R v Carr

[2025] NSWDC 291

District Court

New South Wales

Medium Neutral Citation:

R v Carr [2025] NSWDC 291

Hearing dates:

3/7/25

Date of orders:

3/7/25

Decision date:

03 July 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 6 years with a NPP of 4 years 2 months (8/8/23-7/10/27). I find special circumstances.

Indicative sentences (after 25 percent discount):

Seq 3 – 2 years 10 months (Form 1 taken into account).

Seq 5 – 4 years 6 months

Seq 7 – 3 years

Seq 2 – 12 months

Catchwords:

Crime – Sentence – Choking – Recklessness as to rendering unconscious – Intimidation – Contravene ADVO

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Attorney-General’s Application No 1 of 2002 [2002] NSWCCA 518

Bugmy v R [2013] HCA 37

DPP v De La Rosa [2010] NSWCCA 194

Jonson v R [2016] NSWCCA 286

R v Stevens [2024] NSWCCA

Category:

Sentence

Parties:

NSW DPP – Crown
Jason Carr - Offender

Representation:

Ms R Atkinson for Crown
Ms K Cooper for Offender

File Number(s):

2023/183315

Publication restriction:

Non-publication order re the identity of the victim

remarks on sentence

1. The offender Mr Jason Carr is before the Court for sentence on a number of matters. Firstly sequence 3, an offence of intentionally choking a person without consent under s 37(1K) of the Crimes Act 1900. That offence carries a maximum penalty of five years imprisonment. Also in sentencing him for that offence he asks that I take into account on a Form 1 document an offence of assault occasioning actual bodily harm.

2. The second substantive offence for sentence is the sequence 5 offence which is one of intentionally choking a person so as to render that person unconscious and being reckless as to rendering her unconscious. That is an offence under s 37(1) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment.

3. The third substantive offence is the sequence 7 offence which is one of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and carries a maximum penalty of five years imprisonment.

4. The fourth offence which is to be dealt with on a s 166 certificate, is one of contravening an Apprehended Domestic Violence Order, that being sequence 2. That is subject to the Local Court jurisdictional limit and, in any event, carries a maximum penalty of two years imprisonment.

5. The maximum penalties are of course important guideposts in the sentencing exercise to which I have had regard.

6. The offender pleaded guilty at the earliest opportunity and will be given a 25% discount as required by law by reason of the utilitarian value of those pleas of guilty.

FACTS

7. The victim of the offences before the Court is a young woman who I will refer to as JB. She and the offender had previously been in a relationship. They had one child together who is apparently now around three years of age. An Apprehended Domestic Violence Order was in place from 16 September 2023 naming JB as the person in need of protection. That order prohibited the offender from going within 200 metres of any place where she lived or worked or within 200 metres of her parents’ address. The offender’s breach of that order is the subject of the sequence 2 offence that is to be dealt with under s 166 and 167 of the Criminal Procedure Act 1986.

8. The agreed facts go on to describe the remaining offences. Firstly the sequence 1 offence which is on the Form 1 document and is an offence of assault occasioning actual bodily harm. The facts note that from 7 to 12 May 2023 and from 15 to 24 May 2023 the victim and the offender were staying at the Cardiff Executive Apartments. On one of those days they were at the apartment and in the bedroom. The offender took a 20 centimetre kitchen knife and held it at the victim’s throat. He then started to push the knife into the collarbone area and the facts note that the victim was begging him to stop and ultimately the victim grabbed hold of part of the knife and the handle broke off, after which the offender threw a sanitary pad at the victim and told her to hold it against herself.

9. The facts record that the victim says that the offender held a knife to her throat on four or five occasions whilst they were staying at the Cardiff apartments. As a result, the victim started to hide the knives so as to avoid her concerns about the offender possibly using those knives to kill her.

10. The facts then go on to refer to the sequence 3 offence of intentionally choke a person without consent. The facts note that whilst staying at the Cardiff apartments the offender strangled the victim on two occasions. On both occasions the victim was on the bed and the offender jumped on top of her and used both hands to choke her. She was unable to breathe and was unable to push him off.

11. The next part of the facts refers to offending that occurred when the victim and the offender were staying at The William Apartments in Jesmond. The facts note that the offender always carried a pocket knife with him and, whilst at The William Apartments, the offender cut himself with the pocket knife to show the victim that the blades were sharp enough to cut skin. I note that that part of the facts referring to the offender cutting himself with a knife are relied upon as context and is relevant only to the likely concerns that the victim would have had in relation to the subsequent events that I am about to refer to.

12. The sequence 5 offence of intentionally choke a person being reckless as to rendering them unconscious involved the following facts. On this occasion, which occurred somewhere between 30 May and 2 June 2023, the victim was laying on a bed against the bedhead. The offender jumped onto the bed next to her and choked her with both hands. He then aggressively bit her nose and latched on with his teeth. The victim felt that “he was trying to rip her nose from her face”. The facts note that blood covered the bedsheets from the offender’s self-inflicted cut from the pocket knife.

13. The victim realised that the offender was not going to let go of her and thought she was about to die. She felt her body go limp and struggled to breathe. She tried to kick, punch and push the offender but was not able to get free from his grip. She then lost consciousness. When she regained consciousness, she opened her eyes and the offender was right above her. He told her that she was lucky to be alive and that she should thank him because he had to resuscitate her and, without him, she would be dead.

14. The facts go on to refer to the sequence 7 intimidation offence. The victim at this stage was understandably terrified and she started banging on the walls and screaming for help. She ran past the offender and out the front door, however, the offender chased after her. He got hold of her shirt and pulled her back towards him. He directed her towards his car. The victim was too scared to run again as she was worried that the offender had a knife on him.

15. The victim got into the passenger side of the car. She looked in the mirror and saw that her eyes were red. The offender told her that they were going to Karuah and that he was taking her there to slit her throat. He told her that he had tools in the boot and that he was going to dig a hole and then bury her in it. The victim repeatedly asked if she could call her parents or her kids to say goodbye. He told her, “No. This is where you die.” Throughout the journey he repeatedly said he was going to slash her throat.

16. The offender turned down a dirt road and at that stage it was pitch black and the victim could only see trees. She thought that, even if she did scream, no one would hear her. The offender yelled, once they had stopped presumably, “Get out.” The offender’s behaviour then dramatically changed and he said, “We’re going back to the hotel, as long as you’re going to keep your mouth shut and not draw attention.” The victim said, “Please, I’ll be quiet, I will be real quiet.”

17. They then drove back to the apartment. The victim crawled into bed. The offender tried to cuddle her but she told him not to touch her. The offender then cleaned up the blood that had been left there during the previous struggle, which I note was apparently his own blood.

18. The following morning the victim went to have a shower and saw that her eyes were completely red. Her parents are in fact the legal carers of the victim’s two children and the victim had to go to her parents’ house to sign some paperwork from the Department of Communities and Justice. The victim convinced the offender to let her go there, provided she was wearing sunglasses, obviously so as to cover the injuries to her eyes.

19. At approximately 12 noon on 2 June 2023 she arrived at her parents’ house. The victim’s mother told her to take her sunglasses off inside the house and when the victim lifted the sunglasses, this exposed her bloodshot eyes and some facial bruising. Her mother asked what had happened and the victim replied, “Jason did it. Don’t tell anyone.” The victim’s father overheard the conversation and came to have a look at the victim’s injuries. He said, “I’m worried what might happen. Can we see you every two days? The next time I see you, if you have more injuries I will report it to the police.” The victim replied saying, “He said sorry and that he won't do it again.”

20. The mother of the victim asked if she could take a photograph of the injuries in case they needed evidence later. However, the victim said no and said she would send pictures later to another person. A short time later her brother arrived at the house. The victim immediately put her sunglasses back on and left the house.

21. Later that evening she sent photographs of her injuries to another person via Snapchat and he saved the images onto his phone and kept asking the victim who had done these things to her. Eventually the victim told him that, “Jason did this to me.”

22. The photographs showing the subconjunctival haemorrhages to the two eyes of the victim Form part of the Agreed Statement of Facts to which I have had regard.

23. On 3 June 2023 the parents of the victim reported the matter to police.

24. On 7 June 2023 police attended some apartments in Jesmond and cautioned and arrested the offender. The victim, however, who was present, became argumentative with police and unsupportive of the offender’s arrest. Police observed at that time that the sclera of the victim’s eyes were still bloodshot red.

25. After the offender was arrested and charged, his charges were set down for hearing at the Belmont Local Court on 7 November 2023. At that stage the victim remained uncooperative. She even provided a statement alleging that a female in Tamworth had punched her and that this is how she had occasioned the injury and indeed she paid a person $100 apparently to provide a statement corroborating her story.

26. On 7 November 2023 she presented at Belmont Local Court for the hearing. The Officer-In-Charge and a police prosecutor spoke with the victim before the hearing. The victim then disclosed to the police the offending to which I have just made reference. Police, including the police prosecutor, realised that the then current charges did not adequately reflect the offending, and the hearing in the Local Court did not proceed. That same day the victim provided a DVEC, that is a Domestic Violence Evidence-in-Chief recording, disclosing the entirety of the offending against her by the offender. As a result, additional charges were laid and some of those charges are before the Court for sentence today. Those, in summary, are the agreed facts.

OBJECTIVE SERIOUSNESS

27. It is necessary, of course, that I make some assessment of the objective seriousness of the various offences that are before the Court. Firstly it is relevant to note that all of the offences for sentence occurred in the context of an intimate relationship.

28. Domestic violence offences must be treated very seriously, and general deterrence, personal deterrence and denunciation are of particular importance. The domestic violence aspect of each of the offences before the court is an aspect which they all share, which contributes to their objective seriousness.

29. As was said in R v Stevens [2024] NSWCCA 170 at para 175,

“This Court has emphasised that domestic violence offending is regarded with the utmost seriousness and that sentencing for such offending must reflect proper recognition of the need to denounce the conduct to vindicate the dignity of the victims and recognise the harm done to them, to protection the community and, where appropriate, by imposing punitive and strongly deterrent sentences.”

30. In the sentence hearing today, I expressed the preliminary view that the objective seriousness of the sequence 3 and sequence 5 offences might be said to be aggravated by reason that they were committed in a place that was a home, albeit a temporary home (see Jonson v R [2016] NSWCCA 286 at para 40).

31. Although the Crown did not initially rely upon this as an aggravating feature, the Crown, after having the opportunity for further consideration, has submitted that it is a matter that the court is entitled to take into account as an aggravating feature.

32. Ms Cooper, however, who appears for the offender, argues that I would not so take it into account in this particular matter.

33. The question of whether this is an aggravating feature is not an automatic conclusion. Rather, it really depends upon the facts of the individual case. Whilst it does seem to me that it can be said that at least some of these offences were committed in a home, it further seems to me that, given that these are all domestic violence related offences, there would be a very considerable level of overlap between that aspect and the commission of an offence in a home.

34. In those circumstances and based on the particular facts of this case, I do not intend to treat any of the offences as being aggravated by reason that they were committed in a home. Nonetheless, I do intend to give full weight to the domestic violence aspect of the offences which, as I said, must be taken extremely seriously.

35. The sequence 3 offence, which is one of intentionally choke a person without consent, is agreed to be a “representative” charge and relates to two instances where the offender used two hands to strangle the victim, in circumstances where he had jumped on top of her on the bed. On each occasion, the victim was unable to push the offender away and she was unable to breathe. It is not, however, suggested that she lost consciousness.

36. In my view, this is an offence that sits within the mid-range of objective seriousness.

37. To be taken into account in sentencing for that offence is the sequence 1 offence which is on the Form 1. That offence of assault occasioning actual bodily harm involved the offender causing actual bodily harm to the victim using a knife. I have no doubt that this would have been a very distressing and terrifying experience for the victim. It was also an offence that involved the use of a weapon. However, and as has been agreed in the hearing today, I will, in order to avoid De Simoni error, not approach this offence on the basis that it may have amounted to a more serious offence, such as one involving wounding. I disregard, therefore, as was submitted by the Crown, the reference in the facts to bleeding.

38. I also note that the facts I have recited earlier indicate that the offender had held a knife to the victim’s throat four or five times while they were staying at the Cardiff apartments. He is not to be sentenced for those other occasions, however, because they are not the subject of any charge. However, those aspects of the facts remain relevant because they indicate that the offence involving the assault occasioning actual bodily harm was committed in a situation where it was not an isolated act or a momentary aberration.

39. I repeat, however, that the fact that the agreed facts refer to those other instances is not a matter which aggravates any of the offences, nor the matter on the Form 1.

40. In relation to Form 1 documents, it has been said in the well known Attorney-General’s Application No 1 of 2002 [2002] NSWCCA 518 that a court is entitled to take into account matters on a Form 1 with a view to increasing the penalty that would otherwise be appropriate. The court is entitled to do that by giving greater weight to two elements, the first one being the need for general deterrence; the second one being the community’s entitlement to extract retribution for serious offences. This is, however, not an automatic process, and it is necessary for the court to consider whether, in the circumstances of the particular case, the

41. Form 1 matter or matters should have that incremental effect.

42. In this particular matter, the assault occasioning actual bodily harm offence involved a separate criminal act. While I assess the objective seriousness of this offence as being below the mid-range, I have formed a view that it ought to increase, to some extent, the penalty to be imposed for the substantive sequence 3 offence, so as to acknowledge the discrete offending.

43. Turning then to the sequence 5 offence of intentionally choking being reckless as to rendering the victim unconscious. This offence involved the offender again using two hands to choke the victim, such that she was unable to breathe and lost consciousness and, as the Crown has submitted, it carried with it the risk of death. The strangling was accompanied by the offender biting on the nose of the victim, which no doubt would have added to the terror of the situation and further impeded her ability to breathe.

44. Furthermore, the seriousness of the offence is agreed to be reflected in the fact, as shown in the photographs, that, as a result of the choking, the victim suffered subconjunctival haemorrhages to both eyes. I regard this as a very serious example of this type of offence and I assess it as above the mid-range of objective seriousness.

45. Turning then to the sequence 7 offence of intimidation. The intimidation offence involved a very protracted incident in which the victim was subjected to terrorising threats to kill her. These were not just verbal threats, but involved the offender taking the victim in his car to an area of bushland, at night, saying that he was going to slit her throat, dig a hole and bury her in it, while making reference to having the tools in the car by which to carry out these threats.

46. As I have said, these actions occurred at night and involved the offender taking the victim to an isolated area where she was completely helpless. I have no doubt that the victim genuinely feared she was going to die. It is a most serious example of an intimidation offence and comfortably above the mid-range of objective seriousness.

47. Turning then finally to the sequence 2 offence, which is to be dealt with under s 166 of the Criminal Procedure Act 1986. This is an offence of contravening an Apprehended Domestic Violence Order between the dates 5 May and

48. 7 June 2023. It is agreed that this is to be approached as a rolled up charge which involved the offender breaching the condition that he not approach the victim or go within 200 metres of where she lived or worked, or within 200 metres of her parents’ address. Given the period over which these breaches occurred, the offence is clearly a serious example.

49. At the time of the offences, the offender was on parole. While this does not increase the objective seriousness of any of the offences now before the court, it is an aggravating matter in the overall sentencing exercise.

VICTIM IMPACT STATEMENT

50. A Victim Impact Statement was read to the court by JB. The Crown does not rely upon it as an aggravating matter, I do not treat it that way. However, the Victim Impact Statement represents a very succinct but eloquent statement of the harm that must be expected to flow from appalling offences of domestic violence such as those before the court. It is, however, very much to the credit of the victim that she has developed the courage and determination to move beyond the violent and controlling relationship in which she has previously been embroiled with this offender. She is to be congratulated.

SUBJECTIVE MATTERS

51. The offender was 40 at the time of the offences and he is now 42. His criminal history is long and does not assist him. It includes multiple offences in recent years of contravening Apprehended Domestic Violence orders which involved the same victim.

52. The offender’s subjective case is before the court by means of the psychological report of Ms Dombrowski and the neuropsychological report of Dr Walker of 11 July 2019.

53. Dr Walker’s report notes that the offender has a mild to moderate traumatic brain injury, resulting from a motorbike accident in 2017. It also notes that he is significantly impaired in a number of aspects of his intellectual functioning. He also has other mental health issues, including delusions, marked anxiety and depression, and these problems were probably made worse by his traumatic brain injury.

54. The psychological report of Ms Dombrowski observes that the offender also has a history of being diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiance Disorder and schizophrenia. She notes that the offender has a long history of alcohol and drug abuse and I have no doubt that this has likely exacerbated the impact of his other problems.

55. The psychologist also records the offender’s claim to having been sexually abused by a teacher when he was 13 years old. While there is no reference to this allegation of sexual abuse in the neuropsychological report of 2019, in the absence of challenge by the Crown I will accept this part of the offender’s claimed history.

56. The psychologist expressed the view that the offender’s long standing emotional and psychiatric symptoms are consistent also with complex Post-Traumatic Stress Disorder. While the basis for this “diagnosis” is not made clear in the report, again in the absence of challenge by the Crown I will accept it.

57. The psychologist says that the offender’s difficult childhood, involving physical and sexual abuse and other adverse events during his formative years, has likely interfered with the normal development of the frontal areas of the offender’s brain, namely those areas of the brain which are responsible for emotional and behavioural regulation and moral reasoning and judgment.

58. Having regard to this background and the psychological opinions about the offender, I accept that his moral culpability is reduced to some extent. It is reduced because of the offender’s diminished capacity for self-control, emotional regulation, as well as his reduced capacity to make sound and considered decisions.

59. In determining the sentence, I have given weight to the fact that the offender’s childhood upbringing was relatively unstable and disrupted and involved early exposure to alcohol abuse and domestic violence. While the 2013 decision of the High Court of Australia in Bugmy v R [2013] HCA 37 was not specifically cited in the offender’s case, I accept that his background has made a contribution to his various emotional and psychological problems. In my view, this also operates to reduce his moral culpability to some degree.

60. I have found that the offender’s moral culpability is reduced to some degree and I accept that this reduces the significance of general deterrence in his case. However, it remains necessary for me to consider whether the offender’s reduced capacity for self-control and to sound decision making means that he presents an ongoing danger to the community and whether this should be reflected in the overall sentence because of the need for personal deterrence and community protection.

61. As was said in Commonwealth DPP v De La Rosa [2010] NSWCCA 194, it may be that because of a person’s mental illness they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

62. Also and as was said in Bugmy v R at para 44:

“An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

63. The offender’s background of sexual abuse and his various mental health problems are matters that I accept have made and will continue to make his time in gaol more difficult for him. This is a matter confirmed by the psychologist, Ms Dombrowski. I have therefore taken this aspect into account in my determination of sentence and, in particular, the finding that I will make of special circumstances.

REMORSE

64. Turning to questions of remorse, the offender told the psychologist that he regrets and takes full responsibility for the offences. This expression of regret and responsibility was further restated on behalf of the offender by Ms Cooper when the proceedings recommenced this afternoon in front of me.

65. However, these expressions of regret and responsibility are contradicted somewhat by the fact that the offender also claimed, when speaking to the psychologist, Ms Dombrowski, that the injury to the victim that is the subject of the Form 1 matter occurred when he was wrestling the knife from her. He also told the psychologist that he and the victim would engage in “mutual combat” during which time he pushed and choked her. I note that the reference to “mutual combat” is a laughable suggestion, given the obvious power and strength differences between the offender and the victim.

66. On balance, however, I conclude that while there is some remorse shown by the offender’s pleas of guilty and statement of regret, I think any remorse is fairly limited.

REHABILITATION AND RISK

67. Turning then to prospects of rehabilitation and future risks. The offender’s prospects of rehabilitation and risk of reoffending need to be looked at in the context of his long history of offending, his history of substance abuse, little employment and the various mental health issues with which he lives.

68. The psychologist says that the offender’s personality structure appears most in keeping with “Cluster B personality disorder with mixed borderline and anti-social features”. She says that the presence of these personality features means that a person is at increased risk of engaging in emotionally reactive behaviours and falling foul of the law and that the offender’s history of substance abuse is also a factor in his offending behaviour.

69. The psychologist says that the offender needs long term treatment and management over several years but that he will struggle to engage in such treatment. I am unable, therefore, to Form an optimistic view of the offender’s prospects of rehabilitation, which I regard as fairly poor. I think he remains a considerable risk of reoffending.

DETERMINATION

70. Turning to my ultimate determination, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to recite all of them, suffice to say that they are all of relevance. However and as I have already set out, it does seem to me that the importance of general deterrence is reduced somewhat in this case by reason of the matters to which I have earlier referred.

71. Personal deterrence remains important; denunciation remains important; recognition of the harm done to the victim remains important; protection of the community remains important; making the offender accountable remains important. Adequate punishment also remains important. However, the promotion of the rehabilitation of the offender also has to be taken into account and is an important matter, subject to what I have earlier said about his prospects of rehabilitation.

72. I am satisfied, for the purposes of s 5 of that Act, that no penalty other than full time imprisonment is appropriate. I intend to impose an aggregate sentence, which I will announce shortly.

73. I have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole period. I have made that adjustment by reason of my conclusion that the offender’s experience of custody is made and has been made more onerous by reason of his various psychological difficulties. I have made the finding of special circumstances also on the basis that, in my view, there is a need for a considerable period of monitoring once the offender is released to the community. The adjustment for special circumstances, however, will not be overly large because of my assessment of the minimum period of actual custody which the offender must receive for this series of cruel and violent offending.

BACKDATING

74. I have given consideration to the commencement date for the sentence. The offender was arrested on 7 June 2023 and he has remained in custody since then. However, this time in gaol has not been solely due to the offences now before the court, at least not for the entire period. That is because the offender’s parole was revoked by a decision of the State Parole Authority on

75. 21 June 2023. He then served the remainder of his parole period from 7 June 2023 until 8 September 2023.

76. I have a discretion to exercise as to whether and to what extent there should be any backdate into that period. In my view, while it is appropriate to backdate to some extent, the extent of that backdate should not be great, especially given that the breach of parole report indicates that the reason for revocation was not solely due to the commission of the offences that are now before this Court.

77. I intend to backdate the sentence, therefore, by the period of one month prior to 8 September 2023. In other words, to 8 August 2023.

78. As I am imposing an aggregate sentence, I am required to set out the indicative sentences that I would otherwise have imposed for each of the four matters which are for sentence. Each of these indicative terms are after the application of the 25% guilty plea discount.

79. For the sequence 3 offence and taking into account the matter on the Form 1 document, the indicative sentence is two years, 10 months.

80. For the sequence 5 offence, the indicative term is four years, six months.

81. For the sequence 7 offence, the indicative term is three years.

82. For sequence 1, the matter being dealt with under s 166, the indicative term is 12 months.

83. I have given close consideration to totality principles and the extent to which there should be any notional accumulation involved in the aggregate sentence that I will impose. In my view, there needs to be a level of notional accumulation, so as to acknowledge the separate acts of serious criminality which were committed on different occasions over a period of time.

84. I impose an aggregate head sentence of six years imprisonment. I impose a non-parole period of four years, two months. They will each date from 8 August 2023. The head sentence, therefore, will expire on 7 August 2029, the non-parole period on 7 October 2027.

85. Nothing to raise about any of those matters?

86. COOPER: No, your Honour.

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Decision last updated: 05 August 2025