Donaczy v R

Case [2010] NSWCCA 143

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Donaczy v Regina [2010] NSWCCA 143

FILE NUMBER(S):
2008/11315

HEARING DATE(S):
19 April 2010

JUDGMENT DATE:
6 July 2010

PARTIES:
Solkan Mohammad Donaczy (Appellant)
Regina (Respondent)

JUDGMENT OF:
Allsop P Grove J Hislop J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11315

LOWER COURT JUDICIAL OFFICER:
Conlon DCJ

LOWER COURT DATE OF DECISION:
6 March 2009

COUNSEL:
Mr G Turnbull SC (Appellant)
Mr D Arnott SC (Respondent)

SOLICITORS:
Heenan & Company (Appellant)
Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against sentence – discount for guilty plea – manslaughter by unlawful and dangerous act – offender struck victim with fatal blow to the head – open to sentencing judge to set discount
CRIMINAL LAW – appeal against sentence – considerations – application of R v Fernando in weighing personal subjective circumstances against objective seriousness of the offence – sentence not manifestly excessive

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5
Criminal Case Conferencing Trial Act 2008 (NSW) ss 4, 17

CATEGORY:
Principal judgment

CASES CITED:
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Hopley v R [2008] NSWCCA 105
KT v R [2008] NSWCCA 51
Melchers v R [2003] NSWCCA 119
Nanai v R [2010] NSWCCA 21
R v Bashford [2007] NSWSC 1380
R v Borkowski [2009] NSWCCA 102
R v Carroll [2008] NSWCCA 218; 188 A Crim R 253
R v Carroll [2010] NSWCCA 55
R v CK; R v TCS [2007] NSWSC 1424
R v Edward David Zammit [2008] NSWCCA 317
R v El Hani [2004] NSWCCA 162
R v Fernando (1992) 76 A Crim R 58
R v Forbes [2005] NSWCCA 377
R v Heikkinen [2006] NSWCCA 50
R v KT [2007] NSWSC 83
R v Maclurcan [2003] NSWSC 799
R v O'Hare [2003] NSWSC 652
R v Risteski [1999] NSWSC 1248
R v Smith [2008] NSWSC 201
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

TEXTS CITED:

DECISION:
Leave to appeal granted.  Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/11315

ALLSOP P
GROVE J
HISLOP J

Tuesday 6 July 2010

SOLKAN MOHAMMAD DONACZY v REGINA

Judgment

  1. ALLSOP P:  The applicant seeks leave to appeal from the sentence imposed upon him in the District Court on 6 March 2009 in relation to the offence of manslaughter by unlawful and dangerous act.

  2. The applicant pleaded guilty in the Local Court on 23 July 2008 to the manslaughter of Scott Mahoney on 17 March 2007.  He adhered to that plea in the District Court on 31 October 2008.  The sentencing hearing proceeded before Conlon DCJ on 31 October 2008, 17 December 2008 and 6 March 2009.  On 6 March 2009, the applicant was sentenced to a term of imprisonment of six years to commence on 6 March 2009 and to expire on 5 March 2015 with a non-parole period of three years six months commencing on 6 March 2009 and expiring on 5…

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Details
AGLC
Donaczy v R [2010] NSWCCA 143
Case
[2010] NSWCCA 143
Decision Date

CaseChat Overview and Summary

The applicant, Donaczy, appealed against his sentence for manslaughter, which was imposed following his guilty plea. The appeal centred on the sentence's appropriateness, including the discount for his guilty plea and the application of subjective and objective considerations in sentencing. The appeal was heard in the District Court of New South Wales.

The primary legal issues before the court were whether the discount for the applicant's guilty plea was appropriate and if the sentence was manifestly excessive when considering both the subjective circumstances of the offender and the objective seriousness of the offence. The court had to balance the applicant's personal circumstances against the gravity of the crime, using precedents such as R v Fernando to guide the sentencing process.

The District Court, in its judgment, upheld the sentence imposed by the sentencing judge. The court found that the discount for the guilty plea was appropriately considered and that the sentence was not manifestly excessive. The court noted the difficulty in making findings of fact beyond reasonable doubt due to the imprecise and inconsistent nature of the witness statements, but found that the sentencing judge had sufficiently weighed the relevant factors in arriving at the sentence. The court held that the sentence was proportionate and took into account both the subjective and objective circumstances of the case.

No further orders were made by the court, affirming the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

The applicant pleaded guilty in the Local Court on 23 July 2008 to the manslaughter of Scott Mahoney on 17 March 2007. He adhered to that plea in the District Court on 31 October 2008. The sentencing hearing proceeded before Conlon DCJ on 31 October 2008, 17 December 2008 and 6 March 2009. On 6 March 2009, the applicant was sentenced to a term of imprisonment of six years to commence on 6 March 2009 and to expire on 5 March 2015 with a non-parole period of three years six months commencing on 6 March 2009 and expiring on 5 September 2012.Background and facts In the early hours of 17 March 2009, outside the Port Kembla Hotel, the applicant punched Scott Mahoney (the deceased) on the side of the head causing him to fall and strike the back of his head on the roadway. The deceased lost consciousness and did not regain consciousness, being pronounced dead approximately one hour later. With the exception of one matter, the facts were significantly agreed in an agreed statement of facts. The applicant gave evidence. Aspects of that evidence contradicted parts of the agreed facts that asserted that the applicant was observed to be behind and to the right of the deceased when, without warning, he threw a single punch striking the victim and causing him to fall to the ground. The inconsistency between the statement of facts and the evidence of the applicant reflected what was said to have always been a dispute as to whether the applicant “king hit” the deceased. This necessitated the calling of further evidence on 17 December 2008. A folder of witness statements was tendered by consent (exhibit C). The sentencing judge noted that those statements contained versions of events that were inconsistent with one another. Some of the witnesses who made statements were acquaintances of the deceased and others of the applicant. Many of the witnesses had been consuming alcohol over a period of time. The sentencing judge noted that the descriptions of what happened and the various verbal altercations on the evening in question were imprecise. The sentencing judge concluded that it was impossible to be satisfied beyond reasonable doubt of observations contained in those statements without the opportunity (which he did not have) to make an assessment of the witnesses having heard their evidence, including cross-examination. The sentencing judge made the following remarks drawn from his reading of these statements before proceeding to make findings beyond reasonable doubt about other matters:“… However, from those statements, being exhibit C, I can at least be satisfied that Scott Mahoney was upset and agitated concerning the presence of a person at the hotel on that night and that that other person was within the group the offender was socialising with on that night. I can be satisfied that the offender, initially at least, was trying to calm down Scott Mahoney. As the interaction between the various persons continued, I am satisfied, on the balance of probabilities, that there was aggressive posturing at different times between the offender and Scott Mahoney, causing other persons to intervene. Beyond that, it is difficult to make any other findings of fact beyond reasonable doubt.”

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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