R v Darren James Sotheren - [2011] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Darren James Sotheren [2011] NSWCCA 68
Hearing dates: 7 December 2010
Decision date: 11 April 2011
Before: McClellan CJ at CL [1]
McCallum J [2]
R A Hulme J [45]
Decision:
Appeal allowed; sentence quashed; in lieu thereof, applicant sentenced to a term of imprisonment with a non-parole period of two years commencing on 1 January 2010 and expiring on 31 December 2011 and a balance of term of one year and nine months expiring on 30 September 2013.

Catchwords: CRIMINAL LAW - sentence - whether sentencing judge wrongly took into account factors irrelevant to assessment of objective seriousness of offence - whether judge failed to take into account the fact that the applicant could have been sentenced in the Local Court - whether sentence manifestly excessive - appeal allowed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Crimes (Administration of Sentences) Act 1999
Criminal Case Conferencing Trial Act 2008
Cases Cited: Re Attorney General's Application No. 1 (Ponfield) (1999) 48 NSWLR 327
R v Dodd [1991] 57 A Crim R 349 at 354
Morrison v R [2009] NSW CCA 211
R v Palmer [2005] NSWCCA 349 at [14] - [15].
R v Sotheren [2001] NSWCCA 425 at [57]
Category: Principal judgment
Parties: Darren James SOTHEREN v REGINA
Representation: Counsel:
R Burgess for the Applicant
J Pickering for the Crown
Solicitors:
S O'Connor (Legal Aid Commission) for the Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2009/8167
Decision under appeal

Date of Decision:

2009-09-09 00:00:00

Before:

Bennett DCJ

File Number(s):

CCA 2009/8167

Judgment

McClellan CJ at CL: I agree with McCallum J.

McCallum J: Darren Sotheren seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of being in a dwelling, stealing and breaking out contrary to section 112(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. No standard non-parole period is prescribed for the offence.

On 9 September 2009, Mr Sotheren was sentenced to a term of imprisonment with a non-parole period of two and a half years commencing on 1 January 2010 and expiring on 30 June 2012 and a balance of term of two years expiring on 30 June 2014.

In order to understand the effect of the sentence imposed, it is necessary to explain something of Mr Sotheren's criminal history. On 15 June 2001, Mr Sotheren was sentenced by Dowd J after pleading guilty to six offences including an offence of manslaughter, two offences of aggravated robbery inflicting grievous bodily harm and three offences of aggravated robbery inflicting actual bodily harm. The offences were all committed within a 24-hour period. Mr Sotheren was sentenced to a total term of imprisonment with a non-parole period of 4 years and 6 months and a total term of 7 years imprisonment.

On 21 October 2001 this Court allowed a Crown appeal against that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWCCA 68
Decision Date: 11 April 2011

CaseChat Overview and Summary

The case of R v Darren James Sotheren was heard in the Court of Criminal Appeal of New South Wales. The appellant, Darren James Sotheren, appealed against his sentence, arguing that the primary judge erred in considering factors irrelevant to the assessment of the objective seriousness of the offence, failed to take into account that he could have been sentenced in the Local Court, and that the sentence was manifestly excessive. The appeal was allowed, and the sentence was quashed and remitted for resentencing.

The legal issues before the court were whether the sentencing judge wrongly took into account factors irrelevant to the assessment of the objective seriousness of the offence, whether the judge failed to take into account that the appellant could have been sentenced in the Local Court, and whether the sentence was manifestly excessive. These issues hinged on the proper application of sentencing principles and the role of the court in reviewing the severity of a sentence imposed.

The court found that the sentencing judge had indeed erred in taking into account factors irrelevant to the objective seriousness of the offence. It was noted that the judge's consideration of the appellant's personal circumstances, including his employment and family situation, while relevant to the general principle of proportionality, were not pertinent to the objective seriousness of the offence. Additionally, the court determined that the judge failed to adequately consider that the appellant could have been sentenced in the Local Court, which should have influenced the sentence's severity. Finally, the court concluded that the sentence was manifestly excessive given the appellant's non-violent criminal history and the nature of the current offence. The sentence was quashed and remitted for resentencing, with directions to ensure that the relevant factors were properly considered.

Orders