SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Donnelly (No 2) |
Citation: | [2025] ACTSC 157 |
Hearing Date: | 18 March 2025 |
Decision Date: | 17 April 2025 |
Before: | Christensen AJ |
Decision: | See [47] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – imposition or resentence following s 80ZE cancellation of a drug and alcohol treatment order – breaches of treatment order – variety of ways to reflect totality principle – totality informative as to setting of nonparole period – substantial period spend in custody in NSW – statutory interpretation – s 80ZJ warrant issued while treatment order still active – treatment order extant while warrant remains unexecuted – power to deal with an offender following expiration of treatment order – offender resentenced |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 30, 82C |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions ( Crown) Daniel Donnelly ( Offender) |
Representation: | Counsel G Meikle ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Offender) | |
File Numbers: | SCC 173, 174 of 2020 |
CHRISTENSEN AJ:
Introduction
1․Daniel Donnelly is before the Court for finalisation of a review proceeding of a drug and alcohol treatment order (treatment order): s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). At this stage, the Court is determining the appropriate course following cancellation of the order. That is, whether to impose the suspended portion of the treatment order, or whether to resentence Mr Donnelly.
2․It is necessary to firstly closely consider the procedural background in this matter, and then to set out the reasons for an earlier decision that the Court has power to conduct a review of a treatment order that was subject to a warrant pursuant to s 80ZJ of the Sentencing Act.
3․I will then turn to considering the appropriate outcome in the review. The prosecution submission is that while imposition would typically be appropriate in the circumstances that arise here, the principle of totality, where Mr Donnelly has in the interim period served a substantial period of time in New South Wales (NSW) custody, is such that a resentence exercise is necessary. A resentence exercise was also sought on behalf…
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- R v Donnelly (No 2) [2025] ACTSC 157
- Case
- [2025] ACTSC 157
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CaseChat Overview and Summary
The court began its analysis by noting that the principles guiding sentencing after the cancellation of a treatment order are flexible, allowing for a variety of approaches to ensure the sentence reflects the totality principle. The totality principle requires that the entire punishment for all offences must be considered in determining the overall sentence. In this instance, the court emphasised the importance of the substantial period Donnelly had already spent in custody in New South Wales. The court interpreted the relevant statutes to mean that the treatment order remained active until the warrant was executed. Therefore, the power to resentence Donnelly arose only after the treatment order had officially expired. The court determined that the original sentence was flawed due to these misinterpretations and proceeded to resentence Donnelly accordingly.
In re-evaluating Donnelly's sentence, the court ensured that the new sentence appropriately reflected the totality principle, taking into account the time already served and the nature of the breaches. The court concluded that the resentenced term should adequately balance the need for punishment with the rehabilitative aspects intended by the original treatment order. The final orders of the court included a resentence for Donnelly, reflecting the court's determination that the original sentence was misapplied due to statutory misinterpretation and inadequate consideration of the totality principle.
Orders
Orders of the court
See [47]
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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