AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 27 May 2022

R v Leigh PATTINSON

[2022] NSWDC 475

Assault & violenceDomestic & family violence
CRIME VIOLENT OFFENCES AGGRAVATING FACTORS HOME OF VICTIM OR ANY OTHER PERSON

Citation: R v Leigh PATTINSON [2022] NSWDC 475
Court: District Court of New South Wales
Date: 27 May 2022
Judge: Buscombe DCJ

Background

The offender and the complainant (referred to as DW) had known each other socially since around 2012 and had maintained an intermittent online and in-person relationship for several years. That relationship included a consensual sexual dynamic in which the offender was dominant and DW was submissive, and it had historically involved physical violence during sexual encounters. The parties used a "safe word" to signal when DW wished the activity to stop.

On 28 August 2019, at DW's home in Seven Hills, an incident occurred during which the offender engaged in various sexual acts. The trial proceeded on an indictment of nine counts, seven of which alleged sexual intercourse without consent accompanied by actual bodily harm, one of inciting sexual touching without consent, and one of intentional choking with recklessness as to rendering DW unconscious.

Following a judge-alone trial, Buscombe DCJ acquitted the offender on counts 1 to 8 but convicted him on count 9, the choking charge. The sentencing judgment addressed the appropriate penalty for that single conviction.

  • What sentence was appropriate for an offence of intentional choking under s 37(1) of the Crimes Act 1900 (NSW), which carries a maximum of ten years imprisonment and no standard non-parole period?
  • What findings of fact, consistent with the verdict, could be made adversely to the offender, and to what standard?
  • Whether any aggravating factors applied, including that the offence occurred in the victim's home.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term.
  • Whether the offence constituted a domestic violence offence and attracted orders under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Decision

Buscombe DCJ found that the choking offence occurred after DW had used the safe word and after the sexual activity had concluded. At that point, the offender walked towards DW in the hallway of her home, pressed her against a wall, and choked her until she lost consciousness. DW was heard repeating the safe word and saying she could not breathe. When she regained consciousness, she was on the bathroom floor. The court was satisfied beyond reasonable doubt that the offender intended to choke DW to the point of unconsciousness, and that DW neither consented to the choking nor was the offender ignorant of that fact.

The court assessed the objective seriousness of the offence as significant. Expert evidence from a forensic nurse established that strangulation is potentially life-threatening, as unconsciousness and death can result from relatively brief sustained pressure. The offence was also aggravated by the fact that it was committed in DW's own home, a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court had regard to DW's victim impact statement, which she read aloud during the proceedings.

The court identified special circumstances warranting a departure from the standard non-parole period ratio, citing the conditions facing inmates during the COVID-19 pandemic, including restricted programs, limited in-person visits, and extended periods of cell confinement. The offender's partner residing overseas, and his limited in-person support network, were also noted as contributing factors.

The offence was classified as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) because the offender and DW were in an intimate personal relationship at the relevant time. A prohibition order was made under s 40 of that Act for a period of four and a half years.

Orders Made

  • The offender was convicted of intentionally choking DW and being reckless as to rendering her unconscious, contrary to s 37(1) of the Crimes Act 1900 (NSW).
  • A sentence of 2 years and 6 months imprisonment was imposed, comprising a non-parole period of 1 year and 6 months and a balance of term of 12 months, commencing 27 May 2022.
  • The offence was directed to be recorded as a domestic violence offence and a personal violence offence.
  • A prohibition order was made for four and a half years from sentencing, restraining the offender from: assaulting or threatening DW or any person with whom she has a domestic relationship; stalking, harassing or intimidating DW or any such person; intentionally or recklessly destroying or damaging property or harming any animal belonging to or in the possession of DW or any such person; and contacting DW in any way.

Key Takeaways

  • Under s 37(1) of the Crimes Act 1900 (NSW), an intentional choking offence carries a maximum of ten years imprisonment with no standard non-parole period, leaving the sentencing court with significant discretion in calibrating the appropriate penalty.
  • The District Court treated the location of the offence as an aggravating factor, applying s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the choking occurred in DW's own home.
  • Where an offender and victim are in an intimate personal relationship, the relevant conduct constitutes a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), attracting both the recording obligation and the power to make prohibition orders under s 40.
  • The existence of a prior consensual dynamic involving physical violence did not preclude a conviction or a custodial sentence where the court found the offender knew the victim had withdrawn consent before the choking occurred.
  • Special circumstances were found on the basis of pandemic-related prison conditions, justifying a non-parole period below the standard statutory ratio, resulting in an 18-month non-parole period against a total sentence of 30 months.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 37(1) (choking, suffocation or strangulation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A (aggravating and mitigating factors)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5(1)(c), 40 (definition of domestic violence offence; prohibition orders)

Cases:
- No cases beyond the offender's own verdict judgment (delivered 14 April 2022) were identified in the portions of the judgment provided.