Brayden Peter Donnelly v The Queen - [2021] VSCA 109

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0001

BRAYDEN PETER DONNELLY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2021
DATE OF JUDGMENT:	30 April 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 109
JUDGMENT APPEALED FROM:	[2019] VSC 777 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Applicant stabbed victim in abdomen causing life-threatening injuries – Intellectually disabled offender – Sentenced to 5 years and 9 months with non-parole period of 3 years and 6 months – Whether judge erred by rejecting contention that element of fear informed applicant’s offending – Whether judge erred by finding that offending was committed ‘principally out of anger and annoyance’, ‘for reasons of anger and aggression’ and without justification.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Camerons Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KAYE JA
NIALL JA:

On 24 February 2018, the applicant stabbed the victim, Bradley Hayman, four times with a filleting knife. The first wound deeply penetrated the abdomen and the injuries were life-threatening. The applicant pleaded guilty to a single charge of recklessly causing serious injury before a judge in the Trial Division of the Supreme Court.[1]
[1]The applicant originally faced a charge of attempted murder which explains why the matter was heard in the Supreme Court.

Following a plea in mitigation, the applicant was sentenced to a term of imprisonment of 5 years and 9 months.[2] The judge fixed a non-parole period of 3 years and 6 months.
[2]R v Donnelly [2019] VSC 777 (‘Reasons’).
The applicant seeks leave to appeal on a single ground, which is in the following terms:
The sentencing judge erred by:
1.1rejecting the contention that an element of fear informed the applicant’s offending, a contention that the prosecution submitted was ‘clear’ from video evidence and the circumstances that unfolded before the offending;
and (in a related but separate way) by:
1.2finding that the offending was committed ‘principally out of anger and annoyance’, ‘for reasons of anger and aggression’ and without any justification;
errors that in turn infected the assessment of the applicant’s moral culpability, the assessment of the nature and gravity of the offending and the weight that fell to be given in deterrence.
It can be seen immediately that the proposed ground seeks to challenge two related findings of fact made by the judge as to the factors motivating the offending. Those factors concern whether the applicant was in fear at the time he stabbed the victim or, as the judge found, whether he was principally motivated by anger and annoyance directed towards the victim.
The state of mind of the applicant, including the identification of the factors that led the applicant to stab the victim, were relevant to an assessment of the culpability of the applicant. The applicant submits that, if made out, the errors…

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: [2021] VSCA 109
Decision Date: 30 April 2021

CaseChat Overview and Summary

Brayden Peter Donnelly, the applicant, has appealed against his sentence for recklessly causing serious injury. The case has been heard in the court of appeal. The central issue is whether the primary judge erred in the assessment of the applicant’s sentence, specifically in rejecting the contention that the applicant’s offending was influenced by fear, and in finding that the offending was committed principally out of anger and annoyance and without justification.

The applicant argued that the judge failed to appropriately consider the role of fear in his offending, and thus misapplied the principles of sentencing for intellectually disabled offenders. The applicant also submitted that the judge erred in finding that the offending was committed out of anger and aggression, without justification. The Crown maintained that the sentence was appropriate, given the severity of the injuries inflicted and the lack of mitigating factors.

The court found that while the applicant’s intellectual disability was a mitigating factor, it did not negate the seriousness of the offending. The court held that the judge was correct in finding that the applicant’s offending was motivated by anger and aggression, rather than fear. The court further held that the sentence imposed was appropriate, given the severity of the injuries caused and the need to deter similar offending. The appeal was dismissed, and the original sentence was upheld.

The court did not make any additional orders. The original sentence of 5 years and 9 months with a non-parole period of 3 years and 6 months remains in place.

Orders