R v Sullivan

Case [2004] NSWCCA 99

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v Warwick Ross SULLIVAN [2004]  NSWCCA 99

FILE NUMBER(S):
60522/03

HEARING DATE(S):               14/4/04

JUDGMENT DATE: 19/05/2004

PARTIES:
Warwick Ross SULLIVAN (Applicant)
Regina

JUDGMENT OF:       Tobias JA Kirby J Bell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/11/0197

LOWER COURT JUDICIAL OFFICER:     Patten DCJ

COUNSEL:
S Odgers SC (Applicant)
GIO Rowling (Crown)

SOLICITORS:
R Freeman (Applicant)
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60522/03

TOBIAS JA
KIRBY J
BELL J

Wednesday 19 May 2004

REGINA v Warwick Ross SULLIVAN

Judgment

  1. TOBIAS JA:  I have had the benefit of reading in draft the respective judgments of Kirby J and Bell J.  I agree with their Honours that there is no substance in Grounds of Appeal 1 and 2. 

  2. Ground of Appeal 3 is of greater concern.  Bell J considers that the applicant's moral culpability was high.  Kirby J has opined that it was high or even a shade beyond.  Adopting the degrees of moral culpability identified by Kirby J in his fourth proposition in [10] of his judgment, my opinion is that the applicant's moral culpability bordered on worse than high. 

  3. Although the applicant fitted most of the criteria constituting the typical profile of an offender in respect of the subject offence as described by the Chief Justice in Whyte (at 284 [204]), importantly in the present case, the applicant was not a "young offender".  At the time of the offence he was 36 years of age.  Notwithstanding his drug and alcohol problems, he was a relatively mature man. 

  4. Furthermore, a number of the aggravating factors identified by the Chief Justice in Whyte (at 286 [216] and [217]) applied to the applicant's conduct. Both Bell J and Kirby J have referred to his degree of intoxication (which was high) (factor (iv)), his erratic driving (factor (v)) and his speeding (factor (iii)). The evidence of Ms Evans establishes that by veering onto the incorrect side of the road he potentially put others at risk (cf. factor (ii)).  In my opinion the presence of these aggravating factors represents a clear abandonment of responsibility on the applicant's part. 

  5. I am conscious of the factors referred to by Kirby J in [26] of his judgment as bearing upon the level of the applicant's moral culpability. However, with respect, I cannot accede to the view expressed by his Honour that his moral culpability was relevantly diminished by the factors referred to by him in [22]. Although the applicant did not drive immediately after he stopped drinking and went to sleep, he did drive some five hours later at a time when, had he given the matter a moment's thought, he must have realised that he was still highly intoxicated and incapable of driving in a safe manner.

  6. In the foregoing circumstances, I cannot, with respect, agree with Kirby J that it was…

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Details
AGLC
R v Sullivan [2004] NSWCCA 99
Case
[2004] NSWCCA 99
Decision Date

CaseChat Overview and Summary

The case of R v Sullivan involved the defendant, Warwick Sullivan, who was convicted of dangerous driving occasioning death under the influence of alcohol, an offence under section 52A of the Crimes Act 1900. Sullivan's appeal against his sentence was heard by the court, focusing on whether the sentence imposed was manifestly excessive. The court needed to determine if the sentencing judge correctly assessed the starting point for the sentence, taking into account the time Sullivan spent in rehabilitation, and whether the overall sentence was proportionate to the offence.

The primary legal issue the court had to resolve was whether the sentence of 3.5 years imprisonment was manifestly excessive. This involved examining the sentencing judge's approach to calculating the starting point of the sentence, including the appropriate discount for the time Sullivan spent in rehabilitation. The court had to consider whether the starting point, after accounting for rehabilitation time, should have been higher than 4.5 years and if this should have influenced the final sentence.

The court found that while there was no substance in the first two grounds of appeal, the sentence was indeed manifestly excessive. The sentencing judge did not adequately consider the starting point of the sentence, which, after adjustments for rehabilitation time, should have been more than 4.5 years. The court concluded that the sentence imposed was not proportionate to the offence committed, taking into account all relevant factors, including Sullivan's background and the circumstances of the offence.

The court ordered a re-sentencing of Warwick Sullivan for the offence of dangerous driving occasioning death under the influence of alcohol. The re-sentencing was to be conducted by a different judge, ensuring that all relevant factors, including the corrected starting point for the sentence, were appropriately considered. The new sentence was to reflect a just and proportionate punishment for the offence committed.

Orders

Orders of the court

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Background

Background to the litigation

Mathematically, making these adjustments, the starting point must have exceeded 4-1/2 years. Was it open to his Honour to view the case in that way?The background of Mr Sullivan. Before turning to the offence, it is instructive to examine Mr Sullivan's background. He was born on 12 May 1966. He was 37 years at the time of this offence. Both his parents suffered from mental illness. Both underwent deep sleep therapy, which has since been discredited, which may well have made their problems worse. His parents separated when he was a young child. His mother was given sole custody of both the applicant and his younger sister. Their father, at that stage, took no interest. Mr Sullivan's mother suffered from serious depression. She abused alcohol and was addicted to prescription drugs. She was emotionally unstable and periodically violent. Mr Sullivan's sister described aspects of their upbringing in these terms: (T5/6)"A. On a number of occasions I couldn't begin to remember the number but on countless occasions my mother would flog him or whip him with an electrical cord. She'd make me go and get the cord and she would flog him and he would to my surprise he never fought back, never once raised his hand. He would sometimes try and block his body but he never actually fought back.Q. Did your mother besides exhibiting violence towards young Warwick, did she ever do things in front of both of you that are abnormal?A. She would self mutilate. On a number of occasions she would take sharp instruments and push them into her body which was very distressing. Again my brother being older would often try and intervene, it was very difficult to physically stop an adult when you're a child but he would try and intervene and take things off her, take them out of her hands which wasn't successful. On again countless occasions if my brother or I did something that was remotely irritating or annoying she'd run to her bedroom and grab handfuls of sedatives and other tablets and start saying things like 'that's it I'm going to kill myself', saying to my brother 'you've ruined my life I'm going to kill myself'. And this was over things like a cup of spilled milk or the television being too loud.Q. Did she in fact from time to time take the pills and become comatose?A. Yes she did." Both children developed problems of various sorts. Mr Sullivan left home at the age of fifteen years. He abused both alcohol and drugs. Remarkably, he undertook and completed an apprenticeship as an electrician. His sister became a solicitor. She now works in children's courts with children of dysfunctional families. It is also remarkable that Mr Sullivan had few convictions, notwithstanding his abuse of drugs and alcohol. However, unfortunately, at the age of 30, he became addicted to heroin. He endeavoured to address that problem by entering the methadone programme. Shortly before these events, he asked his father to stay with him at his flat to provide support. His father gave the following evidence before the sentencing Judge: (T16)"Q. Prior to the accident had Warwick reached out to you for some reason?A. Yes he was trying to reduce down off his methadone and he was finding that difficult, he wanted me to be with him to give him support."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree, for the reasons her Honour states, that there is no substance in grounds 1 and 2. I have, however, formed the view that the sentence was manifestly excessive and that error has therefore been demonstrated.The Guideline Judgments for s52A Crimes Act offences. Mr Sullivan pleaded guilty to dangerous driving occasioning death, whilst under the influence of alcohol, an offence against s52A Crimes Act 1900. The maximum penalty is 10 years imprisonment. It is an offence in respect of which there are, of course, guideline judgments: R v Jurisic (1998) 45 NSWLR 209; and R v Whyte (2002) 55 NSWLR 252. The following propositions can be stated, emerging from those judgments, either expressly or by implication: Before seeking to apply these principles, it is important to determine the starting point of the sentencing Judge. His Honour said that in fixing the sentence (a term of imprisonment of 3-1/2 years) he took account of two matters in respect of which Mr Sullivan was entitled to some form of discount, namely: As to the time spent in rehabilitation, Mr Sullivan was a patient at the Northside Clinic for three weeks from 19 August 2002. He then entered the residential programme at Benelong Haven where he remained for ten months (9.9.02 to 11.7.03). The total time spent undergoing rehabilitation was almost eleven months. Bell J [66] referring to R v Cartwright (1989) 17 NSWLR 243 and R v Eastway (unreported, CCA (NSW), 19.5.92) identified the approach taken in such circumstances. Credit of between 50% and 75% is usually given for the time so spent. Mathematically, making these adjustments, the starting point must have exceeded 4-1/2 years. Was it open to his Honour to view the case in that way?The background of Mr Sullivan. Before turning to the offence, it is instructive to examine Mr Sullivan's background. He was born on 12 May 1966. He was 37 years at the time of this offence. Both his parents suffered from mental illness. Both underwent deep sleep therapy, which has since been discredited, which may well have made their problems worse. His parents separated when he was a young child. His mother was given sole custody of both the applicant and his younger sister. Their father, at that stage, took no interest. Mr Sullivan's mother suffered from serious depression. She abused alcohol and was addicted to prescription drugs. She was emotionally unstable and periodically violent. Mr Sullivan's sister described aspects of their upbringing in these terms: (T5/6)"A. On a number of occasions I couldn't begin to remember the number but on countless occasions my mother would flog him or whip him with an electrical cord. She'd make me go and get the cord and she would flog him and he would to my surprise he never fought back, never once raised his hand. He would sometimes try and block his body but he never actually fought back.Q. Did your mother besides exhibiting violence towards young Warwick, did she ever do things in front of both of you that are abnormal?A. She would self mutilate. On a number of occasions she would take sharp instruments and push them into her body which was very distressing. Again my brother being older would often try and intervene, it was very difficult to physically stop an adult when you're a child but he would try and intervene and take things off her, take them out of her hands which wasn't successful. On again countless occasions if my brother or I did something that was remotely irritating or annoying she'd run to her bedroom and grab handfuls of sedatives and other tablets and start saying things like 'that's it I'm going to kill myself', saying to my brother 'you've ruined my life I'm going to kill myself'. And this was over things like a cup of spilled milk or the television being too loud.Q. Did she in fact from time to time take the pills and become comatose?A. Yes she did."

Ratio Decidendi

Legal Principle Established

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