ACT Supreme Court dismisses appeal of Benjamin Day's sentence

Benjamin Paul Day was found guilty of two counts of choking, and one charge each of threatening to kill and contravening a family violence order by an ACT Supreme Court jury in September.

In December, Justice Geoffrey Kennett sentenced Day, aged in his late 40s, to four-and-a-half years' jail time with a non-parole period of two years and 10 months.

In an appeal of the sentence, lawyers for Day alleged Justice Kennett failed to take subjective circumstances and the principle of totality into account, claiming it was manifestly excessive.

However, in an ACT Court of Appeal judgement published on Wednesday, the court dismissed the claims and found Day had not established any of these grounds.

"Although the total sentence may be described as stern, the appellant has not established that in the circumstances of this case that it is manifestly excessive," the judgement reads.

Day remains behind bars after his September 2021 crimes which started shortly after the couple went to bed.

Day started muttering "I hate you, I hate you" and pushed the victim off the mattress.

During the trial, the victim gave evidence saying Day then stood up and punched her in the head before putting one or both of his hands on her neck as a "warning".

Several hours later, he told the woman to "get out" but grabbed her from behind while she was opening the front door.

The pair fell through the door and the woman crawled several metres along the ground, before grabbing onto a pergola pole.

Day placed two hands around her neck and tried to pull her off the pole and drag her back towards the house.

The woman could not breathe.

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Day then put one hand under her arm while keeping the other against her throat.

While giving evidence, the woman said she shouted for help before seeing a light come on across the road.

She claimed Day said words to the effect of: "That's it. You're f---ed. I am dragging you back inside right now, and you are dead. The police are coming, we're both gonna die tonight".

When he went back into the house, the woman escaped and ran across the road where the neighbours called the police.

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