and Nicholas O'Donohue v The Queen - [2013] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0018
NICHOLAS O’DONOHUE	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 July 2013
DATE OF JUDGMENT	30 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 196
JUDGMENT APPEALED FROM	DPP v O’Donohue (Unreported, County Court of Victoria, Judge Hampel, 18 December 2012)

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CRIMINAL LAW – Sentencing – Intentionally causing serious injury – Whether total effective sentence of six years’ imprisonment with a non-parole period of four years manifestly excessive – Whether judge erred as to factual basis of charge or in failing to give sufficient weight as to delay – Specific error – Whether judge erred in application of Verdins principles – Whether necessary to establish causal connection as between mental condition and offending – Appeal allowed – Applicant re-sentenced to a total effective term of five years’ imprisonment with a non-parole period of three years – R v Verdins (2007) 16 VR 279, Tran v R [2012] VSCA 110, Latif & Ors v R [2013] VSCA 51 applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J Kelly	Haines & Polites
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against a sentence of six years’ imprisonment with a non-parole period of four years imposed on the applicant on pleading guilty to one charge of intentionally causing serious injury.

The facts of the offending

The applicant lived in a boarding house in St Kilda. In October 2010, he engaged the services of a sex worker (the complainant) who was then working on the streets in St Kilda. In the week which followed the encounter, they spent considerable time in each other's company. The applicant was aware that the complainant was a user of heroin and other illicit drugs.

On one occasion when the complainant was in the applicant’s room, she stole approximately $2,000 from his wallet. He later confronted her and she admitted to stealing the money and spending it on drugs. She promised not to steal from him again and apparently he accepted her apology and forgave her. Thereafter, they continued to see each other.

On the morning of 10 October 2010, the complainant went to the applicant’s room after working the previous night in St Kilda. Then she went to her own home in Footscray and subsequently, by arrangement, he went there to see her. He was aware that she planned to see her three children, who were in her mother's care, later that day. While at the complainant's flat, the applicant accused her of having stolen another $1,000 from his wallet. She denied it. She had the $1,000 on her, but she maintained that it was her earnings from the previous night's street work.

The applicant took the $1,000 from her and in response she produced a small box cutter which was attached to her key ring.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSCA 196
Decision Date: 30 July 2013

CaseChat Overview and Summary

Nicholas O'Donohue appealed against his conviction and sentence, raising issues regarding the severity of the sentence imposed for intentionally causing serious injury. The case was heard by the Court of Appeal, which was required to consider whether the total effective sentence of six years' imprisonment with a non-parole period of four years was manifestly excessive. Additionally, the appeal examined whether the judge had erred in determining the factual basis of the charge or in failing to sufficiently weigh the delay in bringing the matter to trial. The court also needed to address whether there was any error in the application of the principles from Verdins and whether it was necessary to establish a causal connection between the applicant's mental condition and his offending.

The Court of Appeal found that the sentence imposed was indeed manifestly excessive, taking into account the totality of circumstances, including the delay in prosecution and the applicant's mental condition. The court determined that the trial judge had erred in not giving sufficient weight to these factors when imposing the sentence. Furthermore, the court held that there was no necessity to establish a causal connection between the applicant's mental condition and his offending, as the focus should be on the totality of circumstances and the principles set out in Verdins. Consequently, the appeal was allowed, and the applicant was re-sentenced to a total effective term of five years' imprisonment with a non-parole period of three years.

The Court of Appeal's decision was based on the principles outlined in R v Verdins (2007) 16 VR 279, Tran v R [2012] VSCA 110, and Latif & Ors v R [2013] VSCA 51. The court found that the trial judge had failed to appropriately consider the totality of the circumstances, leading to a manifestly excessive sentence. The Court of Appeal emphasised the importance of considering factors such as delay in prosecution and the applicant's mental condition when imposing a sentence. As a result, the applicant's appeal was allowed, and he was re-sentenced to a total effective term of five years' imprisonment with a non-parole period of three years.

Orders