R v Donnelly (No 2) - [2025] ACTSC 157

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 Crimes (Sentencing) Act 2005 (ACT) 12A, 63, 80W, 80ZD, 80ZE, 80ZH, 80ZJ, 80ZL Criminal Code 2002 (ACT) ss 308, 312, 318, 326, 403 Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7 Supreme Court Act 1933 (ACT) s 37SB
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Gorman [2024] ACTSC 233 Elphick v The Queen [2021] ACTCA 35 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Mill v The Queen [1988] 166 CLR 59 R v Donnelly [2021] ACTSC 336 R v Elphick [2021] ACTSC 9 R v Henry [1999] NSWCCA 111; 46 NSWLR 346
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…

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 Donnelly (No 2)

Details

AGLC: R v Donnelly (No 2) [2025] ACTSC 157
Case: [2025] ACTSC 157
Decision Date: 17 April 2025

CaseChat Overview and Summary

The case before the court involved an appeal against sentence by the respondent, Donnelly. Donnelly was sentenced under the Drug and Alcohol Court in New South Wales following breaches of a drug and alcohol treatment order. The primary legal issues revolved around the appropriate manner in which the sentence should be determined following the cancellation of the treatment order and the application of the totality principle. The court also considered the statutory interpretation of sections 80ZJ and 80ZE of the relevant legislation, specifically whether the treatment order remained in effect while a warrant was outstanding but unexecuted.

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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