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. 1. 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. 2. 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. 3. The victim knew of no reason why the offender would attack him in such a fashion. 4. 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'." 1. 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. 2. 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. 3. The offence was, although not at the highest end of range of objective seriousness, certainly above the mid-range of objective seriousness.