R v Tammajanta

Agreed Facts

1. Lengthy Agreed Facts were tendered on 20 August 2024. I propose to extract them in full although I have made some small stylistic changes and have not repeated matters that I have already set out above.

Background

1. The deceased was born in Chiang Mai, Thailand on 4 December 1985. Her younger sister, Rudeemas Khuntaras, moved to Australia from Thailand in 2014. The deceased followed in 2019 when she moved to Australia on a student visa. She lived with her sister and her brother-in-law in Carlingford for two years and completed a certificate in childcare before moving out of her sister's home in early 2022.
2. In 2022, the deceased started working at the Siam Kingdom Thai restaurant in Newington. She started a relationship with the offender, who was known as Nook, and worked as a chef at the same restaurant.
3. In September 2022, the deceased and the offender moved into shared premises in Wentworth Point with Ana Rodrigeuz. The deceased told her sister about her boyfriend and sent a photo of him to her.
4. Ms Rodrigeuz observed that three weeks after the couple moved in, she heard arguing after the offender had been drinking and observed the deceased, who was known as Nan, to look ruffled and have bruising around one eye.
5. The last time the deceased's sister saw her was on 21 November 2022, when the deceased visited her. During this visit, the deceased told her sister that the offender was jealous and controlling. She also told her that the offender did not want her to visit her sister that day and was always questioning her about where she was going.
6. Both the offender and the deceased were given a two-week termination notice at the Thai restaurant in Newington after the offender was aggressive towards the deceased as she served a customer. They both left their employment a couple of days into that two-week period.
7. The couple applied for a job at the Taste of Thai at 29 Addison St, Shellharbour and started working there around 22 November 2022.
8. An employee of Taste of Thai known as Tanya rented a three bedroom townhouse at 3/11 Boonerah Street, Albion Park Rail. When the offender and the deceased started working at the Taste of Thai, she offered them a room in the town house. Another employee, Chonticha Khampor, also lived at the town house.
9. Staff at the restaurant observed that the deceased seemed to be afraid of the offender who would yell at her. On 15 December 2022, Tanya had a conversation with the deceased after work. She told the deceased that the offender seemed "hot headed" from her observations of him at the restaurant. The deceased told her that the offender was abusive towards her and had hit her before when he had been drinking.
10. The employees of the restaurant had a "group chat" on a mobile application called "Line". The deceased and the offender were added to the chat when they commenced their employment at the restaurant. The deceased went by the name of Nancy and the offender by the name of Nook. The application allowed the restaurant staff to communicate with one another via text messages, audio and video calls.

Events of 18 December 2022

1. The offender and deceased left their premises with Ms Khampor at approximately 10:00am to go to work together, with the offender driving. Ms Khampor described the offender as being "hot tempered" at work that evening, banging pots and pans when he was normally quiet. The offender was observed by other employees to be drinking wine during his shift.
2. When the evening shift had finished, the offender and the deceased were sitting together in the restaurant. The offender was drinking a bottle of wine quickly. Ms Khampor described the offender as looking intoxicated. He was speaking more than he normally would. Due to his intoxication, Ms Khampor did not wish to get in the car with him. She had one of the other employees drive her to a residence in Flinders, as she had previously planned to stay the night there. CCTV footage depicts the offender and deceased leaving the restaurant and walking west along Adison Street at 9:07pm.
3. A chef at the restaurant observed the deceased and offender walking towards their vehicle, which was parked in front of the restaurant. The offender was holding a bottle in a brown paper bag and appeared to be intoxicated.
4. The head chef at the restaurant that night observed the offender to be drinking straight out of a wine bottle in the restaurant after work, which he drank in a few minutes. He heard the offender say he would drive home however the deceased did not want him to. The offender said that the deceased could drive, and they left the restaurant.
5. Mathew Grooms and Matthew Clowry lived at 1/11 Boonerah Street, Albion Park Rail. At 10:30pm, they were going to bed when Mr Grooms heard a woman yelling in a language other than English around 11:00pm for around a minute. Mr Clowry could hear yelling in another language between a male and female. He described the female voice as "going" off and "letting him have it". Mr Clowry could also hear a male voice which was quieter than the female's.
6. A resident of 16 Karoo Street, Albion Park Rail, which backs onto the townhouse complex, was awoken between 10:00pm and 10:30pm by a male and female shouting. As the shouting progressed, the female voice became less noticeable and the male's more dominant. The shouting continued for around ten minutes then suddenly stopped.
7. A resident of 2/11 Boonerah Street heard a male voice yelling "help" at around 10:30pm. He looked out the window and saw an Asian male holding a mobile phone, pacing up and down the driveway before returning back inside. He called the police at 11:04pm.
8. Another neighbour at 9 Boonerah Street heard a male yelling "Naaan" at around 10:30pm for around ten minutes and saw the offender outside.
9. Another witness at 14B Karoo Street heard the voice of what sounded like a distressed male at around 11:00pm yelling, "Help me. Help me" over and over. She could also hear a muffled female voice that sounded like it was coming from inside a house.
10. At 10:58pm, Ms Khampor noticed the offender calling the Line application, but she did not answer his call.
11. At 10:59pm, Tanya was in Sydney with her husband and received a call from the offender via the Line application which she missed. When she called the offender back at 11:04pm he was screaming and said, "Nan dead, she's not breathing could you come to help, its real not a scam." She hung up and called another employee known as "Sunny".
12. Sunny was at home in Shell Cove with her partner and three flatmates when she received the call from the offender at 11:02pm. The offender was yelling and screaming, saying "Nancy has died! Nancy has died."
13. At 11:08pm, Tanya called the offender again and he answered. She told him Sunny was on the way and to keep the door open. The offender was still yelling and said, "I've had a slip up, can you call the ambulance for me." Tanya explained that in Thailand, the expression "slip up" means that you have assaulted someone "too much and they are very injured". She hung up and called an ambulance. Sunny also called an ambulance at 11:11pm.
14. At 11:14pm, Tanya called the offender back and put the phone on speaker as her husband was with her. She told the offender she had called an ambulance. Her husband asked the offender what had happened. The offender said he was sorry he destroyed the room and broke the mirror.
15. Sunny's three flatmates drove to the residence of the offender and deceased. They walked down the driveway. Through the front open door, they observed the deceased laying on the ground in the loungeroom, facing upwards. The offender tried to wake the deceased by shaking her shoulders and yelling, "wake up, wake up". The offender appeared very distressed. He was observed to be very upset and hard to understand. The offender asked those present to call an ambulance.
16. The triple-0 operator gave one of them, Ms Kukumasi, instructions to commence CPR which she did with the offender, telling him to give her breaths. Ms Kukumasi observed a large amount of blood in the deceased's mouth and described her face as being almost yellow in colour. Ms Kukumasi went outside, as there was no response from the deceased. She asked the offender what happened, and he said, "we had a fight".

Emergency response

1. At 11:28pm, police responded to a police radio broadcast and arrived at the premises at 11:35pm. Senior Constable Raff was the first at the scene and activated his body worn video. He observed the deceased laying on her back, about three feet into the unit, and the offender kneeling beside her saying, "help me, help me." He observed the deceased's lips and tongue were swollen and dark purple and her mouth was full of blood. She had no pulse and was unconscious and unresponsive. Senior Constable Raff commenced resuscitation with other police until the ambulance arrived.
2. Other uniformed police spoke to the offender and the three people who had arrived at the premises prior to police in the garage. Ms Kukumasi was able to assist with translation. In the conversation which was recorded on body worn video she told police that the offender and the deceased had a fight. The police asked the offender through Ms Kukumasi how long the fight was for. The offender said, "maybe half an hour, forty five minutes." The offender confirmed that only he and the deceased where in the house at the time. The offender said they were fighting and she fell down, but that he did not punch her.
3. An ambulance officer also spoke to the group in the garage and said, "What happened in the fight? Punches? Did she hit her head?" After translation, the offender replied, "um, yes, yeah, a little bit."
4. When paramedics took over, Senior Constable Raff stood up and realised he had been kneeling in shattered glass.
5. Police observed lacerations and swelling to the offender's knuckles. He was arrested and conveyed to Lake Illawarra police station.
6. At 12:00am, on 19 December 2022, paramedics ceased resuscitation and pronounced Manthana Khantharat to be deceased.

Crime scene and forensic evidence

1. Crime scene officers attended at 3:30am on 19 December 2022 and examined the premises. A mobile phone was located in the boot of a grey Holden Cruze sedan parked in the garage. The phone had a small amount of the offender's blood on the top corner.
2. Located on the floor in the loungeroom where the deceased was lying was a quantity of broken glass. Due to the size of the fragments, no forensic testing was possible. Transfer blood staining on the seat cushion of a grey lounge matched the deceased.
3. Attached to the wall near the front door was a vacuum cleaner. Several blood transfer stains located on the handle and base plate matched the offender. Blood transfer stains on the wall between the vacuum cleaner and the front door matched the deceased.
4. On the internal stairs leading to the second floor, a clump of the deceased's hair was located on a step.
5. Bedroom one on the second floor contained personal items belonging to the deceased including her passport. A mobile phone was located next to a handbag with a smashed screen.
6. Three blood transfer stains were located on the pillow, which was on the mattress, as well as small blood stains showing characteristics of blood splatter stains.
7. On the wall, were two separate areas of blood staining. Across the surface of a power point were small blood splatter stains matching the deceased. A transfer stain was located to the right of the power point which had been altered due to movement, consistent with the movement of fingers. This matched the DNA of the deceased.
8. A transfer blood stain from the offender was located just below the inside handle of the door to the bedroom.
9. A small metal lamp was located on the landing between the stairs and rooms which was not plugged in, and the shade was damaged. Later DNA testing on two parts of the lamp were matched to the offender.
10. Examination of the upstairs bathroom noted that the pin on the inside of the door was depressed in a locked position. There was significant damage to the door, showing evidence of multiple impacts from the exterior.
11. Two areas of transferred blood staining which matched the offender were located on the external section of the door and the wall adjacent to the handle.
12. Located within the bathtub was a quantity of dark coloured hair and several blood stains which matched the offender.
13. In a third bedroom, two blood transfer stains matched to the offender were observed on the external section of the door. Within the bedroom was a bookcase which contained a large number of "minion" figurines. Many where overturned or on the ground. A blood drip stain located on the top of the cabinet matched the DNA of the offender. A television was overturned and was lying face down on the floor in front of the display case.
14. At 4:04pm, on 19 December 2022, the offender's swollen and bruised hands were photographed.
15. Swabs taken from both of the offender's hands contained a female DNA profile which matched the deceased.

Record of interview

1. The offender agreed to participate in an electronically recorded interview with the assistance of a Thai interpreter. The interview commenced at 8:50pm on 19 December 2022. The offender told police he and the deceased argued, and that they started hitting each other and she became unconscious. The offender said they started pushing each other upstairs in a bedroom and then moved downstairs. He said they were hitting and pushing each other all over the body. He told police there was no punching but kicking to the legs. When asked about the injuries to his hands, he told police they were from his work.
2. The offender said that the deceased went to the bathroom and shut the door. He opened the door by pushing it with his shoulder which caused a hole to the door. The offender told police he did this because he wanted her to come back and sleep in the room. He said the deceased was standing in the bathroom when he walked in, and she then walked to the bedroom.
3. The offender said he pulled her hair "a little bit", however denied pulling her down the stairs or pulling hair from her head. He admitted he assaulted the deceased by pushing her around and kicking her to the legs and pulling her by the hair. The offender denied using any object to assault the deceased, however admitted to throwing the lamp on the ground whilst the deceased was downstairs.
4. The offender told police that he was sitting next to the deceased and she was lying down unconscious. He denied grabbing her around the neck or choking her. He told police that she was still breathing when police arrived, and he did not use "that much force" on her.
5. Police put to the offender that the assault upon the deceased inside the premises by him caused her death. The offender replied, "I don't know, I think that's the case, I don't know." The offender said, "I don't think I killed her. I never expected this kind of thing, I didn't think this would happen. I certainly didn't intend this to happen." He denied touching her face or using any physical force to her face. He further said, "I didn't think I used that much force. She was my partner and I'm very sorry about it" and "everything happened so quickly. I don't know how it happened".

Autopsy

1. The autopsy took place on 21 December 2022. The deceased had extensive contusions and abrasions on the face, neck (left side) jaw (left side), both arms, left breast, chest and lower limbs. There were multiple abrasions consistent with fingernail marks which were present within the contusions and abrasions, particularly around the face and neck.
2. Contusions to the deceased's left side of her face, neck and jaw, her left breast and upper arms were suggestive of finger pressure. The contusions observed to the deceased's breast were more than 18 hours old.
3. There were contusions on the palmar surfaces of the deceased's hands in a location typical of defensive injuries. The right forearm was severely fractured (radius and ulna bones) and the left forearm (ulna bone) was fractured and the radius dislocated. As with the hand injuries, these may represent defensive type injuries against the use of high degree of force.
4. The deceased had multiple bilateral posterior fractures to her ribs. There was a transverse process L2 fracture.
5. The combination of injuries to the neck and jaw and petechiae in both eyes (more florid on the left) is suggestive of neck pressure.
6. Internal examination revealed a large right-sided haematoma and associated midline shift of the brain to the left, as well as two smaller subarachnoid haemorrhages.
7. The injuries are consistent with a sustained physical assault and the direct cause of death was determined to be blunt force head injuries.

Proceedings on sentence

1. The proceedings on sentence were heard on 16 September 2024. The Crown tendered a bundle comprising the Crown Sentence Summary, Indictment, Statement of Agreed Facts, Selected Crime Scene Photographs, a Victim Impact Statement from Rudeemas Khuntaras, the deceased's sister, and the offender's criminal and custodial history.
2. Documents tendered on behalf of the offender comprised the report of Patrick Sheehan, forensic psychologist, dated 15 August 2024 and the affidavit of Batsaba Yawiroeng affirmed on 16 September 2024.
3. The offender did not give evidence on sentence nor tender any letter of remorse.

Victim Impact Statement

1. Ms Khuntaras read her Victim Impact Statement to the court. She spoke on behalf of her family who were in court, including her mother Maliwan, her father Nithud and her brother Nattasorn. The deceased's family had flown from Thailand to attend the proceedings on sentence and are obviously still coming to terms with the loss of their beloved sister and daughter.
2. Ms Khuntaras described how her "whole life" changed when police came to tell her that they found her sister's body in Wollongong and how the hardest thing she ever had to do was to telephone her parents in Thailand. Their "whole world" collapsed on hearing that their daughter was dead.
3. She described how the deceased came to Australia to study in late 2019. She was an "exceptional big sister" to her and her brother and a "wonderful aunt" to her three-year-old son in whose life she played an important part. She told the court how they became even closer during the COVID-19 lockdown when they lived together and how only a few weeks prior to her death the deceased told their mother that she was planning on visiting them in Thailand in December 2023. Instead, it was her body that was brought back.
4. Ms Khuntaras described how her sister's sudden death had a devastating impact on the family. They are still struggling with intense grief and coming to terms with the fact that she is gone. They have been overwhelmed emotionally and their lives have been disrupted in ways they did not expect. She is trying "to keep it together" as much as she can but finds it difficult. Her mother finds it difficult accepting that her daughter is gone and still keeps her sister's room "just as it was". They miss her every day and do not think that this feeling will go away.
5. It was clearly difficult for Ms Khuntaras to read her statement to the court. The grief expressed by her and her family is evidently still profound. A happy family photo taken in Australia on 1 June 2019 was annexed to the victim impact statement which must have been the last time the deceased's parents visited the deceased and her sister in Australia before the pandemic lockdown.
6. Section 30E(1) of the Crime (Sentencing Procedure Act) 1999 (NSW) ("the Sentencing Act") provides that when a victim impact statement is tendered in relation to an offence, the court must consider the statement and may make any comment on the statement that the court considers appropriate. The Crown did not make any submission under 30E(3) of the Sentencing Act.
7. As is often observed in sentencing matters involving the death of a person, no sentence that I might impose could adequately reflect the loss of a dear family member. Nor can any sentence possibly lessen the grief of those who were close to the deceased. On behalf of the court, I extend my sincere condolences to the family and friends of Manthana Khantharat. She was clearly loved by her family and friends and her death has clearly left a huge hole in their lives.

Objective seriousness

1. It is an important part of the sentencing exercise to assess the objective seriousness of the offence both to ensure that an adequate sentence is imposed and also to ensure that the sentence is proportionate to the gravity of the crime. [4]
2. The Crown submitted that the objective seriousness of this offence lies at or above the mid-range of offences of its type whereas it was submitted on behalf of the offender that it fell below the mid-range of objective seriousness.
3. The factors relevant to this assessment include the fact that the deceased was killed in her own home by an intimate partner. Although there was some history of violence in the relationship, the dominant feature of the relatively short relationship was the offender's intense irrational jealousy and his desire to control the deceased's behaviour.
4. The Crown accepted that the offender did not intend to kill the deceased. Although I am satisfied that this reduces the objective seriousness to some extent, [5] that factor must be balanced against the other factors including the intensity of the prolonged assault which led to her death. The assault was so intense that when police arrived at the scene, they observed the offender's hands to be lacerated and swollen from his repeated assaults on the deceased. By the time the offender's hands were photographed the following day they can be seen to be bruised and swollen from the assault. Although the assault was not planned, I am satisfied that it arose from the offender's ongoing and irrational controlling behaviour which reduces the significance of the lack of planning in the overall assessment. [6]
5. The forensic evidence established that the deceased managed to hide from the attack in the bathroom and might have briefly thought that she was safe, but the offender broke the door down and continued the attack. The deceased's final moments must have been terrifying. The "motive" for the attack was an ill-founded belief that by serving customers in the restaurant she was somehow being unfaithful to the offender.
6. Although it was almost an hour from the time that neighbours first heard the offender fighting with the deceased until the offender called for help, I cannot be satisfied beyond reasonable doubt that the physical assault lasted that long. The offender told police at the scene that "the fight" could have continued for up to 45 minutes but given that he minimised his actions it is difficult to rely on his estimate. Ultimately, I am satisfied that the assault must have taken some considerable time given the forensic evidence which showed how many rooms and locations the deceased was assaulted in.
7. The offender was intoxicated at the time of the offending. That is not a mitigating factor, [7] although I accept that it provides some explanation for the offender's actions. The motive for the assault was that the offender was insecure and jealous, and his alcohol intoxication fuelled that jealous rage.
8. Having considered all of these relevant factors, I am satisfied that the objective seriousness of the offence falls well within the mid-range.

The offender's subjective case

1. The offender's subjective case was put before the court predominantly through the report of Mr Sheehan who assessed the offender on 11 July 2024 via audio-visual link. Mr Sheehan noted that the offender spoke very limited English. He opined that the offender "tended to respond incompletely or with only partial relevance, which prolonged the interview significantly" but that, in his view, this was unintentional and arose from cultural and language differences. Mr Sheehan observed that the offender's account of his personal history while coherent "tended towards impressionistic descriptions", that he appeared to be of average intelligence with no obvious indications of cognitive impairment, and that he demonstrated only limited insight into his behaviour.
2. The offender is a 29-year-old man who was born in northern Thailand. He has one younger sibling and one younger half-sibling. His parents both worked long hours, his father as a police officer and his mother as a schoolteacher. He spent most of his time in the care of his maternal grandparents. Even though he reported no problems in the family with substance abuse, mental illness, crime, neglect, or significant childhood trauma, the offender described feeling "overlooked" and having an unhappy childhood with "no warmth". He also described witnessing persistent tensions between his parents with their frequent verbal arguments turning into physical aggression. They separated when he was 13 years old.
3. The offender attended a boarding school between the age of 12 and 15 years and lived with his father in a "police flat" upon leaving school. He reported living independently from the age of 18 years until he travelled to Australia when he was 22 years old. He initially maintained frequent contact with his family but that contact became less frequent over time and was ultimately reduced to speaking only twice a year and communicating via messaging.
4. The offender's relationship with his mother and his younger sibling has become closer since he entered custody. They speak on the phone weekly and have AVL visits regularly. He has not spoken to his father citing his father's work commitments.
5. The offender has no family in Australia. His family friend, Ms Yawiroeng who provided an affidavit in his support, is a friend of his father who agreed to "look after him" in Australia. He calls her "aunty", but they do not know each other very well. He went to school with her son in Thailand and lived with her for a while when he first came to Australia. She said he did not drink heavily when he stayed with her. They did not see each other after he moved out of her home, although they spoke on the telephone.

Education and employment

1. The offender completed Years 7 to 9 but from the age of 15 years he had issues with discipline, truancy and drug and alcohol use. His attempts to complete secondary school or vocational school were unsuccessful. He completed the equivalent of Year 12 when he was 20 years old. He has been consistently employed since he was 18 years old in positions in hotels, housekeeping, as a bell boy, and at a function room. He served 12 months compulsory military service when he was 20 years old. He then worked at a hospital before he obtained a student visa for Australia when he was 22 years old.
2. When he arrived in Australia, he found study difficult, so he worked instead. When his visa expired, he was restricted to "cash" jobs. He travelled to do seasonal farming work and also worked in restaurants as a dishwasher and later a cook.

Social and intimate relationships

1. Although the offender reported having a mix of friends in Thailand, he did not properly establish himself socially in Australia. His friendships in Australia tended to be transient and predominately with his co-workers and those that would drink heavily with him during or after work.
2. The offender never married and has no children. His only cohabiting relationship was with the deceased. He reported that while it commenced well, they came to "argue a lot". He described himself as a "jealous person", who felt insecure in the relationship and was suspicious that his partner was dishonest or too close with other men. Tensions would arise when he was intoxicated.
3. He described the conflicts increasing over the month prior to the index offence and that while they were mostly verbal, he sometimes smashed objects. He told Mr Sheehan, "I once slap her face and grab her by the hair but not that hard." His responses as to whether he thought that it was acceptable to hit a partner under any circumstances were noted by Mr Sheehan to be "only partially relevant and unclear".

Criminal history

1. The offender had no criminal history.

Drug and alcohol history

1. The offender began associating with substance abusers in his mid-teens and has had a persistent substance use problem since he was 15 years old. He consumed "illegal alcohol" (highly potent bootleg spirits) most days and smoked "Yabba" (a mix of methamphetamine and caffeine that is popular in South East Asia). When he was 17 or 18 years of age he stopped using "Yabba", but his heavy alcohol use has continued throughout his adult life. In Australia, he would drink up to a case of beer (24 cans) or a bottle of spirits on six to seven days a week.
2. The offender has not engaged in substance use counselling or intervention in the community or in custody.
3. In Mr Sheehan's opinion, the offender would meet the diagnostic threshold for a substance use disorder with the diagnosis of Stimulant Use Disorder and Alcohol Use disorder.

Mental health

1. The offender denied having been assessed or diagnosed with any psychiatric disorder during his childhood, however he reported having a suicidal ideation when he was 17 years old while affected by amphetamine. He could not bring himself to do the act even though he attached a noose to a ceiling in his father's home.
2. The offender's low mood persisted into adulthood. He reported feeling depressed most days. He had no interest or hope in the future. He was tearful, irritable and indecisive and had feelings of being "slighted", feeling inferior to others and being envious and resentful of others. His sleep was poor, and he reported somatic complaints. He saw a psychologist when he was 21 years old but was never prescribed psychotropic medications. Throughout his time in Australia, his mood remained the same.
3. During his time in custody, his mood has neither improved nor deteriorated, with the offender rating his current mood as moderate. He has had no therapeutic intervention in custody.
4. Mr Sheehan's provisional diagnosis was that the offender's symptoms were indicative of Persistent Depressive Disorder, but the limitations of the interview precluded more certainty in that diagnosis. He also noted that there was a presence of "personality pathology, with his long held resentments, poor self-image, emotional dysregulation, jealousy and insecure attachment being key indicators of compromised personality development". Mr Sheehan also opined that "these features are primarily of a borderline type, but again, a clear diagnosis remains out of reach".
5. The offender is in good physical health.
6. It was not submitted on behalf of the offender that there was anything in Mr Sheehan's report which would reduce the offender's moral culpability for the offending.

The offender's account to Mr Sheehan of the offence

1. Mr Sheehan noted that in the offender's account to police, "the violence was limited and not in keeping with the severity of the injuries sustained by the victim". Mr Sheehan noted that the offender repeatedly asked him whether he could not answer any further questions about the offence.
2. In his account to Mr Sheehan, the offender reported that on the night of the offending he was "very drunk and tired", that he could not recall what they argued about in the car and that he was "probably jealous of her serving the customers in the restaurant". The offender told Mr Sheehan that they continued to argue in the bedroom and "after we argue for a while, I lost my self-control and it became a physical fight".
3. The offender acknowledged that he damaged the bathroom door attempting to remove the deceased from the bathroom after she locked herself inside. While acknowledging that he smashed objects in the house, the offender denied hitting the victim with any object.
4. In Mr Sheehan's opinion, the offender's account to him, "clearly underplayed the level of violence used in the assault, tending to use the term 'we had a fight' rather than he attacked her, and not identifying how he came to cause the serious injuries to the [deceased]". Mr Sheehan noted that the offender, when challenged directly, said, "I admit I use a great force to hurt her, to the point she pass away. I punch her seriously. I did not have any intention to kill her …. I just wanted to teach her, for her to stop being a liar."
5. Mr Sheehan noted the offender's response to realising that his partner had died as being, "I was very shocked. I did not know what to do next. I am still sad. I receive my penalty. Nothing can be done." Mr Sheehan also noted that when asked how he could stop something similar from happening the offender's response that he "will not drink alcohol. Because of the alcohol, cause my partner pass away. My mental health was not so good". This was said to show only partial insight.
6. In Mr Sheehan's opinion, the offender's "mood and insecurity were aggravated by alcohol abuse, and these would seem the most obvious mechanisms in the commission of the index offence, being a jealous rage further disinhibited by alcohol."

Remorse

1. Section 21A(3)(i) of the Sentencing Act provides that remorse can be taken into account as a mitigating factor on sentence but only if the offender has provided evidence that he has accepted responsibility for his actions and acknowledged any injury or loss, or damage caused by his actions or makes reparation for such injury loss or damage.
2. The offender did not give evidence nor provide any letter of remorse to the court. He relied on his conduct at the scene immediately after the assault and the fact that his plea of guilty demonstrated remorse and spared the deceased's family from suffering through a trial.
3. Genuine remorse is a mitigating factor on sentence because it is indicative of rehabilitation and the unlikelihood of further offending. [8] Remorse is not established unless there is evidence that the offender accepts responsibility for his or her criminal conduct. Acceptance of responsibility must entail something more than a plea of guilty. [9]
4. As for the offender's conduct at the scene, it is to be accepted that he was very distressed at realising that he had killed the deceased. Although this conduct is suggestive of him being remorseful, it is also consistent with him suffering stress from realising the serious trouble he was now in. When spoken to by police at the scene, he denied punching the deceased and told them that the deceased fell down. When interviewed by police the following day, he seriously downplayed his actions and told police that the injuries to his hands were from work. In that context, I am unable to find that his distress at the scene was caused by genuine remorse in the sense of accepting responsibility for his criminal conduct.
5. Nor did the offender express any clear remorse to Mr Sheehan beyond telling him that he did not intend to kill the deceased and that he is "sad". I accept that to some extent the offender's inability to properly express any remorse must be considered in the context of his limited English and the need for an interpreter. Mr Sheehan acknowledged this fact twice in his report but nonetheless opined the following about the offender's remorse: "[The offender] shows partial insight into [his] offending, acknowledging his jealousy and the obvious truth that his actions caused the death of the [deceased], but showing some reluctance to directly address the severity of the violence used and tending to use language of a 'fight' as opposed to a sustained and brutal attack. His use of language is most likely self-protective (to preserve self image) but he will need to improve his ability to directly address the actions and the underpinning problematic attitudes underpinning his jealousy if he is to address his offending in a thorough way."
6. As the Crown submitted, it is notable that the offender has at no point expressed any love or respect for his partner.
7. Even having regard to the offender's language difficulties, I am not satisfied that he has displayed any genuine remorse for killing the deceased.

Prospects of rehabilitation/Risk of re-offending

1. In terms of the offender's rehabilitation, Mr Sheehan opined that he would benefit from alcohol and drug interventions and self-regulation programs but that he has limited therapeutic options in custody. He noted that standard group based programs would be unsuitable for the offender due to his English skills, but that his suitability may improve should he study English in custody.
2. In Mr Sheehan's opinion, should the offender's language skills improve substantially, programs such as the EQUIPS (Explore Question Understand Investigate Practice Succeed) suite of programs (Foundations, Addictions, Aggression, Domestic Violence) may be available to the offender but that programs such as the Violence Offender Treatment Program would be unlikely to be considered suitable given the absence of prior offending and violence.
3. Although this is the offender's first offence, I am satisfied that he will need to address his controlling behaviour, his alcohol intake and the lethal combination of these two risk factors if he is to truly rehabilitate. I am satisfied that although his prospects of rehabilitation are guarded, he will be older and no doubt wiser by the time he is released to parole. On that basis, I am prepared to find that he has moderate prospects of rehabilitation. I make the same finding in relation to his risk of reoffending.

Conditions in custody

1. It was noted by Mr Sheehan that the offender's ability to engage socially with other prisoners is limited due to his poor English and that while he has some interaction with other prisoners at work, he experiences loneliness given that he keeps to himself and rarely speaks to anyone. I am satisfied that his time in custody will be more onerous because of his limited English.

Comparable cases

1. The Crown identified seven comparable cases and the offender identified twelve. Although it is to be accepted that there is no 'range' of sentences for murders of this type, I have found the principles derived from eight of these cases to be of particular assistance. They were all instances of domestic violence homicides which involved an intent to inflict grievous bodily harm (rather than kill) and where there was no use of a weapon or any planning.
2. Both parties relied on R v Latu (No 3). [10] In that case, the offender was sentenced after trial to a term of imprisonment of 28 with a non-parole period of 21 years. There are a number of factual similarities to this case. The offender and the deceased were in an "on and off again" domestic relationship and were living together at the time of the offending. The offender inflicted serious injuries on the deceased including stomping on her head, back, ribs and leg and striking her with his fists on her face, head and body. A clump of the deceased's hair was ripped out during the assault. The deceased died from head injuries.
3. Unlike the offender, Mr Latu had a history of domestic violence against the deceased and against a previous partner. Further, he had beaten the deceased severely in another assault only 10 days prior to her death. He killed the deceased in breach of an Apprehended Domestic Violence Order. He had poor prospects of rehabilitation and was not remorseful, fabricating a story to distance himself from the offending. The sentencing judge found an intention to "hurt", "subjugate" and "terrorise" the victim, as he had on so many other occasions.
4. In R v Ly, [11] the offender was sentenced, after a discount of around 20%, to a term of imprisonment of 18 years with a non-parole period of 13 years (an undiscounted starting point of 22 years and 6 months). The offender and the deceased had been in a relationship for two years, which the deceased was planning to end following escalating tension between them. There was no history of violence in the relationship. The two met at a bar to return each other's property. CCTV footage from the bar showed several attempts at intimacy by the offender which were rejected by the deceased. After they left the bar, the offender smashed the deceased's head into the concrete pavement several times, causing facial injuries, brain haemorrhages and rib fractures. There was also evidence of attempted strangulation. The offender attempted to dispose of the deceased's body. He had a previous conviction for conspiracy to import heroin. He suffered PTSD and demonstrated "extreme" remorse. The offending was found to be out of character.
5. In R v Biles (No 2), [12] the offender was sentenced after trial to a term of imprisonment of 24 years with a non-parole period of 18 years for beating his de facto wife to death. The deceased died following punches and possibly kicks to the head, which broke her jaw and concussed her. She was only 18 years old when she died. The offender had previously assaulted the deceased by punching and kicking her on at least six occasions. The deceased and the offender shared a child. The offender had a background of disadvantage and was 24 years old at the time of the offending. He had verbal comprehension skills in the bottom 1% of the population and perceptual reasoning in the bottom 8% of the population. The offender was found to be belatedly remorseful and demonstrated poor prospects of rehabilitation.
6. In R v Birch, [13] the offender was sentenced after a 25% discount to a term of imprisonment of 20 years with a non-parole period of 13 years (an undiscounted head sentence of 26 years and 8 months). The deceased died as a result of an assault by the offender which fractured ten of her ribs, one or more of which pierced her heart. The offender and the deceased had been in a domestic relationship for three years. There was a history of domestic violence by the offender against the deceased. The offender had a background of extreme deprivation. He was found to be remorseful and to have sound prospects of rehabilitation.
7. In R v Johnson, [14] the offender was sentenced after a plea which attracted a 20% discount to a term of imprisonment of 21 years with a non-parole period of 15 years and 9 months (an undiscounted head sentence of 26 years and three months). A further domestic violence assault against the deceased was taken into account on a Form 1. The offender and the deceased had been in a relationship for six months. There had been violence in the relationship and there was evidence that the offender was jealous of the relationship between the deceased and her former partner. The deceased was planning to leave the offender. The offender came to the deceased's house intoxicated and drug affected and began assaulting the deceased. She died of multiple blunt force trauma injuries to her head and chest. The offender had a history of previous domestic violence against the deceased and another former partner. He had a deprived background and was of low intellect.
8. In R v Mahon, [15] the offender was sentenced to a term of imprisonment of 22 years and 6 months with a non-parole period of 16 years and 10 months, after a 25% discount was applied (an undiscounted head sentence of 30 years). The offender and the deceased had been in a de facto relationship. The offender had a record of previous domestic violence against the deceased and a former partner. The deceased had an Apprehended Violence Order against him at the time of her death, although the offender continued to reside at her house. The deceased died as a result of a severe beating to her neck and head, and strangulation. The offender also used an iron to inflict a burn injury on the perineal area between her buttocks after she was dead. He attempted to conceal the body and conceal his involvement in the offence. The offender was exposed to violence in his childhood. He was not found to be remorseful, and his prospects of rehabilitation were guarded.
9. In R v Kennedy, [16] the offender was sentenced to a term of imprisonment of 23 years and 4 months with a non-parole period of 17 years and 6 months, after a discount of 12.5% was applied (an undiscounted head sentence of 26 years and 8 months). The deceased and the offender were in a relationship which involved ongoing domestic violence towards the deceased. The deceased died from multiple injuries occasioned by her partner's fists. The offender had a background of mental health issues and was heavily intoxicated at the time of the offending. He was found to be remorseful though his prospects of rehabilitation remained uncertain.
10. Finally, in R v Jermaine Bolt, [17] the offender was sentenced to a term of imprisonment of 18 years with a non-parole period of 12 years after an early guilty plea (an undiscounted head sentence of 24 years presuming a 25% discount). The offender and the deceased were in a relationship in which both parties had previously been violent. The deceased died from injuries to her head, thorax and abdomen following an assault by the deceased where he punched, kicked and stomped on her and possibly threw her against furniture or walls. The offender had a dysfunctional childhood. He displayed high levels of remorse but guarded prospects of rehabilitation.
11. Clearly, none of these cases are truly comparable with the present case. Unlike some of these offenders, the offender had no prior criminal history but there was a history of controlling and occasionally violent conduct towards the deceased. The offender did not have a deprived childhood, [18] nor did he suffer from any cognitive impairment or mental illness at the time of the offending which might have reduced his moral culpability. [19] Although I am not satisfied that he is genuinely remorseful, he did plead guilty to the offence.

Special circumstances

1. It was submitted on behalf of the offender that the court should find special circumstances and vary the statutory ratio between the head sentence and the non-parole period. [20] The scope of the considerations relevant to the determination of "special circumstances" encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole, not just whether a longer period on parole is desirable. [21]
2. I am satisfied that the offender has and will suffer harsher custodial conditions than the average inmate due to the fact that he speaks only limited English and is isolated in custody. I propose to reduce the non-parole period relative to the head sentence on that basis such that the ratio of the sentence I will impose for the murder is reduced from 75% to just under 70%.
3. I note that the fact of possible or pending deportation is not a relevant factor in sentencing in New South Wales and I must put the fact that the offender will most likely be deported to Thailand upon his release at the expiration of his non-parole period to one side. [22]

Purposes of sentencing

1. I have had regard to the purposes of sentencing in s 3A of the Sentencing Act.
2. The sentencing principles in relation to sentencing for domestic violence offences are well established. It cannot be doubted that the community has become increasingly concerned in recent times at the levels of domestic violence being inflicted on women by men who are supposed to love or have loved them. The comparable cases I have referred to only highlight the extent of such offending. It has long been recognised that there is a need for specific and general deterrence as well as a requirement of powerful denunciation by the community of such conduct. Recognition of the harm done to the community as a result of crimes of domestic violence is also important. [23] As the High Court has observed: [24] "A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner."

Conclusion

1. The offender has been in custody since his arrest on 18 December 2022. I will backdate the commencement of his sentence to reflect that pre-sentence custody.
2. But for the plea of guilty, I would have imposed a head sentence of 26 years imprisonment. Applying the 10% discount to that starting point and rounding down slightly results in a sentence of 23 years and 4 months.

Orders

1. For the offence of murder Natthawut Tammajanta I sentence you to: 1. Imprisonment for a term of 23 years and 4 months to commence on 18 December 2022 and expire on 17 April 2046. 2. The non-parole period is 16 years and 4 months to commence on 18 December 2022 and expire on 17 April 2039. You will be eligible for release on parole on 17 April 2039. 3. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that Act and of its application to the offence of which you have been convicted. Your legal representatives are requested to advise you of the implications of that Act to you.

Endnotes

1. Crimes (Sentencing Procedure) Act 1999 s 25D(2).
2. Crimes Act 1900 (NSW) s 18(1)(a).
3. Table behind s 54B Crimes (Sentencing Procedure) Act 1999 (NSW).
4. R v Van Ryn [2016] NSWCCA 1 at [134]-[135] (per R A Hulme J, Leeming JA and Johnson J agreeing).
5. Charbaji v R [2019] NSWCCA 28 at [180] (per Beazley P, Price and Wilson JJ)
6. Kennedy v R [2022] NSWCCA 215 at [51] (per Adamson J, Garling and Adams JJ agreeing).
7. Crimes (Sentencing Procedure) Act 1999 s 21A(5AA); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [38] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, Gageler J agreeing).
8. Stojanovski v R [2013] NSWCCA 334 at [41] (Simpson J, Hoeben CJ at CL and Johnson J agreeing).
9. Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [34]-[35] (Maxwell P, Harper JA and T Forrest AJA).
10. [2019] NSWSC 951.
11. [2018] NSWSC 197.
12. [2017] NSWSC 525.
13. [2016] NSWSC 816.
14. [2015] NSWSC 31.
15. [2015] NSWSC 25.
16. [2013] NSWSC 1940.
17. [2013] NSWSC 895.
18. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
19. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
20. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
21. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57] (per Spigelman CJ, Grove and Sully JJ agreeing).
22. Afful v R [2021] NSWCCA 111 at [51] (per N Adams J, Hoeben CJ at CL and Hidden AJ agreeing).
23. R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179.
24. Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [55] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

Amendments 19 September 2024 - In the coversheet and at [140] "Matthawut" amended to "Natthawut" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024