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District Court 25 June 2020

R v Tran

[2020] NSWDC 723

Assault & violenceDomestic & family violence

Citation: R v Tran [2020] NSWDC 723
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Sutherland SC DCJ

Background

The offender, a 21-year-old woman, appeared for sentence on a charge of choking with intent to commit an indictable offence, specifically inflicting grievous bodily harm with intent, contrary to s 37(2) of the Crimes Act 1900. The maximum penalty for that offence is 25 years' imprisonment. The offence arose from an incident in January 2019 involving the offender and her then-partner of approximately six months, with whom she was in a domestic relationship.

The incident occurred in the early hours of 12 January 2019, following an emotionally charged late-night conversation about the end of the relationship. Both parties were distressed. During that conversation, the offender suggested a mutual suicide pact, which the victim refused. The offender then retrieved the victim's prescribed heart medication (Metoprolol, a beta blocker), aware that an overdose could have serious effects. A physical altercation followed, during which the offender attempted to force tablets into the victim's mouth and then strangled her with two hands until the victim's face turned purple, she was unable to breathe, and she briefly lost consciousness.

The offender was also before the court for breach of an apprehended domestic violence order, arising from subsequent contact between the parties after the incident.

  • Whether the offender's knowledge that an overdose of the victim's medication could have "serious effects" was sufficient to establish the mental element of an intention to inflict grievous bodily harm, for the purpose of the s 37(2) charge
  • The objective seriousness of the choking offence and where it fell on the range for such offences
  • Whether special circumstances existed justifying a departure from the standard non-parole ratio (ordinarily, two-thirds of the head sentence)
  • The appropriate sentence, including backdating to account for time spent on bail conditions amounting to quasi-custody
  • The appropriate disposition for the apprehended domestic violence order breach

Decision

The principal charge. The court accepted that the offender's awareness that an overdose of Metoprolol could produce "serious effects" was sufficient to establish the requisite intention for the s 37(2) offence. The court proceeded to sentence on the agreed facts, which described the offender restraining the victim, forcing tablets toward her mouth, and then strangling her to the point of brief unconsciousness.

Objective seriousness. Sutherland SC DCJ assessed the objective seriousness of the offence as falling below the mid-range for choking offences of this kind. The court gave careful weight to the highly emotional circumstances surrounding the incident, noting the volatile end of the domestic relationship, the offender's apparent emotional and psychological distress, and the context in which the violence erupted. The court was careful to note that subjective factors were not conflated with the assessment of objective gravity.

Special circumstances and sentence structure. The court found that special circumstances existed, justifying a non-parole period that represented a smaller proportion of the head sentence than the standard ratio. This reflected the offender's age, mental health considerations, and the need for an extended period of supervised release. A head sentence of three years was imposed, with a non-parole period of 18 months, and a further 18-month additional term of supervised release.

The ADVO breach. On the apprehended domestic violence order breach, the court noted that both the offender and the victim had been desirous of maintaining contact after the offence. In those circumstances, while a conviction was recorded, no additional penalty was imposed. The matter was otherwise dismissed under s 10A of the Crimes Act 1900.

Orders Made

  • Convicted of choking with intent to commit another indictable offence (s 37(2), Crimes Act 1900)
  • Sentenced to a minimum term of 18 months' imprisonment, backdated by seven months to commence 25 November 2019, expiring 24 May 2021
  • Additional term of 18 months, expiring 24 November 2022
  • Conviction recorded for the apprehended domestic violence order breach; matter otherwise dismissed under s 10A with no additional penalty

Key Takeaways

  • Under s 37(2) of the Crimes Act 1900, a charge of choking with intent to commit grievous bodily harm can be sustained where the offender's knowledge of a medication's potential for "serious effects" is sufficient to establish the necessary intent, even if framed in general terms in the agreed facts.
  • Objective seriousness for a choking offence is not fixed at mid-range by default; the District Court found the circumstances here, including the emotional context of a relationship breakdown and apparent psychological distress, placed the offending below the mid-range.
  • Special circumstances can justify an extended additional term (and thus a shorter non-parole proportion) where the offender's youth and mental health suggest a greater need for supervised reintegration after release.
  • A period spent on strict bail conditions, including a curfew amounting to quasi-custody, may be taken into account by backdating the commencement of a custodial sentence.
  • Where both an offender and a victim have actively sought contact in breach of an apprehended domestic violence order, a court may record a conviction without imposing further punishment, relying on the s 10A discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(2), 10A
- Mental Health Act 2007 (NSW)

Cases
- McKechnie v R [2006] NSWCCA 13
- Munn v R [2009] NSWCCA 218
- R v Cutrale [2011] NSWCCA 214
- R v de Simoni [1981] HCA 31; 147 CLR 383
- R v Hollaway [2016] NSWCCA 166
- R v MW [2007] NSWCCA 291
- R v O'Connor [2014] NSWCCA 53
- R v Peifeng Yu [2016] NSWDC 257
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550