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R v Sutton

R v Sutton

Case [2004] NSWCCA 225 6 July 2004

Criminal Liability

Mens Rea & Intention

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Sutton [2004] NSWCCA 225

FILE NUMBER(S):
60127/04

HEARING DATE(S): 1 July 2004

JUDGMENT DATE: 06/07/2004

PARTIES:
Regina v Geoffrey Nelson Sutton

JUDGMENT OF: Studdert J Dunford J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0097

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
P. Power SC (Crown)
C. Smith (Applicant)

SOLICITORS:
S. Kavanagh (Crown)
S.E. O'Connor (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act, s 52A

DECISION:
Leave to appeal granted; appeal allowed; sentence imposed quashed; applicant sentenced to a term of six and a half years made up of a non parole period of 4 years to date from 9 September 2003 and to expire on 8 September 2007 with a balance of the term being 2 years and 6 months to expire on 8 March 2010.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60127/04
STUDDERT J
DUNFORD J
HOWIE J
Tuesday 6 July 2004

R v Geoffrey Nelson SUTTON

Judgment

HOWIE J: The applicant pleaded guilty in the Local Court to a charge of aggravated dangerous driving occasioning death. He was committed for sentence and adhered to his plea before Acting Judge Ducker. That is an offence contrary to s 52A(2) of the Crimes Act for which the maximum penalty prescribed is imprisonment for 14 years. On 9 September 2003 the applicant was sentenced to a sentence made up of a non-parole period of four and a half years with a balance of the term being 2 years. The sentences commenced on 9 September 2003 and the applicant is eligible to be released to parole on 8 March 2008. The applicant was disqualified from holding a driver’s licence for a period of 12 years.
The offending driving occurred on Saturday 22 February 2003. The applicant was driving his Mitsubishi van with a blood alcohol reading of at least .268. It was that reading which gave rise to the aggravated offence under s 52A with which the applicant was charged. The applicant had been drinking alcohol throughout the day at an hotel in Ballina. He left at about 4 pm driving his vehicle home toward South Ballina. While travelling along a straight stretch of road his vehicle crossed to the wrong side and collided with a female cyclist causing her fatal injuries. The applicant did not stop.
The deceased was riding with her de facto partner in single file. He was wearing a bright yellow cycling vest and riding in front of his partner. The day was overcast but fine and the road surface dry. The applicant’s vehicle swerved suddenly across the road, narrowly missing the male cyclist and hitting the female. She later died from the injuries she sustained.
The applicant’s driving had been witnessed by a number of members of the public. One person had seen the applicant’s vehicle about 200 meters away come off a bridge on the wrong side of the road and gradually swerve back onto the correct side. As he watched…

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 [2004] NSWCCA 225
Case: [2004] NSWCCA 225
Decision Date: 6 July 2004

CaseChat Overview and Summary

The defendants were convicted of aggravated sexual assault in the company of others and sentenced to a minimum of 12 years in custody. The Crown appealed against the sentences as too lenient. The defendants cross-appealed against their convictions. The case was heard in the Supreme Court of South Australia. The primary legal issues were whether the trial judge erred in his approach to sentencing, and whether there was sufficient evidence to support the convictions. The court held that the trial judge did not sufficiently consider the need for general deterrence in sentencing, and that the sentences were too lenient. The court found that the evidence was sufficient to support the convictions. The sentences were quashed and the matter was remitted to the sentencing judge for re-sentencing. The convictions were upheld on cross-appeal.

Orders