Devaney v R

Case [2012] NSWCCA 285


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Devaney v R [2012] NSWCCA 285
Hearing dates:26 June 2012
Decision date: 21 December 2012
Before: Allsop P at [1]
Price J at [101]
Campbell J at [102]
Decision:

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed on the applicant by the District Court on 3 June 2011 by quashing the sentence for the offence in count 1 and in its place sentencing the applicant to a non-parole period of eight years imprisonment commencing on 8 November 2009 and expiring on 7 November 2017, with a balance of term of four years imprisonment commencing on 8 November 2017 and expiring on 7 November 2021; the earliest date for release on parole being 7 November 2017.

Catchwords: CRIMINAL LAW - sentencing - shooting with intent to murder - mental illness - effect of standard non-parole period on sentencing - balancing of factors when sentencing mentally ill offender - sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 23A, s 29
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 21A, s 44
Criminal Appeal Act 1912 (NSW), s 5
Firearms Act 1996 (NSW), s 7, s 7A
Judicial Officers Act 1986 (NSW), s 8
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beldon v R [2012] NSWCCA 194
Bolt v R [2012] NSWCCA 50
Butler v R [2012] NSWCCA 23
Butters v R [2010] NSWCCA 1
Carlton v R [2008] NSWCCA 244; 189 A Crim R 332
Channon v R (1978) 20 ALR 1
Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Du Randt v R [2008] NSWCCA 121
HG v The Queen [1999] HCA 2; 197 CLR 414
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Leach v R [2008] NSWCCA 73; 183 A Crim R 1
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pfizner v R [2010] NSWCCA 314
Phelan v R (1993) 66 A Crim R 446
Reberger v R [2011] NSWCCA 132
R v Bugmy [2012] NSWCCA 223
R v Cramp [2004] NSWCCA 264
R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272
R v Engert (1995) 84 A Crim R 67
R v Geddes (1936) 36 SR (NSW) 554
R v Harrison (1997) 93 A Crim R 314
R v Heatley [2006] NSWSC 1199
R v Hemsley [2004] NSWCCA 228
R v Manna [1999] NSWCCA 314
R v Mathers [2011] NSWSC 339
R v O'Donoghue (1968) 34 A Crim R 397
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Palu

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AGLC
Devaney v R [2012] NSWCCA 285
Case
[2012] NSWCCA 285
Decision Date

CaseChat Overview and Summary

The matter of Devaney v R was heard in the High Court of Australia, where the appellant, Devaney, appealed against his conviction and sentence for shooting with intent to murder. Devaney had a history of mental illness, including paranoid schizophrenia, and the trial judge imposed a sentence of imprisonment with a non-parole period of 15 years, which was the standard non-parole period for the offence. The appeal centred on whether the trial judge had erred in sentencing by not sufficiently taking into account Devaney's mental illness and whether the sentence was manifestly excessive.

The court was required to determine whether the trial judge had failed to appropriately consider the appellant's mental illness when imposing the sentence, and whether the sentence was manifestly excessive. The court also had to consider the appropriate weight to be given to the standard non-parole period in sentencing a mentally ill offender. The appellant submitted that the sentence imposed was manifestly excessive because it did not adequately reflect his mental illness and the mitigating factors that arose from it.

The court held that the trial judge had not erred in sentencing by failing to sufficiently take into account the appellant's mental illness. The trial judge had given significant weight to the appellant's mental illness and its effects on his offending behaviour. The court also held that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence and the trial judge had appropriately balanced the aggravating and mitigating factors. The court noted that the standard non-parole period was a relevant consideration in sentencing, but it was not determinative, and the trial judge was entitled to exercise their discretion in determining the appropriate sentence. The appeal was ultimately dismissed.

The High Court of Australia dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the trial judge had appropriately considered the appellant's mental illness and that the sentence imposed was not manifestly excessive. The court also noted that the standard non-parole period was a relevant consideration in sentencing, but it was not determinative, and the trial judge was entitled to exercise their discretion in determining the appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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