Solicitors:
Solicitor for Public Prosecutions (NSW)
Charles Abbott, Watsons Solicitors
File Number(s): 2023/00017426
[2]
The Offence
David James SUTHERLAND ("the offender") appears for sentence, having pleaded guilty to dangerous driving causing grievous bodily harm to Craig Annen at Lalor Park on 12 December 2021.
On that day, Craig Annen was visiting the home of his friends Nathan and Shane Pickworth in Lalor Park. The brothers Pickworth lived there with their mother Susan. The Pickworths' property was on the corner of Lawson Street and Jopling Crescent. To the west of Jopling Crescent is Venn Avenue. To the east of Jopling Crescent is Daisy Place.
Shane Pickworth and David SUTHERLAND were, at or about the same time, romantically involved with the same woman named Sarah; a coincidence of sad significance.
At around 3:40pm that Sunday, the offender drove to Lawson Street, Lalor Park in a white Toyota motor car. He stopped the car outside the Pickworth's home and called out. In response, the Craig Annen and Susan Pickworth went outside and stood in the front yard. Mr ANNEN said to the offender, "Whoever you are looking for, is not here." The offender lowered the front passenger window, looked at Susan Pickworth and said: "Where's your fucking son?" to which she replied: "Go away."
The offender did so, for about 40 metres east to the intersection of Lawson Street and Daisy Place, where he did a U-turn before driving back to the Pickworths' property. The offender revved his car's engine and drove it so as to mount the footpath and scrape the mailbox outside the fence of the Pickworths' property. The offender then drove west and away from the Pickworths' property towards Venn Avenue.
Craig Annen and Susan Pickworth went back inside the house before returning about two minutes later to smoke cigarettes. Mr Annen saw the car driven by the offender stopped in Daisy Place. The offender again revved the car's engine and drove it on the wrong side of the road and towards the Pickworths' property. At that time, Craig Annen was standing between the front door and the letterbox and next to the concrete path that led to the front door.
As the offender's car rapidly approached from Lawson Street, Mr Annen picked up a car tyre and in an attempt at deterrence, threw it on the grass of the footpath towards the offender's car. His attempt failed. The offender drove the car through the steel fence of the Pickworths' property. With the intention of menacing and intimidating the people in the front yard of the Pickworths' property, the offender intentionally drove towards them and hit Craig Annen. The offender did not stop and render assistance. Instead, he drove off, through the Jopling Crescent side fence of the Pickworths' property, back onto Lawson Street and away from the scene, past Venn Avenue and towards Stephen Street.
The impact of the offender's car caused Mr Annen to hit the windscreen of the offender's car and to go over the roof of the car before landing on the garden bed.
The subsequent police investigation established that between 3:41 and 3:43pm, the offender contacted a friend, via mobile phone, seeking assistance. Sometime between 3:43pm and 4:17pm, that friend picked the offender up from Hope Street, Seven Hills, in a grey Nissan car. The offender told his friend to follow the white Toyota car that had a smashed windscreen and was now being driven by the offender's mother.
At 4:17pm, the movement of the white Toyota car, driving through Aleta Way, Seven Hills, was recorded by a Closed Circuit Television camera.
Police attended Aleta Way in Seven Hills later that evening and found the white Toyota car parked on the right side of a townhouse complex driveway, between other vehicles, concealed by a car cover. The front of the car had significant damage, including a shattered front windscreen, hanging front bumper, various dents to the roof, scratches and green paint transfer marks, and the front number plate was missing. The intact rear number plate was New South Wales registration CJ59MK, which matched the front number plate that was recovered earlier from the intersection at Lawson Street and Stephen Street.
Craig Annen was taken by ambulance to Westmead Hospital on 12 December 2021 and he was discharged on 15 December 2021. His injuries included fractures to his left and right knee, as well as injuries to the ligaments and cartilage in those knees. Mr Annen's left knee was immobilised in an orthopaedic brace. His right knee was placed in a full-length brace with metal supports and a hinge that restricted the movement of the right knee to 30 degrees.
The expert medical opinion of Dr Benjamin Woods, an orthopaedic registrar, is that regardless of his ongoing treatment, surgical or non-surgical, the injuries suffered by Craig Annen, are likely to cause him on-going, long-standing and perhaps permanent stiffness and pain in his knees.
[3]
The Charge
The police investigation into the incident, led to the arrest of, the by then 32-year-old, David James SUTHERLAND on 17 January 2023, at his home in Mount Druitt. That was 1 year, 1 month and almost 1 week after the offence of 12 December 2021.
On 1 September 2023, Mr SUTHERLAND was committed for trial. That was nearly 1 year and 11 months after the offence and 7½ months after Mr SUTHERLAND was arrested.
Three weeks later, a delegate of the Director of Public Prosecutions found a bill of indictment for the charges of intentionally causing grievous bodily harm, contrary to section 33(1)(b) of the Crimes Act 1900, and in the alternative, dangerous driving causing grievous bodily harm, contrary to section 52A(3)(c) of the same Crimes Act. The maximum penalty upon conviction for intentionally causing grievous bodily harm is imprisonment for 25 years. The maximum penalty upon conviction for dangerous driving causing grievous bodily harm is imprisonment for 7 years.
The trial of Mr SUTHERLAND commenced before me on 18 March 2024. Ongoing charge negotiations saw Mr SUTHERLAND rearraigned on the alternative count on 20 March 2024. His plea of guilty was accepted by the Crown in full satisfaction of the indictment.
Mr SUTHERLAND is being sentenced today, nearly 2 ½ years after the offence.
The Crown submits that although the offence to which the offender pleaded guilty, carries a lesser maximum penalty, it is an offence where the facts and evidence are substantially the same as the principal count on the indictment. That point underlines the need for this Court to follow and apply the fundamental proposition in The Queen v De Simoni (1981) 147 CLR 383 at 389 that no one should be punished for an offence of which he has not been convicted.
[4]
The Offender
David SUTHERLAND was 31 years old when he dangerously drove the white Toyota car that hit, and caused grievous bodily harm to, Craig Annen.
A Mt Druitt based Community Corrections Officer has prepared a Sentencing Assessment Report, dated 6 May 2024, based on interviews with the offender and his family, as well as a review of medical and other reports. Such reports do not guide the appropriate severity of the sentence to be imposed on an offender. Rather, they address the offender's personal circumstances, factors related to the offending, the offender's response to the offending and make certain assessments and conditional recommendations.
[5]
Remorse
The offender told the Sentencing Assessment Report author that, "he accepted responsibility for the offence and expressed shame and regret for his actions."
The offender has written a letter of apology that reads in part:
"I am writing this letter to express my sincere apologies for my past actions. I acknowledge the mistakes I have made and take full responsibility for the consequences of my actions. [ … ] I want to express my deepest apologies to the victim of the incident. I am truly sorry for the harm and pain I have caused. I deeply regret my actions and the impact they have had on others."
[6]
Background and Antecedents
Among other things, the offender also wrote in that letter,
"Growing up, I faced challenges and difficulties that have shaped my life experiences. While I have had a rough upbringing, I do not blame my parents for the mistakes I have made."
Having read the statements from the psychologists that have assessed the offender and the letter from the offender's mother, I have concluded that the proposition the offender had a "rough upbringing" is accurate, so much so that it is an understatement.
Mr Sam Borenstein, is a clinical psychologist. In December 2018, he assessed the offender as suffering from an intellectual disability. Mr Borenstein noted the following difficulties from the offender's past.
The parents of the offender had problems with drugs and crime. They had spent time in prison. The offender and his siblings were removed from the family home when he, the offender, was about eight years old and lived with the offender's maternal grandparents in Queensland for two years. The offender had what is described simply as "problems" that led to him being placed in what is described as "a special school". The offender was at the time prescribed medication for Attention Deficit Hyperactivity Disorder. The offender wore glasses. For that and because he was, in polite language, "at the bottom academically", bullied at school.
The April 2024 letter from the offender's mother Kelly Sutherland begins, "I am writing this letter for my son David Sutherland for a better understanding of what his life was like having both parents addicted to drugs and in and out of jail." Ms Sutherland then goes on to outline aspects of her son's "rough upbringing":
The offender spent his four weeks of life in a hospital neonatal ward.
Ms Sutherland raised the offender and his brother on her own while their father was in prison.
The offender had severe separation anxiety when he was in the care of others.
When the offender was about five years old, he witnessed a home invasion, during which his father was severely bashed.
Ms Sutherland said she was severely traumatised by the incident.
The offender's father returned to prison not long after she gave birth to twins. She then lost her driver's licence and home. Her children were placed in the care of their paternal grandparents and then maternal grandparents.
The offender's mother became severely ill and needed lung and heart surgery to survive and the offender fell behind in school.
Dr Mark Milic is a clinical and forensic psychologist. He interviewed the offender in April 2024. Dr Milic made some observations as to the mental state of the offender in that interview and recounted that in his report dated 21 May 2024, along with other matters including the education and health history of the offender:
"Mr Sutherland … was a below-average student who did not like attending school. He … was suspended in Year 5, 6 and 7."
"Mr Sutherland … fell so far behind in school because of disruptions in his family that he could not finish high school."
[Mr Sutherland] explained to Dr Milic that 'people were putting shit on me because of my glasses (for glaucoma). I got into a fight. I was suspended ... The principal asked me to go and not come back'.
Thereafter, the offender, "attended special classes in Parramatta for two years. He [told Dr Milic that he smoked] marijuana every day and [drank] alcohol regularly.'
Corroborating what Kelly Sutherland said in her letter, the offender reported the following negative experiences from childhood and adolescence to Dr Milic:
His parents were addicted to heroin and lost the family home.
His father was in gaol for a couple of years. When his mother went to gaol, he went to foster care and lived with his grandparents in Queensland for one to two years.
Sleeping rough, stealing to survive, spending his time in Cabramatta.
His mother was severely ill while he was in primary school and spent a year in Westmead Hospital. "She had open heart surgery and had to learn to walk again".
[7]
Motive
The Sentencing Assessment Report author described the offender as: attributing his offence to the infidelity of his partner at the time and his inability to regulate his intense emotions of upset and anger; whilst also accepting responsibility for the offence and expressing shame and regret for his actions.
The motive for the commission of the offence for which the offender is to be sentenced, was also addressed in the report by Dr Milic. The offender told Dr Milic that on the day of the offence, he had not been drinking, although, he did have a hangover from the night before. The offender told Dr Milic that he was with his then girlfriend Sarah who told him that she was going out to visit her mother, and that he became upset when he discovered that she was with Shane [Pickworth] and his friends, who the offender believed had supplied Sarah with drugs in return for sex.
[8]
Criminal History
The offender has prior criminal convictions, including for offending that bears some similarity in nature to the present matter.
[9]
The Plea of Guilty and Remorse
The offender pleaded guilty to the offence for which he is to be sentenced. Although it was a late plea, it did have the utilitarian value of saving the cost and time of conducting a jury trial, that is to be reflected in a 5% discount of the sentence that would otherwise have been imposed.
The Crown fairly concedes that the offender appears to accept responsibility and has expressed some remorse.
[10]
Cognitive Impairment
Dr Milic administered certain psychological tests to the offender. Based on the results of those tests, the documents provided to him by the solicitor for the offender, and the history he had obtained from the offender, Dr Milic concluded that, "Mr Sutherland gave a psychologically plausible account of his history. He comes from a very disadvantaged family background. He has the reading level of a Year 7 student and an impairment in verbal intelligence."
The expert opinion of Dr Milic is:
"As a result of these his emotional, intellectual, and educational disadvantages, Mr Sutherland has more difficulties than the average person in managing his emotions and interpersonal conflict. It is likely that these factors played a major part in his offence. At the time of the offence, he was in a heightened state of distress because of his girlfriend Sarah's dishonesty. Thus [sic - this?] intense state of distress further limited his capacity to act rationally in the situation. In retrospect, Mr Sutherland realised he should not have confronted Sarah and her drug-using associates.'
[11]
Prospects of Rehabilitation
Among other things, the offender also wrote in his letter of apology that,
"I take full responsibility for my actions - and I'm determined to learn from them and make positive changes in my life. I am dedicated to making positive contributions to the community at large.
"As my partner and I are very excited and looking forward to the arrival of our baby, I am filled with joy, sense of purpose and a strong desire to change my ways for the better. I am committed to creating a positive and nurturing environment for my growing family and to being a responsible and loving parent.
"I understand the seriousness of the situation and I am committed to making amends end seeking ways to prevent such incidents from happening In the future.
"I want to assure the court that I am dedicated to turning my life around and becoming a better person. I am determined to learn from my mistakes, make positive changes, and become a contributing member of society."
Those positive statements by the offender are supported by Kelly Sutherland. She went on in her April 2024 letter to outline the positive aspects of her son's life in the more recent times that post-date the offence he committed in December 2021.
The current partner of the offender is Ashley. She too has authored a letter in support of the offender. She is pregnant. She and the offender are expecting the birth of their child in about three months' time. She has a son from a previous relationship. He is 5 years old and has been diagnosed with Autism Spectrum Disorder. As Dr Pankaj Garg, the paediatrician that made that diagnosis, states in his report of 26 March 2024:
"He is a boy with very high needs and significant behavioural difficulties. He does not have any sense of danger and requires constant one-to-one supervision. He must access regular speech, occupational therapy and behaviour support services which requires significant amount of support for mother. Mother Ashley is currently pregnant, and her partner David Sutherland is a pillar of support to the family to provide ongoing support and supervision to Brock because of his significant disability and challenging behaviours."
For her own part, Ashley states that her 5 year old autistic son, is "very attached" to the offender and that the offender is, "is very supportive, understanding and caring towards [her son's] needs and the behaviours he displays."
Ashley writes in her letter, "Besides David, I have no other supports, even from my close family. At this critical time, with both the pregnancy and arrival of our new daughter, I am concerned for the stability and health of my life and my children without the support which David provides us."
[12]
Out of court statements
I am mindful of the "general observation" made by Smart AJ (with whom Spigelman CJ agreed) in Qutami v R [2001] NSWCCA 353 at [58] that "very considerable caution should be exercised" in relying upon statements made by a prisoner to a psychiatrist or a psychologist when the prisoner does not give evidence. I am equally mindful of the important point made by McCallum J (as her Honour then was) in Lloyd v R [2022] NSWCCA 18 at [45]:
"Smart AJ's general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge."
And at [47]:
"Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise "very considerable caution" before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."
[13]
The Guideline Judgment(s)
The Crown points out that, "dangerous driving is a serious offence which has resulted in the provision of guideline judgements, namely R v Jurisic (1999) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252."
Indeed, simultaneously illuminating and casting shadows over the exercise of this Court's sentencing discretion are the guideline sentencing judgments pronounced by the Court of Criminal Appeal.
The identified need to ensure consistency in sentencing decisions, at a time when there was sometimes justified public criticism of particular sentences for inconsistency or excessive leniency, prompted the NSW Court of Criminal Appeal to issue the guideline judgment for sentencing in cases of dangerous driving causing death or grievous bodily harm, in the case of R v Jurisic (1998) 45 NSWLR 209. The guideline was reformulated in R v Whyte (2002) 55 NSWLR 252.
In Whyte, the Court of Criminal Appeal held that the presence or absence of the following nine factors will determine the appropriate penalty:
1. the extent and nature of the injuries inflicted;
2. the number of people at risk;
3. the degree of speed;
4. the degree of intoxication or of substance abuse;
5. erratic driving;
6. competitive driving or showing off;
7. the length of the journey during which others were exposed to risk;
8. ignoring of warnings; and
9. escaping police pursuit.
The last seven of those factors, ie those numbered (iii) to (ix) are aggravating factors relating to the conduct of the offender. They are present to a material degree where any one of them indicates that the offender has abandoned responsibility for his or her conduct.
The Court in Whyte went on to relevantly state that a non-custodial sentence for an offence of dangerous driving causing grievous bodily harm should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, the custodial sentence of less than two years should be exceptional.
That period of two years, once the threshold of abandoning responsibility has been reached, was said to be the starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.
Whilst guideline judgments have statutory force pursuant to Pt 3, Div 4 of the Crimes (Sentencing Procedure) Act 1999 and sentencing judges are obliged to take them into account (see R v Whyte at [32]-[67]; Moodie v R [2020] NSWCCA 160 at [24]) care is needed.
Such guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Guideline judgments are a mechanism for structuring discretion not restricting discretion. As well, changes since the guideline in Whyte, or perhaps more accurately the confirmation of earlier sentencing practices, must also be accommodated.
The High Court separated the notion of an offender's moral culpability from the objective seriousness of the crime at least since Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, as confirmed in Muldrock v The Queen (2011) 244 CLR 120 at [58], and Bugmy v The Queen (2013) 249 CLR 571 at [44]-[46].
Consequently, and subsequently, the assessment of an offender's moral culpability has been treated as a distinct but important part of the sentencing exercise: Tepania v R [2018] NSWCCA 247 at [112] per Johnson J.
In Paterson v R [2021] NSWCCA 273 at [29], Beech-Jones CJ at CL, as his Honour then was, explained with the agreement of R A Hulme and N Adams J, that the objective seriousness of an offence involves an objective assessment of the seriousness of the crime and the matters causally related to it. The moral culpability of the offender is concerned with an offender's moral blameworthiness for an offence.
The Crown submits (CWS at [15]) that, "in determining the appropriateness of full-time custody, close attention must be given to the degree of moral culpability involved as it is a critical component of the objective circumstances of this offence."
That submission by the Crown goes to, what Hamill J (with whom Lonergan and Ierace JJ agreed) said in R v Eaton [2023] NSWCCA 125 at [45], is the "vexing issue" of "the interaction between the assessment of the objective seriousness of an offence and the extent to which that assessment is informed by the "separate but related" concept of "moral culpability" and the extent to which, matters personal to an offender might impact on the proper assessment of the objective seriousness of an offence.
By adopting the language of the guideline judgment, the sentencing Judge at first instance in Eaton was found to have erred in using the expression "moral culpability" synonymously with "objective gravity": [56], [91], [92].
Although Wilson J dissented in Veen v The Queen (No 2), his Honour's observation at 486 that there is an "… ease with which obscurity of meaning can infect this area of discourse", remains a timely reminder for this Court in its approach to the exercise of the sentencing discretion. That is so because in the Whyte dangerous driving guideline judgment, the references to "moral culpability", are actually references to the objective criminality of the offending.
Hamill J said in Eaton at [56], that the language of the guideline judgment in Whyte, in the context of more recent case law, "is somewhat beguiling".
Hamill J observed that in Whyte, Spigelman CJ referred to the guideline judgment being associated with an assessment of the offender's "moral culpability". In doing so, said Hamill J, the Chief Justice referred to the features of a "frequently recurring case", most of which were objective matters, not personal to the offender, and aggravating factors that might arise, all of which were objective features of the offence that were said to be the things that bore upon whether "the offender's moral culpability was high".
Hamill J was of the view that in Eaton, the Director of Public Prosecutions correctly submitted that the references to "moral culpability" in Whyte were in fact or essentially, a reference to the objective criminality of the offending.
Since the guideline judgment in Whyte was decided in 2002, the Court of Criminal Appeal has clarified that moral culpability and objective seriousness are different concepts - just as the High Court said in Veen v The Queen (No 2), and as it confirmed in Muldrock v The Queen and Bugmy v The Queen.
Eaton's case seems to have resolved the tension by holding that "objective seriousness" and "moral culpability" are "separate but related" concepts. Matters personal to an offender may impact on an assessment of objective seriousness, but it requires more than "a simple or indirect causal connection between the relevant subjective feature of the case and the offending". An offender's deprived childhood and mental health issues might therefore impact on their moral culpability whilst not impacting on the objective criminality of the offence: Eaton at [45]-[54], [91], [92].
This Court will proceed on the basis that the references to "moral culpability" in the guideline judgment of Whyte are to be understood as references to the objective criminality of the offence: Eaton at [56]. That understanding means that the entirety of the surrounding circumstances is relevant to the assessment of moral culpability. See R v Shashati [2018] NSWCCA 167 at [23]-[24].
[14]
OBJECTIVE SERIOUSNESS
The factors influencing the assessment of the objective seriousness of the dangerous driving offence committed by David SUTHERLAND is to be found in the elements of the offence, the guideline judgment of Whyte and section 21A of the Crimes (Sentencing Procedure) Act 1999. As far as the latter is concerned, it is important to note, as stated in sub-section 21(A)(1), that the aggravating and mitigating factors listed in section 21A, "are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law".
These aggravating factors overlap. I am conscious of the need to avoid double counting such factors and will spell that out shortly.
The characteristics set out in Whyte, indicative of a typical case of dangerous driving causing death or grievous bodily harm, do not operate as a checklist, such that the presence or absence of a characteristic has some mathematical relationship with the sentence to be imposed. Those characteristics describe the typical case. They were never intended to circumscribe the sentencing court's discretion: R v Berg, [2004] NSWCCA 300, Howie J, (Spigelman CJ and Wood CJ at CL agreeing) at [21].
Further, while the guideline outlines a list of frequently recurring aggravating factors, there may be other circumstances of aggravation, not found in the guideline, which may also be taken into account: R v Tzanis [2005] NSWCCA 274 at [24]-[25].
[15]
Planning
Planning is not an inherent characteristic of the offence for which the offender is to be sentenced. An offence is aggravated if it was part of a planned criminal activity: sub-section 21A(2)(n) of the Crimes (Sentencing Procedure) Act. On the other hand, an offence is mitigated if it was not part of a planned or organised criminal activity: sub-section 21A(3)(b) of the Crimes (Sentencing Procedure) Act.
I set out earlier in this judgment that, on the one hand, when speaking with the Sentencing Assessment Report author, the offender attributed his offence to the infidelity of his partner at the time and his inability to regulate his intense emotions of upset and anger.
On the other hand, when speaking with Dr Milic, the offender said that he became upset when he discovered that his partner at the time was with Shane [Pickworth] and his friends, who the offender believed had supplied his girlfriend Sarah with drugs in return for sex. As recounted by Dr Milic, the offender said, "I was gutted … I couldn't believe she went from my home straight to them … I went down there. I never planned on running anyone over". Instead, the offender told Dr Milic that he had planned to confront them because he was worried about Sarah and his brother, Jacob (who he explained had a drug problem and to whom Shane Pickworth had been selling drugs).
The offender told Dr Milic that he said he had an argument with the people at the scene and felt panicked when they threw a car tyre at his car and smashed the windshield of his car."
The proposition that the offender had an argument with the people at the scene and felt panicked is not inconsistent with the agreed facts on sentence. Whilst the offender certainly planned to drive to the Pickworths' property, I am unable to be satisfied beyond reasonable doubt that he planned to also engage in acts of dangerous driving once he got there.
The Crown fairly submits (CWS at [49]) that,
"it is clear that the current matter is an offence of some spontaneity that was not clearly thought through and executed. It appears the offender was acting on impulse and without considering the consequences of his actions …"
[16]
Erratic driving
The Whyte guideline provides that an aggravating factor is the length of the journey during which others were exposed to risk. In any given case, the danger created by the length of the journey will vary according to other circumstances, such as the time at which the journey is undertaken, the amount of traffic, and the locale: R v Takai (2004) 149 A Crim R 593; [2004] NSWCCA 392 at [39].
The course of the present offender's driving was not the product of momentary inattention of the type associated with a driver who failed to keep a proper lookout.
When Susan Pickworth told him to go away, the offender briefly did so. Then he drove back, in a decidedly threatening manner. He caused his car to mount the kerb and scrape the Pickworth property's letterbox, before driving away only to again return; at one point on the wrong side of the road.
David SUTHERLAND deliberately drove his car so as to again mount the kerb, crash through the perimeter fence and keep driving at the victim who was standing within the fenced front yard of the Pickworth's suburban home. The offender's car hit the victim, causing fractures and ligament damage to both knees.
I am satisfied beyond reasonable doubt that from the moment the offender was told by Susan Pickworth to "go away" he engaged in a continuous course of erratic driving, with an element of "showing off"," that was dangerous to the public.
An offence committed without regard for public safety is a statutory aggravating factor: see sub-section 21A(2)(i) of the Crimes (Sentencing Procedure) Act. Whilst that is so in the present case, I am conscious of the need to avoid double counting when having regard to the erratic nature of the offender's driving. The same considerations arises when considering that the offence occurred at a location where the victim was entitled to feel safe and the offence involved a grave risk of death to another person or persons.
[17]
Ignored Warnings to Stop
I am not satisfied beyond reasonable doubt that the evidence supports a finding that the offender was warned to stop his threatening conduct.
[18]
The Degree of Speed
As the Court observed in Stanyard v R [2013] NSWCCA 134 per Fullerton J (Bathurst CJ and Campbell J agreeing) at [29], "it is an unexceptional observation that a safe speed depends upon a range of factors, including the posted speed limit and prevailing conditions." In this case, whether or not David SUTHERLAND was driving at less than the prevailing speed limit or otherwise not at an excessive speed is of little if any relevance. To drive at a speed sufficient to erratically drive through a metal fence and towards a person or person in the front yard of a house is inherently dangerous.
[19]
Failure to Stop
The offender did not stop and render assistance. Instead, he drove out of the front yard smashing through another portion of the perimeter fence and onto a roadway. The Court notes that where a person knows, or ought to reasonably know, an impact has caused grievous bodily harm to another person, it is an offence to fail to stop and give assistance: s. 52AB(2)). As stated earlier, this Court will follow and apply the rule in The Queen v De Simoni (supra) that no one should be punished for an offence of which he has not been convicted.
[20]
Really Serious Injury
Sub-section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 provides that the aggravating factors to be taken into account in determining the appropriate sentence for an offence includes "the injury, emotional harm, loss or damage caused by the offence was substantial".
There can be no dispute that the injuries sustained by the victim were really serious. However they do not approach the worst type of grievous bodily harm caused by dangerous driving, in cases such as Stanyard v R (at [3], [21]) in which the victim was rendered a tetraplegic. In any event, the occasioning of grievous bodily harm is an element of the offence, and the court is not to have additional regard to the extent of the injury.
[21]
Absent Aggravating Factors
There is no evidence that the offender in the present case was intoxicated. Nor was he escaping police pursuit.
These are not matters in mitigation. They are merely an absence of some aggravating factors.
[22]
An Atypical Case
The present case is atypical when assessed against the typical case postulated in the Whyte guideline because the offender is not young, and he is not of good character with no or limited prior convictions.
I have reminded myself of the position settled by the Court of Criminal Appeal's bench of five in R v McNaughton (2006) 66 NSWLR 566 as to how prior criminal record should be used against an offender in light of the common law and the terms of section 21A(2) of the Crimes (Sentencing Procedure) Act.
Prior criminal convictions do not aggravate the offence but may be an aggravating factor in determining the appropriate sentence where the criminal record gives rise to the consideration in Veen v R (No 2) as being relevant, not to increase the objective seriousness of the offence committed but rather that retribution, deterrence and protection of society indicate a more severe sentence may be warranted.
In Gonzalez v R [2006] NSWCCA 4 Howie J (Basten JA and Hall J agreeing) said at [13]:
"There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity. The list of factors is illustrative only and not definitive."
In the present case, the aggravating factor of erratic driving is present to a material degree. As well, there are two such factors that also reflect on the degree of the offender's moral culpability. I am satisfied on the balance of probabilities that the offender is the product of a deprived background. I am equally satisfied that the offender has an intellectual disability, as diagnosed in 2018 by the psychologist Sam Borenstein.
[23]
Assessing moral culpability and abandonment of responsibility
I have had regard to the objectives of sentencing referred to in s.3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence; protection of the community; denouncing the offender's conduct; recognising the harm done to the victim and the community and the rehabilitation of the offender. Those objectives overlap and none of them can be considered in isolation. Whilst they are pointers to the appropriate sentence, they sometimes, as they do in the present case, point in different directions.
I am satisfied that the subjective circumstances of the offender attracts the considerations found in R v Millwood [2012] NSWCCA 2, Bugmy v The Queen (2013) 249 CLR 571 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1.
In R v Millwood, Simpson J (as her Honour then was) (Bathurst CJ and Adamson J agreeing), said at [69]:
"I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions..."
Subsequently, the High Court in Bugmy v The Queen held (at [42]-[43]) that "The effects of profound deprivation do not diminish over time and should be given "full weight" in determining the sentence in every case".
A background of the type suffered by the offender in the present case leaves a mark on a person throughout life and compromises the person's capacity to mature and learn from experience and remains relevant even where there has been a long history of offending. Nevertheless, attributing "full weight" in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment.
Indeed, I am mindful of what the High Court said in Bugmy at [44]:
"Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
It is now well-settled that an offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others: Muldrock at [53].
In the present case, I am unable to accept that the offender is an appropriate vehicle for general deterrence. As McCallum J (with whom Hamill and N Adams JJ agreed) said in Lloyd at [40], "Wherever one stands on the policy debate about general deterrence, that purpose of sentencing is not understood to require sentencing judges to send a strong message to would-be criminals that they should avoid a dysfunctional childhood."
The High Court observed in Muldrock at [54], the question can arise as to the causal relation, if any, between an offender's mental illness or cognitive impairment and the commission of the offence."
In the language of decades past, the Court went to state,
"Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
DPP (Cth) v De La Rosa, also recognised that it may be that because of a person's mental illness or cognitive impairment, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
I have concluded that is not the case here. The dangerous incident in 2018 has some similarities with the instant offence, however it was marked by the offender acting in excessive self-defence and/or provocation. Moreover, the offender has complied with strict bail conditions and remained crime free since the December 2021 offence. I have also considered the limited work reference provided by the offender's former and now potentially future employer,
"David [Sutherland] has proven himself to be an excellent, honest, respectful, and reliable worker. He consistently arrived at work on time and has completed his tasks with dedication and efficiency.
[He] has demonstrated·exceptional interpersonal skills and did get along well with his colleagues. His positive attitude and willingness to collaborate made him a valuable team member."
The answer to the question what is the appropriate sentence in the present case, must consider the offender's deprived upbringing during which any real opportunity for him to develop the skills required for a healthy, functional life was denied. As Dr Milic concluded: the emotional, intellectual, and educational disadvantages endured by the offender, has resulted in him having more difficulties than the average person in managing his emotions and interpersonal conflict and it is likely that these factors played a major part in the offender's dangerous driving offence on 12 December 2021.
Whilst the dangerous driving of the offender on 12 December 2021 constituted an abandonment of responsibility as that expression is used in the Whyte guideline judgment, it is but one aspect of his moral culpability. The other, mitigatory aspects are his intellectual disability and the consequences of his deprived childhood and adolescence.
Given the support of his partner and mother, his conduct since the offence in December 2021, and the opinion of the author of the Sentencing Assessment Report, I find that the offender has good prospects of rehabilitation and presents a relatively low risk of reoffending.
Two further matters have been the subject of submissions and deserve consideration in the exercise of the sentencing discretion.
[24]
Hardship to family and dependants
Hardship to family and dependants is an unavoidable consequence of an offender being sentenced to imprisonment and is not a mitigating consideration, unless such hardship is highly exceptional. In this case, I am satisfied on the balance of probabilities that the hardship to the offender's partner, her son and their forthcoming daughter is so highly exceptional.
[25]
Delay
The Crown submits that the delay in charging the offender came about due to the investigation of the matter: CWS at [2]. Counsel for the offender submits that the delay in prosecuting is inexplicable and has resulted in considerable prejudice to Mr Sutherland.
Historically, the Courts have stressed the desirability of disposing of offences promptly: R v Crawley (1982) 5 A Crim R 451; R v Murrell (1985) 15 A Crim R 303 at 307 per Fox J.
Echoing what was said by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519, Wood CJ at CL stated in R v Blanco (1999) 106 A Crim R 303 at 306:
"The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach."
I note that R v Todd was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59 (at 66) as being a just and principled approach.
The offender is not being sentenced for a "stale" crime. However, I accept that the delay between the offence and apprehension left David SUTHERLAND in a state of uncertain suspense. However, the delay between the offence and sentence has enabled him to demonstrate some progress towards rehabilitation. Both of these matters will be taken into account.
An additional matter that I have taken into account is the mandatory period of disqualification from driving of at least 2 years and at the most 5 years. I consider that to be a punitive measure.
[26]
Consideration and Conclusions
I have considered all aspects of the case on sentence presented by the Crown and the defence. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate.
After discounting the otherwise appropriate sentence by 5% for the utilitarian value of his plea of guilty I have determined that a sentence of imprisonment for 1 year and 11 months is just and appropriate.
The question then arises as to how that sentence of imprisonment is to be served: in a gaol or in the community by way of an intensive corrections order.
An intensive corrections order has the capacity to operate as substantial punishment given the mandatory obligations attached to the standard conditions; and the scope to additionally impose community service work.
I remain mindful of the purposes of sentencing of which community safety is the paramount consideration in determining whether to make an intensive corrections order. In so doing I have concluded that a sentence of fulltime detention is not more likely to address the offender's risk of reoffending. The basis for my conclusion to that effect includes my consideration of the factors related to the offending and the offender's response to his offending.
[27]
ORDERS
Pursuant to s 7(1) of the Crimes Sentencing Procedure Act the sentence of imprisonment for 1 year and 11 months is to be served by way of an intensive corrections order ("ICO"). I will also reflect the time the offender spent in custody from the time he was arrested until the time he was admitted to bail by shortening the intensive corrections order by 3 days.
The sentence commences today, 24 May 2024, and expires on 20 April 2026.
The offender must telephone the Mt Druitt Community Corrections Office within 7 days to receive instructions about his obligations under the ICO.
The standard conditions of an intensive corrections order apply namely;
The offender must not commit any offence and;
The offender must submit to supervision by a Community Corrections officer.
The following additional condition applies:
The offender must perform 350 hours of community service work.
As well, the offender is disqualified from driving for four years.
A copy of this order will be provided to the offender by the Court registry and explained to him.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 May 2024