AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 7 March 2005

Regina v Bell

[2005] NSWCCA 81

Assault & violenceDomestic & family violence
CRIMINAL LAW AND PROCEDURE SENTENCE ATTEMPT TO STRANGLE WITH INTENT TO KILL PLEA OF GUILTY

Citation: Regina v Bell [2005] NSWCCA 81
Court: New South Wales Court of Criminal Appeal
Date: 7 March 2005
Judge(s): Spigelman CJ, Grove J, Bell J

Background

The applicant had been in a de facto relationship for approximately 13 years with the victim, with whom he had two children. Although the parties had separated, they continued to live in the same home. Against a backdrop of ongoing disputes concerning family law, child support, and the victim's Army Reserve commitments, a serious domestic incident occurred on the evening of 21 May 2002.

Following an argument that evening, the applicant grabbed the victim by the throat with both hands, forced her to the ground, sat on her chest, and applied pressure to her trachea using a technique he had learned during 26 years of Army Reserve service. The assault ceased only when the couple's 11-year-old son ran into the room and screamed at the applicant to stop. The applicant then telephoned police himself, stating that he had tried to kill his wife.

The applicant was charged under section 29 of the Crimes Act 1900 with attempting to strangle another person with intent to murder, an offence carrying a maximum penalty of 25 years imprisonment. He pleaded guilty at arraignment in the Lismore District Court and was sentenced by Ducker ADCJ to four years imprisonment with a non-parole period of two years and six months. He sought leave to appeal on the grounds that the sentencing judge had erred in finding an intent to kill, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding, on the evidence, that the applicant held an actual intention to kill the victim at the time of the offence
  • Whether the admitted voluntary disclosure of that intention by the applicant operated to mitigate the sentence
  • Whether the overall sentence of four years imprisonment with a non-parole period of two years and six months was manifestly excessive in all the circumstances

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's determination that the applicant intended to kill the victim. The agreed statement of facts contained repeated and unambiguous admissions by the applicant himself, made both at the scene and during a subsequent electronically recorded interview, that he had formed an intention to kill the victim, had thought about it during the afternoon, and had dreamt about it the night before. The applicant's own statements left no room for doubt about the presence of the requisite intent.

The Court acknowledged that the applicant's voluntary disclosure of his intention was a matter that operated in his favour at sentencing. Drawing on principles concerning the mitigating weight of admissions that go beyond what could otherwise be proved (consistent with R v Ellis (1986) 6 NSWLR 603 and Ryan v The Queen (2001) 206 CLR 267), the Court recognised that some leniency was appropriate in recognition of those disclosures. However, it emphasised that this leniency did not diminish or recharacterise the gravity of the offence itself.

On the question of manifest excess, the Court found that a sentence of four years for an attempted strangling with intent to kill was not excessive, even after full weight was given to all favourable subjective circumstances. Those circumstances included the transient nature of the victim's physical injuries, the applicant's swift call to police after desisting, his guilty plea, his history of post-traumatic stress disorder linked to a distressing incident in 2001, and the finding of special circumstances that reduced the non-parole period below the standard formula. The Court concluded that the sentencing judge had exercised a sound discretionary judgment, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A voluntary admission of intent to kill, going beyond what the Crown could otherwise prove, carries mitigating weight at sentencing, but does not reduce or recharacterise the seriousness of the underlying offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of four years imprisonment for attempted strangulation with intent to kill, following a guilty plea and with favourable subjective circumstances, was within the range of sound sentencing discretion.
  • Where an offender's own repeated statements establish the requisite intent for a serious offence, those statements cannot later be used to argue the intent was absent or uncertain.
  • A finding of special circumstances, allowing a non-parole period shorter than the statutory standard, is a legitimate sentencing tool; its use here did not render the overall sentence manifestly excessive.
  • Conflicting accounts from the victim at different points in time did not displace the significance of the applicant's own admissions, which formed part of the agreed statement of facts placed before the sentencing court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 29 (attempted strangulation with intent to murder; maximum penalty 25 years imprisonment)

Cases
- R v Ellis (1986) 6 NSWLR 603 (mitigating effect of voluntary admissions beyond provable facts)
- Ryan v The Queen (2001) 206 CLR 267 (principles concerning admissions and sentencing mitigation)