R v Donald - [2021] NSWDC 246

District Court

New South Wales

Medium Neutral Citation: R v Donald [2021] NSWDC 246
Hearing dates: 28 May 2021
31 May 2021
1 June 2021
2 June 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
I make orders as follows:
1. The offender, Stanley Barclay Donald, is convicted of Count 1 (Sequence 4) on the indictment (12.2) dated 27 May 2021, being the offence of using a carriage service in a manner which was menacing, harassing or offensive.
2. The offender, Stanley Barclay Donald, is sentenced to a term of imprisonment for a period of 10 months commencing on 1 September 2020. That sentence will expire on 30 June 2021.
3. In accordance with s 20(1)(b) of the Crimes Act 1914 (Cth), I set a pre‑release period of 6 months imprisonment.
4. Having regard to the time already served in custody of 9 months and 2 days, I order the immediate release of the offender on his own recognizance, with a security of $200 but without surety, on the condition that he be of good behaviour for a period of 12 months from the date of these orders, namely until 3 June 2022.
5. I order that the Exhibits be returned to the parties forthwith and in Court.

Catchwords:
Criminal Law – Criminal Code Act 1995 (Cth) s 474.17(1) – Use Carriage Service in a way that a Reasonable Person would regard as Menacing, Harassing or Offensive – Sentencing – General Sentencing Principles

Legislation Cited:
Crimes Act 1914 (Cth), ss 16A, 16E, 17A, 19AC, 20(1)(b)
Criminal Code Act 1995 (Cth), s 474.17(1)

Cases Cited:
Assafiri v R [2007] NSWCCA 159
R v Hastings & Frederickson (No 1) [2015] NSWDC 114
Xiao v R [2018] NSWCCA 2

Category: Sentence
Parties:
Regina (Crown)
Stanley Barclay Donald (Offender)
Representation:
Ms A Brown, Solicitor Advocate (Crown)

Mr S Fraser of Counsel (Stanely Barclay Donald)

Ms T Forest, Solicitor (Crown)
Ms A Sarmed, Solicitor (Stanley Barclay Donald)

File Number(s): 2019/00049718
Publication restriction: Non-publication of any matter which is likely to lead to the identification of the victim: s 578A Crimes Act 1900 (NSW).

Judgment on sentence

OFFENCES

The offender, Stanley Barclay Donald, was born in June 1994. He appears before me today for sentence having pleaded guilty to an offence that on 30 October 2016, at Mount Annan and elsewhere in the State of New South Wales, he used a carriage service in such a way that reasonable persons would regard as being menacing, harassing or offensive contrary to the provisions of s 474.17(1) of the Criminal Code Act 1995 (Cth).
The offence carries a maximum penalty of three years imprisonment.

FACTS

The following facts are taken from the Crown statement of facts which are agreed by the offender and I find them beyond reasonable doubt.
In November 2014, the victim, who I will refer to using the pseudonym “TB”, and the offender became friends on Facebook and started communicating with each other via…

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 Donald

Details

AGLC: R v Donald [2021] NSWDC 246
Case: [2021] NSWDC 246
Decision Date: 04 June 2021

CaseChat Overview and Summary

The defendant, Stanley Barclay Donald, was charged with using a carriage service in a manner that was menacing, harassing, or offensive, contrary to section 474.17(1) of the Criminal Code Act 1995 (Cth). The case was heard and determined by a judge of the Federal Circuit and Family Court of Australia. The prosecution alleged that the defendant had sent numerous harassing and offensive messages to the complainant via a carriage service, constituting a breach of the relevant statutory provision.

The primary legal issue before the court was whether the defendant's actions constituted a use of a carriage service in a manner that a reasonable person would regard as menacing, harassing, or offensive. Additionally, the court had to consider the appropriate sentence for the offence, taking into account the general sentencing principles applicable under the Crimes Act 1914 (Cth). The court was required to balance the need to deter the defendant and others from engaging in similar conduct with the need to ensure that the sentence was proportionate to the offence committed.

The court found that the defendant's actions did indeed constitute a use of a carriage service in a manner that a reasonable person would regard as harassing and offensive. The court considered the nature and extent of the defendant's conduct, as well as the impact on the complainant. In determining the appropriate sentence, the court took into account the defendant's guilty plea, his previous criminal history, and the need to deter the defendant and others from engaging in similar conduct. The court imposed a sentence of imprisonment for a period of 10 months, with a pre-release period of 6 months. Given the time already served by the defendant, the court ordered his immediate release on his own recognizance, subject to certain conditions.

Orders

Orders of the court

I make orders as follows:

1. The offender, Stanley Barclay Donald, is convicted of Count 1 (Sequence 4) on the indictment (12.2) dated 27 May 2021, being the offence of using a carriage service in a manner which was menacing, harassing or offensive.

2. The offender, Stanley Barclay Donald, is sentenced to a term of imprisonment for a period of 10 months commencing on 1 September 2020. That sentence will expire on 30 June 2021.

3. In accordance with s 20(1)(b) of the Crimes Act 1914 (Cth), I set a pre‑release period of 6 months imprisonment.

4. Having regard to the time already served in custody of 9 months and 2 days, I order the immediate release of the offender on his own recognizance, with a security of $200 but without surety, on the condition that he be of good behaviour for a period of 12 months from the date of these orders, namely until 3 June 2022.

5. I order that the Exhibits be returned to the parties forthwith and in Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Donald [2021] NSWDC 246
Hearing dates:	28 May 2021 31 May 2021 1 June 2021 2 June 2021
Date of orders:	4 June 2021
Decision date:	04 June 2021
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	I make orders as follows: 1. The offender, Stanley Barclay Donald, is convicted of Count 1 (Sequence 4) on the indictment (12.2) dated 27 May 2021, being the offence of using a carriage service in a manner which was menacing, harassing or offensive. 2. The offender, Stanley Barclay Donald, is sentenced to a term of imprisonment for a period of 10 months commencing on 1 September 2020. That sentence will expire on 30 June 2021. 3. In accordance with s 20(1)(b) of the Crimes Act 1914 (Cth), I set a pre‑release period of 6 months imprisonment. 4. Having regard to the time already served in custody of 9 months and 2 days, I order the immediate release of the offender on his own recognizance, with a security of $200 but without surety, on the condition that he be of good behaviour for a period of 12 months from the date of these orders, namely until 3 June 2022. 5. I order that the Exhibits be returned to the parties forthwith and in Court.
Catchwords:	Criminal Law – Criminal Code Act 1995 (Cth) s 474.17(1) – Use Carriage Service in a way that a Reasonable Person would regard as Menacing, Harassing or Offensive – Sentencing – General Sentencing Principles
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A, 16E, 17A, 19AC, 20(1)(b) Criminal Code Act 1995 (Cth), s 474.17(1)
Cases Cited:	Assafiri v R [2007] NSWCCA 159 R v Hastings & Frederickson (No 1) [2015] NSWDC 114 Xiao v R [2018] NSWCCA 2
Category:	Sentence
Parties:	Regina (Crown) Stanley Barclay Donald (Offender)
Representation:	Ms A Brown, Solicitor Advocate (Crown) Mr S Fraser of Counsel (Stanely Barclay Donald) Ms T Forest, Solicitor (Crown) Ms A Sarmed, Solicitor (Stanley Barclay Donald)
File Number(s):	2019/00049718
Publication restriction:	Non-publication of any matter which is likely to lead to the identification of the victim: s 578A Crimes Act 1900 (NSW).