R v Leigh Pattinson

[2022] NSWDC 475

District Court

New South Wales

Medium Neutral Citation:

R v Leigh PATTINSON [2022] NSWDC 475

Hearing dates:

17 May 2022

Date of orders:

27 May 2022

Decision date:

27 May 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed of 2 years and 6 months imprisonment, consisting of a non-parole period of 1 year and 6 months and a balance of term of 12 months.

Catchwords:

CRIME – Violent offences – Choking, suffocation or strangulation

SENTENCING - Aggravating factors - Home of victim or any other person

Legislation Cited:

Crimes Act 1900 (NSW), s 37(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 3A

Cases Cited:

Crimes (Domestic and Personal Violence)Act 2007 (NSW), s 5(1)(c), s 40

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)

Kells Lawyers (Offender)

File Number(s):

2019/00393076

Publication restriction:

Statutory non-publication order regarding identity of complainant

Judgment

Introduction

1. The offender, Leigh James Pattinson, stood trial before me sitting without a jury on an indictment containing nine counts, all of which were alleged to have been committed during a single incident particularised as being between 27 August and 30 August 2019. In fact, it seems on 28 August 2019 at Seven Hills. Counts 1, 2, 3, 4, 5, 6 and 8 were in identical terms. They each allege an offence that between 27 August 2019 and 30 August 2019 the accused had sexual intercourse with DW, without her consent, knowing she was not consenting, and at the time of the offence did inflict actual bodily harm upon DW. Count 7 was an allegation that the offender intentionally incited DW to sexually touch him without DW's consent to the touching and knowing she was not consenting. I found the offender not guilty of counts 1 to 8 for the reasons I gave in my verdict judgment on 14 April 2022.

2. Count 9 was an allegation that the offender intentionally choked DW and was reckless as to rendering her unconscious. I found the offender guilty of that charge when I delivered my verdict judgment for the reasons I then gave. The offence in count 9 is an offence under s 37(1) of the Crimes Act and has a maximum penalty of ten years imprisonment. There is no applicable standard non-parole period. These are sentence proceedings after trial and I am required to find the facts consistent with my verdict judgment. To the extent that I find a fact adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt. I find the following facts for the purposes of sentencing which are essentially facts I found during the verdict judgment.

The facts

3. The victim first met the offender at a birthday party for the sister of her former husband in around 2012. Over the years she saw the offender at a number of other functions. The offender at that point was married. He and his wife subsequently moved to Dubai and in around 2015 and 2016 the offender put a post on Facebook indicating he was visiting Sydney and did anyone want to catch up for a drink. The victim responded to that message and she and the offender met for coffee and after that meeting. Over the next few days the victim and the offender began to exchange messages which she described as becoming "quite flirty". The contact developed into what the victim called, an "online relationship", mainly over the Facebook Messenger application, but there would on occasions be text messages.

4. The victim first met the offender at a birthday party for the sister of her former husband in around 2012. Over the years she saw the offender at a number of other functions. The offender at that point was married. He and his wife subsequently moved to Dubai and in around 2015 and 2016 the offender put a post on Facebook indicating he was visiting Sydney and did anyone want to catch up for a drink. The victim responded to that message and she and the offender met for coffee and after that meeting. Over the next few days the victim and the offender began to exchange messages which she described as becoming "quite flirty". The contact developed into what the victim called, an "online relationship", mainly over the Facebook Messenger application, but there would on occasions be text messages.

5. Over time the messaging became daily messaging. In my verdict judgment I set out how the relationship between the offender and the victim developed into a sexual relationship. That they would meet for sex essentially on those occasions when the offender had returned to Australia and stayed in Sydney. I do not propose to set out that background in these remarks as that part of the case was not really put in issue at the trial. As I said when making findings in my verdict judgment, for a number of years prior to 28 August 2019 the offender and the victim had been in an intermittent sexual relationship in which the offender was the dominant partner and the victim the submissive partner. The sexual relationship between them involved a level of violence by the offender to the victim during sexual encounters. In past sexual encounters the violence had included the offender forcefully pushing the victim, grabbing her hair, choking her to the point of her losing consciousness, forcefully engaging in fellatio, during which the victim had difficulty breathing, forceful penile-anal and penile-vaginal intercourse, engaging in a level of force sufficient to cause a blood vessel to burst in the victim's eye, and degrading behaviour by the offender.

6. The victim was aware that the offender had a fetish for pain and degrading behaviour that he enjoyed. That was the nature of the sexual relationship between the offender and the victim prior to the events on 28 August 2019. I do not propose to re-state the reasons I gave for finding the offender not guilty of the sexual offending with which he was charged. Those reasons were set out in some detail in my verdict judgment, and to a significant degree were based on the nature of the sexual relationship that existed between the victim and offender and my finding as to when it was that the victim used the so-called “safe word” during the events that occurred in the victim's home on 28 August 2019.

7. The offence that the offender stands to be sentenced for occurred after the sexual activity between them had concluded and after the victim had used the safe word. I found in my verdict judgment that the victim first used the safe word after the conclusion of the sexual activity that was relied upon by the Crown for count 8, noting that at the end of the conduct relied upon by the Crown for that count, that after the victim had pushed the offender off and the fellatio came to an end, the victim said "Leigh, enough, stop, I've had enough", and that the offender had responded "Perhaps you have had enough slut" and walked out of the victim's bedroom.

8. The evidence established that by that time the victim was bleeding, there was blood on the lounge in the lounge room where the offender had gone to get dressed, having left the victim's bedroom, and the victim had some obvious injuries to her face. I found in the verdict judgment that the offender knew that the victim did not want and did not consent after that point to any further physical violence being directed towards her. It must have been apparent to the offender at that point in time that the victim was bleeding, in pain and had had enough of physical activity with the offender of any kind. The victim had moved from her lounge room into the hallway, behind the hallway door, while the offender got dressed in the lounge room.

9. The offender said to the victim "Have you had enough slut? Perhaps you've had enough". The victim made no reply but was crying. The offender walked towards the victim and had her up against a wall. The offender then grabbed her around the throat while she was saying "Leigh stop, Leigh don't, Leigh enough, Leigh stop, I can't breathe". The word "Leigh" was of course the safe word which the victim continued to repeat. The offender proceeded to choke the victim to the point of her losing consciousness. A short time later the victim regained consciousness. She was lying on the bathroom floor a short distance from where she had been standing when the offender choked her. The victim saw the offender standing at her feet and asked him, "What on earth are you doing here?". The offender left and walked out the front door of the victim's premises.

10. I note that in my verdict judgment I recorded that I was satisfied that the offender had the tendency the Crown contended for, that is a tendency to intentionally choke and render unconscious sexual partners. As I recorded in my verdict judgment, I am satisfied beyond reasonable doubt that the offender intended to choke the victim until she reached a state of unconsciousness and that he did so with that intention, and the victim as a consequence became unconscious. As I also recorded in my verdict judgment, while I am of the opinion the charge in count 9 did not require the Crown to prove that the victim did not consent to the choking, the evidence clearly established beyond reasonable doubt that the complainant did not consent to the choking, and that the offender knew that to be so.

11. Unchallenged evidence from the forensic nurse, Nurse Day, was to the effect, as I recorded in my verdict judgment, that strangulation is a potentially life-threatening event as it may take little sustained pressure over a very short period of time to cause unconsciousness and death.

12. There is a victim impact statement before me which was bravely read out during the sentence proceedings today, and which outlines the impact the offences had on the victim, and I have had regard to the content of that statement in arriving at the appropriate sentence to impose.

Objective seriousness

13. I will now consider the objective seriousness of the offence. I do not propose to attempt to classify the offence in terms of whether it is in the low range, mid-range or high range category. I consider that decisions in the Court of Criminal Appeal indicate it is unnecessary for a sentencing judge to do so, and to do so to some degree reduces transparency in the sentencing process. I also note in that regard the offence is not the subject of an applicable standard non-parole period. The offence occurred in the victim's home. On my findings, the victim did not consent to the choking and the offender knew that was so. The victim repeatedly used the so-called safe word during the choking, having used it at the end of the last sexual act that night, yet the offender persisted. The victim was bleeding and injured when the offender choked her and he clearly knew that was so.

14. The victim and the offender had been in an intimate relationship of a particular type which involved consensual sexual violence. The offence itself was of relatively short duration. These types of offences are always serious offences because of the life-threatening nature of them. I consider this to be a serious example of such an offence.

15. I find that the aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act that the offence was committed in the victim's home to be established here, and have considered that in my assessment of objective seriousness in order to avoid double counting.

16. I do not accept the offender's written submission that what occurred here was an example of "erotic asphyxiation". As at the time of the choking all sexual activity between the victim and the offender had ceased. I simply do not consider that concept was at play on the evidence before me, noting my findings of the circumstances and nature of the offence. I accept that the offender is not to be sentenced on the basis of the injuries inflicted during the sexual conduct that occurred that night, because I have acquitted him of all of the sexual offences. The relevance of those injuries, however, to the sentence to be imposed here, is that it was obviously apparent to the offender that the victim was injured and bleeding at the time he decided to choke her to the point where she lost consciousness. The submissions advanced on behalf of the offender as to the relevance of so‑called bondage and sadomasochism in my view do not properly engage with the findings I made in my verdict judgment.

The Offender’s subjective case

17. Turning then to the offender's subjective case; he is currently 43 years of age and was 40 as at the date of the offence. He essentially only has a mid-range drink driving matter on his criminal record. His lack of a criminal record entitles him to some leniency in the imposition of this sentence. The testimonials that are before me suggest that he is otherwise of good character insofar as his family and partners or former partners are concerned, although I have no testimonials from any other source. I am prepared to accept he is a person of general good character, although I note my findings concerning the Crown's tendency, which was asserted during the trial. Having done so, I note he is only to be sentenced for the single offence, but on the evidence, it should not be seen as a totally out of character offence, given the evidence of his tendency which I accepted.

18. I have limited documentary material before me for the purpose of sentence and no oral evidence was called. There is a sentencing assessment report and testimonials from the offender's former wife, his current partner, his sister and the letter from the offender. In terms of his family background, that material reveals as follows. The offender's sister's letter reveals that he and his sister were adopted. He has, with his former wife who lives in Australia, two daughters aged ten and seven. The children reside with their mother in Victoria. The offender provides financial support to his former wife and children, according to the former wife's letter and remains actively involved in his daughters' lives and visits them several times a year when he returns from Dubai.

19. On the material before me the offender resides and works in Dubai and has done so for close to 14 years. He has a business there, although the material before me does not provide any significant detail about the nature of the business. The sentencing assessment report indicates that prior to establishing his business he was employed as a "production director". His current partner who resides in Dubai states that the offender is very supportive of her and her daughter.

20. There was some material in the offender's written submissions as to his background and his introduction into what is referred to as "BDSM". There is no evidence before me to support those submissions and I do not propose to have regard to them.

21. In terms of the offender's attitude to the offence, the current partner's letter states that the partner understands the offender "accepts the choking charge". His former wife states in her letter, "Leigh has expressed his sincere remorse towards the victim and the anguish it has caused her and her family". The offender's letter does state that he accepts responsibility and the consequences of his conduct but also contains the following, "I understand that no one has the right to harm another person and under the law even consent cannot condone those actions." As I made clear in my verdict judgment, in my findings of fact, there was nothing consensual about the offence for which I found the offender guilty.

22. In the sentencing assessment report it records that the offender expressed remorse that his actions negatively impacted the victim, recognising the potential of emotional and mental repercussions. He stated to the author of that report that, "he no longer involves himself in the type of relationship he and the victim had, being a dominant and submissive relationship". According to the sentencing assessment report the offender stated that he "acknowledges that his actions caused harm to the victim". Through his solicitor today it was indicated that the offender accepts the finding of guilt made in relation to count 9. I also note I was advised by the Crown that the offender had offered to plead guilty to count 9 when the matter was in the Local Court if the Crown, as I understand it, did not pursue the remaining matters.

23. In all of these circumstances, I think there is some evidence of genuine remorse here. While the Crown appeared to suggest that the offender was entitled in these circumstances to a mandatory discount of his sentence on this count, that is not how I read the terms of div 1A of pt 3 of the Crimes (Sentencing Procedure) Act. I note no submission that the offender was entitled to a discount of his sentence on that basis was made by his legal representative.

24. The sentencing assessment report assesses the offender as having a low risk of reoffending. I consider he has reasonable to good prospects of rehabilitation; he has no prior record and is a person of good character. In coming to that finding, I have not overlooked my finding that the tendency alleged by the Crown during the trial was established, and I have had regard to that in arriving at my conclusion as to his prospects of rehabilitation.

25. I would think, on balance, he is unlikely to reoffend given his lack of criminal record and the finding of his low risk of reoffending in the sentencing assessment report. There is reference in the offender's submissions to extra curial punishment on the offender being through media coverage of the proceedings. I am conscious that there has been some media coverage by the presence at times of media personnel. I have no evidence as to the extent of that coverage, although note there is some reference to it in the testimonials. In these circumstances it is difficult to give it much weight in arriving at the appropriate sentence.

26. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community, and rehabilitation of the offender.

27. An offence of choking a person to the point of unconsciousness is a very serious offence because of the risk of death that accompanies such a violent act. To do that to a woman who is bleeding and injured in her own home, who does not consent to that conduct, knowing she did not consent, is a particularly serious form of the offence, in my opinion. The sentence that is to be imposed here needs to have a significant component of general deterrence reflected in it in order to send the message to the community that such offences will receive significant sentences, to deter not just this offender but others in our community who seek to engage in such conduct. The maximum penalty has been taken into account as a legislative guidepost. I have had some regard to the fact that if this offence stood on its own, the offender may have been sentenced in the Local Court, although the offence is a very serious one in my opinion.

28. The submission was advanced that the offence did not call for a sentence of imprisonment. In my opinion, the offence is far too serious an offence to call for anything other than a sentence of imprisonment. There is nothing before me that in any way reduces the offender's moral culpability for the offence. The submission was advanced that if a sentence of imprisonment was to be imposed then the offender should be extended leniency and allowed to serve it in the community by way of an intensive correction order. It will shortly be seen that I do not consider that a sentence of two years or less is an appropriate sentence to impose, so that sentencing option is simply not available.

29. The offender has reasonable to good prospects of rehabilitation and those prospects will be enhanced if he has a longer period on parole. I also note he has never been in custody before and is being sentenced during the COVID-19 Pandemic when it is well-known that inmates' conditions are harsher. As a consequence of the Pandemic they are spending longer times in their cells, few if any in person visits and there are fewer programs available to them. I also note the offender's current partner resides overseas, and although he has, it appears, some family support, it will no doubt be a difficult time for him in prison. The combination of those factors lead me to make a finding of special circumstances when fixing the non-parole period.

Imposition of sentence

30. On the offence of choking and being reckless as to rendering DW unconscious, you are convicted. I impose a sentence consisting of a non-parole period of 18 months and a balance of term of 12 months. That is a total sentence of two and a half years imprisonment. It commences today, 27 May 2022 and expires on 26 November 2024. The non‑parole period expires on 26 November 2023. By virtue of s 5(1)(c) of the Crimes (Domestic and Personal Violence) Act the offence is a domestic violence offence for the purposes of s 12 of that legislation. At the relevant time the offender and the victim were in an intimate personal relationship. I direct that the offence is to be recorded on his record as a personal violence offence.

31. Under s 40 of the Crimes (Domestic and Personal Violence) Act I make an order under that legislation for a period of four and a half years from today. He is not to assault or threaten DW or a person with whom she has a domestic relationship. He is not to stalk, harass or intimidate DW or a person with whom she has a domestic relationship. He is not to intentionally or recklessly destroy or damage any property or harm any animal that belongs to or is in the possession of DW or a person with whom she has a domestic relationship, and he is not to contact DW in any way.

Orders

1. Impose a sentence of 2 years and 6 months imprisonment, consisting of a non-parole period of 1 year and 6 months and a balance of term of 12 months.

2. The Offender is not to assault or threaten DW or a person with whom she has a domestic relationship. He is not to stalk, harass or intimidate DW or a person with whom she has a domestic relationship. He is not to intentionally or recklessly destroy or damage any property or harm any animal that belongs to or is in the possession of DW or a person with whom she has a domestic relationship, and he is not to contact DW in any way.

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Decision last updated: 13 October 2022