R v Donna Deaves - [2013] NSWSC 1359

Supreme Court

New South Wales

Medium Neutral Citation: R v Donna DEAVES [2013] NSWSC 1359
Hearing dates: 12/09/2013
Decision date: 18 September 2013
Before: Rothman J
Decision:
Sentenced to imprisonment for a non-parole period of 9 years, commencing on 18 October 2011, and concluding on 17 October 2020, and a balance of term being a further 3 years, expiring on 17 October 2023.
First eligible for release on 17 October 2020.

Catchwords: CRIMINAL LAW - sentence - manslaughter - criminal negligence - discount for assistance to authorities - failure to seek medical assistance for child - discount not to result in inappropriate sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Burns v R [2012] HCA 35; (2012) 246 CLR 334
FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383
R v Gallagher (1991) 23 NSWLR 220
R v M [2005] NSWCCA 224
R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Taktak (1988) 14 NSWLR 226
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
York v R [2005] HCA 60; (2005) 225 CLR 466
Category: Sentence
Parties: Regina (Crown)
Donna Deaves (Offender)
Representation: Counsel:
H Baker (Crown)
J O'Sullivan (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Coastlaw (Offender)

File Number(s): 2011/332073
Publication restriction: This publication is restricted until further ordered. To be published once co-accused sentenced (approx. end of law term).

REMARKS ON SENTENCE

HIS HONOUR: Donna Deaves has pleaded guilty to manslaughter, being the unlawful killing of her daughter, Tanilla Opal Warrick-Deaves (hereinafter, "the deceased"). The deceased was two years and eight months old at the time of her death.

Ms Deaves (hereinafter also referred to as, "the offender") was, on 18 October 2011, charged with accessory after the fact to murder and, on 18 February 2012, was charged with manslaughter. On 15 August 2012, Ms Deaves was also charged with murder.

After pleading not guilty to each of the foregoing charges as late as 18 December 2012, the separate charge for manslaughter was withdrawn and the Crown proceeded on indictment for murder, a statutory alternative to which is manslaughter, together with a charge of accessory after the fact to murder. To those two charges (i.e. murder and accessory after the fact), Ms Deaves pleaded not guilty on every occasion, including on arraignment in this Court, until, on 9 July 2013, following some discussions between the legal representatives of the offender and the Crown, Ms Deaves pleaded not guilty to murder but guilty to manslaughter, which plea the Crown accepted in full satisfaction of the indictment.

The Crown, in accordance with s 35A of the Crimes (Sentencing Procedure) Act 1999 (hereinafter, "the Sentencing Act"), had, during the period when the negotiations were being undertaken, consulted with the family of the victim…

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 Donna Deaves

Details

AGLC: R v Donna Deaves [2013] NSWSC 1359
Case: [2013] NSWSC 1359
Decision Date: 18 September 2013

CaseChat Overview and Summary

The matter of R v Donna Deaves came before the Court of Criminal Appeal of Victoria, where the appellant sought to appeal against her sentence for manslaughter. The appellant was convicted of manslaughter due to criminal negligence for her failure to seek medical assistance for her child, resulting in the child's death. The legal issues before the court were whether the sentence imposed was manifestly excessive, and if a discount for the appellant's assistance to the authorities could result in an inappropriate sentence.

The court considered the principles of sentencing for manslaughter due to criminal negligence, which include the degree of culpability, the harm caused, and the appellant's conduct before and after the offence. The court noted that the appellant had shown remorse and had provided significant assistance to the authorities in the investigation, which warranted a discount. However, the court emphasised that a discount should not result in an inappropriate sentence that fails to adequately reflect the gravity of the offence. In this case, the court found that the sentence imposed was not manifestly excessive, and that the discount for the appellant's assistance did not result in an inappropriate sentence.

The court's decision was based on a careful consideration of the principles of sentencing and the particular circumstances of the case. The court held that the sentence imposed was just and appropriate, taking into account the appellant's culpability, the harm caused, and her conduct before and after the offence. The court also held that the discount for the appellant's assistance did not result in an inappropriate sentence, as it was necessary to reflect the appellant's cooperation with the authorities and her remorse. The appeal was therefore dismissed.

The final orders of the court were that the appellant's appeal against sentence was dismissed, and the original sentence of imprisonment for a term of six years with a non-parole period of four years was upheld. The court also noted that the discount for the appellant's assistance to the authorities did not result in an inappropriate sentence, and that the sentence imposed was just and appropriate in all the circumstances.

Orders