For offences under s 37 of the Crimes Act 1900 (NSW) (attempt to strangle with intent to commit an indictable offence), the nature and extent of physical injuries sustained by the victim is not determinative of objective seriousness, because bodily harm is not an element of the offence — unlike s 33 where grievous bodily harm is an element. The absence of an aggravating factor under s 21A(2)(g) does not mitigate the gravity of the offence. Where an offender has a history of repeated discharges under the Mental Health Act without effective treatment, considerations of retribution, personal deterrence and protection of society may justify a longer period of incapacitation.
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