R v Yee (a pseudonym)

[2019] NSWDC 326

District Court

New South Wales

Medium Neutral Citation:	R v Yee (a pseudonym) [2019] NSWDC 326
Hearing dates:	19 June 2019
Decision date:	19 June 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	For the offence of causing grievous bodily harm, 7 years 6 months with a non parole period of 4 years imprisonment, for the offence of intentionally choking a person with recklessness, a fixed term of imprisonment of 3 years - both to be served totally concurrently.
Catchwords:	Grievous bodily harm; intentional choking; domestic violence related; special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW), ss 33(1)(b) and s 37.
Category:	Sentence
Parties:	Regina (Crown) Yee (a pseudonym - Offender)
Representation:	Ms Jayasuriya (ODPP) Ms Beckett (For the offender)
File Number(s):	2017/294110
Publication restriction:	No publication of the name of the offender and the victim and any other thing that might directly or indirectly identify either of them.

Judgment​

1. Mr Yee, you appear for sentence today in relation to two offences. 

2. First, causing grievous bodily harm to a person with intent in a domestic violence context. This involves the contravention of s 33(1)(b) of the Crimes Act. 

3. The maximum penalty for that offence is 25 years imprisonment. There is a standard non‑parole period of 7 years imprisonment.

4. Secondly, intentionally choking a person with recklessness, again in a domestic violence context. This involves the contravention of s 37 of the Crimes Act. 

5. The maximum penalty for that offence is 10 years imprisonment. There is no standard non‑parole period.

6. The facts surrounding both offences are contained in an agreed statement of facts which, slightly recast by me as to style but not substance, are as follows.

7. In September 2017 you were 51 years old.  You had had a previous marriage, which had broken down, and by 2014 you were communicating by the internet facility known as WeChat with a young woman ("the victim") aged 34 who was then living in China - China being the country of your birth. 

8. By means of these WeChat communications, what is described as a romantic relationship between the two of you began and, in December of that year, you travelled to China to meet the victim face to face.You and she were married in China in 2015. 

9. Although it is not expressly stated in the agreed facts, I have inferred that, after your marriage to the victim, you returned on your own to Australia.  She followed, it would seem, in 2016.  You and the victim lived in a granny flat behind premises in Campsie. 

10. For a time the marriage seemed to work well but, in November or December 2016, you and the victim started to sleep in separate beds because your snoring was apparently disturbing her sleep.

11. In about March or April 2017, the victim commenced working at a massage parlour and that work soon changed to working as a sex worker at a brothel - but you were unaware of these developments. 

12. The victim became a permanent resident of this country in August 2017. 

13. Whilst the victim was working at the brothel, she formed a romantic attachment with one of her customers (Joe) - but you were unaware of that development. 

14. At one point, the victim and Joe went to Perisher Valley in the middle of 2017. Whilst you may have been aware that she was at the snowfields, you were not aware that she was with another man. 

15. The victim and Joe again went away together in September of that year, this time to the Gold Coast.  Again, you were unaware that she was travelling with another man. 

16. When they returned from the Gold Coast, you and the victim began discussing living separate lives.  It seems that she initiated the discussions and you were not happy with the proposal. 

17. In any event, on 25 September 2017, Joe turned up at your house. Joe saw you and the victim. Joe asked her who you were because Joe did not know that the victim was married.

18. During the course of the conversations which then took place between Joe and the victim, and the victim and you: Joe came to realise that the victim was married; and you were told that he was someone she had met at work - but the victim did not, at that stage, tell you the nature of that work. 

19. The victim told you that she would break off her relationship with Joe.  You were very upset about the revelation that she was having a relationship with a man with whom she was working; and you were also upset that she had not revealed to him that she was married. 

20. At the end of those exchanges that night you and the victim had consensual sexual intercourse.

21. At some point before 27 September 2017, the victim admitted to you that she was working as a sex worker.  This came as a shock to you.  You did not, however, turn her out of your house. Rather, it would seem, from a series of text messages, that you tried to be supportive to her - including expressing concerns for her health and offering to obtain money so that she could pursue alternative employment in a shop.

22. In the early hours of the morning of 28 September 2017, the victim came home from her work as a sex worker.  There was further discussion between the two of you about you lending her money to open up a shop for a different type of business to the one she had been engaged in. 

23. After this conversation, you and she again had consensual sexual intercourse. She then said she wanted to go to sleep. She asked you to bring her some water.  When you returned with the water, the victim was on WeChat communicating with Joe.  You felt, at this stage, that you had been lied to - not only in relation to Joe but in relation to the whole nature of her relationship with you.

24. You went to your room and fell asleep for a while. You woke about 4 o'clock in the morning.  Your toolbox was in your room because you worked as a carpenter. You took a claw hammer from that toolbox and you went to the victim's room. 

25. While she was asleep, you struck the victim five times to the head with that hammer.  She woke up.  She was conscious that she was bleeding.  She was dazed and confused and wanted to know where the blood came from. You said that you had done it and then you told her that you were going to butcher her - at which point she saw the hammer.

26. The victim tried to find her mobile phone to call for help but she could not find it. 

27. At some point during this incident, you knelt on the bed and you choked her throat tightly.  She was crying and screaming for help. 

28. And then you suddenly stopped - as if you had woken from some trance - and you immediately went to her aid.  You tried to use a quilt to stop the bleeding.  The victim misunderstood what you were doing. She thought you were still continuing to attack her and she feared that she might be smothered by the quilt - but that was not your purpose.

29. You left the room and called your employer. You told him that you had seriously injured your wife and you wanted him to ring the ambulance.

30. You did that because your English is poor to non‑existent and you believed your employer's English was good and he would be more appropriate to communicate with the authorities. 

31. Not only did you ring your employer, you went to the main house of the premises. You banged on the door and woke up the landlord. You begged the landlord to not only call an ambulance but also the police because you had injured your wife.

32. An ambulance swiftly came and the victim was taken to the St George Hospital where she was found to have very severe multiple skull and facial fractures, the particulars of which are contained in the agreed statement of facts.

33. So violent was the attack with this hammer, Mr Yee, that the extensive skull and facial fractures had, what is described as, a "high lethal potential" - that is, there was a real risk that, as a result of these blows, the victim could have died - and probably would have, except for your swift ringing of an ambulance and seeking assistance.

34. There is no evidence of any significant injury being sustained by the victim as a result of your choking of her.  The injuries seem to be entirely a consequence of the blows with the hammer - which is not surprising. 

35. Unfortunately there is no detailed or formal evidence about the nature of the long term nature of the injuries sustained by the victim.  The agreed statement of facts tell me that she has a permanent loss of smell and that she has reduced hearing in her right ear. But in a victim impact statement I am told more than that.  I am told that for three months after her discharge from hospital she could only consume liquid food. I am told that she has permanent pain in the lower part of her body and that she is permanently on pain killers.  I am told that she has many scars on her face and that she has to go to a hospital every month to repair those scars; and that she has to see a psychologist every two weeks.  In addition to the physical injuries, she has been very damaged psychologically.  The victim impact statement also tells me that the victim cannot work and that she is constantly in a state of confusion, helplessness, anxiety and panic.

36. It is necessary for the Court to form an assessment of the objective seriousness of the offending for offences of their kind. 

37. In my opinion, the grievous bodily harm is a mid-range offence; and the choking with recklessness is slightly below a mid-range offence. 

38. Each offence is additionally aggravated by the fact that the offences took place in the victim's home.

39. I have already mentioned that you were born in China and your age.  Your parents were poor rural farmers and your education was consequently of a very limited kind.  They died when you were a teenager. 

40. You have worked hard since you came to this country.  You worked as a carpenter; and your employer, the man you rang on this night, is in Court today to support you.

41. You have no prior offences of any kind and you are therefore entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 

42. You have no issues with alcohol or legal or illegal drugs. 

43. This offending is completely out of your character and would appear to have been the consequence of a perfect storm of a mixture of conflicting emotions.

44. You have expressed genuine remorse which I accept. 

45. The psychologist who prepared a report on your behalf speaks of a need for you to continue to have some form of psychological treatment for a persistent depressive disorder which is now moderate, but which was in an acute state in the days leading to your offending. 

46. I am of the view that your prospects of rehabilitation are very good.

47. The sentence to be imposed, Mr Yee, is one which, in part, seeks to discourage others from doing what you did.  In part it seeks to discourage you from re-offending. And in part it is to encourage your rehabilitation. 

48. You entered a plea of guilty at the first available opportunity and there will be a 25% discount for the utilitarian value of the plea.

49. You have been in custody solely referrable to these offences since you were arrested on 28 September 2017.  The sentence will be backdated to commence on that date. 

50. I have had to give some consideration, Mr Yee, as to whether or not the sentence for the intentional choking should be totally concurrent, or partially accumulated, with the sentence for the causing grievous bodily harm.  I have come to the view that it was part of a continuous act of criminality and, therefore, the sentence for the choking will be totally concurrent with the overwhelmingly more serious offence of causing grievous bodily harm.

51. In relation to the offence of causing grievous bodily harm, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 10 years. Because of the plea of guilty, the term of imprisonment is 7 years 6 months. 

52. Because of your problems with English, and your social isolation, I make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period.

53. I fix a non‑parole period of 4 years to date from 28 September 2017 in which will expire on 27 September 2021.

54. I fix a balance of 3 years 6 months to date from 28 September 2021 and which will expire on 27 March 2025.

55. In relation to the intentional choking offence, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. Because of the plea of guilty, the term of imprisonment is 3 years. It is a fixed term to date from 28 September 2017 and it will expire on 27 September 2020.

56. You will now go with the officers.

Decision last updated: 18 July 2019