Director of Public Prosecutions v Donohue (No 3)

[2024] ACTSC 272

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Donohue (No 3)
Citation:	[2024] ACTSC 272
Hearing Date:	30 August 2024
Decision Date:	30 August 2024
Before:	Mossop ACJ
Decision:	See [57]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence –
offender charged with attempted murder and intentionally
inflicting grievous bodily harm – offender cut throat of victim after being told to leave victim’s home – while in custody offender
repeatedly stabbed another inmate with a broken tennis racquet
handle – offender a young man with “complex diagnoses which are linked to his offending behaviour” – sentenced to 13 years and
five months’ imprisonment with a non-parole period of six years
Legislation Cited:	Crimes Act 1900 (ACT), ss 12, 19 Crimes (Sentencing) Act 2005 (ACT), ss 70(1)(a)(iii), 72 Criminal Code 2002 (ACT), s 44
Cases Cited:	Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 DPP v Donohue [2024] ACTSC 96 R v Rappel [2019] ACTCA 11
Parties:	Director of Public Prosecutions
Flynn Donohue (Offender)
Representation:	Counsel
M Howe (DPP) J Sabharwal (Offender)
Solicitors
Director of Public Prosecutions InPrivate Law (Offender)
File Numbers:	SCC 300 of 2023 SCC 164 of 2024
MOSSOP ACJ:
Introduction
1․	Mr Flynn Donohue is to be sentenced for the following offences:

(a) Count 1: Attempted murder, contrary to s 12 of the Crimes Act 1900 (ACT) by

virtue of s 44 of the Criminal Code 2002 (ACT) (CAN 7902/2023). The maximum

penalty is life imprisonment.

(b) Count 2: Intentionally inflicting grievous bodily harm, contrary to s 19 of the

Crimes Act 1900 (ACT) (CAN 1671/2024). The maximum penalty is 20 years’

imprisonment.

Agreed Facts

2․	The details of the offences are contained in an agreed Statement of Facts, which is
summarised as follows.
3․	In July 2023, the offender had just turned 18. Mr G and Ms S were in a long-term de facto
relationship. They leased a unit in Narrabundah. They were both alcoholics. On
16 July 2023, Mr G and Ms S had drunk some alcohol and smoked cannabis. They went
to Woden Town Centre to get more money to purchase alcohol. There they met the
offender, who they didn’t previously know. They spent some time together drinking and
smoking cigarettes. The offender was invited back to the unit to have some food,
continue drinking, and try to get marijuana. Before returning to the unit, they walked to
another house to try to get marijuana but were unsuccessful. Back at the unit, they
continued to drink alcohol, eat food, listen to music, and smoke cannabis. Ms S and Mr G
drank huge quantities of alcohol. Ms S later told police that she believed she had
consumed eight litres of wine. Mr G told police he had consumed five litres of wine and
some spirits. The offender was trying to keep pace but was struggling to handle that
amount of alcohol.
4․	At some stage, the offender took a knife out from near his belt. He told them that he had
it for protection. Ms S and Mr G looked at the knife. Ms S asked if the offender could put
it somewhere where it could still be seen because she wasn’t comfortable with him inside
the house with a knife on him.
5․	After arriving at the unit, the offender’s demeanour changed from being relaxed and
friendly as earlier in the day to, and this is set out in the agreed Statement of Facts, like
“someone shoved crack cocaine up his butt”. He would not stop moving around the
house. He was yelling and saying “random stuff”. At one point, he went up to Mr G and
screamed in his face. At another point, he started punching holes in the wall. This scared
Ms S, and both she and Mr G were trying to convince the offender to leave.
6․	The offender was also being “quite sexual” towards Ms S. This made her uncomfortable.
Eventually Mr G told the offender that it was “time for you to fuck off”. The offender agreed
to leave. The sun was coming up at this time.
7․	Mr G then went to the living area of the unit and sat down to roll a cigarette at the table.
Ms S went to the bathroom. The offender approached Mr G from behind, grabbed his
hair and held a knife to his throat. Ms S came out of the bathroom and said, “just don’t
do it” or “put it down”. Mr G attempted to grab the blade with his left hand and, as he did
so, the offender, in one motion, cut his throat. The offender did not say anything and was
laughing and smiling. Mr G dropped to the ground. Ms S started punching the offender,
who then left the unit. There was a lot of blood coming from Mr G’s throat. Ms S “plugged”
his throat with her fingers, put him in the recovery position and called an ambulance. She
told the operator that Mr G was losing or had lost consciousness.
8․	The offender travelled from the unit to Goyder Street, and then caught a bus to the
McDonald’s in Manuka, where he twice unsuccessfully tried to purchase something and
then left.
9․	ACT Ambulance Service arrived at the unit 14 minutes after Ms S had called. Mr G was
taken to the Canberra Hospital and underwent life-saving emergency surgical
procedures, which are described in the Statement of Facts. He required eight units of
blood and multiple units of blood products to save his life. He was sedated using general
anaesthesia for his first 24 hours in the Intensive Care Unit. He was hospitalised for
seven days. He had a tracheostomy tube in for six of those days.
10․	The offender was arrested at 6pm on the day of the incident.
11․	On 13 December 2023, the offender was a detainee at the Alexander Maconochie Centre
(AMC). Another inmate, “HE”, was housed in the Special Care Centre North Yard. The
offender was housed in the adjacent cell. At 2pm that day, HE had been cleaning rubbish
from the yard. After cleaning the main yard area, he went around to each of the cell doors
including the offender’s cell. HE asked the offender if he had any rubbish, and the
offender handed some over. HE then said to the offender, “Thankyou Boss”, before
leaving.
12․	The offender replied, “what did you say to me?” and became hostile. HE believed that
the offender wished to fight him and went to a corrections officer to report the
confrontation, saying “Flynn had a go at me”. The offender walked out of his cell over to HE and the corrections officer and said, “Why are you telling the screws what happened”.
The corrections officer asked the offender what had happened, and he said, “I thought
he called me a dog, there’s nothing in it chief don’t worry”. The corrections officer told
them it sounded like a misunderstanding and told the offender and HE to shake hands
and part ways. They did.
13․	Shortly before 5pm, HE and his cellmate were present for “muster” and then returned to
their cell. A minute later, the offender entered their cell and shut the door behind him.
The offender approached HE and was standing over him while HE was seated in a chair.
The offender asked HE if he had called the police on different people while “on the
outside” previously. HE said he had called the police because he just wanted to make
sure “everything is cool”. HE told the offender that he did not want to fight and that he
did not want anything to do with the offender. HE said he had called the offender “boss”
out of respect. The offender started questioning HE about why HE had “snitched” on him
to the corrections officers.
14․	A short time later, the offender pulled out a sharpened wooden spike and said, “I’m not
going to let you go”. He then stabbed HE in the upper right shoulder. He continued to
stab HE’s shoulder, neck and head. HE raised his arms in a defensive manner to prevent
further stabbings; however, the offender then stabbed his right arm. HE’s cellmate left
the cell and walked out into the yard. HE ran for the door and the offender stabbed him
in the lower back and left buttock as he was attempting to run away. HE approached a
corrections officer who observed he had blood all over his face and upper shoulder.
There was a trail of blood coming from his cell.
15․	The offender walked out of the cell with the weapon in his hand and walked back into his
own cell. The offender then approached a corrections officer. He was no longer holding
a weapon. He placed his hands on his head and a number of officers placed him in
handcuffs. A search of the offender’s cell indicated that the sharpened wooden spike had
been crafted from a broken tennis racquet handle.
16․	HE suffered 38 wounds or abrasions to his head, neck, arms, abdomen and back, as
well as a comminuted and minimally displaced fracture in his cheekbone. The sharp force
injuries included:

(a)	six wounds to the head and face;
(b)	11 wounds to the neck;
(c)	four wounds to the abdomen;
(d)	seven wounds to the back;
(e)	seven wounds to the upper left arm; and
(f)	three wounds to the upper right arm.

17․	These wounds were superficial stab wounds.
18․	In early 2024, HE had 15 to 17 scars around his upper neck, right and left shoulder, and
back. The injuries sustained by HE were not life-threatening.
19․	In a telephone call made from the AMC to his father, the offender said that he had thought
that HE, instead of saying “you’re alright boss”, had said “alright pus like, like pussy”. In
a telephone call to his mother, the offender said that he stabbed HE because HE was a
“dog”.

Victim Impact Statement

20․	Mr G read a victim impact statement which indicated that he remained scared for his
safety. He is scared in the city and anywhere outside. He has increased concerns for the
safety of Ms S and identifies that she was also a victim of the offender’s heinous crime.
21․	The impact on Mr G was undoubtedly grave and the long-term impacts of having suffered
such an awful, unprovoked, and life-threatening attack will be significant. So, too, will be
the impact on Ms S, who was confronted in her home with a very difficult life and death
event which she had to address. That, too, is likely to have a long-term psychological
impact.

Objective seriousness

22․	The objective seriousness of an attempted murder can vary greatly. The assessment of
the objective seriousness of this offence can include the skill and determination of the
attempt, the motive, whether the attempt was premeditated, the likelihood of death, and
the injuries inflicted. In the present case:

(a) the attempt was an extremely serious one, attacking an extremely vulnerable

part of the body with a knife;

(b) the motive is obscure, arising from temporary aggravation at being asked to

leave the unit;

(c)	the intent to kill was only transient;
(d)	the likelihood of death was high; and
(e)	the injuries inflicted were extremely grave.

23․	Other relevant factors are that the conduct was impulsive and brief, and that it occurred
inside the victim’s home. The offender was on conditional liberty because he was the
subject of a good behaviour order associated with the suspension of an earlier sentence
of imprisonment.
24․	The offending is in the high range of objective seriousness for this offence.
25․	In relation to the intentional infliction of grievous bodily harm on HE:

(a)	the assault occurred in a custodial setting;
(b)	the assault was premeditated;
(c)	it was motivated by the culture of non-cooperation with authorities;
(d)	it involved the use of an improvised weapon created within the prison;
(e)	it involved an attack upon the victim’s head and neck, being vulnerable parts of

the body;

(f) the attack was a protracted one, inflicting 38 separate injuries, some of which

will result in permanent scarring. It also involved a minor fracture of the victim’s

cheekbone; and

(g) the attack only concluded when the victim escaped.

26․ The offending is in the mid to high range of objective seriousness for this offence.

Subjective circumstances

27․	The offender’s subjective circumstances are outlined in a pre-sentence report dated
22 August 2024 and an earlier report prepared in relation to him.
28․	He is currently 19 years old. He was born in Penrith in New South Wales. He was the
only child to his parents’ union. His parents moved to Canberra when he was five years
old. His parents separated in 2019. He resided for a time with his mother but then,
because of his acts of violence and property damage, he resided for a time with his
father. He is single with no dependents.
29․	He completed Year 10 at school; however, he had been absent for significant periods of
time in his early high school years due to his antisocial associations [redacted]. He has
always found that physical exercise has a positive impact on his emotional health.
30․	He has never been employed.
31․	He has limited family support.
32․	Prior to being remanded in custody, he was in a form of public housing. His father
continued to assist him, notwithstanding that he was living separately. [Redacted]. Since
being remanded in custody on the current charges, he has spent periods of time in segregation due to violent behaviours and attitudes. He has not been employed within
the prison and has not engaged in educational programs. He is currently housed in
segregation due to his hostile and, at times, unpredictable behaviours and attitudes.
33․	His most regular and problematic drug was alcohol. He was highly intoxicated at the time
of the attempted murder. He used cannabis from the age of 12 for around four years. He
used methamphetamine from the age of 14 for approximately three years.

34․ He has been diagnosed with Attention Deficit Hyperactivity Disorder and

Obsessive-Compulsive Disorder as a juvenile. He has been medicated for these

conditions in the past but is no longer taking any prescribed medication. He has

previously been diagnosed with Tourette’s Syndrome, Cannabis Use Disorder and

Autism Spectrum Disorder. A court report from 2023 summarises him as a young man

with “complex diagnoses which are linked to his offending behaviour” and continues:

Previous assessments have identified that Flynn’s diagnoses contribute to his impulse

control, poor emotional-regulation, communication and conflict resolution, and high levels of fear and anxiety. In addition, Flynn has disclosed experiencing auditory and visual hallucinations which cause him to be consistently hypervigilant and monitoring for perceived threats within his environment.

35․ The report also says:

It is understood that Flynn’s diagnoses have an impact on his life in many ways. These

include challenges in concentrating, communication and conflict resolution, impulsivity, emotional regulation, vulnerable to being influenced by peers, limited empathy, high levels of fear and anxiety, and more. [A Behavioural Support Therapist] also informed that since his early years, Flynn has had a fixation with metal, and suggested this could be associated

with Flynn’s diagnosis of ASD.

36․ There were no current diagnoses of his psychological conditions by a medical

professional put before the court. It is, therefore, difficult to determine the extent to which

his patterns of thought and behaviour are modifiable or may change over time as he

matures.

37․	He is more open to counselling than to being prescribed drugs and, when talking to the
author of the pre-sentence report, spoke of his desire to change his pattern of thinking
and behaviours, and to make better life choices. He has not engaged with psychiatric
treatment within the prison and, as a consequence, there is no review of his psychiatric
condition. It is obviously desirable that he engage with the psychiatric services at the
AMC as that may be significant for his long-term rehabilitation and prospects of release
on parole.
38․	He described the attempted murder as resulting from an argument with the victim. He
said that the offence would not have happened had he not been carrying a weapon. He was relieved that the victim survived. He accepted full responsibility for his actions. He
understood the link between his intoxication, anger and impulse control issues, and
subsequent poor decision-making. This is consistent with his attitude to other serious
offending in relation to which he is able to recognise, after the event and in circumstances
where there is no incentive to “talk tough”, the impact that it has had on the victims.
39․	Spending time in prison on a long custodial sentence will be difficult for him and tend to
reinforce some adverse aspects of his personality and behaviour. A functional capacity
evaluation report [redacted] says:

Flynn’s capacity to engage socially in a reasonable manner is significantly impacted by the

conditions he experiences. In particular the Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder are typically characterised by difficulties interpreting and responding

effectively in regards to social function. …

It is also important to note that in addition there has been significantly detrimental indirect

effects of the Conditions on Flynn’s social interaction. In particular how he has learnt to

respond to manage challenges. One obvious affect being an apparent indifference to norms

of social expectation, with a focus on aggression and ‘machoism’.

40․	The author of the pre-sentence report was concerned about the offender’s unwillingness
to engage with appropriate interventions during his period in custody. The author of the
pre-sentence report indicated that all facets of his lifestyle have contributed to his criminal
behaviours. It is unclear whether he has any protective factors by way of familial support
or appropriate accommodation following release from custody. He was assessed as
suitable for a high level of intervention by ACT Corrective Services if he was subject to
a good behaviour order. He was assessed as suitable for a community service work
condition.

Criminal history

[Paragraphs 41 to 44 redacted]

Plea of guilty

45․	The offender entered a plea of guilty to intentional infliction of grievous bodily harm in
the Magistrates Court on 3 June 2024, being the fourth time the matter was mentioned
and prior to the preparation of a full brief of evidence. The plea is to be considered one
at the earliest reasonable opportunity.
46․	He entered a plea of guilty to attempted murder in the Supreme Court on 19 June 2024,
prior to the Criminal Case Conference but after the setting of a trial date. That would
usually warrant a reduction of 15 percent on account of the utilitarian value of the plea of
guilty and it will in this case.

Time in custody

47․	The offender has been in custody since his arrest on 17 July 2023. As a result of other
sentences imposed since then, 42 days of that imprisonment have been attributable to
other offending. Those sentences started on 18 July 2023 and ended on 21 August 2023.
The day in custody on 17 July 2023 did not form part of those sentences. Therefore, the
backdate date for sentences to be imposed is 21 August 2023.

Consideration

48․	The attempted murder was extremely serious. It was very nearly successful. The only
factor moderating its objective seriousness was that it was not premeditated.
49․	The infliction of grievous bodily harm was premeditated, occurred in prison, and was
directed to someone who had done nothing adverse to the offender. It was very fortunate
that no greater injury was suffered by the victim.
50․	For somebody so young, the evidence indicates that the offender has a dangerous
propensity to resort to violence. That appears to be an ingrained part of his personality
structure, having difficulty with impulsivity and emotional regulation, combined with
significant levels of fear and anxiety. It is a dangerous combination [redacted].
51․	It must be borne in mind that the offender is still a very young man. As is made clear by
the decision in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[40], his youth
must be taken into account. This is because his immaturity, the potential for rehabilitation
as he gets older, and the likelihood that incarceration will have a significant effect upon
him must all be considered. However, those considerations must be balanced with the
seriousness of the offending, the need for recognition of the harm done to the victims,
and protection of the community.
52․	It is clear that the offender can behave reasonably and respectfully as he does when he
is in court. However, his criminal history, the nature of his offending, and the evidence of
his lack of impulse control and poor emotional regulation makes it clear that he has
long-term behavioural problems. Now that sentencing is concluded, he will gain the full
benefit of the programs available to him while in custody. Having regard to his criminal
history and the available material about his behaviour and subjective circumstances, his
prospects of rehabilitation must be considered to be extremely guarded.
53․	Because the grievous bodily harm offence was committed in detention, the default rule
provided by s 72 of the Crimes (Sentencing) Act 2005 (ACT) is that the sentence for that
offence is cumulative upon the sentence for an existing offence. For the purposes of that
provision, the sentence for the attempted murder is an “existing sentence”, as it is a
sentence to be imposed in the same proceeding: s 70(1)(a)(iii).
54․	I do not consider that there is a proper basis for departing from the default rule and
introducing an element of concurrency. The conduct in question is precisely the sort of
conduct which the sentences resulting from the implementation of the default rule in s 72
are designed to deter: see generally R v Rappel [2019] ACTCA 11.
55․	There can be no doubt that the only appropriate sentences are custodial ones to be
served by way of full-time detention.
56․	So far as the attempted murder is concerned, the appropriate starting point is a sentence
of 12 years’ imprisonment, reduced to 10 years on account of the plea of guilty. On the
charge of intentionally inflicting grievous bodily harm, the starting point is a sentence of
four years and six months reduced to three years and five months on account of the plea
of guilty. That sentence will be wholly cumulative upon the sentence for attempted
murder. This gives an aggregate sentence of 13 years and five months. The non-parole
period will be six years. That is approximately 45 percent of the head sentence, which is
below the usual range for a non-parole period. The reasons why I have adopted this
approach to the non-parole period are:

(a)	the offender was only just old enough to offend and be sentenced as an adult;
(b)	it is appropriate that the possibility of rehabilitation is accommodated within the

sentence;

(c) the uncertainty as to whether his psychological conditions that render him a

danger to the community may be treated or will reduce over time; and

(d) the fact that even a lower than usual non-parole period involves a substantial

period in prison.

57․	It also recognises that if the offender retains the propensities which he has demonstrated
to date, then a grant of parole may be inappropriate because of the risk that he poses to
the community and, as a result, he may be required to serve a substantially longer period
prior to any grant of parole. Whether or not he is released on parole will need to be
carefully assessed as that time approaches.

Orders

58․ The orders of the Court are:

1. On the charge of attempted murder, contrary to s 12 of the Crimes Act 1900

(ACT) by virtue of s 44 of the Criminal Code 2002 (ACT) (CAN 7902/2023), the

offender is convicted and sentenced to 10 years’ imprisonment, starting on

21 August 2023 and ending on 20 August 2033.

2. On the charge of intentionally inflicting grievous bodily harm, contrary to s 19 of

the Crimes Act 1900 (ACT) (CAN 1671/2024), the offender is convicted and

sentenced to three years and five months’ imprisonment, commencing on

21 August 2033 and ending on 20 January 2037.

3.       The non-parole period is six years and commences on 21 August 2023 and

ends on 20 August 2029.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Mossop.

Associate:

Date: 11 October 2024