R v Sabbah [2025] NSWCCA 203

R v Sabbah [2025] NSWCCA 203 · Read the judgment on AustLII

Catchwords: Sentencing – Intentional choking – Assessment of objective seriousness

In this case the Court of Criminal Appeal (‘CCA’) examined the ‘relatively new’ offence in s 37(1A) of the Crimes Act of intentionally choking, and set out a range of factors which are relevant to assessment of the objective seriousness of the offence.

The respondent (this was a Crown appeal) was convicted by a jury of a variety of domestic violence offences: four counts of sexual intercourse without consent, two counts of assault occasioning actual bodily harm (‘AOABH’) and – of particular relevance to this summary – four counts of choking contrary to s 37(1A) of the Crimes Act 1900. For most of the offences he received a sentence of 5 years and 3 months, with a non-parole period of 3 years and 3 months. However, two of the four counts of choking were dealt with by way of Community Correction Orders (‘CCO’s’) for a period of 12 months – meaning they would expire before the conclusion of the non-parole period. The Crown appealed against the sentence, asserting, amongst other things, that the imposition of CCO’s for the choking counts was erroneous.

The Court (N Adams J, with whom Free JA and Sweeney J agreed) observed that Crimes Act s 37 creates three offences involving choking, suffocation, and strangulation (at [102]). Previous authority establishes that, unlike the other offences under s 37, s 37(1A) (the offence with which the respondent was charged) does not require proof of injury or any other outcome lasting after or arising as a result of the act of choking. That authority also establishes that ‘intentionally chokes’ within the meaning of s 37(1A) means ‘intentionally apply pressure to the next so as to be capable of affecting the breath or the flow of blood to or from the head’ (at [105]).

Because the offence in s 37(1A) is relatively new, there has little appellate consideration of the relevant factors that a sentencing judge should have regard to when assessing the objective seriousness of the offence. The Court accepted the Crown’s submission that the following non-exhaustive list of factors is relevant (at [107]):

• The nature of the relationship between the respondent and the victim, including that the conduct is domestic violence perpetrated on an intimate partner.
• The purpose or motivation for the conduct and whether the offence was committed in order to scare, coerce or control the victim.
• The force of the choking, suffocation or strangulation including the degree to which the victim was deprived of the ability to breathe.
• The duration of the offending.
• Any circumstances of humiliation or degradation accompanying the act; and
• Whether the offending caused any symptom or injury that persisted after the conduct ceased.

In relation to the duration of the offending, the offence in s 37(1A) does not have an element that the choking is so severe that it causes the victim to lose consciousness or be rendered insensible or incapable of resistance, which is an element of the more serious offence in s 37(1). Thus, thus the offence in s 37(1A) captures conduct where the duration and degree of the force, even at its most severe, falls short of causing a loss of consciousness etc (at [108]). It follows, in the present case, that where the victim described being unable to breathe in one instance, and unable to swallow her own saliva in another instance, that is conduct which falls toward the more serious end of objective seriousness of the offence contrary to s 37(1A) (at [108]). Once the victim is rendered, for example, incapable of resisting, then the offence normally falls into the more serious category of an offence under s 37(1) – although there will be at least some occasions when the less serious offence provision is still the appropriate offence because of a lack of the relevant mental element (at [109] and [110]). Similarly, because a person can lose consciousness from choking in a relatively short period of time, the fact that the choking was only for a matter of seconds does not mean that it is not a serious example of this offence if, for example, the degree of force was severe (at [109]). The sentencing judge had taken into account an ‘apology’ made by the offender: after choking the complainant, the offender said ‘Sorry, I didn’t mean to choke you. You made me angry.’ The fact that after an offence of domestic violence, an offender apologises may be a mitigating factor, in that it could establish remorse. But it does not reduce the objective seriousness of the offending. Moreover, the offender simultaneously apologised but told the complainant that it was her fault that he choked her. This was not an apology, but victim blaming (at [117]).

In the present case, the imposition of CCO’s for two of the choking counts (as well as one count of AOABH) without a supervision component was manifestly inadequate, and part of the reason for that may have been the sentencing judge’s erroneous reduction of the objective seriousness of the offences, as discussed above (at [159]). But the sentencing judge’s reasons in this case entailed other errors. First, s 4A of the Crimes (Sentencing Procedure) Act 1999 required her Honour to impose either fulltime detention or a supervised order or, failing that, to provide reasons for not imposing either outcome; her Honour did not provide reasons as required (at [163]). The imposition of CCO’s which ran concurrently with a sentence of imprisonment meant that her Honour was effectively imposing no punishment at all for those counts (at [165]). For those and other reasons, in the circumstances of this case the imposition of a CCO in respect of these counts was an error (at [173]).

The overall appeal was upheld. The indicative sentences for the two choking offences which had been dealt with by way of a CCO was increased to a sentence of imprisonment of 18 months. The overall aggregate sentence was increased to one of 9 years, with a non-parole period of 6 years.