IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION

S ECR 2021 0153

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v		
		
DARCY COUCH	Accused	

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JUDGE:	Champion J 	
WHERE HELD:	Horsham	
DATE OF HEARING:	2 November 2022	
DATE OF SENTENCE:	11 November 2022	
CASE MAY BE CITED AS:	DPP v Couch	
MEDIUM NEUTRAL CITATION:	[2022] VSC 717	

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CRIMINAL LAW – Sentencing – Recklessly Causing Serious Injury – Theft of a motor vehicle – Unlicenced driving – Commit indictable offence whilst on bail – Guilty Plea – Excessive self-defence – Delay in court proceedings – Onerous conditions in remand custody – No prior history of violent offending – Total effective sentence of three years and nine months’ imprisonment with non-parole period of two years – Sentencing Act 1991 (Vic) ss 5, 6(1A), 6AAA, 89(4).

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr P. Bourke KC	Office of Public Prosecutions 	
			
For the Accused	Mr B. Johnston and
Ms C. Dwyer	Emma Turnbull Lawyers 	

HIS HONOUR:
Introduction
1	Darcy Couch, on 27 October 2022 you pleaded guilty to one charge of recklessly causing serious injury to Bradley McGrath, and one charge of theft of a motor vehicle.
2	You have also pleaded guilty to the related summary offences of driving a motor vehicle without being the holder of a driver’s licence and committing an indictable offence whilst on bail.
3	The maximum penalty for the offence of recklessly causing serious injury contrary to s 17 of the Crimes Act 1958 is 15 years’ imprisonment, and for the offence of theft, contrary to s 74 of the same Act, the maximum penalty is ten years’ imprisonment.  The maximum penalty for driving a motor vehicle without being the holder of a driver’s licence is 60 penalty units or six months’ imprisonment, and the maximum penalty for committing an indictable offence on bail is three months’ imprisonment.
Circumstances of the offending
4	At the time of your offending you were 24 years old and lived in the Horsham area, where your victim, Bradley McGrath, also lived.  You had met Mr McGrath through a mutual acquaintance and had known him for about four months at the time of the offending.
5	The prosecution case is that at around 10:40pm on 30 August 2019, McGrath was driving a rented Nissan X-Trail motor car along Dooen Road towards Main Street in Horsham when he saw you walking, and pulled up to give you a lift.  You got in the front seat of the car and a discussion took place between you and McGrath about an outstanding drug debt.  The discussion precipitated a physical struggle between yourself and McGrath while you were both seated in the front of the car.  During the course of the struggle McGrath reached towards you with his right hand, grabbed your hair and pulled your head forward towards the gear stick of the car.
6	The prosecution alleges that at this point you produced a knife and stabbed at McGrath who was unarmed.  He received a stab wound to the neck which rendered him unable to use his left arm due to nerve damage.  He let go of you to try and escape and managed to open the driver’s door and roll out of the car.  However, due to the nerve damage, his immobile left arm became caught in the seatbelt.  You are then alleged to have grabbed at him and said ‘You’re staying here’.  You then climbed over the centre console into the driver’s seat and drove off in the vehicle.  As a result, Mr McGrath was dragged along for a few meters before his arm was freed from the seatbelt and he was left lying on the road near the intersection of High Street and Dimboola Road.  No injury is said to have been occasioned to Mr McGrath by having exited the car and being dragged a short distance along the road.
7	After you had driven away, Mr McGrath started knocking on nearby doors for help.  He was ultimately assisted by nearby residents who found him covered in blood.  Pressure was applied on the wound whilst others called emergency services just after 11:20pm.
Injuries to Mr McGrath
8	Mr McGrath was transported to the Wimmera Base Hospital before being transferred to the Alfred Hospital for treatment.  He was observed to have abrasions to the crown of his head and left cheek along with several stab wounds for which he underwent surgery on 2 September 2022.  The Summary of Prosecution Opening summarised these wounds as follows:
(a)	A penetrating neck wound 2cm in length resulting in a “left brachial plexus injury” which severed nerves vital in moving the arm and in moving the diaphragm (the muscle of breathing), along with the jugular vein, which is the major blood vessel which drains blood from the head;
(b)	An incised wound 2cm in length on the right thumb which severed a tendon vital to moving the tip of the thumb;
(c)	A 2cm incised wound to the right wrist;
(d)	An incised wound to the right cheek;
(e)	A 2cm incised wound to the left front upper forearm; and
(f)	A superficial incision to the front of the chest wall.
9	A medical report of Dr Alex Marceglia states that one of the nerves severed in Mr McGrath’s neck plays a crucial role in breathing and that rupture to the jugular vein endangers life from loss of blood.  Ambulance Victoria paramedics estimated that Mr McGrath lost around 500ml of blood and further blood loss was only prevented by the timely application of pressure on the neck wound.
10	Mr McGrath was released from hospital on 5 September 2019.
11	The prosecution case is that the serious injury referable to the charge against you is the injury caused by the stab wound to the neck, causing damage to the jugular vein and nerve damage.  It appears that none of the other injuries suffered by Mr McGrath could fairly be regarded as serious within the meaning of the Act.
12	Counsel on your behalf did not dispute that the injuries suffered by Mr McGrath were ‘serious’ in so far as they were ‘life threatening’ and/or ‘substantial and protracted’.
Investigation
13	The Nissan X-Trail motor car was located by police at Schreenans Road in Bonshaw, about 10km from Ballarat, and about 200km from Horsham.  It had been vandalised, but the prosecution does not assert that you caused the damage to the car.
14	You were arrested at your mother’s house on 4 September 2019.  Your mother initially told police you were not home, however, when police officers entered the house you were found lying on the floor in a bedroom attempting to get under the bed.
15	After your arrest you were transported to Horsham police station where you gave an interview.  You told police that the meeting between you and McGrath had been pre-arranged because he wanted to speak to you about money you owed him.  You said McGrath stopped the car and when you said you were unable to pay him he produced a knife in his right hand, put it to your throat and threatened to rape you.  You said that in response you grabbed McGrath’s arm, pressed his hand back into his chest and throat and that this was the cause of McGrath’s injuries.  You said McGrath had jumped out of the car and you drove away because you had panicked and had thrown the knife out of the window on the way to Ballarat where you had disposed of your clothing in a rubbish bin and dumped the car.
Victim Impact Statement
16	Bradley McGrath has provided a victim impact statement to the Court describing the devastating impact that your offending has had on him.
17	He describes how he has suffered nerve damage as a result of the stab injury, causing him to experience ongoing difficulties with the activities of daily life, including eating and sleeping.  He continues to experience pain and no longer has full use of his thumb and left arm.  He says that he can no longer work in his profession as a builder due to the injuries he sustained, and has difficulty engaging in activities with his children.  He mentions being unable to care for his mother who was ill.
18	Further, he describes the impact of your offending on his mental state.  He reports that he has suffered from PTSD, depression and night terrors.  He describes feelings of joylessness and uncertainty about his future, along with feeling ‘panic stricken’ and ‘living in fear’.
19	I have taken the admissible and relevant parts of the victim impact statement into account.
Procedural History
20	Following your arrest you were remanded in custody on 4 September 2019.  When arrested, you were originally charged with attempted murder and a series of related offences.
21	A committal was listed on 26 November 2020 in Horsham, however, this was adjourned when a conflict arose due to the presiding Magistrate having acted for the complainant in a prior matter.  Consequently, the committal hearing was not able to be heard until June 2021.  It is to be acknowledged that these unfortunate circumstances, which occurred through no fault of your own, caused a significant delay in the progress of this matter which approximated some six months.
22	At the committal McGrath was cross-examined about his criminal history which includes prior convictions for negligently causing serious injury, robbery, theft, possession of methamphetamine, and assaulting an emergency worker on duty.
23	Following the committal, on 22 November 2021, your Counsel made a detailed application for discontinuance of the most serious charges that was considered and refused by the prosecution.
24	A considerable period then passed when, on your application, a sentence indication hearing was heard before me on 26 October 2022.  On 27 October 2022, I delivered an indication, and you were almost immediately arraigned and you pleaded guilty to the charges of recklessly causing serious injury, theft and the related summary offences.
Personal circumstances
25	You were born in July 1995 and were 24 years old at the time of the offending.  You are currently 27 years old.
26	Your mother is a personal care attendant at the Wimmera Base Hospital in Horsham, and your father was a truck driver.  Tragically, your father passed away recently on 5 July 2022 from suspected heart failure.  You have four older brothers, none of whom have any criminal history.
27	You commenced but did not complete year 12 at Horsham College.  You were an average student, and you report you were bullied at school but did enjoy playing cricket and football.
28	You have also reported that you were the victim of sexual violence as a child, and this is referred to by you in your record of interview.  In 2018, you sought assistance in relation to this issue by attending the Barwon Centre against Sexual Assault (CASA).
29	You have had some employment throughout your life.  You commenced an apprenticeship as a boilermaker, but only completed the first year.  You then went on to work in various roles at Kentucky Fried Chicken, Hungry Jack’s, at a motel and also at a steel factory.
30	You commenced using illicit drugs in your teenage years, using cannabis when you were undertaking your apprenticeship as a boilermaker.  In later years your drug use escalated to prescription medication and ultimately methylamphetamine.  At the time of this offence you report that you were using methamphetamine on a daily basis.  Your longest period as an attempt at rehabilitation was at a residential rehabilitation facility for six weeks in 2016.
31	You have reported experiencing significant issues with depression since around 2015, including a number of suicide attempts, two of which have resulted in hospitalisation.  In 2015 you were hospitalised for an overdose of blood pressure medication.  In March 2022, during a period when you were on bail, you ingested a large quantity of anti-depressants and were hospitalised for a week at Ballarat Hospital and for three of those nights you were in an induced coma.
32	You have a limited prior criminal history, and notably, no history of violent offending.
33	Following the committal hearing you were released on bail.  Initially, you appeared to be progressing well, maintaining employment and remaining drug free.  However, you returned to drug use that apparently spiralled out of control following the death of your father.  To your credit, during your bail period you did engage in some counselling which you sought of your own volition.
Submissions for the defence
Seriousness of the offending
34	It was conceded on your behalf that the charge of recklessly causing serious injury to Mr McGrath must be regarded as serious offending, noting that the injury was caused through the use of a bladed weapon.  It is conceded Mr McGrath was in hospital for six days.
35	It is submitted, however, that the offending was unplanned and that it occurred in the context of ‘excessive self-defence’.  It was conceded by the Crown that you believed stabbing Mr McGrath was necessary however this belief was not based on reasonable grounds.
36	It also appears an agreed position that you were not the initial instigator of violence inside the vehicle, and that you produced the knife only after you had already been assaulted by Mr McGrath.  It is uncontroversial that the case put forward by the prosecution does not involve an allegation of a premeditated or planned attack but, rather, events that became out of control in a short period of time.
37	Your Counsel have pointed to a number of circumstances which impacted on your state of mind at the time of this offending and which give context to your belief that it was necessary to act in the way that you did.
38	First, it is conceded that at the time of this offending you owed Mr McGrath money for drugs.  Further, it is submitted that Mr McGrath represented an imposing figure, who was physically much larger than you in height and build.  The Court was referred to screenshots taken from Mr McGrath’s Facebook page, noting that you and Mr McGrath were ‘friends’ on Facebook.  Your Counsel submitted that Mr McGrath’s Facebook page displayed a number of images, including an image of weapons, which is said to have given him an intimidating appearance.
39	Moreover, it was noted that Mr McGrath has a history of violent offending, involving assaults of various kinds, including strangulation, and assaults with an axe.  It was submitted that you had some awareness of Mr McGrath’s history, and that this impacted on your state of mind at the time of the offending.
40	As to the theft of the motor vehicle, your Counsel submit that this was also unplanned and carried out in the context of a panicked response in relation to the excessive self-defence.
Matters in mitigation
Plea of guilty
41	Your counsel pointed out that your plea of guilty has a utilitarian benefit, avoiding the time and cost of running a trial, and sparing witnesses the trauma and inconvenience of giving evidence.  Further, it was submitted that your guilty plea also carries a particular benefit due to the current backlog of trials in the court system in the midst of the COVID-19 pandemic and, as a result, it attracts a greater reduction than had it been outside of the pandemic.
42	It is also pointed out on your behalf that offers of resolution to a charge of recklessly causing serious injury have been put forward on your behalf from an early stage of these proceedings.  The Court was referred to some email correspondence between your solicitor and the prosecution in which there was some indication being offered by the defence of a resolution to a charge of recklessly causing serious injury in March 2020, which offer was declined by the prosecution at that time.  The prosecution accepted in oral submissions that it would be open to the Court to conclude that the correspondence in question constituted an offer of a guilty plea to recklessly causing serious injury.  Your Counsel submits that this is a matter of some significance, noting that the charge to which he you have ultimately pleaded guilty is one which was offered at a much earlier stage in these proceedings.
Delay
43	It is now over three years from the date of this offence.  Your Counsel submit that the significant delay in the resolution of this matter is a circumstance which should be taken into account in mitigation.
44	The delay appears to have been caused by a combination of factors, including the COVID-19 pandemic.  Further, as above, an unfortunate circumstance arose through no fault of your own which caused the committal to be delayed by approximately six months.  Your Counsel also prepared a lengthy discontinuance application following the committal which was ultimately rejected by the prosecution, which it is submitted added to the delay.
Remorse
45	Your Counsel submit that you have expressed some remorse for your actions in your record of interview.  It was submitted that the following comment made in your record of interview could be regarded as an expression of remorse:
… and I have done something wrong, I just - like, I’ve pushed a knife into his chest - I - like even in self-defence, that’s still doing something wrong.
46	The prosecution does not accept that this comment can be regarded an expression of remorse, noting that the version of events that you provided in the record of interview is significantly different to the events for which you are ultimately being sentenced.  At the same time, the prosecution does not submit that there is any evidence that you are unremorseful for your offending.
Pre-sentence detention
47	You were remanded in custody on 4 September 2019 on these matters, and released on bail on 17 June 2021, accruing 652 days in pre-sentence detention.  Your bail was revoked on 19 September 2022 and you were arrested on 17 October 2022 and have remained in custody since.  As at the date of sentencing, you have served 678 days of pre-sentence detention.
Onerous conditions in custody
48	Your time on remand was your first time in custody.  The conditions you experienced in the custodial setting were particularly onerous due to the COVID-19 pandemic.  Your Counsel report that you may be eligible for a significant number of emergency management days, and that whilst on remand you have been subject to onerous restrictions including lengthy periods in which you were confined to your cell for 43 of every 48 hours.  You have also had limited opportunity to receive or partake in rehabilitative courses, and to receive visits from family and loved ones.
Current sentencing practices
49	It was submitted with regard to current sentencing practices that a combination sentence involving a Community Correction Order [‘CCO’] appeared to be within range.  Your Counsel have relied on a sentencing snapshot of April 2020 in relation to causing serious injury recklessly.  In addition, the Court was referred to several specific cases involving excessive self-defence and recklessly causing serious injury.
Sentencing submission
50	Ultimately, your Counsel submitted that you ought to be sentenced to a term of imprisonment that does not exceed what you have already served in pre-sentence detention.  Furthermore, the submission was advanced that the Court should consider passing a sentence involving the imposition of a CCO.
Submissions for the prosecution
51	Senior Counsel for the prosecution, Mr Bourke KC, submitted that the Court must disregard your account of events in the motor vehicle, and accept the factual scenario as set out in the Summary of Prosecution Opening, namely that you were in possession of a knife and that it was not wrested from McGrath’s control as you told police.  However, Mr Bourke conceded that you nevertheless held an honest belief you were acting in self-defence but that you acted excessively given the circumstances you were in at the time you committed the offence.
52	As to whether the meeting between yourself and McGrath was pre-arranged, Mr Bourke submitted that this was ambiguous, but noted McGrath’s prior convictions for drug trafficking and your prior convictions for drug possession, indicating the debt was likely to be flowing in a particular way.  In other words, Mr Bourke conceded it was likely that the dispute arose out of a debt you owed to McGrath.
Analysis and conclusions
Findings of fact
53	As to relevant findings of fact, you told police that the meeting between you and Mr McGrath was prearranged because he wanted to speak to you about money you owed to him.  You said that McGrath produced a knife in his right hand and put it to your throat and threatened to rape you, whereupon you grabbed his arm and pressed his hand back into his chest and throat, and that these actions caused McGrath’s injuries.  The prosecution case was that McGrath was driving in the car when he saw you and pulled up, that a discussion took place regarding an outstanding drug debt which precipitated a physical struggle with you both seated in the front of the car.  The prosecution case is that you were in possession of the knife and responded by using it when McGrath grabbed your hair and pulled your head forward towards the gearstick.
54	Taking into account all the evidence bearing on this issue, I am unable to be satisfied to the required standard as to what the circumstances were in relation to the meeting taking place between the two of you, namely whether it was by chance, or was by prearrangement.  As to the knife, I am satisfied it was you who was initially in possession of the knife, and adopting the language used by your Counsel at the plea hearing, you ‘produced’ it when you were assaulted by McGrath and stabbed out at him in a panic.  I also note a comment that you made to the author of the pre-sentence report ordered by this Court that when asked about why you were carrying a knife, you said it was for your ‘own protection’.  In this context it is accepted by the prosecution and defence that the two of you had a previous relationship that involved the buying and selling of drugs, that McGrath was your supplier, you owed money to him, and McGrath had a criminal history involving violence.
55	For the purposes of assessing the appropriate sentence to be passed, I am satisfied that after you got into the car, a discussion took place, which developed into a struggle, during which you were in possession of the knife.  McGrath assaulted you in the way described, and you then reacted in self-defence, but did so excessively.  It is accepted that you believed that using the knife to stab and cut McGrath was necessary in the circumstances, but that belief not being based on reasonable grounds.  Further, I am satisfied that your actions were unplanned and occurred on the spur of the moment during a dynamic struggle in a confined space.
Seriousness of the offending and moral culpability
56	Using a bladed weapon to attack, stab and cut another person must be regarded as serious conduct.  Mr McGrath spent six days in hospital as a result.
57	That said, the seriousness of your offending which led to the injuries inflicted on Mr McGrath is to be evaluated in the context of the charge of recklessly causing serious injury to which you pleaded guilty, rather than intentionally causing serious injury, and the acceptance that you acted in self-defence, but did so excessively in the circumstances.  The fact that it is accepted that you acted with excessive self-defence, and in circumstances where your offending was not premeditated and occurred in the course of a dynamic struggle inside the front of the motor vehicle, in my opinion, reduces the moral culpability of your offending.
58	At the same time, the injuries caused to the neck of Mr McGrath were very serious, and life-threatening, and it was indeed fortunate that the people who assisted him acted diligently, and in doing so quite possibly saved his life.
Matters in mitigation
59	In your favour, and as discussed above, a number of matters were put in mitigation of your offending, with these matters including your plea of guilty; the delay in these matters being finally resolved; the onerous circumstances surrounding your time in remand custody; your age; the fact that you have no previous convictions for violence; and the various factors in your personal background which were discussed by your Counsel.
60	As to the very onerous nature of the circumstances in which you served your pre-sentence custody, in the overall synthesis of factors to be considered, I have taken into account in your favour the particularly heavy degree of isolation that you experienced as a result of COVID-19 restrictions.  Regarding your eligibility for emergency management days, this is a matter which is within the purview of the Executive.
61	As to the period you have spent on remand, being the first time you have experienced time in custody, I note that you have spent some 678 days in custody waiting for these proceedings to be resolved.  As is noted above, it appears that some early efforts were made to resolve the most serious charge brought against you, at that time being a charge of attempted murder, but these efforts proved fruitless up until almost the door of the Court, just a few weeks ago.
62	On 25 October 2022, you filed an application for a sentence indication hearing before me and, following the hearing, I gave an indication of the specified maximum total effective sentence I would be likely to impose with a non-parole period.  I indicated that should you plead guilty to the four charges, as proposed in a draft indictment, that I would be likely to impose a sentence of four years’ imprisonment with a non-parole period of two years’ imprisonment.
63	Shortly after the sentencing indication was given, the prosecution accepted your plea of guilty to the charge of recklessly causing serious injury, being a charge that was discussed at a fairly early stage in these proceedings.
64	I am prepared to accept in those circumstances that an indication of your preparedness to plead guilty should be regarded as having been made at a relatively early stage, prior to the committal.
65	I note also that following the committal proceedings in this matter, you were granted bail but that eventually you failed to answer that bail when called upon before this Court.  In all the circumstances however, I do not propose to treat your failure to answer bail and your absconding conduct against you in the sentences that must be imposed.  As it turned out, there was no delay caused by your absconding as the matter remained fixed for hearing in early November this year.
Sentencing factors
66	Section 5 of the Sentencing Act 1991 sets out a series of purposes for which sentences may be imposed and taken into account by a sentencing court in determining the appropriate sentence to be passed on an offender.  These include just punishment, general and special deterrence, rehabilitation of the offender, denunciation of the conduct in which the offender engaged, and protection of the community from the offender.
67	In assessing the appropriate sentence to be imposed in this case, I have taken into account, and weighed, each of these purposes.  As I have noted, you have a limited criminal history, which does not involve previous convictions for violence.  In the circumstances pertaining to you, I do not consider that protection of the community weighs heavily in the assessment of the appropriate sentence to be imposed.
68	In the assessment of your rehabilitative prospects, the protection of the community, and passing a sentence with a component directed towards specific deterrence, I do note that your Counsel has advanced a submission that in light of the period you have already spent in custody, the imposition of a combination sentence including a CCO may be within range.  It was submitted that you have spent sufficient time in custody and that you could be sentenced to a term of imprisonment that does not exceed the time you have already served.
69	In light of that submission, I ordered a pre-sentence report to be prepared so that this submission could be fully considered.  An appropriate presentence report was obtained expeditiously.  Regrettably, in the Report dated 4 November 2002, the author was unable to recommend you as suitable for the granting of a CCO.  Not only were you assessed as a high risk of general re-offending, it was also noted that you have failed to comply with conditions of previously granted CCOs on a number of occasions.  The details of these circumstances are set out in the Report.  Having considered the submissions made, and the Report’s conclusions, I do not propose to proceed on the basis that you will be offered a CCO in respect of the charges before this Court.
70	With respect to the sentencing purpose of punishment, I am of the opinion that the period you have already spent in custody by way of pre-sentence detention amounts to a significant degree of punishment in part satisfaction of this particular sentencing purpose.  I have taken that time spent in custody, and the circumstances in which it was served, into account.
Sentences and declarations
71	Taking into account all of the circumstances, and weighing them as best I can, the sentences that will be imposed are as follows:
72	On the charge of recklessly causing serious injury, you are sentenced to three years and six months’ imprisonment.
73	On the charge of theft of a motor car, you are sentenced to three months’ imprisonment.
74	Pursuant to s 89(4) of the Sentencing Act 1991, on conviction for the theft of motorcar charge, the Court is obliged to make an order against any licence or permit held by the offender.  Accordingly, I order that any licence or permit held by you is cancelled and you are disqualified from obtaining further ones for a period of six months from the date of sentencing.
75	On the charge of driving while unlicensed you are convicted and discharged.
76	On the charge of committing an indictable offence while on bail you are sentenced to one month’s imprisonment.
77	I note the application of s 16(1A) of the Sentencing Act 1991 to offences committed whilst a person is released on bail.  To be clear, I order that the sentence imposed on the charge of theft of a motor vehicle be served cumulatively with the sentence imposed on recklessly causing serious injury, making a total effective sentence of three years and nine months’ imprisonment.  I will also order that the sentence of one month’s imprisonment on the charge of committing an indictable offence while on bail will be served concurrently with the charge of recklessly causing serious injury.
78	Further, on the charge of theft of a motor vehicle, any licence or permit you hold will be cancelled and you are disqualified from obtaining such a licence for a period of six months.
Non-parole period
79	I order that you serve two years’ imprisonment before being eligible for parole.
PSD declaration
I declare that you have served 678 days of pre-sentence detention.
Section 6AAA declaration
80	I declare that had you not pleaded guilty to the offending before the Court, I would have sentenced you to five years’ imprisonment with a non-parole period of three years.