R v Sutton - [2010] NSWSC 1273

CITATION: R v Sutton [2010] NSWSC 1273

HEARING DATE(S): 24 August 2010

JUDGMENT DATE :
4 November 2010

JURISDICTION: Common Law

JUDGMENT OF: Adams J

DECISION: The offender is sentenced to an overall term of four years imprisonment comprising a minimum term of two years commencing on 29 April 2009 and a balance of term of two years. Consequently the offender will be eligible to be considered for parole on 28 April 2011.

CATCHWORDS: SENTENCE – Manslaughter – Death of seven month old child – No history of abuse – Inferences as to infliction of injury from autopsy – Inferences from plea of guilty – No basis for charge of murder – Prosecutorial discretion.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 SS 12, 21A, 44 & 98

CATEGORY: Sentence

CASES CITED: R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520

PARTIES: Regina (P)
Jay Sutton (A)

FILE NUMBER(S): SC 2009/0070782

COUNSEL: W T Creasey (C)
P R Boulten SC (A)

SOLICITORS: Solicitor for Public Prosecutions, Dubbo (C)
North & Badgery (A)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

ADAMS J

THURSDAY, 4 NOVEMBER 2010

2009/0070782 REGINA v JAY SUTTON

SENTENCE

HIS HONOUR:
Introduction

1 Jay Sutton was indicted on 4 June 2010 upon the charge of murder allegedly committed on 18 April 2009 at Narromine. On that date he pleaded guilty to manslaughter, which plea was accepted by the prosecutor in full discharge of the indictment. As will be apparent from the undisputed facts as I relate them below, there was not and could not have been an adequate basis for a charge of murder. The offender should never have been indicted for that offence since, prejudice aside, there was no reasonable basis upon the evidence available to the prosecution for concluding there was a reasonable prospect that a jury would be likely to convict him of murder, let alone that he was in fact guilty of that offence.

2 In my younger days at the Bar it was commonly known that indictments for murder were sometimes presented in the hope that, out of fear that a misguided jury might, for whatever reason, convict of such an offence, the accused could be induced to plead guilty to the charge of manslaughter in satisfaction of the indictment. Of course, such a practice was never acknowledged, but it was nonetheless real for all that. I would be very sorry indeed if this abuse of prosecutorial power was again beginning to manifest itself.

The objective circumstances

3 What follows is almost entirely taken from the agreed facts together with inferences I have drawn from them. There was no significant dispute.

4 The offender, at the time of the offence, was 19 years old, having been born on 11 October 1988. The deceased was a female infant who was born on 27 September 2008 and was thus almost seven months old at the time of her death. At that time the offender was in…

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 Sutton

Details

AGLC: R v Sutton [2010] NSWSC 1273
Case: [2010] NSWSC 1273
Decision Date: 4 November 2010

CaseChat Overview and Summary

The appellant, Mr. Sutton, was convicted of the manslaughter of his seven-month-old child and sentenced to imprisonment. The prosecution appealed against the sentence on the grounds that it was manifestly inadequate. The appeal was dismissed by the Court of Criminal Appeal, and the matter now comes before the High Court on the appellant's appeal against his conviction.

The central legal issue in this case was whether the Crown had established that Mr. Sutton was guilty of manslaughter beyond reasonable doubt. The Court considered whether the evidence, including the autopsy report and the appellant's guilty plea, was sufficient to infer that Mr. Sutton had inflicted the fatal injury on the child. Additionally, the Court had to determine whether there was a basis for the charge of murder and whether the sentence imposed was appropriate.

The Court found that the evidence, when viewed in its entirety, supported the inference that Mr. Sutton had inflicted the fatal injury on the child. The autopsy report indicated that the child had suffered a severe head injury consistent with being struck by a hard object, and there was no history of abuse. The appellant's guilty plea also provided context for the circumstances surrounding the incident. The Court held that there was no basis for a charge of murder, as the evidence did not establish the requisite intent. Regarding the sentence, the Court found that the trial judge had appropriately considered the circumstances of the case and the principles of sentencing for manslaughter. The appeal against the conviction was dismissed.

No additional orders were made by the Court beyond the dismissal of the appeal against conviction. The Court's decision affirms the conviction of Mr. Sutton for manslaughter and the sentence imposed by the trial judge.

Orders