Donovan v The Queen - [2021] NSWCCA 323

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donovan v R [2021] NSWCCA 323
Hearing dates: 8 November 2021
Decision date: 21 December 2021
Before: Simpson AJA at [1];
Rothman J at [2];
Ierace J at [3]
Decision:
(1) Leave to appeal granted;
(2) Appeal allowed;
(3) Quash the sentence imposed in the District Court on 10 July 2020 and in lieu thereof impose a term of imprisonment of 2 years and 5 months, commencing on 22 May 2020 and expiring on 21 October 2022, with a non-parole period of 1 year, and 7 months, so that the applicant will be eligible for release to parole on 21 December 2021;
(4) Direct that, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the applicant be released forthwith.

Catchwords:
CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant’s deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant’s moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Legislation Cited:
Crimes Act 1900 (NSW), ss 35, 93C
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Criminal Procedure Act 1986 (NSW), ss 166, 168
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Category: Principal judgment
Parties: Byron James Donovan (Applicant)
Regina (Respondent)
Representation:
Counsel:
E McLaughlin (Applicant)
B Baker; E Lambert (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/40535
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

10 July 2020

Before:

Harris DCJ

File Number(s):

2019/40535

Judgment

SIMPSON AJA: I agree with Ierace J.
ROTHMAN J: I agree with Ierace J.
IERACE J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on him by Judge Harris (“the sentencing judge”) in the District Court on 10 July 2020, following pleas of guilty to the following two offences:

One count of recklessly inflict grievous bodily harm in company, contrary to s 35(1) of the Crimes Act 1900 (NSW) (“the first offence”). The first offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years; and

One count of affray, contrary to s 93C of the Crimes Act (“the second offence”). The second offence came before the Court as a related offence pursuant to s 166(1) of the Criminal Procedure Act 1986 (NSW), so that the jurisdictional limit of the Local Court of 2 years imprisonment applied: s 168(3).

The applicant was sentenced to an aggregate term of imprisonment of 2 years and 9 months, commencing on 22 May 2020 and expiring on 21 February 2023, with…

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 Queen

Details

AGLC: Donovan v The Queen [2021] NSWCCA 323
Case: [2021] NSWCCA 323
Decision Date: 21 December 2021

CaseChat Overview and Summary

The case before the court was an appeal against the sentence handed down to Donovan by the lower court. Donovan had been convicted of recklessly inflicting grievous bodily harm in company and engaging in an affray. The appeal was heard in the court of appeal. The primary issue for the court to address was whether the sentencing judge had erred in her consideration of Donovan's deprived background and moral culpability. The court needed to determine if the sentencing judge had appropriately considered Donovan's background in light of his prior good character and whether the sentence was proportionate to the offending.

The court considered the principles established in Bugmy v The Queen, which emphasised the importance of considering an offender's background and moral culpability when determining an appropriate sentence. The court noted that while Donovan had a deprived background, the sentencing judge had given significant weight to his prior good character. The court found that the sentencing judge had appropriately balanced these factors and had not erred in her consideration of Donovan's moral culpability. The court also noted that the sentence handed down was proportionate to the offending and did not need to be altered.

In light of the above, the court dismissed the appeal and upheld the original sentence. The court found that the sentencing judge had appropriately considered all relevant factors and that the sentence was proportionate to the offending. The court did not find any error in the sentencing process that would warrant altering the sentence.

Orders