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Donald (a pseudonym) v R

Donald (a pseudonym) v R

Case [2021] NSWCCA 198 20 August 2021

Appeal

Sentencing

Mental Condition

Constitutional Validity

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Donald (a pseudonym) v R [2021] NSWCCA 198
Hearing dates: 2 July 2021
Date of orders: 20 August 2021
Decision date: 20 August 2021
Before: Payne JA at [1];
Rothman J at [2];
Button J at [140]
Decision:
(1)   Time for the filing the appeal be extended to allow for the Application for Leave to Appeal and Appeal to be filed on the date filed in this matter;
(2)   Leave to Appeal be granted;
(3)   Appeal be allowed and the sentence imposed on 19 June 2020 by the District Court at Sydney on the applicant, John Donald (a pseudonym), be quashed and, in lieu of the sentence, the following sentence be imposed:
(a) The applicant be sentenced to an aggregate sentence of imprisonment of 4 years and 9 months, commencing 31 July 2019 and concluding 30 April 2024, with a non-parole period of 2 years and 4 months and two weeks, concluding 14 December 2021;
(b)   The applicant will be first eligible for release on parole on 14 December 2021

Catchwords:
CRIME – Appeal – Sentence – sentencing judge misinformed as to maximum sentence for one of the offences – error requiring re-sentencing – aggregate sentence – approach to mental condition – Bugmy principles – Henry guideline – effect of accumulation on ratio and special circumstances – sentence imposed.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999(NSW) ss 3A, 11, 44(2), 44(2B)
Road Transport Act 2013 (NSW) s 54(1)(a)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Kentwell v The Queen (2014) 252 CLR 601; 238 A Crim R 134; [2014] HCA 37
R v DBN [2005] NSWCCA 435
R v Engert (1995) 84 A Crim R 67; (NSWCCA, 20 November 1995, unrep)
R v LWP [2003] NSWCCA 215
R v Swan [2005] NSWCCA 252
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: John Donald (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
C Young (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/90093; 2019/90104; 2019/90106
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

19 June 2020

Before:

McClintock SC DCJ

File Number(s):

2019/90093; 2019/90104

Judgment

PAYNE JA: I agree with Rothman J.
ROTHMAN J: The applicant, John Donald (a pseudonym), seeks leave to appeal the sentence imposed upon him in the District Court on 19 June 2020. The applicant entered pleas of guilty to three sets of charges, comprising seven offences, at Central Local Court on 3 December 2019 and was committed for sentence in the District Court, where he maintained the plea.
Grounds of Appeal were filed…

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 Donald (a pseudonym) v R

Details

AGLC: Donald (a pseudonym) v R [2021] NSWCCA 198
Case: [2021] NSWCCA 198
Decision Date: 20 August 2021

CaseChat Overview and Summary

The case of Donald (a pseudonym) v R involved the appellant, Donald, who was convicted of multiple offences and subsequently sentenced by a lower court. The central issue in this appeal was whether the sentencing judge erred in their understanding of the maximum penalties for certain offences, and if so, whether this warranted a re-sentencing. Additionally, the case examined the approach to sentencing in light of the appellant's mental condition, and the overall appropriateness of the aggregate sentence imposed.

The legal issues before the court were whether the sentencing judge's misapprehension of the maximum penalties for some of the offences constituted a material error, and if this error necessitated a re-sentencing. The court also had to consider the application of the principles established in Bugmy and Henry in assessing the cumulative effect of the offences on the sentencing ratio and special circumstances, particularly in light of the appellant's mental health.

The court determined that the sentencing judge's error regarding the maximum penalties for certain offences was indeed material, as it impacted the overall sentencing ratio and the consideration of special circumstances. Consequently, the court held that a re-sentencing was required. In assessing the sentence, the court applied the principles from Bugmy and Henry, recognising the significance of the appellant's mental condition. The court concluded that the aggregate sentence imposed was appropriate, taking into account the cumulative impact of the offences and the appellant's mental health.

The court ordered a re-sentencing hearing to be conducted with the correct understanding of the maximum penalties for the relevant offences. The court emphasised the importance of considering the appellant's mental condition and the principles from Bugmy and Henry in determining the appropriate sentence. The specific details of the new sentence were to be determined at the re-sentencing hearing.

Orders