R v Donker - [2018] VSC 210

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0332

Between:

THE QUEEN
-and-
JESSIE DONKER	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2018
DATE OF SENTENCE:	11 May 2018
CASE MAY BE CITED AS:	R v Donker
MEDIUM NEUTRAL CITATION:	[2018] VSC 210

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Accused repeatedly drove car towards partner, intending to frighten but not to hit him, and accidentally collided with parking sign, freakishly causing pole to bend and edge of sign to strike and cleave his head, killing him instantly – Incident immediately preceded by partner dragging sleeping accused out of car by hair and assaulting her further – Incident also preceded by partner assaulting accused and splitting her eyebrow the previous evening – Long history of domestic violence and controlling behaviour in relationship – Significant provocation – Reduced moral culpability – Early plea of guilty – Remorse – Hardship of imprisonment – Very good prospects of rehabilitation – Mercy – Unusual case calling for unusual sentence – Shorter non-parole period than usual – Sentence of five years’ imprisonment with non-parole period of two years – But for plea of guilty, sentence of seven-and-a-half years’ imprisonment with non-parole period of four years – Sentencing Act 1991 (Vic), ss 5, 6AAA & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford QC	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr P. Tiwana	James Dowsley & Associates

HIS HONOUR:

The scourge of domestic violence

In the early-1990s, singer-songwriter Archie Roach released the mournful ‘Walking into Doors’. The song begins in this way:

You say you’re a man, you understand, but you don’t
You should lend her a helping hand, but you won’t
‘Cause I’m a man, I don’t understand, but I try
She always does what I command, while she cries
Why should we do what we do, and sleep at night
The crazy things we put her through, it isn’t right
It isn’t right

So, my brothers, don’t hurt her anymore
She’s got her law,[1] you got yours
[1]Some versions of the song have these words as “hurt lord” or just “lord”. However, for present purposes, the point remains the same either way.

And she’s sick and tired of walking into doors

Sadly, those thoughts are as apposite today as they were over twenty-five years ago. Yet they do not resonate deeply enough with some, it seems. For it cannot be denied that domestic violence still remains a shameful scourge in our community.

This case involves an extreme example of a relationship afflicted by domestic violence and its destructive impact on those touched by the relationship. Sometimes, it is all just too much to bear for the victim of domestic violence. Sometimes, the response to the umpteenth assault is not just another excuse for the inexcusable, such as a cover story about walking into doors. Instead, sometimes, it is all…

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 Donker

Details

AGLC: R v Donker [2018] VSC 210
Case: [2018] VSC 210
Decision Date: 11 May 2018

CaseChat Overview and Summary

The case of R v Donker involved the accused, Donker, who was charged with manslaughter by an unlawful and dangerous act. The incident resulted in the death of her partner, which occurred when Donker repeatedly drove her car towards him intending to frighten him but not to physically harm him. Unfortunately, the car collided with a parking sign, causing it to bend and strike Donker's partner, resulting in a fatal injury. The court was tasked with determining the appropriate sentence for Donker, considering the unique circumstances of the case, including the history of domestic violence, the significant provocation, and the reduced moral culpability due to the plea of guilty and remorse shown by Donker.

The legal issues the court had to decide included the degree of moral culpability and whether the sentence should reflect the unusual circumstances of the case. The court had to weigh the history of domestic violence and controlling behaviour, the significant provocation, and the reduced culpability against the need for general and specific deterrence. The court also had to consider the impact of Donker's early plea of guilty, her remorse, the hardship of imprisonment on her, and her prospects of rehabilitation.

The court found that this was an unusual case calling for an unusual sentence, taking into account the significant provocation and reduced moral culpability. The court decided on a sentence of five years’ imprisonment with a non-parole period of two years. The court noted that if it were not for Donker's plea of guilty, the sentence would have been seven-and-a-half years’ imprisonment with a non-parole period of four years. The court considered the factors outlined in the Sentencing Act 1991 (Vic), sections 5, 6AAA, and 18, in arriving at its decision.

The final orders of the court were that Donker was to serve a sentence of five years’ imprisonment with a non-parole period of two years. This sentence reflected the unique circumstances of the case, including the significant provocation, reduced moral culpability, and the various other factors considered by the court. The court emphasised the importance of proportionality and the need for a sentence that balanced the need for general and specific deterrence with the individual circumstances of the accused.

Orders