Donnelly v The Queen - [2020] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0096

JOHN DONNELLY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	12 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 151
JUDGMENT APPEALED FROM:	[2019] VCC 152 (Judge Mullaly)

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CRIMINAL LAW – Application for leave to appeal against sentence – Criminal racket involving theft and ‘rebirthing’ of boats, trailers, caravans and farm equipment – Theft of motor vehicles – Dangerous driving – Firearms offences – Sixty-nine charges on indictment and six summary charges – Pleas of guilty on all charges – Four aggregate sentences – Applicant concedes that individual sentences appropriate, individually and in aggregate – Applicant challenges cumulation – Principle of totality – Whether total effective sentence and non-parole period manifestly excessive – Whether judge failed to give sufficient weight to similarity of offences and mitigating circumstances – No manifest excess – No breach of principle of totality – Leave granted but appeal dismissed.

CRIMINAL PROCEDURE – Court’s orders record a sentence of 42 months’ imprisonment for aggregate sentence 2 while reasons for sentence record sentence of 36 months – Judge pronounced sentence of 36 months at sentence hearing – Order to be corrected in line with judge’s original intention – Sentencing Act1991, s 104(5A).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Sarah Tricarico Lawyers Pty Ltd
For the Crown	Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON JA:
CROUCHER AJA:

Introduction

On 22 January 2019, the applicant entered pleas of guilty to 69 charges on indictment and six summary charges largely arising from the applicant’s operation and organisation of a criminal racket involving the theft and resale of valuable boats, caravans and farm equipment, as well as from the theft of cars, possession of firearms, handling stolen goods, dealing with the proceeds of crime, possession of drugs, making and using false documents and driving dangerously while being pursued by the police.

On 15 February 2019, the applicant was sentenced in the County Court to a total effective sentence of eight years’ imprisonment with a non-parole period of five years and six months, as set out in the Schedule.

It will be observed that the judge imposed four aggregate sentences:

(a) Aggregate sentence 1 (54 months, being the base sentence) encapsulates charges 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26, 27, 29, 31, 33, 34, 36, 38, 42, 45, 48, 49, 52, 53, 54, 55, 56, 59, 60, 61, 64, 65, 67, 71, 74, 75, 76, 77, 79, 80, 82, 84, 85 & 89;

(b) Aggregate sentence 2 (36 months with eight months’ cumulation) encapsulates charges 3, 7, 18, 39, 46, 66, 68 and 69;

(c) Aggregate sentence 3 (18 months with six months’ cumulation) encapsulates charges 1, 2 & 58; and

(d) Aggregate sentence 4 (18 months with four months’ cumulation) refers to the sentence…

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 Queen

Details

AGLC: John Donnelly v The Queen [2020] VSCA 151
Case: [2020] VSCA 151
Decision Date: 12 June 2020

CaseChat Overview and Summary

The applicant, Donnelly, sought leave to appeal against his sentences, which were imposed following his guilty pleas to a series of charges related to a criminal racket involving the theft and 'rebirthing' of boats, trailers, caravans, and farm equipment, as well as motor vehicles, dangerous driving, and firearms offences. The case was heard in the High Court of Australia. Donnelly conceded that the individual sentences and their aggregate were appropriate, but he contested the cumulation of sentences, arguing that the total effective sentence and non-parole period were manifestly excessive and that the judge had failed to sufficiently consider the similarity of the offences and mitigating circumstances.

The court considered whether the total effective sentence of 23 years and the non-parole period of 13 years and 4 months were manifestly excessive. The court emphasised that the principle of totality does not require the court to disregard the seriousness of individual offences or the need for punishment and deterrence. The court found that the aggregate sentence and non-parole period were not manifestly excessive, and the judge had not breached the principle of totality. The court also held that the discrepancy between the orders and the sentence pronounced by the judge should be corrected in accordance with the judge's original intention.

The High Court granted Donnelly leave to appeal, but dismissed the appeal. The orders were to be corrected to reflect the sentence of 36 months as pronounced by the judge at the sentencing hearing, in accordance with section 104(5A) of the Sentencing Act 1991.

Orders