R v Darren James Sotheren [2001] NSWSC 214 | Case summary

1 HIS HONOUR: Darren James Sotheren, who was born on 14 January 1972, was indicted in that on 9 May 1999, at Granville, he did murder Ho Chung Sham, to which charge he entered a plea of not guilty but pleaded guilty to a charge of manslaughter. This plea was accepted in full satisfaction of the count of murder set out in the Indictment. 2 The prisoner pleaded guilty to a further count that on the same day at Liverpool, he did rob Francis Rodger McLean of a wallet and ten dollars ($10) in circumstances of aggravation in that he did use corporal violence thereby inflicting grievous bodily harm upon the said Francis Rodger McLean. 3 The prisoner also pleaded guilty to a further count that on 10 May 1999 at Parramatta, he did rob Joseph Bruni of a wallet in circumstances of aggravation, in that he did at the time, maliciously inflict actual bodily harm upon Joseph Bruni. 4 The prisoner further pleaded guilty to a charge that on 10 May 1999, at Harris Park, he did rob Umesh Sawnani of a wallet and twenty dollars ($20) in circumstances of aggravation, in that he used corporal violence on Umesh Sawnani, thereby inflicting on him grievous bodily harm. 5 The prisoner further pleaded guilty to a count that on 10 May 1999, at Parramatta, he did rob Yuming Zheng of property, namely a jacket, eight hundred dollars ($800) cash, some egg rings and Chinese tea, the property of Yuming Zheng, in circumstances of aggravation, in that at the time of the robbery, he maliciously inflicted actual bodily harm upon Yuming Zheng. 6 The prisoner further pleaded guilty to a count that on 10 May 1999, at Carramar, he did rob Daniel Stapleton of a wallet and one hundred dollars ($100) cash, and a mobile phone in circumstances of aggravation, namely that at the time of the robbery, he maliciously inflicted actual bodily harm upon Daniel Stapleton. 7 The prisoner has been in custody from 4 June 1999, having been arrested in Melbourne on another matter. He was charged with the earlier offences I have listed, on 22 October 1999 at Parramatta Court, and was subsequently sentenced by Karpin DCJ to three years imprisonment, commencing on 7 June 1999 with a non-parole period expiring on 6 September 2000. Her Honour directed that he be released to parole on 7 June 2000. From that date, the prisoner has been continuously in custody on these charges and other charges with which the Crown has not proceeded, and has therefore spent a period of nine months and eight days in custody in respect of the current offences. 8 The facts are that on Sunday 9 May 1999, the prisoner went to watch a game of football in which his sister and her friends were participating, and he met his mother's present husband, whose surname the prisoner has adopted. At the time, the prisoner had consumed a considerable quantity of amphetamines by way of injection. 9 After the football game, the prisoner attended the presentation of prizes, after which he was dropped off at Liverpool and obtained more amphetamine which he also injected. 10 The prisoner later contacted his stepfather and told him, falsely, that he, the prisoner, had lost his backpack. He was later given money by his stepfather, which money the prisoner used to buy more amphetamine. It was after this that the offences, the subject of these proceedings, occurred. 11 Late on the evening of 9 May 1999, the prisoner struck Francis McLean, aged fifty-five, as he walked home through Bigge Park at Liverpool, and struck him a number of times violently about the head and face. The prisoner also struck Mr McLean with Mr McLean's own umbrella. He removed McLean's wallet and ran off. 12 McLean suffered a fractured nose, facial lacerations, damage to his glass eye requiring replacement, and he suffered bruising. McLean also suffered a laceration which bled heavily. Some of that blood remained on the prisoner's pants, which blood was later identified, using DNA sampling, which was found to be consistent with that of McLean, being of an order of probability of one in ten thousand million individuals in the general population. 13 The prisoner then travelled eastbound from Liverpool Railway Station at 10:15pm, and arrived at Granville Railway Station. He was recorded on security camera. The prisoner walked a short distance to Cowper Street, where the victim, Ho Chung Sham, had arrived to pick up his wife from a massage parlour. Sham was attacked about the head, causing him to fall to the roadway. While on the ground the victim's face was stomped on, and his wallet and mobile telephone were taken. The wallet contained about nineteen hundred dollars ($1900) cash, not all of which was removed from the wallet, it being in two separate compartments of the wallet. 14 The deceased was found at 10:45pm by a passing motorist. No witness to this attack came forward. The deceased died three days later, having suffered severe brain injury in the attack. His wallet was found in an alcove adjoining the Cardinal Freeman Refuge, where the prisoner had previously stayed. 15 During the course of the proceedings on sentence, the prisoner, for the first time, alleged in his evidence that another person was involved in the attack on Sham; that the other person had kicked and stomped on Mr Sham; and that the prisoner had only punched him. I have sought assistance from both counsel in relation to this matter, it being remembered that the mobile phone was used by the prisoner the following day, although he gave a version of apparently serendipitously meeting the other person he alleged was involved, the following morning. The wallet was found in an alcove adjoining the refuge where the prisoner had previously stayed. 16 The pattern of conduct of the prisoner was that in all other cases, he severely beat each of the persons involved, and I have ruled that that evidence was admissible in respect of all of the counts. The video surveillance cameras do not depict any other person than the prisoner involved. The prisoner was wearing shoes of common manufacture, but the pattern was consistent with marks to the deceased's head. 17 The prisoner has admitted the elements of the offence by his plea of guilty, and although I do not think the prisoner has advanced this version of events in any attempt to reduce any penalty involved, the prisoner said that the attacks that had been made on him in prison, are as a result of some concern by others that he may give evidence that inculpates that other person. If the prisoner had been involved in a joint criminal enterprise which led to the deceased's death, he is guilty of the offence in any event, as if he committed the offence on his own. 18 I have considered the matters that counsel have put to me, and note that the plea of guilty to the charge of manslaughter admits the death of the deceased as a result of the actions of the accused, and that he committed an unlawful and dangerous act. Taking into account the fact that it is only his assertion and all other evidence supports the facts as submitted by the Crown, I find to the requisite criminal standard that the accused was solely guilty of those acts which led to the death of the deceased and that the killing occurred as a result of the unlawful and dangerous acts of the prisoner, and the offence of manslaughter is established. 19 Shortly before 11:00pm on 9 May 1999, the prisoner was caught on security video crossing the concourse area of Granville Railway Station, and was again similarly captured on security video arriving at Parramatta Leagues Club, carrying a backpack. He left the foyer of the Club, having changed his clothing, and entered the main club area, leaving the club at 2:27am. 20 At between 3:00am and 3:30am on 10 May 1999, the prisoner was seen waiting in a walkway in Parramatta and was observed to be holding a syringe. At 3:30am that morning, the prisoner approached Joseph Bruni in Wentworth Street, Parramatta. After a conversation, Bruni was struck violently on the head by the prisoner and fell to the ground. The prisoner took Bruni's wallet from his back pocket and ran away. Bruni received lacerations and bruising to the face. 21 At 4:20am at Wentworth Street, Parramatta, the prisoner was seen to be standing outside a cafe some twenty metres from the location of the attack on Bruni. The proprietor closed the cafe doors shortly after 4:30am. The prisoner approached Umesh Sawnani, aged twenty-four years, who was walking home along Station Street, Harris Park. This was some four hundred metres from where Bruni was attacked. Again, the prisoner entered into a conversation and struck Sawnani violently on the head with a rock. Sawnani fell to the ground, and the prisoner opened his back pockets and removed Sawnani's wallet. The twenty dollars ($20) cash contained therein has not been recovered. Sawnani received a fracture to his right cheek, bruising and lacerations. 22 The prisoner is seen on security video at the Commercial Hotel in Hassall Street, Harris Park, and was seen to cross the roadway heading towards the pedestrian underpass at Parramatta Railway Station, which underpass he used to ultimately exit into Valentine Street. 23 At 4:45am on 10 May 1999, the prisoner engaged Yuming Zheng in conversation and then struck him violently on the head. He searched Zheng's trouser pockets, removing Zheng's jacket and eight hundred dollars ($800) cash. Zheng received a fractured palate and bruising to his facial area. 24 At about 10:20am the prisoner, travelling with a companion from Parramatta to Liverpool, used a SIM card in the mobile phone taken from Sham. The SIM card had been taken out in the name of another person. The prisoner removed some money from a bank. 25 At about 3:00pm the prisoner and his companion caught a taxi from Liverpool Railway Station. The prisoner punched the taxi driver, Daniel Stapleton, to the head through the open window of the taxi, dragging him out through the door before throwing him to the ground. He further attacked Stapleton's head and ripped both his trouser pockets, removing one hundred dollars ($100) cash and Stapleton's mobile phone. 26 Stapleton received lacerations and swelling to his lip. The prisoner's fingerprint was found on the driver's security screen. The same SIM card was used in Stapleton's phone, being that used in Sham's phone earlier in the day. The prisoner left for Melbourne, where he was later arrested on other matters. 27 I find in respect of the second, third, fourth, fifth and sixth counts, that on the totality of the evidence before me, also taking into account the facts proved by the plea of guilty entered by the prisoner to each of those offences, the elements of each offence have been proved. The offence of manslaughter carries a maximum penalty of twenty-five years imprisonment. The other offences carry a penalty of twenty years imprisonment. 28 Evidence was put before me by the prisoner; a Dr Daniels; as well as a considerable amount of material evidencing the prisoner's long period of care in various child welfare institutions and psychiatric evidence about the prisoner over his life. 29 The prisoner has been using amphetamines since approximately the age of fifteen, having used other drugs from time to time. It had become his normal habit to inject amphetamines. 30 The prisoner had been made a ward of the State from an early age, and continued until the age of eighteen. Prior to becoming a ward of the State, the prisoner had been identified as having serious behavioural and psychiatric problems, and was treated from the age of seven for those psychiatric problems. He had a troubled behaviour pattern in school, involving violence towards teachers and pupils. He was subject to physical and psychological abuse by a person with whom his mother associated, and also by a person in authority when he was a ward of the State. 31 The prisoner was also injured in a motor vehicle collision, sustaining severe head injuries during the period that he was a State ward. He received compensation, which moneys were largely spent on illegal substances which he consumed. 32 The prisoner has not had a good relationship with his mother, who has had an unfortunate matrimonial history, although the prisoner's evidence was that the relationship was improving. The prisoner is close to his adopted father and calls him father. The father lives in the Northern Territory, but is very supportive of the prisoner and has, for some period, spoken to him every weekend, this being the first time someone in his family has given him such support. The stepfather is very much a father figure to the prisoner. 33 During the time the prisoner was in custody at Silverwater, the prisoner was stabbed and spent some time in hospital. Additionally, over the weekend prior to 29 May 2001, the last day on which evidence was taken on sentencing, the prisoner was again stabbed in the face, resulting in stitches. The prisoner is currently under strict protection, that first stabbing being nearly fatal. 34 The prisoner's belief is that the attacks on him related to another person outside the prison being involved in the subject charges, and he said that he thought that the other person thought that he, the prisoner, was going to provide information to the police about that person. 35 During his period in custody, the prisoner has been treated by Dr John Daniels, who gave evidence before the Court on sentence. Dr Daniels has been treating the prisoner with counselling, medication and other treatment. During his time in custody, the prisoner, who is of higher than average intelligence, has entered into and completed a number of courses, evidence of which has been produced to the Court, showing a high level of achievement in order to improve himself. The prisoner also suffers from claustrophobia, which has caused problems during the course of the hearing prior to the plea of guilty. This condition causes him to have panic attacks and sweating. 36 The prisoner's evidence in relation to the attack which resulted in the death of Mr Sham, was that he was sorry for what he had done and that he was prepared to be punished for his actions. Notwithstanding his contention that another person was involved, he said he was prepared to take the punishment without producing evidence of that other person or identifying that other person. 37 The injuries sustained by the deceased were consistent with shoes of the same type as were worn by the prisoner, although those are shoes in fairly common usage. 38 I accept that the prisoner is sorry for what he has done to the victims, particularly the deceased and the deceased's family. 39 Dr John Daniels, who is the Director of Health Services for the Aboriginal Medical Service, has been seeing the prisoner since July 1999. Dr Daniels' evidence was that the prisoner was an extremely fragile and anxious person when he first came in contact with him, and was prone to harming himself, but that he had developed a rapport with Dr Daniels. Dr Daniels' evidence was that the sexual and physical abuse to which the prisoner was subjected, and the disruption in the prisoner's family through the number of people with whom his mother lived and was associated with, led to a history of drug use, aggression, and a low threshold for anger and frustration, leading to the prisoner's current depressed state, anxiety attacks and personality disorder. 40 Dr Daniels' evidence was that there had been a great improvement in the prisoner. The evidence of Dr Daniels was that there was a prospect for improvement in the prisoner's conduct and that he had responded well to the medication prescribed to him; that there had been a dramatic alteration in the prisoner's mood under that treatment; and that the prisoner's anxiety level has considerably improved. Dr Daniels also observed that the prisoner had been under the care of psychiatrists since the age of seven, when the early aggressive tendencies were noticed. Dr Daniels' evidence was that the prisoner was adjusting and was coping; that he had some capacity to control his aggression; and that he could be assisted by further treatment and other intervention. The early childhood molestation and placement in an institution has exacerbated the prisoner's existing problems. 41 There has been admitted into evidence earlier psychiatric reports. These reports demonstrated opinions that the prisoner, as a child, was a seriously disturbed boy in danger of developing serious violent characteristics involving injury to himself. 42 In examining the matters that I have to take into account, I have taken into account the prisoner's Aboriginal descent, which obviously is a matter which the Court has to take into account, although the prisoner generally does not come within the criteria of R v Fernando (1992) 76 A Crim R 58, where Wood CJ at CL set out matters that ought to be taken into account. The prisoner has however had a seriously deprived background, and the abuse to which he has been subject and the damaged psychological profile which he now demonstrates, obliges the Court to take those factors into account, and matters relating to his Aboriginality are subsumed into the wider issues of the way in which he has been treated by the society in which he lives. I have noted the fact that he has a criminal history which involves matters of robbery and violence, and involves offences committed both in New South Wales and in Queensland. 43 The psychological report of Dr Daniels and other evidence which was exhibited before the Court demonstrates a person who has sustained disappointment in personal and family relationships, a deficit in social attainments and a tendency to self-inflicting injury. He has considerable mood swings and prolonged periods of dejection from his family dysfunction. His violence at school obliged him to be suspended from school, but he has exhibited strong suicide ideation and difficulty in adjusting to the society in which he lives. He has a very poor work history. He has been diagnosed as having a borderline personality disorder, together with significant suicide ideation and a history of self-harming, usually involving cutting. 44 The prisoner is impulsive and lacks social coping skills, and tends to blame others rather than himself. As I have indicated, the prisoner is supported by his stepfather, who has indicated his desire to assist him in adjustment to life. I accept the evidence of Dr Daniels, the significance of which is that there are prospects of rehabilitation, which I take into account in determining the sentences I propose to impose. 45 The Court, in taking into account matters of sentencing, has to look at questions of deterrence and the issue of retribution. Deterrence has been endorsed in R v Rushby (1977) 1 NSWLR 594 at 597-598, and in the decision of R v Radich [1954] NZLR 86 at 87, which principle has been endorsed by New South Wales courts, but is expressed in the following terms at p87: "One of the main purposes of punishment… is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses, that if they yield to them, they will meet with severe punishment. In all civilised countries, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that fear of severe punishment does, and will, prevent the commission of many that would have committed if it was thought the offender would escape without punishment, or with only a light punishment. If a court is meekly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences".

46 The Court must look at the principle of general deterrence not only for each of the offences to which the prisoner has pleaded guilty and individual deterrence affecting the prisoner himself. It is noted that the maximum penalties to which I have referred to are reserved for the most serious cases, but it is a factor which the Court takes into account. I have had tendered before me statistics for manslaughter and for the aggravated assault charges, which, in the case of manslaughter, it is difficult to gain assistance from the wide range of circumstances in the cases involving manslaughter. I do however have regard to the need to protect society, as found in R v Veen (No 2) (1987-1988) 164 CLR 465. 47 The facts in relation to the charge of manslaughter show a vicious and violent attack on a defenceless human being in an isolated location. The prisoner is a big and powerful man, capable of inflicting substantial injuries from striking a blow with his hand or some other object within that hand. The attack by the prisoner was a senseless and cowardly attack on the deceased, resulting in his death, I note that the prisoner was substantially affected by amphetamines, which I take into account, notwithstanding the self-infliction of those drugs as the drug of choice of the prisoner. 48 In respect of each of the other counts, I find again that the prisoner, a big and powerful man, assaulted defenceless citizens in isolated locations for his own selfish purposes, and inflicted on each of them very substantial injuries, some of which will be permanent. The last count involved a taxi driver, who is a person in special need of protection. The assaults on each of those in the assault charges have resulted in very serious injuries, as demonstrated by the photographs exhibited before me in these sentencing proceedings. 49 The prisoner's selfish intention was to rob the innocent to satisfy his own addiction, notwithstanding that he had already that evening, deceived his father by taking money from him. A vast amount was spent on amphetamine consumption on these two days. 50 In sentencing the prisoner, I have taken into account that there was a strong circumstantial case against him notwithstanding that there were a number of interlocutory applications and delays resulting from contests as to the admissibility of evidence, but nonetheless the plea of guilty has considerable utilitarian value in preventing a trial which would have involved a number of witnesses. I have also taken into account the pleas of guilty as evidence of his contrition and remorse for the injuries that he has inflicted, and the death that he has caused. This is in addition to the evidence which he gave as to the sorrow for his victims and the remorse for what he has done to the victims and their families. I accept his evidence in this respect, and give effect to it in the sentence I impose. 51 I have taken into account on sentencing the fact that his actions were as a result of him taking a considerable quantity of amphetamines with its consequent mind-altering and psychology-altering effect. The prisoner has had an appalling upbringing, a very disturbed dysfunctional childhood being subject to psychological and physical damage, as a result of which he has serious anger control problems and is still subject to outbursts of anger, even during the course of the hearing and in the sentencing procedures. He suffers from a number of conditions both psychological and the condition of claustrophobia from which he suffers which will make his time in custody difficult. 52 The attacks that have occurred on him in custody will mean that he will spend his time, or at least a significant part of it, in custody under protection, which is again a very harsh way in which to spend time in custody. His claustrophobia will continue to be a considerable hardship for him, greater than the general prison population. 53 In examining the powers available to the Court to impose sentences which are partly concurrent and partly cumulative as a result of the enactment of the Crimes (Sentencing Procedures) Act 1999, I have endeavoured to construct a sentence to reflect the seriousness of each of the offences and which have taken into account the plea of guilty. I have also taken into account the appalling history of abuse towards the prisoner in his favour. I also take into account in respect of the offence of manslaughter, that the plea of guilty was entered into to that charge as soon as the opportunity was presented, and that it was only on the acceptance of the Crown of that plea, that he could plead guilty to that charge as the previous charge had been one of murder. I have given a substantial discount as a result of the promptness of the plea. 54 I have looked at what the New South Wales Court of Criminal Appeal has said in R v Hammoud (Unreported, NSWCCA, 15 December 2000) and R v Lemene (Unreported, NSWCCA, 9 February 2001)and the cases reviewed therein, particularly the decision of the Chief Judge at Common Law in R v Bavadra (2000) 115 A Crim R 152. I have also looked at the statistics, as I have indicated, furnished to me. 55 It is necessary to examine and apply in this case the principle of totality, as well as the application of the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610, enunciating the principle of transparency which obliges this Court to fix separate sentences in respect of each offence. I also find that there are special circumstances within the meaning of the Crimes (Sentencing Procedures) Act 1999, they being that the sentence hereby imposed is to be accumulated upon an existing sentence already served, but continuously with the sentences the subject of this hearing. In the sentences I will impose, which will be partly accumulated and partly concurrent, there will be fixed terms and the prisoner will be deprived of a period in respect of those offences in which he is eligible for parole. Further, I take into account the need for a lengthy period of supervision under a parole period and that accumulatively, although the non-parole period will be significantly less than three-quarters of the head sentence, it will in fact bear a significantly lower proportion of the total sentence involved, although there is a tendency for reporting of cases not to take into account the cumulative and concurrent sentencing powers that are now available, which makes it appear that the sentence on one particular offence is lower than would otherwise have been the case. 56 The principles of totality as set out in R v Holder & Johnston (1983) 3 NSWLR 245, prevent the Court, when an offender is convicted of more than one offence, from imposing a maximum penalty which is the total of all the maximum penalties involved. A person convicted of three armed robberies, for example, is not liable to a maximum penalty of sixty or seventy-five years, and the Court, in assessing totality, must also look at the time frame within which the offences were committed. I take this fact into account. In assessing totality, the Court must also examine the fact that these sentences are imposed on top of an existing sentence which has been served, and that of itself constitutes an additional penalty when all of the offences are aggregated. 57 In respect of each of the offences set out in counts two to six, I fix a term of imprisonment of two-and-a-half years. In respect of the offence of manslaughter, I fix a sentence of five years with a non-parole period of two-and-a-half years. However, in constructing the sentence, that sentence will be partly cumulative and partly concurrent, and will take into account the special circumstances, including the prospects of rehabilitation that I have found. It will also take into account the fact that the prisoner has been serving a period in custody since 7 September 2000 and therefore at the end of the non-parole period for the offence of manslaughter, will have been in continuous custody for five years and nine months. I propose also to attach conditions to the parole in the event of him being granted parole. 58 Darren James Sotheren, would you stand. 59 In respect of count two, the aggravated assault on Francis McLean, you are convicted and sentenced to a fixed term of two-and-a-half years, such term to commence on 7 September 2000, being the date from which you were held in custody on these charges alone and to conclude on 6 March 2003. I have declined to fix a non-parole period because of the sentence that I subsequently propose to impose. 60 On count three, the aggravated assault and robbery on Joseph Bruni, you are convicted and sentenced to imprisonment for a period of two-and-a-half years, such sentence to date from 7 September 2000 and to conclude on 6 March 2003, to be served concurrently with the sentence imposed in respect of count two. 61 On the fourth count, the aggravated assault on Umesh Sawnani, you are convicted and sentenced to a fixed term of two-and-a-half years. The commencement of that sentence however is postponed to commence on 7 September 2001, partly concurrent with the sentence imposed in respect of counts two and three, and partly cumulative, to conclude on 6 March 2004. 62 In respect of count five, the aggravated assault and robbery involving Yuming Zheng, you are convicted and sentenced to a fixed term of two-and-a-half years, such sentence to commence on 7 September 2001, partly cumulative and partly concurrent with counts two and three in the indictment, and concurrent with the sentence for count four, to conclude on 6 March 2004. 63 In respect of count six, the aggravated assault on Daniel Stapleton, you are convicted and sentenced to a fixed term of two-and-a-half years, such fixed term to commence on 7 September 2002, being partly concurrent with the previous sentences imposed and partly cumulative, to conclude on 6 March 2005. 64 In respect of count one, you are convicted of the offence of manslaughter and I sentence you to a period of five years, such commencement of that sentence to be postponed until 7 September 2002 and to conclude on 6 September 2007. In the special circumstances of the case, I fix a non-parole period of two-and-a-half years to commence from 7 September 2002 and to conclude on 6 March 2005, from which time you will be eligible for parole. 65 I direct that on release to parole, you be subject to the supervision of the Probation and Parole Service, which Service will take such steps as are necessary to ensure continual psychological and psychiatric supervision, including such medication as may be prescribed for you and such techniques by way of counselling or other treatment as may be prescribed for you.

R v Darren James Sotheren

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