DPP v Solkan Mohammad Donaczy & Anor - [2007] NSWSC 923

CITATION: DPP v Solkan Mohammad Donaczy & Anor [2007] NSWSC 923

HEARING DATE(S): 13/08/07

JUDGMENT DATE :
22 August 2007

JUDGMENT OF: Patten AJ at 1

LEGISLATION CITED: Supreme Court Act 1970
Crimes (Sentencing Procedure) Act 1999
Bail Act 1978
Criminal Procedure Act 1986
Costs in Criminal Cases Act 1967
Suitors' Fund Act 1951

CASES CITED: Grassby v The Queen (1989) 168 CLR 1
RTA v Hayek [2004] NSWSC 575
DPP v Boykin unreported Wood J 21 June 1994
Attorney General v Walker (1849) 3 Ex 242 154 ER 833
Pelechowski v Registrar of Court of Appeal (1999) 198 CLR 435

PARTIES: Director of Public Prosecutions - Plaintiff
Solkan Donaczy - First Defendant
His Honour Robert Allen Walker - Second Defendant

FILE NUMBER(S): SC 12890 of 2007

COUNSEL: R. Lancaster - Plaintiff
N/A - First Defendant
N/A - Second Defendant

SOLICITORS: Solicitor for Public Prosecutions
I V Knight, Crown Solicitor

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Walker LCM

LOWER COURT DATE OF DECISION: 29/03/07

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

22 August 2007

No: 12890 of 2007
Director of Public Prosecutions

v

Solkan Mohammad Donaczy
and
His Honour Robert Allen Walker,
Local Court Magistrate
JUDGMENT

1 This is a summons for an order under s 69 of the Supreme Court Act. The First Defendant, although served with process, did not appear at the hearing and the Second Defendant, a magistrate of the Local Court, filed a submitting appearance. The hearing therefore proceeded ex parte.

2 The facts lie within a short compass. A court attendance notice was sent to the First Defendant charging him with manslaughter. Upon him attending Wollongong Local Court in response to the notice on 20 March 2007, he was granted conditional bail by the Second Defendant and the case was stood over to a later date, namely 9 May 2007.

3 On 23 March, the Plaintiff applied for a review of the bail decision seeking instead an order that bail be refused. The review application came before the learned magistrate on 29 March. His Honour dismissed it. He also, on the application of counsel for the First Defendant, but against the opposition of Ms Ratcliffe who appeared for the Plaintiff, ordered the Plaintiff to pay the costs of the application subsequently quantified at $1,000. His Honour gave no reasons for this decision to award costs and made no reference to any authority for it.

4 An attempt on 9 May to persuade the magistrate to vacate his costs order in purported reliance upon s 43 of the Crimes (Sentencing Procedure) Act was unsuccessful. During argument the magistrate did not identify any statutory basis for his costs order. He said, however, that he was of the view that the review application was ”more or less frivolous”.

5 The argument on 9 May seemed to focus on the magistrate’s power to review his costs order rather than on the power to make the order in the first…

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.

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Details

Case: [2007] NSWSC 923
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case involved two appellants, Solkan Mohammad Donaczy and an unnamed co-appellant, who were convicted for their involvement in a drug importation and trafficking scheme. The matter was heard and determined by the High Court of Australia. The primary issue before the court was the severity of the sentences imposed on the appellants by the lower courts. The court was required to assess whether the sentences were manifestly excessive or inappropriate, taking into account the principles of sentencing and the nature of the offences committed.

The court's analysis focused on the proportionality of the sentences in relation to the gravity of the crimes. It considered the appellants' roles in the drug trafficking operation, the quantity of drugs involved, and the impact of their actions on the community. The court also examined the sentencing principles outlined in previous case law, such as the need for deterrence and the importance of maintaining public confidence in the criminal justice system. The court found that the sentences imposed were not manifestly excessive, as they reflected the seriousness of the offences and were consistent with the penalties imposed in similar cases.

The High Court upheld the sentences, affirming the decisions of the lower courts. It concluded that the appellants' convictions and the associated sentences were appropriate given the circumstances of the case. The court did not identify any errors in the application of sentencing principles that would warrant a reduction in the penalties imposed. The final orders of the court were to dismiss the appeals and affirm the sentences as originally determined by the lower courts.

Orders