Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Donaghey v R [2015] NSWCCA 119 Hearing dates: 29 April 2015 Date of orders: 27 May 2015 Decision date: 27 May 2015 Before: Bathurst CJ at [1]
Simpson J at [2]
Bellew J at [3]Decision: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)Catchwords: CRIMINAL LAW – sentence – where sentencing judge stated the incorrect maximum penalty – error made out
CRIMINAL LAW – sentence – where the applicant was on parole at the time of offending – where the balance of the applicant’s parole was revoked and the applicant was taken into custody following which he served the balance of his parole period – where issue arose on sentence as to the time to which any further sentence might be backdated – where a further issue arose in that context as to special circumstances – where sentencing judge made no reference to special circumstances – whether issue overlooked – error made out
CRIMINAL LAW – sentence – re-sentence – necessity for fresh exercise of the sentencing discretion taking into account all relevant factors – offence of supply a prohibited drug at a relatively low level – evidence of applicant having undertaken rehabilitative efforts in custody in terms of employment and courses of study – where evidence that applicant was no longer a user of any illicit drug – special circumstances made out – applicant re-sentencedLegislation Cited: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)Cases Cited: Baghdadi v R [2012] NSWCCA 212
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Callaghan v R [2006] 160 A Crim R 145
Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947
R v Tuuta [2014] NSWCCA 40Category: Principal judgment Parties: Andrew Michael Donaghey - Applicant
Crown - RespondentRepresentation: Counsel:
Solicitors:
Mr D Barrow - Applicant
Mr P Ingram – Respondent
Rebecca McMahon - Applicant
Solicitor for Public Prosecutions - Respondent
File Number(s): 2013/247756 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 29 September 2014
- Before:
- Wilson DCJ
Judgment
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BATHURST CJ: I agree with Bellew J.
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SIMPSON J: I agree with Bellew J.
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BELLEW J: Andrew Michael Donaghey (“the applicant”) pleaded guilty to a charge that on 14 August 2013 he supplied a prohibited drug, namely methylamphetamine, contrary to s. 25(1) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”). The maximum penalty for that offence is 15 years imprisonment and/or 2000 penalty units. No standard non-parole period is prescribed.
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On sentence the applicant asked the sentencing judge to take into account two additional matters contained in a Form 1, namely:
dealing with property suspected of being the proceeds of crime; and
supplying a prohibited drug, namely 4.46 grams of heroin.
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Each of the matters in the Form 1 arose at the time of the offending in…
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- AGLC
- Donaghey v R [2015] NSWCCA 119
- Case
- [2015] NSWCCA 119
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge's error in stating the maximum penalty constituted a significant error affecting the sentence and whether the failure to consider the applicant's parole status and the subsequent revocation of his parole constituted an error warranting a re-sentencing. The court had to assess the impact of these errors on the fairness and proportionality of the sentence imposed.
The High Court found that the sentencing judge's error in stating the maximum penalty was significant, as it could have influenced the overall sentence imposed. Furthermore, the court held that the sentencing judge's failure to consider the applicant's parole status and the subsequent revocation of his parole was an error that warranted a re-sentencing. The court emphasised the necessity for a fresh exercise of the sentencing discretion, taking into account all relevant factors, including the applicant's rehabilitative efforts in custody and the fact that he was no longer a user of illicit drugs. The special circumstances of the applicant's parole status were deemed to have been overlooked, and the court concluded that a re-sentencing was required.
The High Court re-sentenced the applicant, taking into account the evidence of the applicant's rehabilitative efforts in custody and the fact that he was no longer a user of illicit drugs. The court found that special circumstances were made out and imposed a new sentence on the applicant.
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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