Citation: R v Carr [2025] NSWDC 291
Court: District Court of New South Wales
Date: 3 July 2025
Judge: Bourke SC DCJ
Background
The offender, a man referred to by his role as the former intimate partner of the victim (identified as JB), appeared for sentencing on four offences arising from a series of violent incidents in mid-2023. He and JB had previously been in a relationship and shared a young child. An Apprehended Domestic Violence Order (ADVO) was in place protecting JB at the time of the offending.
The offending spanned two residential locations in the Hunter region. It included the offender holding a kitchen knife to JB's throat on multiple occasions, strangling her on two occasions at the first location, and then at the second location choking her until she lost consciousness while also aggressively biting her nose. Following the choking to unconsciousness, the offender drove JB toward a remote area while repeatedly threatening to slit her throat, dig a hole, and bury her.
The offender pleaded guilty at the earliest opportunity and was in custody from 7 June 2023. His parole on a prior matter was revoked on 21 June 2023, which had implications for the sentencing calculation.
Legal Issues
- What aggregate sentence and non-parole period was appropriate for four offences, including two choking offences, intimidation, and contravention of an ADVO?
- What discount applied by reason of the early guilty pleas?
- To what extent should the sentence be backdated, given the offender had been in custody partly due to a parole revocation not solely caused by the present offences?
- How should the totality principle apply in setting an aggregate sentence that reflected the separate acts of serious criminality?
Decision
The District Court applied a 25% discount to all matters, as required by the sentencing provisions governing the utilitarian value of early guilty pleas. The court assessed each offence individually before arriving at an aggregate sentence, identifying indicative terms for each: two years and ten months for the sequence 3 choking offence (with a related assault occasioning actual bodily harm taken into account on a Form 1 document); four years and six months for the sequence 5 choking to unconsciousness offence; three years for the sequence 7 intimidation offence; and twelve months for the ADVO contravention.
Bourke SC DCJ placed considerable weight on the gravity of the offending, describing it as cruel and violent, conducted over a sustained period and in the context of an intimate domestic relationship where the victim was rendered completely vulnerable. The sequence 5 offence, which carried a maximum of ten years, was treated as the most serious, given the offender choked JB to unconsciousness and then told her she was lucky to be alive. The subsequent intimidation conduct, including the prolonged threat to kill her in a remote location, added substantial seriousness.
On backdating, the court exercised its discretion to backdate the sentence by one month prior to 8 September 2023 (the date the offender's parole period ended), commencing the sentence on 8 August 2023. The court declined to backdate further because the parole revocation was not solely attributable to the present offences.
Applying totality principles, the court found that some notional accumulation was warranted to reflect the distinct acts of serious criminality committed on separate occasions. The result was an aggregate head sentence of six years imprisonment with a non-parole period of four years and two months.
Orders Made
- Aggregate head sentence of six years imprisonment, commencing 8 August 2023, expiring 7 August 2029.
- Non-parole period of four years and two months, expiring 7 October 2027.
- Indicative sentence of two years and ten months for the sequence 3 choking offence (Form 1 matter taken into account).
- Indicative sentence of four years and six months for the sequence 5 choking to unconsciousness offence.
- Indicative sentence of three years for the sequence 7 intimidation offence.
- Indicative sentence of twelve months for the ADVO contravention (dealt with by s 166 certificate).
Key Takeaways
- A 25% discount for guilty plea applied across all matters, consistent with the statutory requirement to recognise the utilitarian value of early pleas under the Crimes (Sentencing Procedure) Act 1999.
- Where an offender is in custody partly due to a parole revocation not exclusively linked to the current offences, the District Court has a discretion to backdate only in part, rather than for the full period of pre-sentence custody.
- Choking a person to unconsciousness under s 37(1) of the Crimes Act 1900 carries a maximum of ten years imprisonment, and the District Court treated it as the gravest of the offences before it, particularly where the offender followed the act with explicit threats to kill the victim.
- The totality principle, while requiring the court to avoid a crushing sentence, does not preclude notional accumulation where the offending involved distinct acts of serious criminality spread across time and different occasions.
- Sustained domestic violence involving multiple weapon threats, repeated strangulation, and prolonged psychological terrorising of a victim will attract significant actual custodial terms, even where the offender enters early guilty pleas.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 37(1), 37(1K)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
Cases
- Attorney-General's Application No 1 of 2002 [2002] NSWCCA 518
- Bugmy v R [2013] HCA 37
- DPP v De La Rosa [2010] NSWCCA 194
- Jonson v R [2016] NSWCCA 286
- R v Stevens [2024] NSWCCA