Donnelly v The King - [2024] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donnelly v R [2024] NSWCCA 151
Hearing dates: 24 June 2024
Date of orders: 12 August 2024
Decision date: 12 August 2024
Before: Harrison CJ at CL at [1]
Garling J at [2]
Faulkner J at [3]
Decision:
(1)   Grant an extension of time for filing the Notice of Appeal up until 23 April 2024.
(2)   Grant leave to appeal.
(3)   Dismiss the appeal.

Catchwords:
CRIME — application for leave to appeal against sentence — application for leave to appeal out of time — extension of time and leave to appeal granted.
CRIME — appeal against sentence — aiding and abetting the supply of commercial quantity prohibited drugs — whether sentencing judge erred in assessment of objective seriousness — storage of prohibited drugs and characterisation of applicant as “user dealer” open to sentencing judge — no specific error demonstrated — appeal dismissed.
CRIME — appeal against sentence — whether sentence was manifestly excessive — ground not made out — appeal dismissed.

Legislation Cited:
Crimes (Sentencing Procedure) Act1999 (NSW), ss 23, 54B(4)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 27

Cases Cited:
BM v R [2023] NSWCCA 68
House v the King (1936) 55 CLR 499; [1936] HCA 40
Mulato v R [2006] NSWCCA 282
R v Ferguson [2022] NSWCCA 147
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment
Parties: Stephen John Donnelly (applicant)
Rex (respondent)
Representation:
Counsel:
K Prince (applicant)
E Sullivan (respondent)
Solicitors:
Legal Aid NSW (applicant)
Office of the Director of Public Prosecutions (NSW) (respondent)

File Number(s): 2021/00010863
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

09 September 2022

Before:

O’Brien AM DCJ

File Number(s):

2021/00010863

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to three counts of drug offences contrary to ss 25(2) and 27 of the Drug Misuse and Trafficking Act 1985 (NSW) in the District Court of New South Wales, namely: one count of aiding and abetting the supply of no less than a large commercial quantity of prohibited drug and two counts of supplying no less than a commercial quantity of prohibited drug. The first count offending was constituted by the applicant storing gamma butyrolactone for someone the applicant knew would supply the drug once it was returned. The quantity of drug stored by the applicant was six times a large commercial quantity.

On 9 September 2022, the applicant was sentenced by O’Brien AM DCJ (the sentencing judge) to an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 3 months. The sentence commenced on 30 March 2021 and expires on 29 September 2029. In the sentencing judge’s reasons, his Honour assessed the count 1 offending as at a point below the mid-range of objective seriousness for offences of that type.

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 Donnelly v The King

Details

AGLC: Donnelly v The King [2024] NSWCCA 151
Case: [2024] NSWCCA 151
Decision Date: 12 August 2024

CaseChat Overview and Summary

The case of Donnelly v The King involved the defendant, Donnelly, who had been convicted of aiding and abetting the supply of a commercial quantity of prohibited drugs. The dispute centred around the sentence imposed by the sentencing judge and Donnelly's subsequent application for leave to appeal against the sentence and for an extension of time to do so. The matter was heard in the High Court of Australia. Donnelly argued that the sentencing judge had erred in assessing the objective seriousness of the crime and that the characterisation of him as a "user dealer" was inappropriate. He also contended that the sentence was manifestly excessive.

The primary legal issues before the court were whether the sentencing judge had made an error in assessing the objective seriousness of the offence and whether the sentence imposed was manifestly excessive. The court was required to determine if there was any basis to grant Donnelly leave to appeal out of time and, if so, whether the appeal itself should proceed. The court had to consider the principles of sentencing, the characterisation of the offender, and the appropriateness of the sentence in light of the statutory provisions and previous case law.

The High Court determined that there was no specific error demonstrated in the sentencing judge's assessment of the objective seriousness of the offence. The court held that the characterisation of Donnelly as a "user dealer" was open to the sentencing judge and did not constitute a specific error. The court also found that the sentence imposed was not manifestly excessive, as there was no ground to support such a contention. Consequently, the appeal against the sentence was dismissed. However, the court granted Donnelly leave to appeal out of time, allowing the appeal to proceed on its merits.

In conclusion, the High Court dismissed the appeal against the sentence but granted Donnelly leave to appeal out of time. The court's decision emphasised the importance of the sentencing judge's discretion and the limited scope for appellate courts to interfere with such assessments unless specific errors are demonstrated. The final orders of the court allowed the appeal to proceed while affirming the original sentence.

Orders