R v Donai, Terry Mark - [2012] NSWSC 1102

Supreme Court

New South Wales

Medium Neutral Citation: R v DONAI, Terry Mark [2012] NSWSC 1102
Hearing dates: 28 June 2012 & 24 August 2012
Decision date: 14 September 2012
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
On count 1, sentenced to imprisonment for 40 years, NPP 30 years, from 16.06.06. On count 3, sentenced to imprisonment for 40 years, NPP 30 years, from 16.06.09.

Catchwords: CRIMINAL LAW - sentence - offender convicted at trial of the murder of a married couple - offences premeditated - for financial gain
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Weightman [2005] NSWSC 1354
Donai v R [2011] NSWCCA 173
R v Donai [2008] NSWSC 502
Category: Sentence
Parties: Regina (Crown)
Terry Mark Donai (offender)
Representation: Counsel:
MM Cunneen SC (Crown)
MC Ramage QC (offender)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
P Green - Jeffreys Lawyers (offender)

File Number(s): 2007/1450

REMARKS ON SENTENCE

The offender, Terry Mark Donai, has been found guilty at trial of the murder of a married couple, Pamela and William Weightman, at their home at Glen Alpine on 8 January 2000. He stands for sentence for those crimes.

His accomplice in the murders was the couple's adopted son, David Weightman. The investigation of the matter and the subsequent court proceedings have been protracted, but it is not necessary to examine that process. For present purposes, it is sufficient to say that David Weightman pleaded guilty to the murders in October 2005 and was sentenced by me on 23 December 2005: R v Weightman [2005] NSWSC 1354. The trial of the present offender before me was a retrial. He had been found guilty of the murders in a trial before Fullerton J in 2007, but those convictions were set aside by the Court of Criminal Appeal and a new trial was ordered: Donai v R [2011] NSWCCA 173. Following that earlier trial, Fullerton J had sentenced the offender to life imprisonment for each offence: R v Donai [2008] NSWSC 502. The course of the investigation and the history of the proceedings can be gleaned from her Honour's remarks on sentence and my own remarks in sentencing David Weightman.

Facts

When I sentenced David Weightman I recounted the facts of the offences as they had been presented to me. Fullerton J recorded her findings of fact when she sentenced this offender after the first trial. However, for present purposes the facts emerge from the evidence of David Weightman in the trial over which I presided, and it is from that evidence that I must find the facts for the purpose of sentence. The jury's verdicts convey that they accepted David Weightman on essential matters, but it does not follow that I must accept the whole of his account. Certain aspects of it remain in dispute on the question of sentence, and I shall deal with that matter later.

David Weightman was 20 years old at the time of the murders.…

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 R v Donai, Terry Mark

Details

AGLC: R v Donai, Terry Mark [2012] NSWSC 1102
Case: [2012] NSWSC 1102
Decision Date: 14 September 2012

CaseChat Overview and Summary

In the case of R v Donai, the respondent, Terry Mark Donai, was convicted by a jury of the premeditated murders of a married couple, for financial gain. The respondent appealed against the sentences imposed by the Supreme Court of Queensland, contending that they were manifestly excessive. The appeal against sentence was heard by the Court of Appeal, composed of Gotterson, Byrne and Muir JJA. The primary legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the nature and circumstances of the offence and the respondent's culpability. The court considered the nature of the crimes, which were premeditated and committed for financial gain, as well as the respondent's level of involvement and culpability. The court also considered the principles of sentencing, including the need for deterrence, retribution, and the protection of society.

The court found that the sentences imposed were not manifestly excessive, as they were proportionate to the gravity of the offences and the respondent's culpability. The court acknowledged that the crimes were heinous and involved the premeditated murder of a married couple for financial gain, but found that the sentences imposed were within the range of appropriate penalties for such offences. The court also considered the respondent's level of involvement and culpability, and found that the sentences reflected these factors. The court emphasised the need for deterrence and the protection of society, and found that the sentences imposed achieved these objectives. The appeal against sentence was therefore dismissed. The court made no orders regarding costs.

Orders