R v Donovan

[2023] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:

R v Donovan [2023] NSWDC 149

Hearing dates:

11 May 2023

Date of orders:

11 May 2023

Decision date:

11 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Joseph Donovan is convicted and the appropriate discount is 25%.

2   I impose an aggregate term of imprisonment of 18 months to take into account the offender’s pre-sentence custody because an ICO cannot be backdated.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (11 May 2023) and expire on 10 November 2024.

4   The offender must report to the Mt Druitt Community Corrections Office on or before 4pm on 18 May 2023.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence

CRIME — Property offences — Steal motor vehicle

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Mandranis v R [2021] NSWCCA 97

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Joseph Donovan (Offender)

Representation:

Counsel:
Mr A Wong (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/355562

Publication restriction:

None

Judgment

Introduction

1. Joseph Donovan (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H85408456	Offence	Maximum Penalty and SNPP
3	Aggravated break and enter and commit serious indictable offence, contrary to s 112(2) Crimes Act 1900	20 years with SNPP of 5 years
4	Steal motor vehicle, contrary to s 154F, Crimes Act 1900	10 years; no SNPP

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim and his wife and children resided at an address in Tamarama. The property is over five levels. The first level contains three bedrooms. Each level can be accessed from an external staircase which leads into the backyard. The backyard and front yard are fenced off with a key code…