Donaghey v R - [2015] NSWCCA 119

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– sentence – where the applicant was on parole at the time of offending – where the balance of the applicant’s parole was revoked and the applicant was taken into custody following which he served the balance of his parole period – where issue arose on sentence as to the time to which any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-sentenced
Legislation 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 40
Category: Principal judgment
Parties: Andrew Michael Donaghey - Applicant
Crown - Respondent
Representation:
Counsel:
Mr D Barrow - Applicant
Mr P Ingram – Respondent
Solicitors:
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

BATHURST CJ: I agree with Bellew J.
SIMPSON J: I agree with Bellew J.
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.
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.

Each of the matters in the Form 1 arose at the time of the offending in…

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.

Continue reading Donaghey v R

Details

AGLC: Donaghey v R [2015] NSWCCA 119
Case: [2015] NSWCCA 119
Decision Date: 27 May 2015

CaseChat Overview and Summary

The case of Donaghey v R involved the applicant, who was on parole when he committed another offence. The applicant appealed the sentence imposed by the sentencing judge, arguing that the judge had erred in two respects. First, the judge stated the incorrect maximum penalty for the offence. Second, the judge failed to consider the special circumstances of the applicant's parole status and the subsequent revocation of his parole, which led to the applicant serving the balance of his parole period in custody. The High Court of Australia was asked to determine whether these errors warranted a re-sentencing of the applicant.

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