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 Engert (1995) 84 A Crim R 67; (NSWCCA, 20 November 1995, unrep)
Category: Principal judgment Parties: John Donald (a pseudonym) (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
R Rodger (Applicant)
C Young (Respondent)
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
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PAYNE JA: I agree with Rothman J.
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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.
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Grounds of Appeal were filed…
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- AGLC
- Donald (a pseudonym) v R [2021] NSWCCA 198
- Case
- [2021] NSWCCA 198
- Decision Date
CaseChat Overview and Summary
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
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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