R v Sotheren

Case [2001] NSWCCA 425

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     R v Sotheren [2001]  NSWCCA 425

FILE NUMBER(S):
60409/00

HEARING DATE(S): 21 August 2001

JUDGMENT DATE:    24/10/2001

PARTIES:
Regina
Darren Sotheren

JUDGMENT OF:        Beazley JA Wood CJ at CL Carruthers AJ   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):             70044/00

LOWER COURT JUDICIAL OFFICER:        Dowd J

COUNSEL:
Crown:      R Cogswell SC
Sotheren:  D G Dalton

SOLICITORS:
Crown:      S E O'Connor
Sotheren:  David H Cohen & Co

CATCHWORDS:
Crown Appeal
Sentence
Manslaughter
Aggravated Robbery

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Sentences set aside, convictions confirmed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60409/00

BEAZLEY JA
WOOD CJ at CL
CARRUTHERS AJ

Wednesday, 24 October 2001

R v SOTHEREN

FACTS

This was a Crown appeal against the sentences imposed by Dowd J in respect of six offences involving the assault and robbery of six different victims committed by the respondent over a 24 hour period. One of the victims died three days after the attack on him. All the other victims, including a taxi driver, suffered severe injuries. During the relevant period the respondent had injected himself with a considerable quantity of amphetamines. He had an extended prior criminal history including crimes of violence. The respondent pleaded guilty to one count of manslaughter: s 24 of the Crimes Act 1900 (NSW); two counts of aggravated robbery (inflicting grievous bodily harm): s 96 of the Crimes Act; and three counts of aggravated robbery (maliciously inflicting actual bodily harm): s 95 of the Crimes Act.

Dowd J imposed the following sentences:

  • Count 1: manslaughter: 5 years imprisonment to date from 7 September 2002 and conclude on 6 September 2007 with a non-parole period of 2 years and 6 months.  Eligible for conditional parole on 6 March 2005.

  • Count 2: aggravated robbery inflicting grievous bodily harm: 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.

  • Count 3: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.

  • Count 4: aggravated robbery inflicting grievous bodily harm: 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.

  • Count 5: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.

  • Count 6: aggravated robbery inflicting actual bodily harm: 2 years and 6 months imprisonment to date from 7 September 2002 and to conclude on 6 March 2005.

    In effect, an overall sentence of 7 years with a non-parole period of 4 years and 6 months was imposed.

    The Crown alleged that his Honour made a number of discrete errors in his reasons for sentence, in that he: (i) mistakenly regarded the maximum available penalty for all five robbery offences as 20 years, whereas the maximum for…

Continue reading R v Sotheren

Sign in free to access the full text

Details
AGLC
R v Sotheren [2001] NSWCCA 425
Case
[2001] NSWCCA 425
Decision Date

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Sotheren, following his guilty pleas to six offences, including manslaughter and aggravated robbery. The Crown argued that the sentence was manifestly inadequate and did not adequately reflect the seriousness of the crimes committed. The case was heard in the relevant appellate court, which considered the legal issues pertaining to the adequacy of the sentence and the principles of sentencing.

The court examined whether the original sentence was manifestly inadequate, taking into account the seriousness of the offences, the offender's criminal history, and the need for deterrence and rehabilitation. The court also considered the subjective circumstances of the offender, such as his age and the impact of the sentence on his rehabilitation, as well as the impact of the Crown's appeal on the offender's mental health. The court was required to determine whether the sentence imposed by the trial judge was so inadequate that it necessitated interference by the appellate court.

The appellate court found that the sentences imposed by the trial judge were overwhelmingly inadequate. The court considered the severity of the crimes, the offender's criminal history, and the need for deterrence and rehabilitation. The court also noted the positive impact of the original sentence on the offender's rehabilitation, but emphasised that this was outweighed by the need to adequately reflect the seriousness of the crimes. The court concluded that the sentences imposed were manifestly inadequate and required re-sentencing.

The appellate court re-sentenced the respondent, imposing a total period of imprisonment of 10 years with a non-parole period of 6 years. The court emphasised the need for the sentence to adequately reflect the seriousness of the crimes and to provide adequate deterrence and rehabilitation. The court also took into account the offender's prospects of rehabilitation, but found that these were outweighed by the need for an adequate sentence. The court made clear that the re-sentenced terms were not intended to punish the respondent for the appeal but to ensure that the sentence adequately reflected the gravity of the crimes committed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 2 April 2001 the respondent pleaded guilty to each of the six offences. On 15 June 2001 the respondent was sentenced as follows:Count 1: 5 years imprisonment to date from 7 September 2002 and to conclude on 6 September 2007 with a non-parole period of 2 years and 6 months. Eligible for release on parole on 6 March 2005. The release on parole is to be subject to a number of conditions.Counts 2 and 3: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2000 and to conclude on 6 March 2003.Counts 4 and 5: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2001 and to conclude on 6 March 2004.Count 6: Fixed term of 2 years and 6 months imprisonment to date from 7 September 2002 and to conclude on 6 March 2005.The sentence in respect of counts 2 and 3 was dated from 7 September 2000 to take into account the period the respondent had been in custody in respect of the offences subject of the appeal. Because of the combination of concurrent and cumulative sentences, the overall effect of the sentences imposed by his Honour was a total period of 7 years imprisonment with a non-parole period of 4 years and 6 months.Facts It is necessary to refer, in brief detail, to the offences. The offences themselves were committed over less than a 24 hour period on Sunday 9 May and Monday 10 May 1999. Over this period the respondent had injected himself with a considerable quantity of amphetamines. Count 1, the manslaughter offence, occurred second in point of time at about 10.15pm on 9 May 1999 and about half an hour after the first offence. The respondent had travelled from Liverpool to Granville by train. After leaving Granville Railway Station he walked a short distance where he saw the victim Ho Chung Sham waiting for his wife. Mr Sham was initially attacked about the head. He fell to the roadway and whilst on the ground the respondent stomped on his face. The respondent took Mr Sham’s wallet and mobile phone. The wallet was subsequently recovered and about half of its contents of $1,900 were missing. Mr Sham had placed the money in two separate compartments in the wallet. Mr Sham was found unconscious on the street by a passing motorist at about 10.45pm and died three days later having suffered severe brain injury in the attack. The respondent was indicted for murder but a plea of guilty to the offence of manslaughter was accepted. During the course of the sentence proceeding the respondent alleged that he was not responsible for stomping on Mr Sham’s head but that that had been done by another person involved in the attack. The respondent accepted responsibility for punching him only. However, not only had the respondent admitted the elements of the offence by his plea of guilty, there were circumstances which pointed to him as being the only perpetrator of the attack. They included the fact that he had been observed on video camera arriving at Granville Railway Station and he was alone. The wallet was found in an alcove adjoining the Cardinal Freeman Refuge, where the respondent had previously stayed. The pattern of the attack was similar to that involved in the other attacks - in particular the victim had sustained a severe beating around the head. In addition, the tread of the respondent’s shoes was consistent with the marks to the deceased’s head, although the prisoner was wearing shoes of common manufacture.

Evidence

Evidence Before The Court

Some of those factors are, of course, not directly applicable here because of the absence of a weapon, although the respondent fashioned his own weapon in counts 2 and 4 – an umbrella and a rock respectively. The latter could quite easily have caused a fatal blow. But, in any event, the circumstances of these offences and the personal circumstances of the respondent, even taking into account the very real subjective personal matters to which his Honour referred, are far more serious than those comprised in the guideline profile. In particular, the offender was not young, in the sense used in Henry, and more significantly, has a serious criminal record involving robbery and violence. However the offences in this case are viewed, and notwithstanding the subjective circumstances which was appropriate for his Honour to take into account, the sentences imposed were overwhelmingly inadequate. Further Submissions and Evidence: Prospects of Rehabilitation At the conclusion of the oral argument on the appeal, leave was granted to the respondent to file further written submissions in relation to the respondent’s prospects of further rehabilitation. Those submissions have been received together with a further report of Dr Daniels, Director of the Aboriginal Medical Service. In his further submissions, counsel for the respondent submitted that if this Court considered the trial judge had fallen into appealable error the Court should exercise its discretion not to re-sentence because of the “exceptional progress” the respondent had made in his rehabilitation and the likely severe adverse impact an increased sentence would have on his progress and his health: see R v Taylor [1998] NSWSC 162. Alternatively, it was submitted that given the principle of double jeopardy the Court should impose the least sentence which could properly have been imposed at first instance: see Mark Anthony Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996) per Gleeson CJ at 3. The effect of Dr Daniels evidence is, in short, that the respondent had been significantly positively affected by the sentences imposed by the trial judge and he had become “markedly less paranoid, less emotionally labile and more trusting, particularly of authority”. Generally, the respondent’s “thought structure and vocabulary had become more sophisticated” and he was “much more focused and purposeful”. He considered the effect of the sentence had been “arguably equivalent to several years of counseling (sic)”. However, the Crown appeal was served within two weeks of the sentence and had an even more dramatic impact, but of a negative kind. Dr Daniels reported:“… the negative impact on [the respondent] of the Crown’s appeal has been even greater in degree. Most disturbing has been the recurrence of suicidal ideation.” The Crown submitted in its further written submissions that the Court should not decline to re-sentence. I agree. The sentences imposed by the sentencing judge were so manifestly inadequate that this Court could not but interfere, notwithstanding the further evidence of Dr Daniels.

Decision

Reasons for decision

WOOD CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WOOD CJ

Full text does not contain this section.