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District Court 19 June 2019

R v Yee (a pseudonym)

[2019] NSWDC 326

Assault & violenceDomestic & family violence
GRIEVOUS BODILY HARM INTENTIONAL CHOKING DOMESTIC VIOLENCE RELATED SPECIAL CIRCUMSTANCES.

Citation: R v Yee (a pseudonym) [2019] NSWDC 326
Court: District Court of NSW
Date: 19 June 2019
Judge(s): Colefax SC DCJ

Background

The offender, a 51-year-old man born in China, had married a younger woman he met online. The couple lived together in a granny flat in Campsie after she migrated to Australia in 2016. Over 2017, she had begun working as a sex worker and had developed a relationship with a client, none of which the offender knew about until shortly before the offence.

In the early hours of 28 September 2017, the offender discovered his wife communicating on WeChat with her other partner. He fell asleep but woke around 4 am, took a claw hammer from his carpenter's toolbox, and struck his sleeping wife five times to the head. He then choked her around the throat. Shortly after, he stopped and immediately sought help, calling his employer and waking the landlord to summon an ambulance and police.

The victim suffered very severe multiple skull and facial fractures with high lethal potential, as well as permanent loss of smell, reduced hearing, ongoing pain, facial scarring requiring monthly treatment, and significant psychological harm. The offender pleaded guilty to both charges.

Legal Issues

  • What sentences were appropriate for the offence of causing grievous bodily harm with intent in a domestic violence context, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW)?
  • What sentence was appropriate for the offence of intentionally choking a person with recklessness in a domestic violence context, contrary to s 37 of the Crimes Act 1900 (NSW)?
  • Whether the choking sentence should run concurrently or be partially accumulated with the grievous bodily harm sentence.
  • Whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period.
  • What discount applied for the early guilty plea?

Decision

Objective seriousness and aggravation: The court assessed the grievous bodily harm offence as mid-range and the choking offence as slightly below mid-range for offences of their respective kinds (at [37]). Both offences were further aggravated by having occurred in the victim's home (at [38]).

Subjective circumstances: The court accepted a number of mitigating factors. The offender was a first offender with no prior convictions, entitling him to leniency (at [41]). The offending was entirely out of character and arose from a confluence of conflicting emotions, with the offender at the time suffering from a persistent depressive disorder that was in an acute state (at [43]-[45]). The offender expressed genuine remorse, and his prospects of rehabilitation were assessed as very good (at [44]-[46]). His immediate actions in summoning emergency help after the attack were also noted (at [29]-[31]).

Concurrency: The court determined that the choking and the hammer attack formed part of a continuous act of criminality. Accordingly, the choking sentence was ordered to run wholly concurrently with the more serious grievous bodily harm sentence (at [50]).

Guilty plea and special circumstances: A 25% discount was applied to both sentences for the early guilty plea (at [48]). The court found special circumstances, owing to the offender's poor English and social isolation, justifying a variation of the ratio between the head sentence and the non-parole period (at [52]). Both sentences were backdated to 28 September 2017 (at [49]).

Orders Made

  • For the offence of causing grievous bodily harm with intent: 7 years 6 months imprisonment (reduced from 10 years by the guilty plea discount), with a non-parole period of 4 years, commencing 28 September 2017.
  • For the offence of intentionally choking a person with recklessness: fixed term of 3 years imprisonment (reduced from 4 years by the guilty plea discount), commencing 28 September 2017.
  • Both sentences to be served totally concurrently.

Key Takeaways

  • The District Court assessed a hammer attack causing multiple severe skull fractures as a mid-range offence under s 33(1)(b) of the Crimes Act 1900 (NSW), and intentional choking with recklessness as slightly below mid-range, with both offences aggravated by occurring in the victim's home (at [37]-[38]).

  • Where multiple offences form part of a single, continuous act of criminality, a sentencing court may order the lesser sentence to run wholly concurrently with the more serious one rather than accumulating any portion (at [50]).

  • A 25% sentencing discount for a plea of guilty entered at the first available opportunity applied to both charges, reducing the grievous bodily harm sentence from 10 years to 7 years 6 months, and the choking sentence from 4 years to 3 years (at [48], [51], [55]).

  • Special circumstances can be established by a combination of language barriers and social isolation, permitting the court to vary the standard head sentence-to-non-parole period ratio in favour of a longer parole period to assist rehabilitation (at [52]).

  • Genuine remorse, good rehabilitation prospects, first offender status, and immediate post-offence efforts to obtain medical help for the victim are all relevant mitigating factors in sentencing for serious domestic violence offences, even where the injuries sustained are severe and permanent (at [33], [41], [44]-[46]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b) and s 37.

Cases
- Not stated