R v Sutton [2010] NSWSC 1273

New South Wales Supreme Court

CITATION : R v Sutton [2010] NSWSC 1273

HEARING DATE(S) : 24 August 2010

JUDGMENT DATE : 4 November 2010

JURISDICTION : Common Law

JUDGMENT OF : Adams J

DECISION : The offender is sentenced to an overall term of four years imprisonment comprising a minimum term of two years commencing on 29 April 2009 and a balance of term of two years. Consequently the offender will be eligible to be considered for parole on 28 April 2011.

CATCHWORDS : SENTENCE – Manslaughter – Death of seven month old child – No history of abuse – Inferences as to infliction of injury from autopsy – Inferences from plea of guilty – No basis for charge of murder – Prosecutorial discretion.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 SS 12, 21A, 44 & 98

CATEGORY : Sentence

CASES CITED : R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520

PARTIES : Regina (P) Jay Sutton (A)

FILE NUMBER(S) : SC 2009/0070782

COUNSEL : W T Creasey (C) P R Boulten SC (A)

SOLICITORS : Solicitor for Public Prosecutions, Dubbo (C) North & Badgery (A)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

ADAMS J

THURSDAY, 4 NOVEMBER 2010

2009/0070782 REGINA v JAY SUTTON

SENTENCE

HIS HONOUR:

Introduction 1 Jay Sutton was indicted on 4 June 2010 upon the charge of murder allegedly committed on 18 April 2009 at Narromine. On that date he pleaded guilty to manslaughter, which plea was accepted by the prosecutor in full discharge of the indictment. As will be apparent from the undisputed facts as I relate them below, there was not and could not have been an adequate basis for a charge of murder. The offender should never have been indicted for that offence since, prejudice aside, there was no reasonable basis upon the evidence available to the prosecution for concluding there was a reasonable prospect that a jury would be likely to convict him of murder, let alone that he was in fact guilty of that offence. 2 In my younger days at the Bar it was commonly known that indictments for murder were sometimes presented in the hope that, out of fear that a misguided jury might, for whatever reason, convict of such an offence, the accused could be induced to plead guilty to the charge of manslaughter in satisfaction of the indictment. Of course, such a practice was never acknowledged, but it was nonetheless real for all that. I would be very sorry indeed if this abuse of prosecutorial power was again beginning to manifest itself.