R v Tarchi

The appeal proceedings are a de nov**o appeal. I must consider the matter afresh.

The offence of common assault

8. The appellant and the victim were neighbours. On the day before the assault, the appellant's partner had been upset about a verbal interaction she had with the victim that related to their respective dogs. The victim had ended their interaction by saying "Fuck off, Karen". This was not the appellant's partner's name.

9. The appellant went looking for the victim and eventually encountered him and told him “Don’t ever talk to her like that again". There was mutual shoving. The appellant punched the victim in the jaw, and he fell over. There was further scuffling, and the appellant took off his belt and struck the victim with it.

10. Police attended and the appellant made admissions at the scene regarding his behaviour.

11. This was a petty, immature and pointless offence, although there is no suggestion that lasting injury was caused to the victim. It is disturbing to read that the appellant took off his belt and used it as an implement.

12. Regarding the seriousness of this offence, it appears to be an unfortunate but relatively minor physical interaction between disgruntled neighbours. The solicitor appearing on behalf of the DPP accepted a submission made on the appellant's behalf that the s 5 threshold was not crossed regarding this offence. I agree.

The offence of recklessly inflicting grievous bodily harm

13. The second offence, the much more serious matter of recklessly inflicting grievous bodily harm, occurred at a time when the appellant was on conditional bail for the common assault matter I have just referred to. This is an aggravating factor on sentence although it does not increase the seriousness of the offence itself.

14. In brief, on 16 September 2023, both the appellant and the victim were out walking their dogs, and they met by accident on the street. They then had an argument about an incident that had occurred on 5 July 2023, just a couple of weeks after the first common assault matter. On 5 July 2023*,* the victim had found the appellant's car keys and instead of returning them, he had gone to the appellant's car, opened it and turned the lights on, so as to drain the battery, and, bizarrely, to attract the appellant's attention. The appellant came out and, apparently because he was on bail, recorded his interaction with the victim. The resulting recording suggested that the victim was proposing an out-of-court settlement regarding the earlier common assault. He made comments to suggest that he would otherwise push for a further charge and made the comment "this is going to hang over your head for life".

15. Returning to the events of 16 September 2023, the agreed facts indicate that the victim pushed the appellant and lashed out his arm towards the appellant, making contact. An onlooker intervened and tried to move the victim away. The appellant then struck the victim with a closed fist once to the head. The victim fell and hit his head on the pavement. To his credit, the appellant did not leave at that point and committed no further act of violence towards the victim. He made further admissions upon the arrival of the police and was then arrested.

16. The victim was taken to hospital with symptoms of concussion and bleeding from his ear. He remained there for almost a week until 22 September 2023. Because of the incident, the victim has suffered profound hearing loss, with related ongoing problems with his balance and mobility. He has needed to use a walking stick. He has been unable to work in his prior occupation as a scaffolder.

17. In the Local Court, a victim impact statement was received. JH set out the enormous and diverse consequences he has suffered because of this event. His statement was dated 3 October 2024, more than 12 months after the incident. He refers in the statement to suffering permanent left ear deafness and chronic impairment to his balance. He has had multiple appointments with doctors and therapists. He has been unable to drive his car or enjoy swimming, something he previously took great pleasure in. Because he has been unable to drive, he has also been limited as to the places he could go. A huge source of freedom and happiness has been taken from him, at least until he can secure his driver's licence again. He has been unable to work and has been told he will not work in the future.

18. JH had worked for more than 20 years as a cable installer in construction. The work involves being at heights and using heavy machinery. He was also doing an apprenticeship as an electrician. He has been unable to continue in either of these areas.

19. JH wrote that he has been unable to continue to enjoy music, a long-term passion. He has developed severe and constant tinnitus. He has been trialled on hearing aids, which have helped to an extent, but the amplification of background noise has been a constant problem. He experiences deafness in most social settings, is unable to keep track of conversation and is left feeling alienated. He is constantly afflicted by problems with his balance and has experienced falls. Because of this, he now walks with a cane and is unable to run, exercise, or even jump around with his dog. This has had a negative effect on his physical and mental health. He also has flashbacks and intrusive memories of this event and suffers panic attacks. For the first time in his life, he has been treated with antidepressants. He is seeing a psychologist about his mental health.

20. This is just a summary of the profound consequences suffered by JH because of the actions of the appellant.

21. I accept that the interaction with the victim was not planned. It came about because of the chance meeting. Although the victim conducted himself in a physically aggressive way towards the appellant, the appellant's conduct in striking him in the face was completely unwarranted.

22. Regarding the seriousness of the recklessly cause grievous bodily harm offence, the danger of striking people to the head is well understood. The conduct arose after some initial limited physical aggression from the victim towards the appellant, prompting the intervention of a bystander. On the appellant's behalf, it was submitted that there was a measure of provocation. On the material that can be accepted, however, it remains the case that the offender's conduct was completely unnecessary and disgraceful. His response was out of proportion to the victim's earlier conduct. On the material now before the Court, as I will go to shortly, his behaviour was likely impacted by his now diagnosed mental health condition and his consumption of cocaine, leading to impulsivity and irritability.

23. As an example of an offence contrary to s 35(2) of the Crimes Act, it falls well short of the worst case, but it cannot be seen to be trivial. The adverse consequences to the victim are significant and long lasting. It can be accepted that the appellant did not intend this outcome, but by reason of his plea, he accepts he was reckless as to the outcome when he struck JH to the head.

24. It was accepted by Senior Counsel who appeared for the appellant, that when taking all relevant factors into account, including the appellant's subjective case, the s 5 threshold is clearly crossed in this instance. I agree.

25. The appellant has a criminal record. On 14 November 2014, he was placed on a suspended sentence for supplying prohibited drugs. A further matter involving being in possession of proceeds of crime was taken into account. He was only 18 at the time this offence was committed on 30 September 2013.

26. The appellant has also been convicted of common assault, arising on 6 October 2017. Although the details of this matter were not placed before the Court, the appellant referred to it when speaking to Dr Henderson, see his report at [7.7], by saying that he had "punched another driver". It was referred to also in Dr Malik's report of 25 September 2024 at page 4, as arising from a road rage incident. It can be accepted that the matter must have been regarded as relatively minor because it was dealt with by way of a fine.

27. Given the 2013 matters occurred when the appellant was so young and given that in the 10 years that followed he only appeared once before a court on the above mentioned assault case, I still consider that his record is limited and he remains entitled to a measure of leniency, at least with regard to the common assault offence before the Court. The extent of that leniency cannot be the same as that which might be extended to someone with no criminal history at all. Given he was on bail for the common assault matter when he committed the further offence against JH, I do not think that the same leniency extends to that offence.

28. His previous resort to violence and his prior conviction for supplying prohibited drugs means I am not satisfied he is a person of prior good character.

29. The Court received a Sentencing Assessment Report which confirmed the appellant lives with his family and is in a long-term relationship. He works in property development and construction. In the report, the appellant expressed remorse regarding the consequences to the victim and accepted he had acted impulsively. He was prepared to accept intervention. He was willing to carry out community service work and was considered suitable. He was considered to be a low risk for re-offending.

30. Turning to the subjective material, the Court received a letter from David Watson, a psychologist. Mr Watson provided an earlier letter to the Local Court dated 22 September 2024. He had been treating the appellant since 4 March 2024 and had seen him on eight occasions.

31. Mr Watson set out the appellant's account of the problematic relationship he had with the victim. In the absence of sworn evidence, I am not prepared to act on or accept those parts of the narrative.

32. The appellant also described his use of cocaine as having a calming effect and feeling irritable when he was not using it. He described his drug use at the time of the offending as affecting his mental health and his mood. He described a family history of Attention Deficit Hyperactivity Disorder (ADHD). Mr Watson focused on treatment so that the appellant could confront the reality of his drug abuse. He wrote that by August 2024 the appellant had reported two months abstinence from drug use, with a focus on exercise. He noted that the appellant's girlfriend was positive about the progress he was making. One of the references the Court received is from the appellant's personal trainer, Mr Handsaker.

33. Mr Watson noted in his first report that he considered it very likely the appellant had untreated ADHD, and he recommended a psychiatric assessment and referred the appellant to Dr Malik, a psychiatrist.

34. Mr Watson considered the appellant to be very remorseful.

35. In his further report dated 23 March 2025 Mr Watson wrote that he had continued to see the appellant, having last seen him on 29 November 2024, with a further appointment booked for 11 April 2025.

36. A report from Dr Malik dated 25 September 2024 was tendered in the Local Court proceedings. He first saw the appellant on 17 September 2024. He reported that the appellant told him he had continued cocaine use until mid-September 2024, information at odds with that recorded by Mr Watson.

37. Dr Malik considered the appellant to have ADHD and that this mental condition contributed to his offending. He considered the appellant needed medication and regular review by both a psychologist and psychiatrist. Dr Malik considered the appellant had made good changes regarding his earlier drug, alcohol and gambling behaviours but remained a work in progress.

38. Dr Malik noted it was unlikely the appellant could continue with treatment if he was sentenced to a term of full-time imprisonment. He considered the appellant to be self-motivated, with good prospects if he continued to engage in regular therapy.

39. Dr Malik provided a short, updated report for these proceedings. He had seen the appellant on another three occasions and further appointments are booked. He noted the appellant is compliant and is engaging in therapy.

40. Dr Henderson, a well-known and well-regarded forensic psychiatrist, provided a report for these proceedings. This report was not available in the Local Court.

41. Dr Henderson assessed the appellant on 12 February 2025 by Audio Visual Link and conducted collateral evidence interviews with the appellant's mother and girlfriend.

42. Dr Henderson took a developmental history of the appellant, see his report at [7.1] - [7.7], which noted poor performance and conduct at school, an inability to cope with tertiary study and subsequent work in hospitality and construction.

43. Dr Henderson considered the history provided by the appellant to be consistent with him having ADHD from childhood, see report at [3.4] - [3.5], a difficult home life and school life [see 3.6] and a history of drug abuse, notably cocaine [see 3.7] but also cannabis and other drugs [see 3.8].

44. The appellant told Dr Henderson about the treatment he had commenced with Dr Malik and his improved mental health [see 3.11].

45. Dr Henderson considered that the appellant's ADHD and associated impulsivity likely contributed to his offending conduct [see 3.13]. His use of cocaine increased his irritability.

46. Dr Henderson noted that even with the treatment received from Dr Malik, the appellant presented as restless, distractible, easily frustrated, somewhat disorganised and displaying tangential thinking. These are features of a person with ADHD [see 12.1]. He noted (at [9]) that the appellant was also displaying mild depressive symptoms and moderate stress levels. He displayed high levels of impulsivity.

47. The collateral accounts taken from the appellant's mother (at [10.1]) and his partner (at [10.2]) supported the conclusion as to the diagnosis.

48. Dr Henderson considered that in addition to ADHD, the appellant had a stimulant use disorder (cocaine) in early remission. He considered the appellant’s use of cocaine may have been an attempt at self-medication (see [12.2]). Dr Henderson noted that people with ADHD are at an increased risk of illegal drug use. ADHD is associated with risk taking, impulsivity and impaired consequential thinking (see [13.2]).

49. Dr Henderson considered that the appellant's ADHD was a significant contributor to the offending (see [13.3]). His use of cocaine is a form of self-medication which likely contributed to his irritability and impaired judgement (see ]13.4]). Dr Henderson also considered that the appellant needed specific therapy regarding his persecutory view of other people, something he considered had arisen by reason of his upbringing.

50. Dr Henderson expressed concern that in the event of a full-time term of imprisonment the appellant would not receive medication for ADHD. This medication he advised is not available in a custodial environment because of the risk that inmates prescribed the medication would be stood over by other inmates. The absence of treatment within the correctional system for inmates with ADHD leads to imprisonment being more difficult to such individuals. Dr Henderson also considered that in the absence of ongoing treatment within the correctional system, the appellant would experience adverse mental health outcomes (see [13.6]).

51. Dr Henderson noted that the risk factors he identified regarding further offending on the part of the appellant were his untreated ADHD and substance abuse disorder and that both these matters are capable of being treated within the community. Dr Henderson proposed a treatment plan that is attached to his report.

52. The court also received a letter from the appellant expressing his remorse. Although his statements are not on oath and had not been tested, they are consistent with other evidence within all of the material before the court and I accept that he regrets his conduct and regrets the harm that has been suffered by JH. I also take into account on the question of remorse, the substantial steps he has taken to date to address the underlying reasons for his impulsive behaviour and his pleas of guilty.

53. Personal references from his partner, one in the Local Court, and now another in this Court, together with references from his work colleague Justin Stevenson and his personal trainer and neighbour Ben Handsaker, set out the appellant’s many good qualities.

54. A feature of these references is the appellant's work ethic and that he is held in high regard by members of the community and has a supportive family. Although I do not consider that he is a person of prior good character for the purposes of this appeal, I do think that these attributes are positive ones when considering his future prospects and the risk of reoffending.

55. Regarding his future prospects, in my assessment they are sound, provided he continues to accept treatment, especially for his ADHD and continues to accept psychological treatment.

56. I make the same finding about the likelihood of reoffending, although with regard to both these sentencing factors it seems to me that the question of whether or not he serves a term of full-time imprisonment has a bearing on both his future prospects and his prospects of reoffending.

57. Regarding the common assault matter, it was appropriately conceded by the DPP that this matter did not cross the sentencing threshold and the orders that I propose to make are that pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 he be subject to a Community Correction Order for a period of three years from today, on the condition that he not commit any further offence and appear before the court if called upon to do so at any time during the Community Correction Order.

58. Turning to the reckless the inflict grievous bodily harm offence. I note that there is no longer a basis for an aggregate sentence. I consider the learned Deputy Chief Magistrate’s indicative term of 20 months imprisonment to be an appropriate one.

59. As the term of imprisonment is less than two years, I am required to consider the manner in which it is to be served. On my assessment, this is a difficult decision, given the gravity of the offence and the serious long-term consequences suffered by JH, however there are a number of reasons why ultimately, I accept that it would be appropriate for the sentence to be served in the community.

60. Firstly, the appellant's moral culpability is reduced by reason of his mental health condition. The expert evidence is that ADHD and impulsivity are linked. The circumstances of the interaction, as I've already explained, also reduce the appellant's moral culpability to an extent. I also note that the DPP considered that an intensive correction order was within the range of acceptable sentences having regard to all this matter’s features.

61. When considering the question of community safety pursuant to s 66 of the Crimes (Sentencing Procedure) Act, the expert evidence, particularly of Dr Henderson regarding the absence of medication and the likely absence of treatment within the correctional system, leads me to think that a term of full-time imprisonment will not enhance community safety but instead will diminish it. The risk to the community would be increased if the appellant was to serve a term of full-time imprisonment. The evidence is that he would be at a disadvantage by reason of the absence of treatment and would also be physically at risk given the evidence that I have not referred to at this point indicating he suffers from an aneurysm. With the impulsivity associated with ADHD and the evidence of this appellant's prior behaviour, it could be reasonably anticipated that he would be exposed to violence and aggression within a correctional facility. There is a real risk that at the end of the non-parole period, he would be released to the community without any of the benefits that have flowed to this point from treatment. It could be anticipated that his mental health would be poor, his employment circumstances uncertain, and there would be a question about the availability of support in the community in that circumstance.

62. For these reasons, my assessment is that the appellant should serve his sentence in the community, with the conditions that I intend to impose to enhance community safety.

63. With regard to the recklessly inflict grievous bodily harm offence, taking into account the seven days of presentence custody and the more than six months on very restricted bail conditions, reducing the sentence by three months to have regard to these matters, the appellant is sentenced to a term of imprisonment of 17 months dating from today, to be served in the community.

64. The severity appeal is upheld. The orders of the Local Court Magistrate are quashed.

65. Regarding the common assault matter, pursuant to s 8 of the Crimes (Sentencing Procedure) Act the appellant is sentenced to a Community Correction Order for a period of 3 years from today, 28 March 2025, on the condition that he:

66. Not commit any further offence,

67. Appear before the court if called upon to do so at any time during the Community Corrections Order.

68. Regarding the recklessly inflict grievous bodily harm offence, the appellant is sentenced to a term of imprisonment of 17 months dating from today, 28 March 2025, to be served by way of Intensive Correction Order, subject to the following conditions:

69. He must not commit any offence,

70. He must submit to the supervision of a Community Corrections Officer,

71. He must complete 300 hours of community service,

72. He must comply with the treatment plan proposed by Dr Henderson, as annexed to his report and annexed to this order,

73. He must abstain from the consumption of all prohibited drugs,

74. He must report within seven days to the Office of Community Corrections in Sydney.

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Amendments

28 October 2025

Amendment of decision paragraph pinpoints on cover page.

04 November 2025

Amended various minor typographical errors.