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R v Sutherland

R v Sutherland

Case [2024] NSWDC 188 24 May 2024

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v SUTHERLAND [2024] NSWDC 188
Hearing dates: 24 May 2024
Date of orders: 24 May 2024
Decision date: 24 May 2024
Jurisdiction: Criminal
Before: Everson SC, DCJ
Decision:
Pursuant to ss 7(1) of the Crimes Sentencing Procedure Act, the sentence of imprisonment for 1 year and 11 months is to be served by way of an intensive corrections order (“ICO”).
Disqualified from driving for four years.

Catchwords:
SENTENCE – criminal law – drive manner dangerous causing grievous bodily harm.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Muldrock v The Queen (2011) 244 CLR 120
Veen v The Queen (No 2) (1988) 164 CLR 465
Mill v The Queen (1988) 166 CLR 59
R v Eaton [2023] NSWCCA 125
Paterson v R [2021] NSWCCA 273
Moodie v R [2020] NSWCCA 160
Tepania v R [2018] NSWCCA 247
R v Shashati [2018] NSWCCA 167
Stanyard v R [2013] NSWCCA 134
R v Millwood [2012] NSWCCA 2
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
R v Tzanis [2005] NSWCCA 274
R v McNaughton (2006) 66 NSWLR 566
Gonzalez v R [2006] NSWCCA 4
R v Takai (2004) 149 A Crim R 593
R v Berg [2004] NSWCCA 300
R v Israil [2002] NSWCCA 255
R v Whyte (2002) 55 NSWLR 252
R v Jurisic (1999) 45 NSWLR 209
R v Henry (1999) 46 NSWLR 346
R v Blanco (1999) 106 A Crim R 303
R v Murrell (1985) 15 A Crim R 303
R v Crawley (1982) 5 A Crim R 451
R v Todd [1982] 2 NSWLR 517

Category: Sentence
Parties: Public Prosecutions (NSW) (Crown)
David James Sutherland (Offender)
Representation:
Counsel:
K James (the Crown)
B Rowe (for the offender)
Solicitors:
Solicitor for Public Prosecutions (NSW)
Charles Abbott, Watsons Solicitors

File Number(s): 2023/00017426

JUDGMENT

The Offence

David James SUTHERLAND (“the offender”) appears for sentence, having pleaded guilty to dangerous driving causing grievous bodily harm to Craig Annen at Lalor Park on 12 December 2021.
On that day, Craig Annen was visiting the home of his friends Nathan and Shane Pickworth in Lalor Park. The brothers Pickworth lived there with their mother Susan. The Pickworths’ property was on the corner of Lawson Street and Jopling Crescent. To the west of Jopling Crescent is Venn Avenue. To the east of Jopling Crescent is Daisy Place.
Shane Pickworth and David SUTHERLAND were, at or about the same time, romantically involved with the same woman named Sarah; a coincidence of sad significance.
At around 3:40pm that Sunday, the offender drove to Lawson Street, Lalor Park in a white Toyota motor car. He stopped the car outside the Pickworth’s home and called out. In response, the Craig Annen and Susan Pickworth went outside and stood in the front yard. Mr ANNEN said to the offender, “Whoever you are looking for, is not here.” The offender lowered the…

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 Sutherland

Details

AGLC: R v Sutherland [2024] NSWDC 188
Case: [2024] NSWDC 188
Decision Date: 24 May 2024

CaseChat Overview and Summary

The defendant, Sutherland, was convicted of driving in a dangerous manner causing grievous bodily harm and appealed against his sentence. The court was required to decide whether the sentence imposed by the lower court was appropriate, and whether any alternative sentencing options were available under the relevant legislation. The legal issues included the severity of the crime, the defendant's criminal history, and the potential effectiveness of an alternative sentence, such as an intensive corrections order. The court found that the defendant's actions were indeed dangerous and caused serious harm, but also took into account his otherwise clean criminal record and the potential for rehabilitation. After considering the principles of sentencing and the relevant legislation, the court decided that an intensive corrections order would be an appropriate alternative to imprisonment, and ordered that the defendant serve his sentence by way of an ICO. The court also disqualified the defendant from driving for a period of four years.

Orders

Orders of the court

Pursuant to ss 7(1) of the Crimes Sentencing Procedure Act, the sentence of imprisonment for 1 year and 11 months is to be served by way of an intensive corrections order (“ICO”).

Disqualified from driving for four years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Sutherland [2024] NSWDC 188

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Eaton [2023] NSWCCA 125
Citation 1 (Para 57)

…That submission by the Crown goes to, what Hamill J (with whom Lonergan and Ierace JJ agreed) said in R v Eaton [2023] NSWCCA 125 at [45], is the “vexing issue” of “the interaction between the assessment of the objective seriousness of an offence and the extent to which that assessment is informed by the “separate b…
Lloyd v R [2022] NSWCCA 18
Citation 2 (Para 42)

…hen the prisoner does not give evidence. I am equally mindful of the important point made by McCallum J (as her Honour then was) in Lloyd v R [2022] NSWCCA 18 at [45]:…
Paterson v R [2021] NSWCCA 273
Citation 3 (Para 55)

…In Paterson v R [2021] NSWCCA 273 at [29], Beech-Jones CJ at CL, as his Honour then was, explained with the agreement of R A Hulme and N Adams J, that the objective seriousness of an offence involves an objective assessment of the seriousness of the crime and the matters causally related to it. The moral culpability…
Moodie v R [2020] NSWCCA 160
Citation 4 (Para 51)

…4 of the Crimes (Sentencing Procedure) Act 1999 and sentencing judges are obliged to take them into account (see R v Whyte at [32]–[67]; Moodie v R [2020] NSWCCA 160 at [24]) care is needed.…
Tepania v The Queen [2018] NSWCCA 247
Citation 5 (Para 54)

…uently, the assessment of an offender’s moral culpability has been treated as a distinct but important part of the sentencing exercise: Tepania v R [2018] NSWCCA 247 at [112] per Johnson J.…
R v Shashati [2018] NSWCCA 167
Citation 6 (Para 65)

…That understanding means that the entirety of the surrounding circumstances is relevant to the assessment of moral culpability. See R v Shashati [2018] NSWCCA 167 at [23]–[24].…
Bugmy v The Queen [2013] HCA 37
Citation 7 (Para 53)

…st since Veen v The Queen (No 2) ( 1988) 164 CLR 465 at 477, as confirmed in Muldrock v The Queen (2011) 244 CLR 120 at [58], and Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46].…
Stanyard v R [2013] NSWCCA 134
Citation 8 (Para 83)

…As the Court observed in Stanyard v R [2013] NSWCCA 134 per Fullerton J (Bathurst CJ and Campbell J agreeing) at [29], “it is an unexceptional observation that a safe speed depends upon a range of factors, including the posted speed limit and prevailing conditions.” In this case, whether or not David SUTHERLAND was…
R v Millwood [2012] NSWCCA 2
Citation 9 (Para 95)

…I am satisfied that the subjective circumstances of the offender attracts the considerations found in R v Millwood [2012] NSWCCA 2, Bugmy v The Queen (2013) 249 CLR 571 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.…
Muldrock v The Queen [2011] HCA 39
Citation 10 (Para 53)

…from the objective seriousness of the crime at least since Veen v The Queen (No 2) ( 1988) 164 CLR 465 at 477, as confirmed in Muldrock v The Queen (2011) 244 CLR 120 at [58], and Bugmy v The Queen (2013) 249 CLR 571 at [44]–[46].…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 95)

…es of the offender attracts the considerations found in R v Millwood [2012] NSWCCA 2, Bugmy v The Queen (2013) 249 CLR 571 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.…
R v Whyte [2006] NSWCCA 75
Citation 12

…66 NSWLR 566 Gonzalez v R [2006] NSWCCA 4 R v Takai (2004) 149 A Crim R 593 R v Berg [2004] NSWCCA 300 R v Israil [2002] NSWCCA 255 R v Whyte (2002) 55 NSWLR 252 R v Jurisic (1999) 45 NSWLR 209 R v Henry (1999) 46 NSWLR 346 R v Blanco (1999) 106 A Crim R 303 R v Murrell (1985) 15 A Crim R 303 R v Crawley (1982) 5 A Cr…
Gonzalez v R [2006] NSWCCA 4
Citation 13 (Para 92)

…In Gonzalez v R [2006] NSWCCA 4 Howie J (Basten JA and Hall J agreeing) said at [13]:…
R v Tzanis [2005] NSWCCA 274
Citation 14 (Para 69)

…ng aggravating factors, there may be other circumstances of aggravation, not found in the guideline, which may also be taken into account: R v Tzanis [2005] NSWCCA 274 at [24]–[25].…
R v Takai [2004] NSWCCA 392
Citation 15 (Para 76)

…o other circumstances, such as the time at which the journey is undertaken, the amount of traffic, and the locale: R v Takai (2004) 149 A Crim R 593; [2004] NSWCCA 392 at [39].…
R v Berg [2004] NSWCCA 300
Citation 16 (Para 68)

…be imposed. Those characteristics describe the typical case. They were never intended to circumscribe the sentencing court’s discretion: R v Berg, [2004] NSWCCA 300, Howie J, (Spigelman CJ and Wood CJ at CL agreeing) at [21].…
R v Israil [2002] NSWCCA 255
Citation 17 (Para 100)

…a person’s moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This is especially so where the mental condition contributes to the commission of the offence in a materia…
R v Qutami [2001] NSWCCA 353
Citation 18 (Para 42)

…I am mindful of the “general observation” made by Smart AJ (with whom Spigelman CJ agreed) in Qutami v R [2001] NSWCCA 353 at [58] that “very considerable caution should be exercised” in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. I am equa…
R v Henry [1999] NSWCA 111
Citation 19 (Para 100)

…ters such as general deterrence, retribution and denunciation have less weight: Muldrock at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79…
Mill v The Queen [1988] HCA 70
Citation 20 (Para 115)

…I note that R v Todd was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59 (at 66) as being a just and principled approach.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 21

…g Procedure) Act 1999 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Muldrock v The Queen (2011) 244 CLR 120 Veen v The Queen (No 2) (1988) 164 CLR 465 Mill v The Queen (1988) 166 CLR 59 R v Eaton [2023] NSWCCA 125 Paterson v R [2021] NSWCCA 273 Moodie v R [2020] NSWCCA 160 Tepania v R [2018] NSWCCA 247 R v…
R v De Simoni [1981] HCA 31
Citation 22 (Para 19)

…cipal count on the indictment. That point underlines the need for this Court to follow and apply the fundamental proposition in The Queen v De Simoni (1981) 147 CLR 383 at 389 that no one should be punished for an offence of which he has not been convicted.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 51)
Crimes Act 1900 (ACT)
1 mention (from Para 16)

Medium Neutral Citation:	R v SUTHERLAND [2024] NSWDC 188
Hearing dates:	24 May 2024
Date of orders:	24 May 2024
Decision date:	24 May 2024
Jurisdiction:	Criminal
Before:	Everson SC, DCJ
Decision:	Pursuant to ss 7(1) of the Crimes Sentencing Procedure Act, the sentence of imprisonment for 1 year and 11 months is to be served by way of an intensive corrections order (“ICO”). Disqualified from driving for four years.
Catchwords:	SENTENCE – criminal law – drive manner dangerous causing grievous bodily harm.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Muldrock v The Queen (2011) 244 CLR 120 Veen v The Queen (No 2) (1988) 164 CLR 465 Mill v The Queen (1988) 166 CLR 59 R v Eaton [2023] NSWCCA 125 Paterson v R [2021] NSWCCA 273 Moodie v R [2020] NSWCCA 160 Tepania v R [2018] NSWCCA 247 R v Shashati [2018] NSWCCA 167 Stanyard v R [2013] NSWCCA 134 R v Millwood [2012] NSWCCA 2 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Tzanis [2005] NSWCCA 274 R v McNaughton (2006) 66 NSWLR 566 Gonzalez v R [2006] NSWCCA 4 R v Takai (2004) 149 A Crim R 593 R v Berg [2004] NSWCCA 300 R v Israil [2002] NSWCCA 255 R v Whyte (2002) 55 NSWLR 252 R v Jurisic (1999) 45 NSWLR 209 R v Henry (1999) 46 NSWLR 346 R v Blanco (1999) 106 A Crim R 303 R v Murrell (1985) 15 A Crim R 303 R v Crawley (1982) 5 A Crim R 451 R v Todd [1982] 2 NSWLR 517
Category:	Sentence
Parties:	Public Prosecutions (NSW) (Crown) David James Sutherland (Offender)
Representation:	Counsel: K James (the Crown) B Rowe (for the offender) Solicitors: Solicitor for Public Prosecutions (NSW) Charles Abbott, Watsons Solicitors
File Number(s):	2023/00017426