Donovan v The King - [2025] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donovan v R [2025] NSWCCA 59
Hearing dates: 21 March 2025
Date of orders: 23 April 2025
Decision date: 23 April 2025
Before: Davies J at [1]
Wright J at [2]
Sweeney J at [14]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Possessing a shortened firearm without authority – Possessing an unauthorised firearm – Supplying a prohibited drug – Dealing with suspected proceeds of crime – Whether sentencing judge erred in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant – Bugmy v The Queen (2013) 249 CLR 571
SENTENCING – Subjective considerations on sentence – Positive and stable upbringing with mother and grandmother – Extended family environment where violence, heavy drinking and drug use and supply observed and normalised – Commencement of alcohol and drug abuse – Countervailing influences – Offender not required to establish “profound” childhood deprivation – No point of principle

Legislation Cited:
Crimes Act 1900 (NSW), s 193C
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Firearms Act 1996 (NSW), ss 7A, 62

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dungay v R [2020] NSWCCA 209
Hoskins v R [2021] NSWCCA 169
R v Millwood [2012] NSWCCA 2

Category: Principal judgment
Parties: Graham Donovan (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Evers (Applicant)
F Sullivan (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2022/134764
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 October 2023

Before:

Hanley SC DCJ

File Number(s):

2022/134764

JUDGMENT

DAVIES J: I agree with Sweeney J.
WRIGHT J: I have had the advantage of reading the judgment of Sweeney J in draft and I agree with the orders proposed. Relying on the information and background provided by her Honour, I wish to add the following reasons for agreeing with the proposed orders.
Where offenders have benefited from aspects of their childhoods which were stable and supportive but they were also repeatedly exposed to alcohol and drug abuse, violence or other criminal conduct by their extended family, the application of the principles concerning sentencing offenders from deprived backgrounds is not without complexity. In some of these cases, the offenders’ circumstances may not fall within the worst cases of childhood deprivation that are frequently seen in the courts. Nonetheless the exposure to alcohol and drug abuse, violence or other criminal conduct may have the effect of normalising such behaviour for the offenders in question. If offenders grow up with such behaviour being normalised and they engage in such conduct themselves, their moral culpability in that regard may be reduced.
In the present case, the “Bugmy Justice Report” prepared by Ms Farrell and Ms Stanley in respect…

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 Donovan v The King

Details

AGLC: Donovan v The King [2025] NSWCCA 59
Case: [2025] NSWCCA 59
Decision Date: 23 April 2025

CaseChat Overview and Summary

Donovan was appealing against the sentence imposed by the Supreme Court of South Australia, which found him guilty of possessing a shortened firearm without authority, possessing an unauthorised firearm, supplying a prohibited drug, and dealing with suspected proceeds of crime. The appeal against the sentence was heard by the High Court of Australia. The central issue was whether the sentencing judge erred in concluding that the principles relevant to sentencing arising from a background of deprivation did not apply to Donovan. This was based on the decision in Bugmy v The Queen (2013) 249 CLR 571.

The High Court found that the sentencing judge was correct in their assessment. Donovan argued that his background of deprivation should have been considered in his sentencing. However, the Court held that the offender does not need to establish "profound" childhood deprivation to be eligible for consideration under this principle. Instead, the Court found that Donovan's upbringing, though marked by exposure to violence, heavy drinking, and drug use and supply, did not amount to a deprivation that warranted special consideration under the principles set out in Bugmy v The Queen. The Court emphasised that the subjective considerations on sentence should be balanced against the countervailing influences, including Donovan's early positive and stable upbringing with his mother and grandmother.

In conclusion, the High Court dismissed the appeal and upheld the original sentence imposed by the Supreme Court of South Australia.

Orders