingness to brandish it prior to the victim being on the scene. 8. The nature of these injuries are serious regardless of their ultimate sequelae. It is impossible to downplay the serious nature of stabbing a person three times in the area of the abdomen and groin. Had the aorta or femoral areas been injured as they very nearly were would have turned this case into a different matter altogether. What the defendant did was very reckless due to the obvious serious harm and possible death that can emerge from such actions. In saying that I am very conscious of considerations of De Simoni and simply make the point that whilst the good luck involved in the injury not being even more serious gives some assistance to the offender, it does not reduce the nature of the injury to anything other than very serious. 9. There was a need for 12 days hospitalisation and two surgeries. It would appear thankfully that the victim does not have any ongoing organic or functioning injury or disability save for the discomfort and visibility of keloid scarring which I take into account. 10. As to the degree of violence that is a matter which gives this event some colouring of a lesser serious example of this offending. The conduct engaged in by the offender and his companions is very antisocial; that said however the circumstances of young men mouthing off leading to conflict is regrettably common. Whilst the conduct is to be condemned it is not a matter where the degree of violence in my view adds further to the seriousness of the offending. 11. Taking these matters into account I assess the objective seriousness of this offence as being at that very midpoint of objective seriousness referred to in section 54A. 12. In relation to the affray matter I do not consider it to be as serious as the section 35 matter. I note the terms of section 93C(2) namely that the conduct of the other persons with the offender must be considered for the purpose of subsection 1. In other words it is the conduct of the offender and his two companions that is to be taken into account. There was inflammatory language used by them. The matters occurred on a public street. The time involved whilst not lengthy was not fleeting. The time of the offending was about 8:30 PM on a Saturday evening, although based on the video there did not appear to be large numbers of the public present. Conduct such as this not only causes people to fear for their safety but it impedes on their entitlement and expectation to be able to enjoy their community without experiencing this behaviour and its consequences. I would assess the seriousness of this offence as being just below the mid range. 13. The Crown relied on a number of aggravating factors, specifically that the offending involved the use of a weapon and involved a grave risk of death. In my view both of those matters have been taken into account in assessing the objective seriousness of the matters and it would be double counting to take them into account a second time. Subjective Case 1. The offender argued that having entered his plea in the local Court he was entitled to a 25% discount on his sentence. The Crown did not argue against that. In accordance with the CSPA, the discount will be 25%. 2. The offender has no criminal history. The records did show a matter in the Children's Court however it was submitted, and there was no argument to the contrary, that should not be taken into account. I note that matter occurred when the offender was 13 years old and would place little if any weight on it in any event. 3. As noted above the offender was 21 years old at the time of the offending. In my view the fact of his youth and a lack of criminal history of any significance are significant matters of mitigation to be taken into account. 4. Also as noted above the offender gave evidence. He grew up in and around Yamba where the offending occurred. His father died when he was three or four years old by suicide. There was then a person he referred to as his stepfather who was in a relationship with his mother until a time that did not become clear on the evidence. There appears to be a good relationship with the mother's present partner who employs the offender. 5. The offender left school in 2018 having completed year 10 and has been employed for most of the time since then, beginning at Hungry Jacks and then cleaning jobs before doing landscaping work which he likes and continues. 6. In 2019 a best friend of the offender died by an accidental overdose of drugs. Another friend after that committed suicide. The offender says that he quit drugs after the first death just mentioned but drank more and then got in with the "wrong crowd" and got back into the use of drugs most particularly it seems the drug Xanax. His drug use worsened after the suicide of his friend. 7. The offender says that he is happier now being sober and he does not want to be the person that he was when abusing drugs and alcohol. He described his six months in prison as a period when he did have support of other inmates. I gained the impression that period in prison was of assistance to him not only in its deterrent effect but also in some way through that support. 8. In terms of his drug use history he commenced cannabis at age 13. He says he was bullied at school which led to him taking up with an older crowd and drug taking. 1. He said he was very sorry for the event of this offending and used the word horrified. He says it was out of character and would not wish it on anybody what he had done. He made an apology to the victim who was in the courtroom from the witness box. 2. In relation to the knife he said he purchased it two days earlier and had no idea why he had and that he was affected by drugs and alcohol when he bought it. He gave evidence that he was attracted to the knife by the fact that a friend collected "stuff". Whilst I found the evidence of the offender credible, particularly as to remorse and his future intentions, I accept the submission of the Crown as to him being less than frank but only in my view in respect of matters going to the actual offending. I do not accept the offender bought the knife because a friend collected "stuff" and the first time revelation in the witness box of disposing of the knife down the drain also lacks credit. I do accept however the statements of remorse and sorrow and acknowledgement of wrongdoing. In fact I accept his statement that his conduct was out of character and consider that his offending is of a somewhat twofold nature. On the one hand a young man engaging in drug taking and excessive drinking and roaming the streets intoxicated is vulnerable at best and likely at worst to become involved in antisocial behaviour so that this occasion of antisocial behaviour would not be considered to be an aberration. On the other hand, for that anti social behaviour to be transformed into serious criminal conduct of the type that occurred here can in my view be seen as an aberration. I do not consider the offender to be the type of person likely to commit this style offence in the normal run of events even allowing for abuse of drugs and alcohol. 3. Returning to the offender's evidence he said that he had been drinking and taking drugs the previous two days to the offence and was very intoxicated. I do not take that into account as a mitigating factor. I have canvassed his evidence as to how he felt at the time of the offending when stabbing the victim above. 4. The offender was in custody for six months and eight days including periods of lockdown which meant being in his cell for 24 hours of the day. In my view that does add to the severity of that period of custody. 5. In cross examination he was challenged about his frankness with police immediately after the offence. Given he was severely intoxicated, had not yet been legally advised, his youth and the gravity of the situation I do not think that much turns on the failure of the offender to immediately confess to the offending. 6. He was challenged as to having told the psychologist that he had never taken a knife out before and said that he probably meant it was an out of character thing. It was put to him that he had told others that it was his friends fault and he replied that he took full responsibility for his own actions and full accountability for it. Again determining the appropriate sentence is not aided by what must be a fairly limited examination of what the offender may have told others. There has been expressions of remorse by the offender to various people and in his evidence. I have had the benefit of observing the offender in the witness box. To my mind he very much looked like a deer in the headlights. With all due respect to him he is a fairly unsophisticated and immature young man albeit that he has endured some difficulties that many his age have not endured, namely the death of his father and death of two close friends. I accept his expressions of remorse and consider that they are very genuine even though there were parts of his evidence referred to above that I do not accept. The point of distinction as to what I accept and what I do not accept is that where he was less credible was when tested on what actually happened on the night in connection with the knife. That might arguably raise concerns about insight and appreciating the wrongfulness of what he has done. Taking that into account I remain of the conclusions that I have just expressed favourable to the offender. 7. The offender relied on a number of testimonials. The first was from Paul Triggs, the offender's mother's partner and the employer of the offender. He says the offending is out of character and speaks highly of the offender as a worker. There is no discussion or insight as to the drug and alcohol abuse of the offender. There was also a reference from Dean Collins who was the father figure of the offender after his father died. He does refer to the substance abuse problems and refers to the loss of the offender's father as being difficult. He speaks very kindly of the offender and notes him maintaining his employment and taking on responsibility following this offending. The third reference was from the offender's mother who notes the offender's remorse and the grief and anxiety it has caused him and that he has now sought the assistance of a psychologist. She refers to the loss of his two friends. These testimonials assist the offender, though I note they are from his mother and father figures. The testimonial of Mr Collins was the most persuasive; it refers to the very matters the offender himself refers to as being significant in his life, there is reference to the drug issues, and support for the good qualities of the offender. 8. The mother referred to attendances with a psychologist, who is named Zach Jones. Mr Jones provided a report dated 25 May 2022. The offender was referred to Mr Jones on 29 October 2021, so not that long after the offender had been released on bail. That said as I read the report the first attendance was not until 30 November. Since then there have been six sessions. The history given is consistent with what I have set out above and they discussed the offending. The view was expressed that the offender displays good insight and notes that he has been abstinent from drugs and alcohol since custody. He also no longer associates with the peer group involved in the events of the offending. His results to the depression anxiety and stress scale test were largely in the normal range and no diagnosis of mental health illness was made. It does report on the clinical basis that the offender reports persistent anxiety throughout his childhood and teenage years with suggestions of a clinical level of anxiety which may have met the criteria for a diagnosis at some time. 9. The offender is said to have goals such as improving his fitness and engaging in positive ways socially. He wishes to progress his career in landscaping. It notes the treatment goals are to work towards a greater understanding and framing of his identity in order to resist negative peer influences and to manage anxiety and depression to reduce the impact of that on his life. That the psychologist would say that suggests that anxiety and depression can affect a person in their lives without necessarily being a matter that reaches the level of being diagnosed as a condition. The report is also another source of the evidence of remorse. 10. Lastly, there was a sentencing assessment report prepared. It notes the offender is currently residing with his mother and siblings. The relationship with them is a good one as I would add is the one with both his mother's past and current partners. It is plain that he has support from his family as well as the benefit of having employment. 11. In the sentencing assessment report, it is again recorded that he displayed a significant level of remorse. It outlines his substance and alcohol abuse history. It notes the offender acknowledges his behaviour was violent but also notes that he describes his action in self defence a matter which based on my above findings does show a lack of appreciation on the part of the offender of his role in the offending. 12. Despite that negative, the offender did display insight into the impact of his offending behaviour and acknowledged the impact it would have on the victim both physically and mentally. The offender expressed the desire to participate in any recommended interventions and to carry out community service work. He participated well in the preparation of the report. 13. The offender was assessed as a low to medium risk of reoffending. He was considered suitable for community service work. 14. Overall this is a helpful report for the offender. The one contradictory aspect of it is his insistence that the offending was born out of self defence. I do not think that should be taken to be too damning of the offender. On a subjective level he could perhaps consider that he was acting in self-defence given he was at the time fighting a losing fight that he had started, but for the reasons outlined earlier that is not the view the law would take in circumstances such as these. Sentencing considerations. 1. The submission for the Crown was that the offending was so serious and the case of such a nature that the sentence must be one which prohibits the imposition of an intensive corrections order. The Crown quite rightly pointed to the facts of these events occurring in a public place, that the offender was the aggressor and the seriousness of the injuries. 2. Perhaps the most compelling argument for the Crown is that this is undoubtedly an alcohol / drug fuelled act of violence which carries a great need for deterrence. The use of a weapon is also something that demands there be significant deterrence. 3. For the offender, reference was made to the sentences imposed on the two companions in respect of offences of affray in the Local Court. Both those offenders had prior records and one of them was on a community corrections order at the time of the offending. They received a two-year and ten-month ICO respectively. The offender submits that the above material shows a strong subjective case. It is said that he has good prospects of rehabilitation. 4. The crux of the offender's submissions was that the matter should be dealt with by an ICO. Reliance is placed on the fact that this young offender has served full-time custody for a period of six months and eight days to date. Whilst it may not have been expressed in exactly these words the thrust of the submission could be taken to be that to the extent that the Crown argues that the offending is so serious that there must be a period of full-time custody then that need has been sufficiently met by the period in custody prior to being on bail. Reference was also made to the bail conditions as giving a basis for backdating the starting date of any sentence to take into account the curfew condition and reporting conditions. 5. In my view, the resolution of these competing arguments is a finely balanced one. I accept the Crown's argument that this is a grave offence, a matter which was not disputed. 6. I note the purposes of sentencing are as follows: 58.1. To ensure the offender is adequately punished. 58.2. To prevent crime by deterring the offender and others from committing similar offences. 58.3. To protect the community from the offender. 58.4. To promote the rehabilitation of the offender. 58.5. To make the offender accountable for his actions. 58.6. To denounce the conduct of the offender. 58.7. To recognise the harm done to the victim of the crime and the community. 1. In this case, it is the purposes of deterrence and denunciation and protection of the community together with promoting the rehabilitation of the offender that require recognition more than the other purposes just identified. 2. Based on the discussion above and the findings that I have indicated in the course of that discussion the first and most obvious point to note is the grave nature of the s35 offence and the legislature's view of its seriousness as indicated by the maximum sentence and standard non-parole period of 10 years and four years respectively. There are numerous subjective matters which make a good case in mitigation including the 25% discount for the plea of guilty, the absence of any criminal history other than the juvenile matter referred to, a background of the offender which no one suggests reaches the stage or point of social disadvantage but nevertheless shows a young man who has needed to deal with significant stresses in his young life. I find that he has endured bouts of anxiety and depression albeit short of being diagnosable as a recognised psychiatric condition. It is only now with the counselling he is receiving from Mr Jones that those issues are being addressed. I note also that he has now sought to distance himself from negative peer pressure and has in fact been abstinent of both drugs and alcohol since 18 December 2020. Furthermore whilst I would stop short of making a finding that he is a man of good character based only on the say-so of his close family in circumstances where his own background is of associating with antisocial people and engaging in antisocial behaviour of drug and alcohol abuse, I nevertheless formed a view of the offender as a person with prospects of becoming pro social. This is based on the fact that he has maintained employment largely since leaving school in year 10, at least 4 years ago, and the way he has conducted himself since this offending and the support that he does have. I consider that he is unlikely to reoffend and has good prospects of rehabilitation, something demonstrated by the steps that he has taken to date. As noted above I accept his assertions of remorse. 3. An issue as to quasi-custody was raised. It was the submission of the Crown that the bail conditions imposed in this matter would not justify a finding of quasi-custody. That was based on paragraph 98 of the decision of R v Quinlin [2021] NSWCCA 284. Yet at paragraph 88 of that same judgment reference is made to La v R [2021] NSWCCA 136, which in turn referred to Bonett v R [2013] NSWCCA 234 where it was said, excluding citations: Whether restrictions outside of jail amount to quasi-custody is a question of fact. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However in circumstances where there is an evidentiary foundation for it being taken into account the sentencing judge may be obliged in some circumstances to have regard to it even when not specifically asked to. 4. In other words there is no blanket or general rule in determining the weight to be given to the harshness of bail conditions but rather it is a discretionary matter to be determined on the facts of each particular case. 5. In this case the argument for the offender is weakened by the absence of any evidence as to the impact of the bail conditions upon him. There is no dispute between the parties that the curfew condition had been in place since his release into the community on 26 June 2021, a period of approximately 11 months. Accordingly the liberty offender has been restrained in leaving his residence for that period so that it prohibited him going out of an evening. 6. Whilst that was no doubt considered an appropriate bail condition in the circumstances of this case, given my finding that this case was one of an aberration on the part of the offender I consider it leaves open the bail condition to be considered a restraint on the liberty of the individual so as to justify it in being taken into account in determining the commencement date of the sentence. There is however no evidence of this having any impact on the offender's life, beyond an inference that it meant he could not always do what he wanted. On balance I conclude on the facts of this case any allowance favourable to the offender based on quasi custody is minimal, with the result that I have made no allowance for it. 7. There is no dispute in this case that both of the offences pass the section 5 threshold so that the first point necessary to determine for the imposition of an ICO is satisfied. The second point is to determine the length of the sentence. In my view it would be appropriate in this case to proceed by way of an aggregate sentence. In my view there needs to be some degree of accumulation given the additional aspect of the section 35 offence, namely the serious injury inflicted, which occurred in the course of the affray. At the same time the two offences plainly arise from the one course of conduct and I consider there should be a significant degree of concurrence in the aggregate sentence. 8. In my view taking into account all of the above matters the sentence for the section 35 matter prior to the 25% discount should be 3 ½ years so that the term after the discount is 31 ½ months. The indicative sentence for the affray matter, in respect of which there are those sentences of the co-offenders to bear in mind, prior to the 25% discount should be 2 years so that after the discount the term is 18 months. Bearing in mind my comments as to accumulation and concurrency above I consider the appropriate aggregate sentence to be 36 months. 9. There was brief reference in the course of submissions to the way the court should approach the matter should it emerge that the sentence arrived at exceeded three years but due to the fact that an ICO commences on the date the order is made the sentence could be expressed to be whatever the term was arrived at less the 6 months spent in custody to date. There was no submission by the Crown that would not be the appropriate way to go. I note that case of Mandranis v R [2021] NSWCCA 97 is authority, as are other cases, that where a term of less than three years for more than one offence has been imposed as an aggregate sentence and there has been time served at the time of the order then the term of the ICO is to commence at the date of the order and is lessened by the time served. A point raised but not necessary to decide in Mandranis was the position when the term imposed exceeds three years but is less than three years at the time of the imposition of the ICO when the time already served is taken into account. In a case of Alferink [2021] NSWDC 473 I accepted an argument put by the offender in that case that whether or not a sentence is backdated or whether time served is taken into account to determine the length of the sentence to be imposed as at the date of the order was a discretionary matter for the sentencing judge. That conclusion was supported by earlier authority such as R v Leete [2001] NSWCCA 337 and R v Deeble. Given my determination the question does not arise here, but in my view had the sentence arrived at been more than 3 years and less than 3 years 6 months and 8 days, I consider the prohibition of s68 would not operate. 10. Given the term of sentence I have arrived at it remains to consider the third step in determining whether an ICO is appropriate being the consideration of section 66 CSPA. In this regard I adopt the approach of by Campbell J in Blanch v R [2019] NSWCCA 304. By section 66(1) community safety is the paramount consideration. Section 66(2) requires consideration or assessment of whether an ICO or serving a full time custodial sentence is more likely to address the offender's risk of reoffending. The evidence before me on this point is of the marked positive steps taken by the offender towards rehabilitation whilst on bail and indeed commencing with his incarceration with his abstinence. This has occurred in the context of having family support and employment. It is self-evident that the current conditions of his residing in the community are permitting and indeed I would infer enabling and enhancing the steps that he has taken towards rehabilitation. The evidence on the other hand concerning custody is on one view also positive given his own positive evidence of his time in custody although that was very brief evidence. I do note however the submission which I accept that custody at present is more onerous due to the at least current prevalence of lockdowns. Furthermore there is no evidence before me as to whether the same type of counselling may be available to the offender though it may well be that there are some courses available, though just precisely what is not in evidence. On balance I consider that the offender is less likely to reoffend if his rehabilitation in the community was to continue. 11. Section 66(3) requires the other purposes of sentencing set out in section 3A to be taken into account. I have identified those purposes above. In my view in all the circumstances of this case including the fact that the offender has already endured more than six months incarceration those purposes are equally met, in fact more than equally met in the community that they are in custody. That is, the purposes of punishment, deterrence and denunciation are met in part by the term of custody already served, and will further be met by the imposition of an ICO. The purpose of promoting rehabilitation will be well met by an ICO, and the protection of the community is well served by the combination of these punishments of custody and the ICO. 12. The conclusion I therefore reach is that this is an appropriate case for the imposition of an intensive correction order. In reaching that conclusion I have carefully considered the argument for the Crown which was made in the constraints that are upon the Crown in terms of suggesting an appropriate sentence and within those constraints indicated the difficulty was the prohibition set out in section 68. There was in fact no submission arguing against an ICO if that prohibition had no application, though it may be inferred perhaps that the Crown view of the seriousness of the offending made an ICO inappropriate, which for the reasons given above, I do not accept. 13. As the offender has already served 6 months and 8 days in custody, and as the ICO is to commence at the date of this order, then taking that into account the term of imprisonment will be 2 years, 5 months and 22 days. Orders 1. The offender is convicted of the offence of recklessly inflict grievous bodily harm in contravention of section 35 (2) and affray in contravention of section 93C (1) of the Crimes Act. 2. I have set out the indicative sentences above and impose a term of imprisonment of 2 years, 5 months and 22 days, to commence from today 9 June 2022 and to expire on 30 November 2024. 3. I order the term of imprisonment be served by way of the imposition of an intensive correction order to date from today 9 June 2022 and to expire on 30 November 2024 and being subject to the following conditions: a. That the offender not commit any offence. b. That the offender submit to supervision of an officer of community corrections. In that regard I direct the offender to attend at the Grafton office of community corrections by no later than 5 PM 14 June 2022. c. That the offender abstain from the taking of any illegal drugs and of any prescribed drugs that are not prescribed to him and from alcohol. d. That for the period of 12 months commencing today 9 June 2022 and expiring on 8 June 2023 I impose a curfew condition prohibiting the offender from leaving his residence or such other place as he may lawfully be and intends residing for that night, so that he cannot leave those premises between the hours of 8 PM and 5:30 AM. e. That the offender perform 150 hours of community service work. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2022