Donnelly (a pseudonym) v The King

[2022] SASCA 125

Supreme Court of South Australia

(Court of Appeal: Criminal)

DONNELLY (A PSEUDONYM) v THE KING

[2022] SASCA 125

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

2 December 2022

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - INFORMERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY

Application for permission to appeal and appeal against sentence.

The appellant was convicted by a jury of the offence of causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

Upon being convicted of the present offending, the applicant sought a declaration under s 37 of the Sentencing Act 2017 (SA) that he had cooperated with law enforcement agencies. The sentencing judge heard evidence of the applicant’s cooperation and received letters from the SA Police. He also received confidential material from the Australian Criminal Intelligence Commission (ACIC) pursuant to a certificate issued under s 25A(12) of the Australian Crime Commission Act 2002 (Cth).

The sentencing judge made the declaration sought and reduced the notional starting point of three years imprisonment by slightly more than 10 per cent on account of the applicant’s cooperation, to two years and eight months imprisonment.  His Honour further reduced the sentence by four months on account of time spent in custody and on home detention.

Accordingly, the applicant was sentenced to two years and four months imprisonment with a non-parole period of 14 months, backdated to commence on the date the applicant was taken into custody.

The applicant sought permission to appeal on 10 grounds, summarised as follows:

1.      the sentence was manifestly excessive;

2.      the sentencing judge erred in failing to suspend the sentence;

3.the sentencing judge erred in reducing the sentence by 10 per cent under s 37(2) of the Sentencing Act;

4.the sentencing judge erred in failing to have any or adequate regard to the matters required to be considered under s 37(3) of the Sentencing Act;

5.the sentencing judge erred in determining that the applicant had received some prior benefit from his cooperation;

6.the sentencing judge erred in delivering his remarks concerning the s 37 declaration in the absence of the applicant, contrary to s 19(1) of the Sentencing Act;

7.      the sentencing remarks were inadequate;

8.the sentencing judge erred in ruling on [Day 11] that it was not in the interests of justice that the material provided by ACIC be disclosed to the applicant’s counsel;

9.the sentencing judge erred in deciding on [Day 13] that the ACIC material would be taken into account in his ruling, but then determining on [Day 14] that the material was irrelevant to sentencing; and

10.the sentencing process was affected by a lack of procedural fairness such as to cause a miscarriage of…