R v Almeida

Decision: (1) In respect of the offence of wound with intent to cause grievous bodily harm (Count 3), I sentence the Offender to a fixed term of imprisonment of 1 year and 7 months. Taking into account pre-sentence custody and a period of 1 year of quasi-custody, that sentence will be taken to have commenced on 27 August 2024 and to have expired 26 March 2026.

Catchwords: SENTENCING — Wound with intent to cause grievous bodily harm — Relevant factors on sentence — Moral culpability of Offender — Deprived background — Strong subjective case — Offender diagnosed with Autism Spectrum Disorder and Post-Traumatic Stress Disorder — Factual findings made consistent with jury’s verdict — Offender subjectively believed that stabbing the victim was reasonably necessary to protect himself but objectively his response was not reasonable — Approach to sentencing when finding is “excessive self-defence”

Legislation Cited: Crimes Act 1900 (NSW) s 33
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 5; s 21A
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 14

Cases Cited: AI v R; R v SB and AI [2011] NSWCCA 95
Bugmy v The Queen (2013) 249 CLR 571.
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Fisher v R [2026] NSWCCA 27
Glynn Kaderavek v R [2018] NSWCCA 92
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
La v R [2021] NSWCCA 136
McKenna v R (2007) NSWCCA 113
Muldrock v The Queen (2011) 244 CLR 120
R v Altaf THAWER [2009] NSWCCA 158
R v Amati [2019] NSWCCA 193
R v Buddle [2005] NSWCCA 82
R v Grahame Lionel Woods (1990) NSWCCA (unreported)
R v Henry (1999) 46 NSWLR 346
R v White [2025] NSWCCA 111
Savvas v The Queen (1995) 183 CLR 1

Category: Sentence

Parties: Rex (Crown)
Tiago Almeida (Offender)

Representation: Counsel:
A Chandra (Solicitor) (Crown)
W Tuckey (Offender)
Solicitors:
ODPP (Crown)
Zreika Law (Offender)

File Number(s): 2024/3165

Publication restriction: Nil

JUDGMENT

Introduction

1. Tiago Almeida (“the Offender”) was born on 1 March 2004. He is now 22 years old.

2. On 9 December 2025 after a District Court trial before me and a jury of 12, the jury returned a guilty verdict on the following offence:

3. Count 3 - wound with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW) (“the s 33 offence”). The maximum penalty for this offence is 25 years imprisonment and the standard non parole period is 7 years imprisonment.

4. The only real issue for the jury to decide was the question of whether the Crown had discharged its onus to prove beyond reasonable doubt that the Offender was not acting in self-defence. There was another count arising out of an event a minute or so before the event, the subject of the conviction, where the jury returned a verdict of not guilty. That earlier count also involved the Offender stabbing someone, effectively in the same incident. In the context of the way the case was conducted, that acquittal must have been on the basis of self-defence.

5. It now falls to me to sentence the Offender for the offence for which the jury found him guilty.

The facts

5. The parties have agreed as to most, but not all, of the facts. What follows is based on those agreed facts, my findings where the facts are not agreed, together with my findings of other contextual facts which I am satisfied of beyond reasonable doubt.

6. On 31 December 2023, the Offender attended a rooftop party in Woolloomooloo to watch the New Years Eve fireworks.

7. Many other people also gathered on the rooftop. Among the gathering were Liam Gallaro and Brandan Clarke. There was some sort of low-level altercation between the Offender and others during the fireworks display. Some people found the Offender’s behaviour annoying or inappropriate. It is impossible to know if their opinion was reasonable or not.

8. Shortly after the fireworks finished, Mr Gallaro and Mr Clarke left the rooftop with several people. The Offender left at about the same time, having been told to go home by one of the older people at the gathering. At 12:20am on 1 January 2024, a large group walked past the Frisco Hotel, located on the corner of Dowling Street and Nesbitt Street. The Offender was, by this stage part of the group walking, at the front of the group.

9. A short distance down Dowling Street, an altercation developed between the Offender and several other members of the group. It started with verbal insults and abuse being directed at the Offender by the rest of the group. It soon escalated so as to include physical contact, such as pushing and shoving and repeated insults, taunts, and threats.

10. During the altercation, the Offender was surrounded by several males and females who were, not just verbally abusing him, but were also attempting to physically assault him. He was significantly outnumbered.

11. Mr Gallaro believed he saw the Offender feint a punch towards a female. In context, the female had either just hit the Offender or feinted to hit him.

12. Mr Gallaro then, according to his own evidence, “saw red” and ran towards the Offender. He assaulted the Offender by kicking and punching him. The other members of the group were encouraging Mr Gallaro.

13. The Offender was struck to the right side of his face by Mr Gallaro, causing him to fall to the ground.

14. The group attempted to punch and kick the Offender whilst he was on the ground. The Offender was on the ground, surrounded by a large group of perhaps a dozen young people, all being physically and verbally very aggressive towards him. The group was made up of both males and females. Their behaviour was disgraceful and included significant amounts of criminal conduct.

15. The Offender was able to get back to his feet and separate himself from the group.

16. The rest of the group backed off, except Mr Gallaro, who continued to pursue the Offender while attempting to strike him with kicks and punches. While being pursued, the Offender got a black handled knife, probably from his shoulder/bum bag.

17. Upon seeing the knife, the group stepped back except for Mr Gallaro who continued to pursue the Offender, shaping up to punch and kick him.

18. The Offender used the knife on Mr Gallaro. He stabbed Mr Gallaro with it causing a significant wound, before running south on Dowling Street in the direction of Mr Clarke and several other members of the group. It is in respect of this stabbing of Mr Gallaro that the jury found the Offender not guilty.

19. The Offender then ran past Mr Clarke and swung the knife in his direction.

20. Mr Clarke, who clearly saw the knife, avoided the knife and ran after the Offender as he continued south up Dowling Street. At the top of Dowling Street, the Offender stopped and turned towards Mr Clarke.

21. The Offender and Mr Clarke came together in a small park area at the end of Dowling Street. At this point the Offender swung the knife and made contact Mr Clarke’s neck, causing a 5cm wound.

22. Mr Clarke received the following treatment:

23. Underwent an emergency exploration, washout and closure of a left lateral neck wound, with placement of a drain.

24. The wound was a 5cm laceration extending through the muscle on the side of the neck posteriorly and through the prevertebral muscle, adjacent to his spinal column.

25. He remained on intravenous antibiotics throughout his admission to hospital and was discharged on 3 January 2024.

26. The above recitation of the facts describe, as best I can, the circumstances leading up to the stabbing of Mr Clarke by the Offender. However, the written word does not fully capture the precarious position the Offender found himself in.

27. Almost all of the minutes leading up to the offence were captured on either CCTV or mobile phone footage taken by bystanders. The Crown presented the case to the jury by presenting a compilation of that video evidence (Exhibit B), which the jury and I viewed on a number of occasions during the trial and for the purpose of sentencing.

28. There is no doubt that the group of people involved acted in a cowardly and brutal fashion towards the Offender. To put it bluntly, they ganged up on him and verbally and physically assaulted him for a number of minutes in circumstances where he was clearly trying to defuse the situation or at least escape. He was hopelessly outnumbered. I have no doubt that he would have been terrified for his own safety. This is especially so after he was knocked to the ground by the group and was running away, having stabbed Mr Gallaro, with Mr Clarke chasing him.

The basis of the conviction

26. The factual basis upon which the jury convicted is not apparent from the verdict. There were at least two separate and distinct routes by which the guilty verdict could be sustained. It is necessary for me to determine for myself the basis of the Offender’s guilt, consistent with the jury’s verdict: Savvas v The Queen (1995) 183 CLR 1.

27. There was no issue before the jury that it was the Offender who stabbed Mr Clarke in the neck and that the wound was such so as to, in fact, cause grievous bodily harm to Mr Clarke. Intention was faintly in issue, but I have my doubt that the Offender intended to seriously wound Mr Clarke when he struck him with the knife.

28. Whilst formal concessions were not made, the way the case was conducted was limited to the question of whether the Crown had satisfied its onus of proving beyond reasonable doubt that the Offender did not stab Mr Clarke in self-defence.

29. In relation to the incident involving the stabbing of Mr Gallaro, the jury acquitted. I am satisfied that the basis of that acquittal was that the jury was not satisfied beyond reasonable doubt that the Offender was not acting in self-defence.

30. In other words, the Crown had failed to prove, either that the Offender did not believe at the time of the act that it was necessary to do what he did in order to defend himself, or even if he did believe subjectively that it was reasonably necessary, his act was objectively not a reasonable response in the circumstances as he perceived them to be. This second aspect of the law of self-defence is often referred to as the objective test and the phrase “excessive self-defence” is often used to describe a situation where a person has the subjective belief, but the act is considered objectively unreasonable.

31. For the purposes of sentencing, it is necessary for me to come to a conclusion as to the basis of the conviction which, if it turned on the self-defence issue, which I think it did, could have either been that the jury was not satisfied that the Offender subjectively believed what he did was reasonably necessary in order to defend himself or it might have been that they accepted that he did, but that his response was not reasonable, or was excessive, in all the circumstances.

32. Having heard all the evidence in the trial and the various arguments made by the parties, I reject the submissions made on behalf of the Crown to the effect that the Offender went out that night looking for trouble with a knife and it was him who instigated the various altercations and, as he was the only person with a knife, all that was needed was to show the knife and the people who were attacking him would have backed off. I am not satisfied beyond reasonable doubt that the Offender did not subjectively believe what he did was reasonable and necessary to protect himself.

33. The reason I reject that submission is it is clear from the video footage that, in fact, the Offender did produce the knife and, whilst it had the desired effect in relation to most of the group, it did not have that effect in relation to either Mr Gallaro or Mr Clarke. Mr Clarke chased the Offender down the street, knowing full well that the Offender was armed with a knife. In those circumstances, it seems to me that the Offender was entitled to think that the fact that he was holding a knife was not sufficient to cause Mr Clarke to back off and Mr Clarke was a much larger man than the Offender and was chasing him up the street.

34. Nor do I accept that the Offender went out that night with a knife looking for trouble. Obviously, he should not have been carrying a knife, and equally obviously, he should have gone home after the incident on the roof when he was told to do so, but I do not consider that anything he did that night is consistent with someone who was effectively looking for a fight so that he could then use the knife. To the contrary, my observations of his various interactions with the group of people, as unsatisfactory as those interactions were, is that he was trying his best in an awkward way to make friends with them or become a part of their group, albeit his attempt was distinctly unsuccessful. The medical evidence I have received, that the jury did not, explains his behaviour as a consequence of his Autism Spectrum Disorder (“ASD”).

35. In coming to this conclusion, I have not overlooked the evidence of Kasey Coghlan, who was an independent witness who observed the Offender and Mr Clarke at the top of the street and saw the knife being wielded.

36. Her perception was that she saw the person with the knife attempt to stab the victim up to four times. She presented as an honest witness, doing her best to recall events which occurred at night in circumstances which must have been extremely stressful for her. The difficulty with her evidence is that it was somewhat jumbled and confused and in places clearly wrong. She was clearly in a state of high anxiety caused by what she was seeing. For example, she identified the wrong person as having his shirt off and wearing a bum bag, et cetera. I do not in any way say this critically of her as a witness, but rather so as to emphasise that her honest perceptions of what actually occurred are, in part, erroneous and I would not be prepared to make a finding adverse to the Offender based only on her evidence. More to the point, I do not really think it matters if the Offender lunged at Mr Clarke four times with the knife. Consistent with Ms Coghlan’s evidence, that lunging did not cause Mr Clarke to back off and he was still coming at the Offender aggressively, for all intents and purposes with a view to assaulting him violently, notwithstanding that he knew he had a knife in his hand. Looked at in that way, I think Ms Coghlan’s evidence actually supports a finding that the Offender subjectively believed that stabbing Mr Clarke was his only option so as to defend himself.

37. I am satisfied that the Offender honestly believed that using the knife on Mr Clarke was the only thing he could do to protect himself from Mr Clarke, who was clearly seeking to physically harm him. To put it in the current legal context, I am not satisfied that the Crown has proved beyond reasonable doubt that the Offender did not hold that subjective belief. I reject the Crown’s submissions to the contrary. They are inconsistent with the totality of the evidence. Moreover, in light of his diagnosis of ASD to which I will come, that only makes it more likely that he perceived the situation he was in as perilous and thought he had no option but to protect himself with the knife.

38. However, in all the circumstances, the stabbing of Mr Clarke by the Offender was not objectively reasonable. In other words, his actions in self-defence were excessive. This is because of the location Mr Clarke was struck, being his neck, making injuries likely to be life threatening.

39. That finding is consistent with the jury's verdict.

Objective seriousness

40. The Crown has submitted that this offence was objectively serious. Relevant factors for determining the objective seriousness include consideration of all of the circumstances of the offending. The Crown emphasises the following:

41. The offending involved a serious example of violence in a public setting. The Offender swung the knife towards the victim on two separate occasions. The first swing did not make contact as the victim was able to avoid it, but it nonetheless had the potential to cause serious harm. The second swing was directed at the victim’s neck: s 21A(2)(b).

42. The offending involved the use of a weapon i.e. a serrated steak knife (the use of a weapon is not an element of the offence): s 21A(2)(c).

43. The knife sliced the victim’s neck resulting in a 5cm wound that required suturing and hospitalisation: s 21A(2)(g). That wound was inflicted upon a vulnerable area of the victim’s person. The wound was inflicted with an intention to cause grievous bodily harm.

44. At the time of offending the Offender was subject to a two-year Conditional Release Order without conviction (15/06/2022 to 14/06/2024) in relation to an affray at a train station on 9 April 2022: s 21A(2)(j).

45. I think the Crown’s submissions as to objective seriousness are overly simplistic and fail to grapple with the important question of the basis of the Offender’s guilt.

46. In light of the findings I have made, the Offender found himself in a position where he honestly believed that he had no option but to use the knife on Mr Clarke. The jury have concluded it was not objectively reasonable for him to do so, but it seems to me that, upon that finding, notwithstanding the use of the knife which the Offender should not have had in the first place, and the significant wound, the offending needs to be judged against his subjective state of mind at the time.

47. The question of how a finding of “excessive self-defence,” in circumstances where an offender acted in a way that they subjectively considered reasonable and necessary at the time, is to be used for the purpose of sentencing is difficult and has been considered in a number of cases.

48. Such a finding feeds into the sentencing exercise at a number of levels. First, it is necessary for the sentencing judge, when determining objective seriousness, to form a view as to how disproportionate to the situation the response was, or as Howie J said in R v Altaf THAWER [2009] NSWCCA 158 at [43]:

“Although the respondent was acting in self-defence, the response was so unreasonable, that the offence remained a gravely serious one.”

45. In this instance, I do not consider the Offender’s disproportionate or excessive use of self-defence to be gross, so unreasonable, or considerably disproportionate to the situation he found himself in. I am satisfied he went beyond what was reasonably necessary, but not in a significant way.

46. In the context of my finding that the Offender honestly believed that what he was doing was reasonable and appropriate and that even though his response was objectively not reasonable, it was not grossly unreasonable. I find, notwithstanding the significant wound and the use of a knife, that the offending falls at the lower end of the range of objective seriousness.

Excessive self-defence

47. This finding of excessive self-defence also has a number of other important effects on the sentencing process. As was explained in Fisher v R [2026] NSWCCA 27 (“Fisher”), such a finding will almost inevitably lead to subsidiary findings, including that the offending was, “unplanned" (which itself is a mitigating factor under the Act), does not manifest a continued attitude of disobedience of the law in the Offender, and importantly, that general deterrence is not a significant feature in the sentencing exercise, because that concept sits awkwardly with notions of excessive self-defence, given the similarities with spontaneous crimes of passion involving retribution or provocation or unexpected loss of control. Similar comments were made in R v White [2025] NSWCCA 111 (“White”) at [94].

Mitigating factors

48. At the time of offending, the Offender was 19 years old. The Crown accepts that he did not have a significant history of prior convictions: s 21A(3)(e).

49. The Offender does have a history of offending, which includes an incident of “affray" for which he received a Conditional Release Order without conviction, and a common assault charge in December 2022 which was dismissed under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

50. It is common ground that this history is not such so as to disentitle him from the statutory mitigating factor: s 21A(3)(e).

51. The Offender was provoked by the conduct of the victim and several other people immediately prior to the offending: s 21A(3)(c). The offending was also unplanned: s 21A(3)(b).

52. The Crown has submitted that provocation only has a small part to play here. Reliance is placed on cases such as R v Buddle [2005] NSWCCA 82 (“Buddle”) at [11], where it was said:

“While the presence of provocation was an important aspect in assessing the applicant’s objective criminality, and while it provided a motive for what might otherwise have been an incident of unexplained or random violence, it did not excuse his conduct. It is not the case that the victim of a crime can take the law unto his own hands and exact physical revenge. Both personal and general deterrence have a role to play in sentencing.”

53. The Crown submits that the conduct, being the stabbing of Mr Clarke, occurred sometime after what the Crown describes as the provocative conduct, being the group activity of abusing and assaulting the Offender.

54. I think there are three answers to this submission. The first is that, whilst there is an elapse of time, it is very short. In reality the entire episode was really one terrifying event for the Offender. Secondly, Mr Clarke's conduct in chasing the Offender down the street in circumstances where the Offender knew that Mr Clarke knew he had a knife, was itself provocation and when taken in context of all of the conduct leading up, in my view, amounted to significant provocation. Thirdly, the statement in Buddle regarding general deterrence does not sit at all comfortably with what was said in Fisher. The context of this offending leaves no room at all for a finding that the Offender consciously decided to take the law into his own hands.

The Offender’s subjective case

55. The Offender has put before me a number of comprehensive medical reports, which, in very large part, help to explain his conduct on the night. I summarise the medical evidence as follows.

56. The Offender has a long-standing diagnosed history of ASD for which he has received therapeutic and management support since about the age of eight. He experienced extensive social difficulties throughout his childhood because of his ASD. He also experienced physical abuse at the hands of his father during early childhood and was picked on and bullied by other children when he was in high school. Most significantly, a group of 18 individuals violently assaulted him at school, which have contributed to the development of diagnosed post-traumatic stress disorder (“PTSD”).

57. He has limited conflict resolution skills (which is one of the symptoms of his ASD), difficulty managing his psychological responses to cues of threats (which is one of the symptoms of his PTSD), and he struggles to interpret and manage conflict because of his difficulties with communication and social functioning associated with his ASD. This is why I have said that an understanding of his medical conditions is important when considering his perception of the situation he found himself in on the night, but also why he continued to try and make friends with a group of people who had decided as a pack that they did not like him.

58. The medical opinion is also that he is young, socially immature for his age, and is extremely susceptible to environmental and peer influence because of his young age and ASD. Management of psychosocial factors, including stable housing, prosocial peer activity, vocational training, and employment will be extremely important for the Offender’s development. He is currently receiving NDIS supervision and support to manage his psychological needs.

59. Most of the above is a summary of the opinions of Julie Dombrowski, psychologist, from her Report of 16 March 2026, which opinions are supported by the opinions of Sam Borenstein, clinical psychologist, in his Report of 13 May 2024, together with a neuropsychological Report of Thomas Borchard, and other medical material that has been tendered. I accept all of those opinions.

60. Ms Dombrowski said at [27] of her Report, about the offending:

“Therefore, he interpreted the situation as volatile and that he was at risk of significant harm. He became overwhelmingly physiological[ly] aroused and experienced an involuntary adrenal response (i.e., “fight or flight” response) to achieve safety.”

61. To sum up, the Offender has autism which, when considered in the context of the circumstances he found himself in on the night, explains why he thought then, and still believes, that he was justified in doing what he did, when in fact it was objectively unreasonable. It also probably explains why he did not go home when it was suggested he do so but rather sought to try and be friends with the group and was unable to read and respond to the many indications they gave him that they did not wish to be his friend.

Remorse and insight / Rehabilitation

62. The Offender has written me a long letter for the purpose of this sentencing. He has clearly had a terrible time in custody, which has affected him much more significantly than might be anticipated.

63. He has expressed insight into his limited ability to cope with confrontations and respond to interactions with other people. He is committed to continuing with his treatment so as to improve his ability to cope in social situations. He is not remorseful as such because he still thinks what he did was justified but says that he accepts the verdict. He is remorseful that Mr Clarke and Mr Gallaro were badly injured.

64. Ms Dombrowski says at [28] of her Report:

“Mr Almeida impresses as a resilient individual who is eager to access support and has the benefit of substantial support from his mother, brother and the NDIS. For these reasons, his prognosis for a full recovery from PTSD and improvement in managing his ASD are favourable.”

65. The Offender has responded very well to therapy since the offending, and I consider the likelihood of him reoffending to be very low.

Section 3A / Proportionality

66. The factors to be taken into account on sentencing are well known. They are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the process requires an instinctive synthesis of those, or any other, relevant factors.

67. It is necessary that there be reasonable proportionality between a sentence and the circumstances of the crimes viewed objectively: R v Amati [2019] NSWCCA 193 at [120].

Deterrence

68. The Crown submits that there is a need for both general and specific deterrence in this sentencing exercise as the offending involved a serious example of violence in a busy public area and the Offender has a prior record of public violence. The Crown emphasises that demands a strong consideration for general deterrence due to the prevalence of knife related offending and the general need to protect the community from its effects.

69. In McKenna v R (2007) NSWCCA 113 (“McKenna”), McClennan CJ at CL stated at [2]:

“Members of the community are entitled to walk the streets without fear of being attacked by others intent upon inflicting physical violence. Those who put people in fear and cause serious injury cannot expect any leniency from the law.”

70. In R v Grahame Lionel Woods (1990) NSWCCA (unreported), Lee CJ at CL stated:

“Violence has become rife in our community, and it has been said in this Court on many occasions that when persons engage in unjustified violence towards others, that stern and salutary sentences will be imposed”.

71. The Crown also submits that specific deterrence ought to also loom in the Court’s consideration of the appropriate sentence in this matter to denounce the Offender’s conduct as a serious act of personal violence.

72. Rothman J also stated in McKenna at [35]:

“The courts must provide significant specific and general deterrence to assaults on people in the street or public places, including, and perhaps especially, assaults purportedly for the purpose of revenge or punishment for an earlier crime.”

73. I have already referred to Fisher, and White. I think the various authorities relied on by the Crown are inconsistent with statements in Fisher and White. I consider the Crown’s submission as to general deterrence overlooks the very unusual factual setting here. It cannot be overstated that the victim and his friends had together engaged in appalling acts of bullying and violence on the Offender, including significant criminal conduct. The Offender was bashed up by them and sustained himself significant injuries, being cuts, abrasions, and bruises. The Offender’s response was in the heat of the moment. Whilst he was very scared, it would be wrong to characterise it as some sort of planned revenge or vigilante justice. He believed at the time that he was acting appropriately but made an honest mistake under great pressure. This judgement call would have been very difficult for him in light of his ASD. There is also a direct connection between his ASD and PTSD and his offending.

Pre-sentence custody

74. The Offender was taken into custody on the date of his arrest on 3 January 2024. He remained in custody for 7 months and 7 days until he was granted bail in the Local Court on 8 August 2024. The Offender’s time in custody is solely referrable to this matter and must be taken into account on sentence: Glynn Kaderavek v R [2018] NSWCCA 92 at [19].

75. The Offender has been subject to strict home detention bail conditions for a period of 1 year and 7 months (08/08/2024 to 26/03/2026). The Crown accepts that extended periods of home detention may amount to quasi custody which may be taken into account on sentence: La v R [2021] NSWCCA 136 at [59] to [61].

76. The medical evidence satisfies me that his time in custody was extremely difficult for him because of his ASD and PTSD.

77. I consider 1 year of the period of home detention ought be considered as pre-sentence custody, meaning that any sentence of imprisonment that I impose will be taken to have commenced 1 year and 7 months prior to today.

Resolution

78. The Crown submits that the offending is objectively very serious and that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate to meet the purposes of sentencing.

79. This is an unusual case. If one takes a very high-level, simplistic approach to what occurred here, the offending is serious. However, if one takes the trouble to look a little deeper in the ways I have explained, I think it reasonable to conclude that the objective seriousness of the criminality falls very much towards the lower end of the scale for this type of offending.

80. The Offender’s subjective case is strong. He is still young at 22 years of age. This is a significant factor: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]; and AI v R; R v SB and AI [2011] NSWCCA 95. Through no fault of his own, he suffers from ASD and PTSD. He has endured a deprived childhood, involving physical abuse and significant bullying by other children whilst at school. In short, he was violently picked on by other children because they saw him as different, which I think qualifies him for leniency under the principles described in cases like Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”). His mental health issues undoubtedly contributed to his offending, reducing his moral culpability: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; Muldrock v The Queen (2011) 244 CLR 120 at [53]; and R v Henry (1999) 46 NSWLR 346 at 354. In my opinion, he presents as a very poor candidate to send any message of general deterrence.

81. He has shown real insight into his offending, understands the reasons for it, and is determined to continue to undertake treatment to seek to overcome his difficulties in dealing with awkward social situations. That treatment is well under way and is proving successful.

82. He has strong family support from his mother. He is receiving treatment to assist him to deal with conflict in social situations and is making real progress. He is still very young and, because of his ASD, not close to fully matured.

83. The Offender has already spent a significant period in full-time custody and, as I have said, an even more significant period under home detention. No doubt in part as a consequence of his ASD, he suffered terribly whilst in gaol.

84. The Crown's submission to the effect that no other sentence but full-time custody is appropriate is not really to the point because for reasons I have explained, I consider he has already served a sentence of imprisonment which equates to nearly 20 months.

85. Ultimately, after considering the body of medical evidence and the very unusual circumstances of this case, the Crown's submission was that a further short period of imprisonment was appropriate, but that period should be served in the community pursuant to an Intensive Corrections Order (“ICO”).

86. The question becomes, whether a further period by way of an ICO would add anything to the current situation? As I pointed out during argument, I am satisfied, not only from the evidence given by the Offender’s mother but also from the various opinions expressed from treating medical practitioners and the opinion of corrective services in the Sentencing Assessment Report, that the Offender, without me ordering him to do so, will continue to abide with the current treatment he is receiving from various people. I consider that to order him to do so will not benefit him, nor will it promote the safety of the community.

87. The Crown's answer to this is that general deterrence demands a further term of imprisonment be recorded so that a clear message is sent to the community that this type of conduct is unacceptable and will be met with stern sentences. However, this is a case of “excessive self-defence." For reasons explained in cases like Fisher and White, to which I have already referred, it is difficult to understand what part general deterrence has to play in circumstances where a person who honestly believes that they are under physical threat acts in a way that is considered, objectively by a jury, to be excessive. Moreover, in this case, the weight of general deterrence is reduced because the Offender is entitled to the full leniency described in cases such as Bugmy, but more importantly, the finding I have made that there is a direct link between his mental health condition and the offending makes him a very poor candidate, in my opinion, for a message of general deterrence to be sent.

88. In any event, the Offender has already spent 7 months in custody, where he suffered terribly, and a period of well over a year in home detention. In the context of the findings I have made, I think the general community would consider that a significant punishment.

89. As far as specific deterrence is concerned, I am satisfied that the punishment the Offender has already endured by his period in gaol and in home detention is sufficient so as to deter him from further criminal activity. I am also satisfied that his commitment to his current treatment regime and the improvement that has been demonstrated are such that he is unlikely to reoffend.

90. Notwithstanding the significant maximum penalty imposed by Parliament of 25 years, together with the standard non-parole period, for this offence and the significant injuries suffered by Mr Clarke, I consider that period already served to be sufficient punishment proportional to the criminality involved, having regard to the Offender’s youth and strong subjective case.

91. I do not think a period of supervision on an ICO, or some other form of bond will increase the prospects of the Offender’s rehabilitation or protect the community, or indeed, achieve any useful purpose at all. Corrective Services have made it clear that, if under supervision the condition was compliance with the current treatment regime, that no further steps would be taken by Correctives, including no face-to-face interviews. I am satisfied that he is committed to ongoing treatment and, if he loses focus, his mother will ensure that he continues.

92. In short, I do not think anything will be achieved by a further period under supervision. Ultimately, I have decided that the period already served by the Offender, including the time in quasi-custody, is the appropriate punishment proportional to his crime, taking into account his very special and unusual subjective case.

Orders

93. For those reasons, my orders are as follows:

94. In respect of the offence of wound with intent to cause grievous bodily harm (Count 3), I sentence the Offender to a fixed term of imprisonment of 1 year and 7 months. Taking into account pre-sentence custody and a period of 1 year of quasi-custody, that sentence will be taken to have commenced on 27 August 2024 and to have expired 26 March 2026.

95. The Offender is free to go.

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