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District Court 24 May 2024

R v SUTHERLAND

[2024] NSWDC 188

Assault & violenceTraffic & driving
SENTENCE CRIMINAL LAW

Citation: R v Sutherland [2024] NSWDC 188
Court: District Court of New South Wales
Date: 24 May 2024
Judge: Everson SC, DCJ

Background

The offender, a man aged 31 at the time of the offence, drove a white Toyota car to a residential property in Lalor Park on 12 December 2021. The visit arose from a dispute connected to a mutual romantic interest. After an initial confrontation at the property, the offender drove away, then returned and deliberately drove the car through the steel front fence, striking the victim who was standing in the front yard.

The impact threw the victim onto the windscreen and over the roof of the car before he landed in a garden bed. The offender did not stop to render assistance. He fled the scene, arranged for his mother to drive the damaged car, and concealed the vehicle under a car cover at a townhouse complex in Seven Hills. Police located the car that evening.

The victim was hospitalised for three days and sustained fractures to both knees along with ligament and cartilage injuries. Medical opinion indicated the injuries were likely to cause long-standing, possibly permanent, stiffness and pain. The offender was not arrested until January 2023, more than a year after the offence.

  • What was the appropriate sentence for an offence of dangerous driving causing grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW)?
  • How should the court apply the principle from De Simoni (1981), given that the underlying facts were substantially the same as the more serious charge of intentionally causing grievous bodily harm (maximum 25 years), while the plea was accepted on the lesser charge (maximum 7 years)?
  • What weight should be given to the offender's guilty plea, intellectual disability, deprived upbringing, and expressed remorse in mitigation?
  • Should the sentence be served by way of full-time detention or an intensive corrections order (ICO), having regard to the paramount consideration of community safety?

Decision

The court accepted the guilty plea on the lesser charge of dangerous driving causing grievous bodily harm after the plea was tendered during trial, with the Crown accepting it in full satisfaction of the indictment. Everson SC DCJ was careful to apply the De Simoni principle: the offender could not be sentenced as though he had been convicted of intentionally causing grievous bodily harm, even though the facts overlapped substantially with that more serious count.

The court treated the offending as serious. The offender had deliberately driven the car into the victim with the intention of menacing and intimidating those in the yard, did not stop after the impact, and took active steps to conceal the vehicle. These features elevated the objective gravity of the offence within the statutory range.

In mitigation, the court accepted the offender's guilty plea (entered during trial, attracting a reduced discount), his expressed remorse, and his intellectual disability, which had been assessed by a clinical psychologist. The court also applied the principle from Bugmy v The Queen (2013) that a severely deprived background, which included removal from his parents as a young child, periods in care, and significant disadvantage, remained a relevant mitigating factor regardless of any criminal history.

Having assessed a sentence of 1 year and 11 months imprisonment, the court then considered whether that term should be served by full-time detention or by ICO. The court concluded that full-time imprisonment was not more likely to address the offender's risk of reoffending, and that the ICO, with its mandatory supervision conditions and 350 hours of community service, was capable of operating as substantial punishment while better serving the purposes of sentencing in this case.

Orders Made

  • Sentence of 1 year and 11 months imprisonment to be served by way of an Intensive Corrections Order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999
  • ICO reduced by 3 days to account for time spent in custody between arrest and bail
  • Sentence commences 24 May 2024 and expires 20 April 2026
  • Standard ICO conditions apply: no further offences; submit to supervision by a Community Corrections officer
  • Additional condition: 350 hours of community service work
  • Disqualification from driving for four years
  • Offender directed to contact Mt Druitt Community Corrections Office within 7 days

Key Takeaways

  • The District Court applied the De Simoni principle carefully, declining to sentence the offender by reference to the facts underpinning the more serious charge of intentionally causing grievous bodily harm, even though those facts were substantially the same as those relevant to the lesser offence to which the plea was entered.
  • A guilty plea entered during the trial attracts a reduced discount compared to an early plea, and the court reflected this in its assessment of the appropriate sentence.
  • Under the Bugmy principle, a severely deprived upbringing, including childhood removal from parents and periods in institutional care, remains a relevant mitigating consideration at sentencing, even when the offending is serious.
  • An intellectual disability, formally assessed by a clinical psychologist, is a relevant factor going to moral culpability and the prospects of rehabilitation, and the court took it into account alongside other personal circumstances.
  • Where the sentencing court concludes that full-time detention is not more likely to reduce the risk of reoffending, an ICO remains available even for serious driving offences, provided the court is satisfied it adequately addresses community safety and operates as genuine punishment through its mandatory conditions and community service requirements.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)

Cases
- 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
- The Queen v De Simoni (1981) 147 CLR 383
- 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 McNaughton (2006) 66 NSWLR 566
- Gonzalez v R [2006] NSWCCA 4
- R v Tzanis [2005] NSWCCA 274
- 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