Solicitors:
Ms S. Pearson (ODPP)
Ms E. Saunders (Legal Aid)
File Number(s): 2019/00012952
[2]
Judgment
Thi Tran appears for sentence with respect to a substantive offence of choking with intention to commit an indictable offence, namely inflicting grievous bodily harm with intent. The offence of choking which is relied upon is pursuant to the provisions of s 37 (2) of the Crimes Act 1900. Such an offence carries a maximum penalty of 25 years. I will say a little more about the nature of an allegation of choking in due course.
Ms Tran was born on 25 November 1998 and was 21 years of age at the time of this offending.
There is an Agreed Statement of Facts which has been tendered before the Court. Those Agreed Facts reveal that Ms Tran and another young lady, Jade Bentley, had been in a domestic relationship for approximately six months. A significant aspect of the Agreed Facts, because of the way in which it plays into one of the requisite elements of the principal offence charged, is that Ms Bentley took a prescribed medication called by the proprietary name of Metoprolol to assist with a heart condition whereby she would suffer, on occasions, an accelerated heart rate. The Court is aware that Metoprolol is in fact a beta blocker, which has the effect of both lowering blood pressure and also facilitating the slowing down of what can sometimes be a tachycardic condition.
R v Tran [2020] NSWDC 723 | Case summary | Zoe
The offender significantly, in the Agreed Facts, was aware of the intended effect of that prescribed medication. It is fundamental to the way in which this matter has proceeded that the Agreed Facts indicate that Ms Tran was aware that an overdose of the medication could have what are described in the Agreed Facts as "serious effects". For reasons which will become apparent, the Court has been asked to proceed on the basis that such level of knowledge constitutes a sufficient understanding of the likely medical and physical consequences of an overdose of the medication to her partner, were she to take an overdose, to satisfy the requisite mental intent. That is the required element to constitute an intention to inflict grievous bodily harm, with the intention of such an outcome being the effect. I will come back to that in due course.
On 10 January 2019 the two ladies had an argument. In the course of that disagreement or argument, Ms Bentley slapped Ms Tran across the face when she ascertained, according to the Agreed Facts, that the offender had been spying on her. Just what constituted the spying is not revealed. Ms Tran, the offender, called the police. The police arrived at the premises and Ms Tran, at that stage, sought to calm the situation and told the police that they had only been arguing. In the terms of the Agreed Facts, she protected the victim in the presence of the police.
After the police had gone, it is said that Ms Tran decided, and indeed said to her partner, that the relationship was over. She said she intended to end it and she packed up most of her possessions and belongings and departed the premises the next day.
Two days later on the weekend, Saturday 12 January, Ms Bentley was at home and she received a telephone call from Ms Tran. In the course of that conversation Ms Bentley asked Ms Tran to come over to the house, where of course she had been living for the previous six months. It in fact was a granny flat attached to some other premises. In due course Ms Tran went to the flat, where the two of them discussed their relationship.
Later that night the two of them went to bed and in due course fell asleep. Some time later they were both awake and continued to discuss their relationship. They both became emotional. It is clear from both the Agreed Facts and various of the other documents placed before the Court that there was a degree of what appears to be high emotion as to whether the relationship would or would not continue and whether one or the other did or did not want it to continue. The Agreed Facts indicate that Ms Tran cried for a period of more than an hour.
In the course of that emotional distress Ms Bentley became very concerned about her and called her mother because she did not know what to do. It is not clear whether that was her own mother or Ms Tran's mother but I suspect it was Ms Tran's mother. Be that as it may, Ms Tran continued in the course of this emotional distress to say it was all her fault, that she could not believe that the relationship had come to that stage, and that she, that is herself Ms Tran, did not deserve to continue to live.
In the course of comforting Ms Tran - Ms Bentley and Ms Tran were obviously still very close emotionally - and in the course of being comforted by the victim, Ms Tran said words to the effect of, "Wouldn't it just be easier if we killed ourselves together?" Ms Bentley responded by saying, "No, I don't want you to die." Ms Tran, in a state of high emotion and perchance a degree of depression at the apparent end of the relationship, said, "It would be just easier for us to give up now."
The conversation continued where it is stated in the Agreed Facts that Ms Tran said a number of things intending to either convince or persuade the victim, Ms Bentley, together with Ms Tran to kill themselves. Ms Tran said to Ms Bentley, "Your mum is sick and she'll probably die soon anyway, you have no friends and you have depression anyway. Why don't we just do it together and we can die in each other's arms?" Ms Bentley said, "No, I don't want to die, I'm not ready." That statement in the narrative is sufficient to give a clear impression of these two lovers, or erstwhile lovers perhaps by that stage, endeavouring to deal with the emotional completion or termination of the relationship in what can only be described as a highly emotional state.
At that stage Ms Tran went over to a cupboard where Ms Bentley's medication was kept. She retrieved the medication and it is said that Ms Bentley realised what Ms Tran was doing and tried to stop her. It is not completely clear as to whether Ms Tran's intention when she went to get the bottle was to ingest some of the medication herself or to force it down the throat of her erstwhile lover, or both. At all events, Ms Bentley went across the room and endeavoured to prevent the acquisition of the medication, or at least the utilisation of it, by Ms Tran.
At that stage there was a physical interaction between the two ladies. Ms Tran turned around and grabbed Ms Bentley around the throat and pushed her against the cupboard. Ms Bentley broke free and she was pursued by Ms Tran, who grabbed both of her arms and pushed her onto the bed. Ms Bentley tried several times to get away from the offender and get off the bed but she was pushed back down on the bed with one hand by Ms Tran. At that stage Ms Tran, in the midst of what I have already described as this highly emotional series of conversations and now physical interaction, said to Ms Bentley, "Maybe I'll just kill you first and then kill myself."
She then took tablets out of the bottle and put her hand around Ms Bentley's throat. With her other hand she squeezed Ms Bentley's cheeks until Ms Bentley's mouth opened slightly. It is difficult to get a proper picture of the precise physical interaction but by some means Ms Tran, using one of her hands, shoved three tablets into Ms Bentley's mouth. Ms Bentley immediately spat them out. Ms Tran then grabbed the tablets and put them into her own mouth. The Agreed Facts describe that the two ladies then kissed, in the course of which Ms Tran pushed the tablets from her mouth into the victim's mouth. Ms Bentley again spat the tablets out and she moved or wriggled further up the bed to get away from the offender. The precise circumstance of the kiss and how passionate it was, or whether it was mutual at the time, is not disclosed.
Ms Tran then took hold of Ms Bentley's wrists. It is said that she held both of the wrists with one hand before then grabbing Ms Bentley around the throat using two hands. The victim was pinned to the bed and she was strangled until it appeared that her face started to turn purple and her cheeks were swelling. She was unable to draw breath and she felt scared. She later said she thought she was going to die. Ms Bentley described feeling increasingly weak and unable to fight back against Ms Tran. The Agreed Facts state that she lost consciousness briefly. There is no further particularity as to what one is to draw from the description of a loss of consciousness "briefly".
When she regained consciousness, she saw that Ms Tran was again endeavouring to put the tablets, or some of the tablets, into Ms Tran's own mouth. Ms Bentley moved immediately towards Ms Tran and took the medication away from her. Ms Tran became upset about what had happened and what she had done. Ms Bentley, it is said, was endeavouring to calm her down. The two erstwhile lovers then fell asleep in the same bed.
The following day, 13 January, Ms Tran left the premises to go to her work. Ms Bentley remained at the house. In the course of the morning Ms Bentley became very distressed and emotionally overwhelmed about the events of the previous night. She made a telephone call to Ms Tran. Ms Tran said to her, "We should've just killed ourselves together. You really want to do it so just do it." Ms Bentley then ended the phone call.
At that stage, no doubt disturbed about Ms Bentley, Ms Tran called triple-0 in order to have emergency services attend to Ms Bentley. Ms Tran said in the course of that triple-0 call, which I do not have before me, that Ms Bentley had called her, which was true. She said that Ms Bentley had said she "had done it" and she was concerned that she was self-harming with a knife. Police and ambulance were dispatched to Ms Bentley's home for the purposes of checking on her welfare.
On arrival, police were refused entry by Ms Bentley. She was clearly distressed and refused to open the door to the police. In due course the police were able to calm her down and she told police about the events of the previous night. She told them that the caller to emergency services, namely Ms Tran, had choked her and had tried to force medication down her throat. Police observed that there was bruising on her neck and a laceration on her left wrist, as well as bruising to her upper chest.
Ms Bentley in due course made a detailed complaint to police regarding the events of the evening before, including that Ms Tran had kept telling her that they should kill themselves; that when she got on top of her on the bed she had her hand around her throat; that Ms Tran had taken three tablets and tried to shove them down her throat; and that she in the course of the physical interaction had tried to push Ms Tran off but she had kept going. Photographs were taken of her injuries and in due course Ms Tran came back to the premises, where she was spoken to by police.
Both of the young women would appear to have been under sufficient apparent emotional and psychological stress at that stage that police took action pursuant to s 22 of the Mental Health Act 2007 and each of the young women was conveyed separately to hospital. After the relevant psychological assessments and psychiatric assessments under the Mental Health Act, they were released, or at least Ms Tran was released to police custody and in due course she was charged with the matter before me.
In the course of the police actions that day they took a written statement from Ms Bentley. They undertook a search of Ms Bentley's home. They found a blister pack containing 50 milligram tablets of the Metoprolol.
Some days later, Ms Bentley spoke with police by telephone and indicated that she did not want charges to proceed and she wanted any charges to be dropped. She agreed to go with police again to the hospital for the purposes of an examination, and this time apparently a physical examination.
In the course of her time with the police Ms Bentley variously told them that she had made it all up. She told them that she had lied and left out things that she herself had said to Ms Tran. She told police that she had told Ms Tran to do it, saying that she had uttered words to the effect of, "Kill me. Do it, do it." She said that she had just lain on the bed and let her do it. She said that she had told Ms Tran to put the pills in her mouth. She said that the two of them had laughed about the events when she spat them out. She said that Ms Tran had said, "Ew gross." when the tablets had been spat out. According to the discussion that Ms Bentley had with police at that stage, she told the police that Ms Tran had even stopped partway through strangling her to check whether she was all right. She said they then had something to eat. She said that the two of them knew how you could press on the neck so that you could still breathe if you needed to. She told police that the mark on her neck was, in her words, "I swear to God this is a hickey." She told police, "I've had worse ones than this. I love the look of them. I've even had ones that have been that big it looks like someone hit me."
She said that her own mother had gone up to the gaol - Ms Tran apparently being refused bail at that stage - to speak with Ms Tran. She said to the police that she was telling the truth now and it was all because she, Ms Bentley, had told Ms Tran to do it. She said Ms Tran did not want to do it and she did not deserve to be in gaol. She said that she would "tell everything, not because we're going to get back together, because that is what happened" and she repeated that it was all her fault and she had told Ms Tran to do it and she said because she "liked it".
I should note that in the course of various discussions with other professionals there is a distinct or at least an apparent suggestion that there had been consensual and mutual choking episodes previously. This is not the occasion to go into any further detail about the purported utilisation of such physical actions, which of course are fraught with danger, whether in the course of sexual interaction or otherwise.
In due course Ms Bentley also made various retraction statements to hospital staff and additional statements to police intending to have the prosecution of Ms Tran not proceed. She even went to the extent of making a second statement to police on 13 February with that purpose.
On the day that she had been taken to hospital, as I have already indicated, Ms Tran was released from Liverpool Hospital. She was arrested by police, into whose custody she went, and she then went to the Liverpool Police Station where she participated in an electronic interview. She indicated in the course of that first interview that the two of them had met five or six months previously at a club. On the Saturday they had gone back to Jade's, that is Ms Bentley's premises, where they had talked and said they should just die together and she choked Ms Bentley because the victim, that is Ms Bentley, would not let Ms Tran take steps to kill herself.
In due course the interview needed to be terminated because Ms Tran became so emotional. She said that she had bad thoughts and requested to go back to hospital. She was subsequently assessed by New South Wales Ambulance officers, who it is said in the Agreed Facts "cleared her", presumably that being a reference to any further detention under s 22 of the Mental Health provisions.
She proceeded to participate in a second recorded interview. In the course of that interview she told police that she had said to Ms Bentley that they should die together. She said that she tried to kill herself first by taking the tablets but that Ms Bentley had made her spit it out. She said that they were intending to die together because Ms Bentley wanted to die. Ms Bentley had told her previously, she said, that only her heart medication would work if she wanted her heart to slow down. Ms Tran said that she tried to kill Ms Bentley but could not bring herself to do it. She said she tried to choke her but stopped when she saw the victim was nearly stopping breathing. She saw the victim's face get purple and she could not continue. She thought that Ms Bentley had indeed lost consciousness and Ms Tran thought it was for a few seconds. She said Ms Tran did not struggle much and Ms Tran said that she realised that she had almost killed Ms Bentley. She agreed that she had choked her more than once in the course of the evening and she said it was different to the events when they choked each other for, as she described it, for fun. She told police that she tried to force Ms Bentley to take some tablets but Ms Bentley would not open her mouth. She said that she had tried shoving two or three tablets into her mouth and that she was on top of her on the bed trying to force the medication into her mouth. She said that when she tried to do that, Ms Bentley did not want to take the tablets. She agreed that she had said the words that are included earlier in these Remarks regarding the fact that Ms Bentley's mother was sick and would probably die soon and that she had no friends and had depression.
She was then charged with the present matter. An apprehended domestic violence order was also put in place, which included that she must not approach or contact Jade Bentley in any way other than through a lawyer.
In the course of Ms Tran's incarceration between 16 February 2019 and 14 March there were six separate occasions on which Ms Tran and Ms Bentley spoke over the telephone. Some of the conversations, portions of which are extracted in the Agreed Facts, are consistent with the attempts by Ms Bentley to have the police discontinue the proceedings.
In one call with the offender, Ms Bentley told Ms Tran that she had been to see the detectives and, in her words, "did some more to help you the other day". Ms Tran indicated, "I know. I heard." I would take that as likely, even though I do not have the precise date, to be a reference to the second or subsequent statement provided by Ms Bentley in which she sought to have the proceedings discontinued.
Ms Bentley in the course of a conversation told Ms Tran that everything had been resolved. She told her that she should, that is Ms Bentley told Ms Tran, that she should "really talk about how badly unstable you were before what happened and how you just snapped". The victim also said to Ms Tran, "You need to talk about it as much as you can because that's the only way the case is going to help you get out as soon as possible. If you're not doing anything you're not going to be tried for mental health, which is worse. It could get longer."
In a subsequent call, Ms Tran apparently planned with a friend to have Ms Tran call back later that afternoon with a view to being able to speak to Ms Bentley, who presumably would attend the premises. Later that afternoon Ms Tran did call back that same friend, it is said with the intention of speaking with the victim, but Ms Bentley was unable to speak with her on that occasion and a plan was put in place to speak the next day. There is no reference to any further conversations and I rather deduce that there was not one the following day. Ms Tran, however, indicated, "I really miss Stephanie", which is the name she used for the victim, and said, "I want to talk to her every day if I can."
In dealing with the subjective circumstances of Ms Tran herself, the medical records from the period of her first incarceration have been included in the material tendered as exhibit 2 by Ms Stares of counsel, who capably acts on behalf of Ms Tran. The Justice Health notes give some greater detail of the level of emotional and erstwhile romantic attachment between these two ladies. I make passing reference to those nursing notes, which in the way of such records are reasonably voluminous.
She was initially received into the unit conducted by Justice Health on 15 January 2019. It was noted that it was her first time in custody and there were potential dangers of self-harm. The detail touching upon attempts to previously overdose in the course of the events that I have described earlier in these Remarks was noted by the nursing staff, and at that stage Ms Tran was charged not simply with the choking offence which is currently before me, but at that stage she had been charged with attempted murder. The nursing notes recorded that fact and also the fact that she had been advised by police that she was not able to contact her partner.
A history was taken of previous depression for a period of about six months some two years earlier. The offender described herself to the nursing staff as having been depressed and not able to sleep for a long period of time. She discussed problems with her appetite and gave a previous history of an attempted suicide. She described the relationship breakdown and the attempts to swallow heart medication and the fact that the medication had been spat out. She indicated, consistent with the plea entered before me, that she knew that the ingestion of the medication of her partner would hurt her.
She described historical matters, including an incident when she was about 13 years of age and her mother had a very bad gambling habit. The reaction of the 13 year old child in the self-reporting, that is consistent both in the nursing notes and in a psychologist's report, are that she went out to lie on the road, hoping to be run over. She indicated that nothing happened for an hour and it was an attempt by her to get her mother to listen to her so that she would stop gambling. She had another self-harm attempt where she "cut herself when she was a kid", in her terms.
She spoke throughout the various interviews, the notes of which are recorded, in an extremely tearful fashion and was continuously focusing on what she perceived as a need to contact her partner, that is Ms Bentley.
Over the following days, the hospital notes indicate a high level of emotional distress in the course of various interviews conducted by different medical staff with her, including her repeatedly saying that she missed Jade. She regularly started crying and she was difficult to converse with. She described Jade as being the victim and her partner. She said she was possibly at home, and ultimately on 18 January the interview being conducted at that stage was required to be terminated because it was impossible to understand her. She could not stop crying. She described in a nursing review and an interview conducted the following day that her heart was aching every night. She was distressed that she could not see her partner. She continued to indicate her desire to make contact with her partner.
She, by 25 January 2019, was taken to the Mental Health Unit because she had been refusing to eat or drink. She said that she was so upset that she could not speak to her girlfriend because of the apprehended violence order and she continued to decline food and water for a period of time.
By 28 January the notes indicate that she told the medical staff that she did not want to die and that she was prepared to eat and drink by that stage. Because of a lack of food or drink and fluid intake, however, the following day she was placed into a clinic cell, which I would understand to be a reference to a cell monitored by camera. Ultimately some time later, by 7 February 2019, it was determined that she was fit enough mentally and physically to be transferred out of the unit.
By 18 March the clinical notes indicate that some aspects of the police brief must have been served and notwithstanding the earlier conversations to which I have made reference touching upon the breach of the apprehended domestic violence order, by 18 March, having read various statements, she said that she felt betrayed by her ex-partner because of what her ex-partner had written in the brief. Ms Tran stated that she loved her ex-partner so much and she had ended up in custody because of her, that it had been their desire to both self‑harm together so that they could stay together forever.
In addition to those notes the defence tender bundle includes a report from LSC Psychology under the hand of Dr Katie Seidler, who is a clinical and forensic psychologist. That report, dated 7 May 2020, dealt with a deal of the diagnosis, as it were, and analysis of Ms Tran's psychological state and her history. One of the significant features was that her pervasive mood throughout the interviews with the psychologist was perceived as being melancholic. She had a restricted range of affect and appeared to be very emotional when discussing the circumstances around the offending. That is, of course, consistent in my view with what was observed in the Mental Health Unit and the Medical Unit when she was first detained.
The Justice Health documents had been made available to the psychologist, together with the statement of Agreed Facts, to assist her in determining the appropriate surrounding circumstances of Ms Tran. She spoke of the situation that, while some of Ms Tran's friends were recreational drug users, she herself had never been actively involved in what could be described as an anti-social peer culture. She had been apparently married for some short period of time but identified, as she told the psychologist, as bisexual and to have relationships with both males and females. She indicated that she had difficulties to some degree in intimate relationships and in her own description of it "fell in love quickly" but had generally poor boundaries when it came to intimate relationships.
She appeared to take responsibility for her partner's emotional wellbeing and welfare in the past, and that is not simply Ms Bentley but prior partners, and described appearing to lose herself emotionally in her partners such, in the terms used by the psychologist, that "her own identity becomes porous". She spoke of partnerships with vulnerable and dysfunctional people and having had relationships that were both turbulent and often volatile. The previous relationship that had culminated in marriage had been some three years earlier but it had lasted less than a year. I rather take it that that must have been when she was about 18 years of age.
In relation to the offending, Ms Tran described the turbulent and dysfunctional aspect of the relationship, culminating in the pair often arguing frequently and leading to the breakdown of the relationship at the time of the offending behaviour. She described being concerned about Ms Bentley's emotional wellbeing and how the two of them had argued because Ms Tran had sought to control Ms Bentley's behaviour and that such attempt was resisted. She described to the psychologist that at the time she tried to choke Ms Bentley - and I had rather taken that to be a reference to the attempt to choke which led to the loss of consciousness - that she was hoping Ms Bentley would pass out so that Ms Tran could then kill herself. I will touch briefly upon that expression of intent shortly.
It is clear that the psychologist's perception that Ms Tran at that stage had little insight into her own mental health and psycho-social challenges and that her self-esteem was both poor and fragile, the long history described of emotional over-control alternating with periods of intense dyscontrol, as described by the psychologist, was manifest. It was said that her choice in partners was often poor and her skills for dealing with interpersonal conflict was limited.
In summary, the psychologist was of the view that the offender was a vulnerable and disordered woman, who had significant mental health and interpersonal problems which were likely consistent with borderline personality disorder. I note that, although there were features that were most likely consistent with such a diagnosis, that no formal diagnosis pursuant to DSM‑V has been undertaken. It is said that the offence culminated as an expression of Ms Tran's high levels of distress and feelings of being overwhelmed, such that she did not know how to cope with what was happening - that I take as a reference to the breakdown of the relationship - and consequently reacted impulsively and affectively.
There is, in addition to the material to which I have made reference, a victim impact statement from Ms Bentley. That impact statement, dated 18 May 2020, is to be given appropriate weight. It, of course, is not on oath and it is not subject to cross-examination but it, as is so often the case, provides a level of insight into the effect of a criminal offence on a victim. Ms Bentley indicates that the offence has changed her a lot. She has described her mental health as being worse and said that she has more anxiety and panic attacks from the smallest things that remind her of the offender. She said that if she sees somebody that looks like her former partner, that her heart, in her terms, "sinks". She is afraid to be alone on the street and is scared that she might see Ms Tran or somebody that looks like her. She said she gets easily triggered by things that remind her of things they did together. She said she is scared to go out on her own. She said that she did see her once in a public place and after that she was a mess "for ages". I do not have any detail of that, although I do note, as I will come to shortly, that Ms Tran in due course was released from the custody that she had initially entered.
Ms Bentley said that she herself had had two admissions to the Mental Health Unit at the hospital directly related to the aftermath of what happened. I am uncertain as to whether either of those was pursuant to the section 22 scheduling that took place on the day that the police first arrived, nor do I have any notes in relation to any detail of that.
Ms Bentley described that the events made her suicidal and wanting to harm herself. She said she received a deal of medical treatment in order to achieve a level of stability. She went on to describe that she had quit her work - although I am uncertain as to what it was - and for a long time would simply be depressed and stay at home. She did not feel that she could leave the house. She described having had seizures due to stress, which had not happened previously. I note that there is no additional material in the form of medical assessments or the like to further any consideration of that aspect of her description of the effect of the offences upon her.
A sentencing assessment report was prepared, which describes Ms Tran currently residing in stable accommodation with her mother. The relationship with her mother is described now as positive and supportive. She had employment for a period of time earlier this year, that I will touch on shortly, where she got work as a nail technician.
Her attitude to the offence is described by the Community Corrections officer, who is the author of this report, and it was described that she attempted to minimise her behaviour by making reference to the fact that they would often choke each other for fun. That, of course, was entirely consistent with what was included in the police record of interview. The circumstance of there being a pattern of conflict in the relationship which would lead to regular arguments was noted and Ms Tran's mother advised that she had never known her daughter to be violent towards anyone prior to the commission of the current matters.
She was described by the experienced Community Corrections officer as appearing to display some insight into her offending behaviour and that she had acknowledged the harm she caused the victim. Ms Tran indicated a willingness to undertake intervention as required and to undertake a community-based domestic violence program. She also indicated she was willing to undertake community service work and she was described as polite and forthcoming.
The Community Corrections officer described her as being assessed with a low risk of re-offending and the Community Corrections considered that there needed to be no conditions other than a supervision condition in order to implement the type of plan they had in mind should she be released into the community. She was, of course, and predictably, assessed as suitable to undertake community service work were that an available option.
The offence before the Court is one which arises under a section of the Crimes Act which has an historical background. I propose to touch briefly upon it because the submissions on behalf of the offender, on the one hand, and on behalf of the Crown, on the other, are at somewhat polar opposites as to the way in which this offence ought be assessed.
Section 37 of the Crimes Act was for many, many years set out in terms of an attempt. Section 37, in its pre-2014 form, prescribed that "whosoever by any means attempts to choke, suffocate or strangle a person, or by any means attempts to render a person insensible, unconscious or incapable of resistance, with intent in any such case to enable themselves to commit an indictable offence" would thereby commit an offence against that section. The penalty prescribed for such acts was 25 years.
There was a perceived difficulty that the then Director of Public Prosecutions brought to the Attorney General's attention whereby for in many, indeed most circumstances, the injury sustained as a consequence of choking or strangling, where such physical injury occurred, was itself part of the very act of choking. As a consequence, many circumstances where a choking occurred led simply to the preferring of an assault charge of one form or another, predominantly common assaults according to the statistics, and no doubt on some occasions an assault occasioning where actual bodily harm was sustained. On rare occasions, choking was able to be pursued separately because the intent that was required was to commit an indictable offence separate from the choking itself.
Factual examples abound in numerous of the cases that one can research in this area. Often choking was accompanied by an intention, sometimes resulting in the act, sometimes not, but an intention to carry out a separate act such as sexual intercourse without consent or such as robbery, by way of example. Those indeed were two of the examples referred to specifically in the Second Reading Speech in the amendments which were brought about in 2014.
In the Second Reading Speech, the House was told in relation to the introduction of the Crimes Amendment (Strangulation) Bill 2014:
"Strangulation is a potentially fatal act, which causes significant physical and psychological trauma to victims. It is prevalent in domestic violence incidents. The use of strangulation in this context is a recognised indicator of the risk of further harm to victims of domestic violence, including homicide."
The Second Reading Speech went on:
"The Director of Public Prosecutions [DPP] has raised concerns with government as to the adequacy of the current provisions concerning strangulation in section 37 of the Crimes Act. The DPP identified two obstacles under the current provisions in appropriately charging and prosecuting strangulation.
Firstly, section 37 has limited application in many domestic violence cases because it requires an intention to commit a separate indictable offence, such as sexual assault or robbery. Where the assault itself is the act of strangulation or choking, section 37 in its current form cannot apply.
Secondly, more serious assault charges such as assault occasioning actual or grievous bodily harm are difficult to establish because they rely on proof of particular bodily harm. However, many people who survive strangulation have minimal visible external injuries, despite the seriousness of the offence.
An insidious aspect of strangulation incidents is the significant fear and psychological damage that can be inflicted on a victim without any physical injuries being apparent. Regardless of an actual loss of consciousness, assaults of this nature which involve the exercise of extreme psychological control can be terrifying to the victim. The trauma suffered by a victim of strangulation can be invisible, yet both devastating and long term."
The introductory speech also noted:
As a result of the shortcomings of the current strangulation provision in the Crimes Act, 70 per cent of domestic violence assaults involving strangulation are charged as common assault in New South Wales. Common assault attracts a maximum penalty of two years imprisonment. Statistics obtained from the Bureau of Crime Statistics and Research show that the average prison term for domestic violence assault involving strangulation is six months.
As a consequence, the amendments brought to the Act endeavoured to simplify the understanding of what was endeavoured to be proscribed and the terminology included rendering a person unconscious, insensible or incapable of resistance, such that actual proof of a person becoming unconscious was not necessarily required in order to establish the aggravated forms of the amended offence provisions.
Section 37(1) required the bringing about of such a state, that is either unconsciousness, insensibility or an incapacity of resistance, and if somebody in fact became unconscious it did not require specific intent. It was sufficient if, in the course of choking, such an event occurred which would inevitably be found to have been occasioned by at least recklessness.
Section 37(1) attracted a maximum penalty of ten years. Section 37(2), which maintained a maximum penalty of 25 years, required not only choking, suffocating or strangling so as to render the other person unconscious, insensible or incapable of resistance, but it required the added ingredient that the act of choking or strangling was done concomitant with an intention of enabling the choker to commit another indictable offence. The examples given, of course, by the Parliamentary Secretary who introduced the Second Reading Speech was of sexual assault or robbery.
The present matter caused the Court considerable concern in understanding what it was that was the other indictable offence, that is an intention to occasion grievous bodily harm with intent to achieve such an outcome, in the circumstances of a choking that led to unconsciousness. That issue was raised with the parties as a conceptual difficulty that I felt on a proper understanding of what 37(2) was intended, on my reading of it, to deal with.
I must say that the circumstance whereby the Crown in New South Wales appear regularly, in appropriate circumstances, to rely upon an intention to intimidate as the additional substantial offence, may be an artificial construction which the Courts have not taken any issue with. I must say, for my part, a charging under s 32 of choking with intent to intimidate as being the additional indictable offence is somewhat counterintuitive because to my mind most factual circumstances of choking where intimidation is intended, the choking is what causes the intimidation rather than it being another indictable offence. In my mind, there is a degree of artificiality in that being relied upon in order to promote an offence under 37(2) rather than 37(1). That is, however, somewhat of a tangent to the factual scenario that I am required to consider.
I was troubled by the proposition that an intention to inflict grievous bodily harm where the act of choking in fact rendered Ms Bentley unconscious briefly or for a few seconds was said to be the insertion of tablets into her mouth, it being, even in the absence of medical evidence, agreed as between the parties that such an act could have the potential to cause what at law would amount to grievous bodily harm. Accepting that proposition, even absent specific evidence regarding the effect of beta blockers on such a person, but I accept it as it is not in contest, the way in which the acts before me are said to conform with the requisite elements of s 37(2) has been the subject of, firstly, discussion in the course of the sentence proceedings and, secondly, the subject of some supplementary written submissions signed by both Ms Stares of Counsel on behalf of her client and Ms Pearson, solicitor, on behalf of the Director's office.
That outline of submissions, which I will formally have marked for identification and placed with the court file, indicates that the Agreed Facts in short include the taking of the medication from the cupboard, the various attempts which I have described earlier in these remarks of pushing tablets into the mouth of Ms Bentley with the intention that she would suffer serious harm and that the intention to inflict such harm was maintained and can be taken by the plea of guilty to have been maintained at the time that she embarked upon the choking which culminated in unconsciousness. There is, in my view, a degree of artificiality in that construction. It is, putting it in blunt and colloquial terms, the shoe-horning of the facts into the requisite legal elements.
I note the reserve that I have in that regard but I accept the submissions made by both the Director's representative and by counsel for the offender that the offender does not wish in any way to traverse the plea, she does not resile from the plea of guilty to the elements of the offence as required and that the construction put upon the actions, namely that at the time she commenced to choke leading to the loss of consciousness, she carried at that point in time an intention to force tablets into the other lady's throat to get her to swallow it to have the effect of causing the serious damage, which would constitute the offence under grievous bodily harm with intent.
Two aspects caused me concern specifically. One was the outlining of an intention to kill, which of course I must be careful and expressly cautious about not being led into error as a consequence of failing to give full force to the principle articulated by the High Court in R v de Simoni [1981] HCA 31; 147 CLR 383. The attempted murder charge was withdrawn and is not before me and indeed any expressions to the effect of an intention to kill I specifically disregard. The intention to disable, as it were, or render insensible Ms Bentley so that the offender could kill herself struck me as to some level inconsistent with what is advocated regarding the acceptance of the plea, but ultimately I am content to accept that the factual scenario placed before the Court, together with the plea of guilty itself, does conform, albeit in my view somewhat artificially, with the requirements or the requisite elements of s 37 subs (2).
I should make it patently clear, without any intended insult to the prosecutorial discretion that rests and vests in the Director's office, that the facts of this matter I would have thought were adequately covered by a charge under s 37(1), carrying a maximum penalty of ten years. It may be that the opinion to prefer a charge under 37(2) to some degree has been tempered by the authorities to which the Crown has made reference in the course of the submissions on sentence and copies of which have been supplied to me. I will make reference to them only briefly because, in my view, to a considerable extent they are quite distinguishable from the circumstances and the facts of this matter before me.
The first, in no particular order, of the cases to which reference was specifically made is R v O'Connor [2014] NSWCCA 53. That was a particularly savage series of, if I may go to the colloquial description, rapes of a partner of the offender in circumstances where the offences of aggravated sexual assault had taken place where he had, on two occasions, choked his partner. The first choking resulted in her falling to the floor and striking her head, which was count 1 in the indictment, and later picking her up from the floor with his hands around her throat and choking her on a lounge, where she described the feeling as "a thousand times worse" than the earlier occasion. The offender said that he should have killed her the first time and eventually she lost consciousness. When she came to and regained consciousness she found that her hands had been tied behind her back with cable ties, she was gagged with a bloodstained sock, she had urinated in her underwear and the offender was waking her by slapping her face, crying "Wakey, wakey." The circumstances of that violent and disgraceful attack are then set out in full detail, both at first instance in the judgment of his Honour Judge Haesler of this Court and in the principal judgment of Adamson J in the Court of Criminal Appeal.
The circumstances before the Court in that matter in which now Wilson J appeared for the Crown on the appeal were that the Crown's contention that the conduct was in the upper range of criminality, the offender had been on conditional liberty at the time, the brutal attack had occurred because his partner had declined his sexual advances, and the ligature marks, significant bruising, the haemorrhaging from her eyes and her loss of consciousness placed the matter at the high end of criminality. Ultimately the indicative sentences of four years for each of the two choking offences under s 37 resulted in very substantially-increased sentences in the Court of Criminal Appeal and close to a trebling of the sentence that had been imposed at first instance. I am aware that an application for special leave was refused by the High Court.
In the course of the judgment in O'Connor, Adamson J made reference to McKechnie v R [2006] NSWCCA 13 where the victim in that particular matter was a stranger who had been attacked on a beach. She had been choked and whilst choking her and forcing her head into the sand the offender penetrated her with both his fingers and his penis to ejaculation. She suffered serious injuries to her throat, there were areas of broken skin and bleeding, and the lengthy criminal record, including previous offences of attempted choking and other violence and being at liberty on bail at the time of the offence led to concurrent sentences of 15 years, with 11 year non-parole periods.
I should add that the initial sentences in O'Connor had been increased to 13 years, with ten years three months, from the original sentences at first instance, which were substantially less.
The next matter which the Crown separately provided to me in full was R v MW [2007] NSWCCA 291, where the Crown had appealed against manifest inadequacy. There had been a sexual assault by the offender of his 17-year-old stepdaughter. He had lured her to a reserve, where he endeavoured to gag her with a tea-towel and tape that he had taken for the purpose. He forced her to the ground. He told her it was payback for her mother having called the police following an earlier incident of violence. He threatened to kill her. In the course of choking her he was masturbating throughout the course of the actions and in the course of her resisting his attempt to have penile vaginal intercourse he choked her until she lost consciousness. When she regained consciousness she found herself to be semi-naked and lying under a pile of sticks in the reserve.
In Munn v R [2009] NSWCCA 218 the brain-injured applicant had been tried and ultimately sentenced for assault occasioning actual bodily harm and a further attempt to choke, contrary to s 37. The circumstances in that matter included an attack which took place following a romantic relationship, in a motor vehicle where the victim was driving the car and in the course of driving the offender began to punch her in the head. The victim's car had a collision with another car. It ultimately came to a stop and inside the car her former partner began choking her and continued to choke her in those circumstances, even when passers-by were endeavouring to force themselves into the car to stop him. She was choked to a stage where she was frothing blood from her mouth. He had a lengthy criminal history with many offences for violence and dishonesty, and a sentence of nine years, with five years six months, being the individual sentence for the actual choking, the assault occasioning being separately charged under s 59.
The appeal against severity was dismissed. In that particular matter RA Hulme J, with whom Spigelman CJ and McClellan CJ at CL agreed, said, "There will be varying degrees of criminality in an offence contrary to s 37." They went on to note, of course, that "When that attempt results in the victim becoming unconscious the offence is one of considerable gravity", that being a quote that has found its way into the Crown's urgings in this matter.
The case of R v Cutrale [2011] NSWCCA 214 was also referred to, where a similar violent assault, including, it would appear, whilst being unconscious she suffered the indignity of intercourse and the discovery later by a physical examination of semen being found in her vagina, that act having occurred whilst she was unconscious, she having been attacked and dragged into a park for the purposes, led to ultimately an overall term of nine years, with a non-parole period of six years six months. That was held to be insufficient to mark the gravity of the offences and indeed I note that the two acts, that is the choking and the subsequent intercourse without consent, had resulted in concurrent sentences. There was no challenge to the length of the individual sentences but the concurrency was the subject of intervention by the Court of Criminal Appeal.
It is clear that the various matters to which the Crown has specifically taken this Court involve degrading sexual conduct in the majority of those cases that elevated the circumstances to a high degree.
In endeavouring to look at cases dealt with in the District Court, I have had recourse obviously to the JIRS statistics, noting of course that they are a blunt instrument and the limited utility that may be derived from them. I note the recent observations of the High Court in The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, notwithstanding the attraction of the observations of Gageler J in that regard.
Ms Stares has pointed the Court to R v Hollaway [2016] NSWCCA 166, which was at first instance a decision of his Honour Judge McClintock of this Court, where there was subsequently a Crown appeal. It suffices for present purposes to note that there had been a number of prior matters involving a finding of manslaughter and various other aspects which led to complications with overlap between different sentences. Ultimately with respect to the discrete offence under 37(1), which Ms Stares accurately points out has some factors of coincidence with the present matter, there was ultimately a finding at first instance in relation to the separate offence regarding the s 37(1) offence in that matter of a term of imprisonment of one year nine months, with a non-parole period of one year. There were other fixed term sentences that accumulated and gave rise to the ultimate outcome and the appeal by the Crown in that particular matter was dismissed. There was no criticism of the sentence for the primary offence at first instance.
The researches that I have been able to undertake also led to two other cases which are at least worthy of some focus. On 18 January 2016 her Honour Judge Tupman of this Court in R v Peifeng Yu [2016] NSWDC 257 dealt with a raft of offences of physical and mental intimidation of his wife by Mr Peifeng Yu. There were a series of physical interactions, the detail of which is set out at length in her Honour's judgment, and in the course of the various physical assaults, which included what amounted to almost torture, with the victim's hands being thrust into boiling water at one stage, subsequently thrust into ice, being assaulted with a belt which left her with belt buckle marks on her skin and a series of violent physical assaults, the following day in the early hours there was a choking episode which led to a separate offence. The facts as set out at para 15 of her Honour's judgment describe the offender grabbing her face, placing one hand around her mouth and the other around the front of her neck and applying pressure to her throat. He squeezed her neck hard, she felt she could not breathe. She closed her eyes and let her body drop. He did release his hold but said, "You can die but not now. The police will catch me." and went on to make a number of other offensive remarks.
The offences of choking and intimidation were charged and in dealing with the series of offences her Honour made two observations. She said at [21]:
"There is an obscenely high level of domestic violence in our community at present. The statistics indicate that one woman a week dies and many more are injured as a result of episodes of domestic violence."
Her Honour went on to say:
"There is no excuse for violence between domestic partners. There is no excuse for violence by men against women. Sentences have to convey the message that such serious violence as occurred here will lead to significant gaol terms."
That particular offender had by the time of sentence been incarcerated for almost 12 months. He was 24 and turning 25 and the father of the two children to the relationship. There was the insidious impact of the ingestion of the drug "Ice", as so often appears to be the case.
I should make one passing reference to a circumstance which in many of these situations regularly arises. In the case before her Honour there had been 63 phone calls made from the prisoner in custody to the victim. The phone number was, of course, one which must have been known to the Corrective Services and her Honour thought and expressed specifically that it was entirely inappropriate that Corrective Services would permit prisoners to telephone the victims of their crime from gaol, certainly in circumstances where there was in place an ADVO. It would appear from the factual material before me that the calls which did occur in the present matter may well have been via a third party rather than directly to the victim, but I would reiterate her Honour's remarks in that respect.
Regarding the choking offence before her Honour in that particular matter, her Honour determined a two year period of imprisonment, with a 12 month non-parole period. It is to be noted that it was part of a series of cascading offences but the specific aspect was, as I say, relating to that offence of choking, two years, with a 12 month non-parole period. The intimidation, which was separately charged, was a fixed term of nine months and there was an overall accumulation which resulted in an outcome which, although it was difficult to divine, was about three years, with two years non-parole.
The last matter that I wish to refer to was adverted to by Ms Stares in her submissions, namely that there is but one offence, according to the Judicial Commission statistics, that has been prosecuted under s 37(2) since that subsection was introduced. That was a case which was heard at Port Macquarie District Court on 4 March 2019 before her Honour Judge Flannery of this Court. Her Honour's judgment was in circumstances where the outcome was a period of imprisonment of less than three years. Accordingly, the judgment was not automatically transcribed and is not available. However, access to JusticeLink does bring up the Agreed Facts on the sentence of that matter.
There had been an apprehended domestic violence order for the purposes of the protection of the victim in those particular proceedings. The offender and the victim had been in a domestic relationship. On 28 July 2017 there were bail conditions imposed that there be no further contact with the victim and, notwithstanding those restrictions which were in place, the victim on a date in August went to the home of the offender. In the course of the exchange between them it became violent and the victim was bitten on her left shoulder blade, causing a bite mark and a bruise. The following evening the victim was at her aunt's place when the offender turned up. They walked together back to the offender's residence and in the course of that perambulation the offender punched his partner a number of times. When they got to his house he continued to assault her by punching her in the face, leading to her mouth and nose bleeding. He armed himself with some scissors and he attacked the victim with the scissors, resulting in what were described as minor injuries to her neck and left underarm. He then told her to have a shower to clean herself up.
While she was in the bathroom having a shower she told the offender, who entered the bathroom, that she was in pain and having trouble breathing. The upshot of that interaction was that the offender went and got a hammer. He struck the victim a number of times with the hammer, several times to her back and once striking her in the left eye socket. He then grabbed her by the throat and choked her against the wall of the shower. The victim thought that she was going to pass out. She commenced to see stars but in fact did not lose consciousness. The offender then grabbed her hair and punched her until she fell to the ground, at which stage he kicked her in the back. She was screaming and telling the offender to stop. She did stay there that night, she continued to be assaulted, and the next morning she went to her aunt's house where police and ambulance were called. She sustained swelling to her lip and nose, bruising to her left cheek near the eye as a result of the hammer blow, a bite mark, as I have already described, and a number of lacerations.
The offender was in due course sentenced with respect to two separate contraventions of the restrictions in the apprehended violence order, an offence of assault occasioning actual bodily harm, a further offence of assault occasioning actual bodily harm, which was placed on a Form 1 to be taken into account on the s 37(2) charge of choking with intent to commit an indictable offence. Her Honour Judge Flannery imposed an aggregate sentence. The indicative sentences were six months for each of the two contraventions of the prohibition or restriction in the AVO, 15 months with respect to the assault occasioning actual bodily harm, 30 months taking into account the additional assault with actual bodily harm on the choking, and an indicative term of 18 months for the remaining assault occasioning actual bodily harm. Her Honour imposed an aggregate sentence of 33 months, with a 17 month non-parole period. The offender had been in constant custody and the sentences were backdated to 29 November 2017, with a non-parole period that expired on 28 April 2019, a little less than two months after the imposition of sentence. No appeal was lodged against that sentence.
I have taken the time to detail the facts of those contrasting matters because of the observation that I made earlier in these remarks about the position of the Crown and the position of the defence being at polar opposites. Ms Stares on behalf of the offender advocates that a term of imprisonment of an aggregate sentence, taking into account the second offence, namely the contravention of the apprehended violence order, would permit the Court to come to a conclusion that a head sentence of three years would be within range and that in the light of a determination to that effect the Court would give careful consideration as to whether or not a term of imprisonment might be served other than by way of full-time custody. In short, Ms Stares advocated, taking into account the period slightly in excess of six months that has already been actually served, the detail of which I will touch on briefly in a moment, that taking that into account a sentence of an additional three years as an aggregate would permit the Court to reach an appropriate outcome that an Intensive Correction Order would be appropriate.
The situation whereby a period of some six months and approximately 20 days has been served I should briefly touch upon. Ms Tran was refused bail when she was originally arrested. She remained in custody until an application for bail succeeded on 16 July 2019 before Harrison J in the Supreme Court of New South Wales.
I have been able to obtain a copy of the remarks or specifically the exchange between his Honour and Mr Shaw, who appeared for the DPP on that application, and in essence it would appear that, although there was some concern regarding the safety of the victim, the Crown acknowledged: "They are obviously in a relationship and there's a great deal of tension and it's problematic for both parties. We know that they have been in contact while the applicant has been in gaol." His Honour made the observation that, "That may not necessarily be inimical to the bail application" and Mr Shaw indicated that the full parameters were not known at that stage but it was obviously serious. Harrison J said, "It's curious too" and the representative of the Director said, "If bail is to be granted I wouldn't oppose any of the proposals or seek anything." In the light of what was clearly only modest opposition to the proposed conditions, Ms Tran was released to bail and required to be subject to a curfew and to reside with a named former partner at a residence that he had.
In due course that relationship, it would seem, failed and according to the account given by Ms Tran she deliberately breached her curfew so as to be put back into custody. Whether that is completely correct or whether there was simply an ad hoc attendance by police where she was not at home is not completely clear. However, she did go back into custody as a consequence of not complying with the conditions of the curfew and she remained in custody for a further 15 days before being granted bail by Judge Syme of this Court.
Following the grant of bail she pursued the occupation of being a nail clinician and secured employment at a professional nail clinic at Penrith for a period of time. Her bail was in due course varied to permit her to comply with the hours required for that employment. Ultimately the circumstances of COVID-19 led to her ceasing that employment and she has effectively remained, as with so many other members of the community, to a degree, in effective lockdown since that time and she is presently unemployed.
This is not the first nor will it be the last case in which a grant of bail at an early stage of custody for serious offences or ultimately a serious offence creates a potential difficulty in having to give consideration to steps that have been taken towards rehabilitation, which might be either undone or stalled by virtue of the necessity to send somebody back into custody. I make no more than that observation in this matter.
The two-step process that requires consideration of whether or not an Intensive Correction Order is available would in the circumstances of the present case be somewhat artificial. I have carefully considered what I believe is an appropriate minimum term and additional term. I have come to the view that the mental issues surrounding the commission of this offence are such that the objective seriousness of the offence, tempered by all of the surrounding circumstances - and I am very conscious of the need to be cautious not to put subjective factors into an assessment of objective seriousness - but in my view the objective seriousness in all of the circumstances falls below any identified mid-range for offences of this kind.
I am of the view that the s 5 threshold obviously is crossed and I am of the view that a minimum period required to reflect both the objective seriousness of the offence and all of the factors contributing to the instinctive synthesis would be a period of imprisonment of 18 months. I am of the view that there should be special circumstances found and that there should be a further period of supervision of 18 months, that is I am of the view that the appropriate sentence in respect of the s 37(2) charge is a period of three years, with a period of 18 months non-parole.
I have given careful consideration to when such a sentence should commence. I have ultimately come to the view that the period of some six months and about 20 days should be viewed along with the restrictions of the quasi custody of the curfew and, accordingly, there should be a backdated period of seven months.
I have given separate consideration to the breach of the restrictions in the apprehended domestic violence order and I have again had recourse to the statistics touching upon such offences. In all of the circumstances, particularly given the labile nature or the varying nature of the personal relationship and the obvious attempts and desires not simply for the offender to speak with her erstwhile partner but also for the victim, who clearly was intending and desirous to communicate with Ms Tran, that in all of the circumstances the recording of a conviction does not warrant any additional penalty. Accordingly, the conviction is recorded but the matter is otherwise dismissed pursuant to the provisions of s 10A.
If you would just stand up please, Ms Tran.
You are convicted of the offence of choking with intent to commit another indictable offence. You are to serve a minimum term of 18 months. That will be backdated by a period of seven months to commence on 25 November 2019 and will expire on 24 May 2021. There will then be an addition term of 18 months, which will expire on 24 November 2022.
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Decision last updated: 23 November 2020