Damon Donnelly v The King - [2023] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0004

DAMON DONNELLY	Applicant
v
THE KING	Respondent

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF JUDGMENT:	19 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 120
JUDGMENT APPEALED FROM:	[2022] VCC 2215 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – One charge of obtaining property by deception – Sentenced to 3 years – Whether judge took into account irrelevant consideration – Whether judge failed to properly take into account availability of a suspended sentence – Whether judge failed to place appropriate weight on delay and prospects of rehabilitation – Leave to appeal refused.

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Counsel
Applicants:		Mr DN McGlone
Respondent:		Ms J Warren
Solicitors
Applicants:	McNally & Gleeson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA:

Introduction and summary

On 15 August 2022, the applicant was found guilty by a County Court jury of one count of obtaining property by deception.[1] The offending took place in 2012 and involved the applicant falsely representing that a vehicle was a rare Holden prototype, and selling it to the victim, Trevor Nelson, for $246,000. In fact, the vehicle was a fake (‘Fake Vehicle’) and was worth approximately $8,000 in 2012.
[1]Contrary to s 81 of the Crimes Act 1958. The maximum penalty is 10 years’ imprisonment.
On 13 December 2022, the applicant was sentenced by a County Court judge to 3 years’ imprisonment with a non-parole period of 18 months.[2] A compensation order was also made requiring him to pay $246,000 to the trustee for the Nelson Family Trust.
[2]DPP v Donnelly [2022] VCC 2215 (‘Sentencing remarks’).
The applicant was acquitted by judicial direction of one charge of making a false document to prejudice another,[3] and one charge of using a false document to prejudice another.[4]
[3]Contrary to s 83A(1) of the Crimes Act.
[4]Contrary to s 83A(2) of the Crimes Act.
The applicant now seeks leave to appeal on the following grounds:[5]
[5]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
1.The learned judge erred in imposing sentence.
Particulars
(1)The learned judge erred in sentencing by taking into account an irrelevant consideration, namely, that an intensive corrections order was an available sentencing disposition.
(2)The learned judge erred in sentencing by omitting to properly take into [ac]count the availability of a suspended sentence.
2.The learned judge erred in sentencing by failing to place appropriate weight as to delay and the applicant’s demonstrated prospects for rehabilitation.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

In 1946, General Motors Holden (‘GMH’) sent three Holden prototype vehicles from the United States to Australia. These vehicles became the foundation for the production of FX Holden vehicles in Australia. The three cars were registered JP 480 (‘Holden Prototype 1’), JP 481 (‘Holden Prototype 2’) and JP 482 (‘Holden Prototype 3’). These vehicles are of significant value…

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: [2023] VSCA 120
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the matter of Damon Donnelly versus The King, the appellant, Donnelly, sought to appeal against his conviction and sentence for obtaining property by deception. The appeal was dismissed by the court, which also refused leave to appeal to the High Court. The dispute centred on the adequacy and fairness of the sentence imposed on Donnelly, who was sentenced to three years in prison for his crime. Donnelly argued that the judge had considered irrelevant factors in sentencing and failed to properly weigh other relevant considerations, such as the availability of a suspended sentence, the delay in the proceedings, and his prospects of rehabilitation.

The court was required to determine whether the judge had erred in his sentencing process by taking into account irrelevant considerations or failing to appropriately consider other factors. Specifically, Donnelly's legal representatives argued that the trial judge had failed to consider the possibility of a suspended sentence and had placed insufficient weight on the delay in the proceedings and Donnelly's prospects for rehabilitation. The court needed to assess the merits of these claims and decide whether the sentence was just and appropriate given the circumstances of the case.

In dismissing the appeal, the court held that the judge had not erred in his consideration of the sentence. The court found that the judge had appropriately assessed all relevant factors, including the delay in the proceedings and Donnelly's prospects for rehabilitation. The court also determined that the sentence imposed was commensurate with the seriousness of the offence and that the judge had not considered any irrelevant factors. The appeal was dismissed, and leave to appeal to the High Court was also refused. The sentence of three years' imprisonment for obtaining property by deception was upheld.

Orders