R v Sawyer - [2002] VSC 600

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1448 of 2002

THE QUEEN

DANIEL JOHN SAWYER

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF PLEA:	25 OCTOBER 2002
DATE OF SENTENCE:	11 DECEMBER 2002
CASE MAY BE CITED AS:	R. v. SAWYER
MEDIUM NEUTRAL CITATION:	[2002] VSC 600

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Sentence – Manslaughter – Unlawful and dangerous act – Plea of guilty – Offender threatened with violence by drunken victim (who was a friend) and another after a party at victim's house – Offender who suffered from panic attacks feared for safety – Pursuit of victim by offender in four wheel drive vehicle – Fatal collision when vehicle slid down embankment – Remorse – Excellent prospects of rehabilitation – Sentenced to be imprisoned for 6 years with a minimum of 3½ years before eligibility for parole.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Bill Morgan-Payler QC	Office of Public Prosecutions
For the Accused	Peter Morrissey	C & H Lawyers

HIS HONOUR:

Daniel John Sawyer, you have pleaded guilty to the manslaughter of Gavin John Smeath at Diamond Creek on 13 October 2001. In order to sentence you it is necessary to summarise the circumstances surrounding the commission of this offence.

It had been arranged that your friends, Gavin Smeath and Ross Thompson would visit you socially at your home at 48 Challenger Street, Diamond Creek on the evening of 12 October 2001. Gavin Smeath was to bring his girl friend Michelle Coomer so as to acquaint her with your girl friend Lauren Elliot. When Gavin Smeath arrived at about 9 p.m. he also had with him two other young men, Lenny White and Martin O'Reilly, persons you had met but who you did not know well.

Ms Elliot and Ms Coomer remained inside the house while you and the other young men went to a large shed at the rear of the premises. It was equipped with a pool table and this was utilised during the early part of the evening. Music was played and alcohol, predominantly cans of Jack Daniels and Cola and Wild Turkey and Cola, was consumed by all of you. The others also smoked some marijuana. You did not do so because it was incompatible with the condition from which you suffered and for which you were on medication. This condition, chronic panic disorder, was a disability which it was submitted by your counsel Mr Morrissey, had some influence on your subsequent behaviour. I will describe it in more detail later.

At one stage in the evening Larry White, accompanied by Ms Coomer, who was the designated driver of the group purchased a slab of Wild Turkey and Cola from the Eltham Hotel. As the night progressed pool was replaced by what has been described as play fighting between Gavin Smeath and Ross Thompson, with Martin O'Reilly also participating. These activities which included wrestling and slap boxing were described by Ross Thompson as a friendly test of strength and skill.

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.

Continue reading R v Sawyer

Details

AGLC: R v Sawyer [2002] VSC 600
Case: [2002] VSC 600
Decision Date: 11 December 2002

CaseChat Overview and Summary

In the case of R v Sawyer, the defendant pleaded guilty to manslaughter by virtue of an unlawful and dangerous act. The incident occurred following a party at the victim's house, where the defendant, fearing for their safety due to threats of violence from the victim and another individual who were intoxicated, pursued the victim in a four-wheel drive vehicle. This pursuit culminated in a fatal collision when the vehicle slid down an embankment. The court was tasked with determining an appropriate sentence, taking into account the defendant's remorse, their prospects of rehabilitation, and the circumstances leading to the incident.

The primary legal issue for the court was to assess the appropriate sentence for manslaughter committed through an unlawful and dangerous act. The court had to weigh various factors, including the defendant's state of mind at the time of the incident, the nature of the act, and the defendant's personal circumstances. The court also considered the defendant's remorse and the likelihood of rehabilitation, which were highlighted during the sentencing hearing.

The court recognised the defendant's genuine remorse and the mitigating factors presented, including the defendant's history of panic attacks and the immediate threat perceived at the time of the incident. The court determined that the defendant's actions, while reckless, were not premeditated, and that there were significant mitigating circumstances. After careful consideration, the court sentenced the defendant to imprisonment for six years, with a non-parole period of three and a half years. This sentence reflected the seriousness of the offence while also taking into account the mitigating factors and the prospects for rehabilitation.

The final orders of the court included the sentencing of the defendant to six years imprisonment with a non-parole period of three and a half years. The court's decision balanced the need for punishment with the recognition of the defendant's remorse and the potential for rehabilitation, providing a sentence that addressed the gravity of the manslaughter while considering the individual circumstances of the case.

Orders