DPP v Doncon - [2003] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 58 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DARYL WILLIAM MICHAEL DONCON

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2003
DATE OF JUDGMENT:	31 July 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 103

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Criminal law – Sentencing – Intentionally causing serious injury – Crown appeal – Whether three-and-a-half years' imprisonment with non-parole period of 18 months manifestly inadequate – Particulars including lack of remorse and permanent and debilitating injuries – Plea of guilty – Respondent otherwise of good character and having made contributions to local community – Double jeopardy – Respondent re-sentenced to five years' imprisonment with non-parole period of two-and-a-half years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr W.H. Morgan-Payler, Q.C. with Mr T.P. Burke	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr D.J. Ross, Q.C. with Mr K.G. McGowan	Morrison & Sawyers

WINNEKE, P.: I will invite Callaway, J.A. to give the first judgment in this appeal.

CALLAWAY, J.A.:

The respondent, who is now aged 43, pleaded guilty in the County Court at Shepparton to one count of intentionally causing serious injury. The victim was his brother, who is some four years older. The maximum custodial penalty is 20 years' imprisonment. The respondent had no previous convictions or findings of guilt. After hearing a plea for leniency on his behalf the learned judge sentenced him to 3½ years' imprisonment with a non-parole period of 18 months. The Director of Public Prosecutions appeals against that sentence pursuant to s.567A of the Crimes Act 1958.

The sole ground of appeal is that both the head sentence and the non-parole period are manifestly inadequate. The particulars are that his Honour failed adequately to reflect the gravity of the offence of intentionally causing serious injury both generally and in this particular case, failed to take into account general deterrence, gave too much weight to factors going to mitigation and gave insufficient weight both to the permanent and debilitating nature of the injuries inflicted and the respondent’s lack of remorse or contrition.

The respondent, his father and brother had worked together in a family dairying business for a little over twenty years. There was a long history of tension between the respondent and the victim. On the morning of 6^th March 2002, a young farm hand, Michael Ponting, witnessed a verbal altercation between them at the dairy. Ponting described it as very heated. It culminated in the victim punching the respondent with a closed fist to the head. The respondent left the dairy, went to his nearby home and loaded a shotgun with two cartridges, putting another two in his pocket. He returned to the dairy, approached his brother and shot him at close range with a single cartridge to the left flank. The victim fell to the ground, bleeding profusely. The respondent then laid the gun on a bench, grabbed hold of the victim’s shirt and started punching him to the…

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 DPP v Doncon

Details

AGLC: DPP v Doncon [2003] VSCA 103
Case: [2003] VSCA 103
Decision Date: 31 July 2003

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Doncon, the High Court was called upon to assess the adequacy of a sentence handed down by a lower court for an offence of intentionally causing serious injury. The respondent, having pleaded guilty to the offence, was originally sentenced to three-and-a-half years' imprisonment with a non-parole period of 18 months. The Crown appealed, arguing that the sentence was manifestly inadequate given the severity of the injuries sustained by the victim, the absence of remorse shown by the respondent, and the respondent's otherwise good character and contributions to the community. The central issue before the court was whether the original sentence should be deemed manifestly inadequate and whether the respondent could be re-sentenced without contravening the principle of double jeopardy.

The court considered the severity of the crime, the lack of remorse exhibited by the respondent, and the permanent and debilitating injuries inflicted upon the victim. It also took into account the respondent's otherwise good character and contributions to the local community, which had been highlighted as mitigating factors in the original sentencing. The court found that the original sentence did not adequately reflect the seriousness of the offence, and that the three-and-a-half-year sentence with a non-parole period of 18 months was manifestly inadequate. In light of these considerations, the court held that it was appropriate to re-sentence the respondent, ensuring that the new sentence would not infringe upon the principle of double jeopardy.

Accordingly, the court ordered that the respondent be re-sentenced to a term of five years' imprisonment with a non-parole period of two-and-a-half years. This decision balanced the need for an adequate punishment with respect for the legal principle that a person should not be punished twice for the same offence. The court's ruling underscored the importance of proportionality in sentencing and the need to consider all relevant factors in determining an appropriate sentence.

Orders