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Court of Criminal Appeal 24 October 2001

R v Sotheren

[2001] NSWCCA 425

Assault & violenceHomicideTheft & property
CROWN APPEAL SENTENCE MANSLAUGHTER AGGRAVATED ROBBERY

Citation: R v Sotheren [2001] NSWCCA 425
Court: New South Wales Court of Criminal Appeal
Date: 24 October 2001
Judge(s): Beazley JA; Wood CJ at CL; Carruthers AJ

Background

Over a 24-hour period, the respondent committed six violent offences against six different victims while heavily intoxicated by self-administered amphetamines. One victim died three days after the attack. All remaining victims, including a taxi driver, sustained severe injuries. The respondent had an extensive prior criminal history, including prior crimes of violence, and was on parole at the time of the offending.

The respondent pleaded guilty to one count of manslaughter, two counts of aggravated robbery inflicting grievous bodily harm (under s 96 of the Crimes Act 1900), and three counts of aggravated robbery maliciously inflicting actual bodily harm (under s 95 of the Crimes Act 1900). Dowd J in the Supreme Court sentenced him to an overall term of 7 years with a non-parole period of 4 years and 6 months.

The Crown appealed the sentences as manifestly inadequate, identifying several specific errors in the sentencing judge's reasoning.

  • Whether Dowd J erred in treating the maximum penalty for all robbery offences as 20 years, when offences under s 96 carry a maximum of 25 years
  • Whether sufficient weight was given to the fact the respondent was on parole at the time of the offending
  • Whether the sentence for the attack on a taxi driver adequately reflected the special protection owed to that class of worker
  • Whether the respondent's drug intoxication was wrongly treated as a mitigating factor
  • Whether the sentences gave adequate weight to the impact on the victims
  • Whether the overall sentences were proportionate to the objective gravity of the offending and the respondent's subjective circumstances
  • Whether the Court should exercise its discretion not to re-sentence, given the respondent's demonstrated rehabilitation and health concerns since the original sentence
  • Whether, if re-sentencing, the principle of double jeopardy required the least available sentence to be imposed

Decision

The Court of Criminal Appeal upheld all grounds of the Crown appeal. It found that Dowd J had made a series of discrete errors, including misstating the maximum penalty for the s 96 offences, treating the respondent's drug-induced state as a mitigating factor, and failing to give proper weight to the offending on parole, the attack on the taxi driver, and the impact on victims. The Court held the sentences were so manifestly inadequate as to require intervention.

On the question of whether to re-sentence at all, the respondent argued that his exceptional rehabilitative progress and health circumstances warranted the Court declining to intervene. The Court rejected this submission, concluding that the degree of inadequacy was too significant to leave the sentences undisturbed.

In re-sentencing, the Court applied the principle that, in a Crown appeal, it should impose the least sentence that could properly have been imposed at first instance, consistent with the double jeopardy principle. This principle, drawn from the Court's earlier decision in R v Rose, reflects the unfairness of exposing an offender to a second, more severe sentencing exercise.

On the non-parole period, the Court found that special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Those special circumstances were the respondent's prospects of rehabilitation, which had not been apparent at the time of the original sentence. This justified a non-parole period of less than three-quarters of the total term. The Court also attached conditions to the parole release requiring ongoing psychological, psychiatric, and medical supervision.

Orders Made

  • All original sentences were set aside; convictions were confirmed.
  • Count 3 (aggravated robbery, actual bodily harm): 3 years imprisonment commencing 7 September 2000, concluding 6 September 2003.
  • Count 5 (aggravated robbery, actual bodily harm): 3 years imprisonment commencing 7 September 2000, concluding 6 September 2003, to be served concurrently with Count 3.
  • Count 6 (aggravated robbery, actual bodily harm): 4 years imprisonment commencing 7 September 2000, concluding 6 September 2004, to be served concurrently with Counts 3 and 5.
  • Count 2 (aggravated robbery, grievous bodily harm): 4 years imprisonment commencing 7 September 2002, concluding 6 September 2006, to be served partly concurrently and partly consecutively with Counts 3, 5 and 6.
  • Count 4 (aggravated robbery, grievous bodily harm): 4 years imprisonment commencing 7 September 2002, concluding 6 September 2006, to be served partly concurrently and partly consecutively with Counts 3, 5 and 6, and concurrently with Count 2.
  • Count 1 (manslaughter): 10 years imprisonment commencing 7 September 2002, concluding 6 September 2012, to be served partly concurrently with Counts 2 to 6 and partly consecutively with Counts 2 and 4.
  • Overall non-parole period of 6 years specified, with eligibility for release on 6 September 2008, subject to conditions including supervision by the Probation and Parole Service and ongoing psychological, psychiatric, and medical treatment.

Key Takeaways

  • The Court of Criminal Appeal confirmed that treating drug self-intoxication as a mitigating factor in sentencing constitutes a discrete error of principle capable of vitiating an otherwise valid sentence.
  • Offending while on parole is an aggravating feature that a sentencing court must explicitly and adequately address; failure to give it sufficient weight is a ground for Crown appeal.
  • Under the double jeopardy principle applicable to Crown appeals in NSW, a re-sentencing court imposes the least sentence that could have been properly imposed at first instance, rather than the sentence it might independently prefer.
  • Special circumstances justifying a non-parole period below the statutory three-quarters threshold (under s 44(2) of the Crimes (Sentencing Procedure) Act 1999) can include rehabilitative progress not apparent at the time of original sentencing, even where that progress emerges after the appeal is lodged.
  • The Court confirmed that taxi drivers are a category of worker warranting particular protection in sentencing, consistent with the approach in R v Henry (1999) 46 NSWLR 346, and that failure to reflect this adequately in the sentence constitutes error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(D)
- Crimes Act 1900 (NSW), ss 24, 95, 96
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Henry (1999) 46 NSWLR 346
- R v Rose (unreported, NSWCCA, 23 May 1996)
- R v A S Jones (unreported, NSWCCA, 30 June 1994)
- Coleman (1990) 47 A Crim R 306
- Fletcher-Jones (1994) 75 A Crim R 381
- R v Valentini (1989) 46 A Crim R 23
- R v Ellis (1993) 68 A Crim R 449
- R v Bavadra (2000) 115 A Crim R 152
- Broxam (unreported, NSWCCA, 3 April 1986)
- R v Taylor [1998] NSWSC 162
- R v Holder [1983] 3 NSWLR 245