R v McDonald - [2019] NSWSC 858

Supreme Court

New South Wales

Medium Neutral Citation: R v McDonald [2019] NSWSC 858
Hearing dates: 10 July 2019
Date of orders: 11 July 2019
Decision date: 11 July 2019
Before: Harrison J
Decision:
Sentenced to imprisonment with a non-parole period of 3 years commencing on 21 January 2017 and expiring on 20 January 2020 with a balance of term of 3 years expiring on 20 January 2023

Catchwords: CRIMINAL LAW – sentence – manslaughter by unlawful and dangerous act – where offender acquitted by jury of murder – where offender’s plea of guilty to manslaughter rejected by Crown – where deceased killed by single stab wound to chest – where offender an indigenous man from disadvantaged background – where offender remorseful – where offence lies well towards bottom range of objective seriousness – discount for guilty plea – application of Bugmy principles – whether specific and general deterrence required
Legislation Cited: Crimes (High Risk Offenders) Act 2000 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Crimes Act 1900 (NSW), s 24
Cases Cited: Bollen v R (1998) 99 A Crim R 510
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Blacklidge (unrep, 12 December 1995, NSWCCA
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Green [1999] NSWCCA 97
R v McDonald [2019] NSWSC 839
R v Previtera (1997) 94 A Crim R 76
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Category: Sentence
Parties: Regina (Crown)
Andrew John McDonald (Offender)
Representation:
Counsel:
J Stanhope (Crown)
J Watts (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Offender)

File Number(s): 2017/21443
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: Andrew McDonald was charged with the murder of his brother Edward McDonald at Taree on 21 January 2017. Mr McDonald pleaded not guilty to that charge. However, when arraigned before the jury panel on the first day of the trial, he offered to plead guilty to manslaughter. That plea was not accepted by the Crown and the matter thereafter proceeded immediately to trial. Mr McDonald had earlier offered to plead guilty to manslaughter by unlawful and dangerous act in correspondence dated 10 October 2017 when the matter was still before the Local Court at Taree but this offer was also rejected by the Crown.
At 2.00pm on the sixth day of the trial, the jury returned a verdict of not guilty of murder. For obvious reasons, having regard to his plea, the jury were not required to deal with an alternative verdict. In those events, Mr McDonald now stands to be sentenced for the offence of manslaughter in accordance with his plea.
Section 24 of the Crimes Act 1900 provides as follows:

“24 Manslaughter - punishment
Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years:
Provided that, in any case, if the Judge is of the opinion that, having…

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 McDonald

Details

AGLC: R v McDonald [2019] NSWSC 858
Case: [2019] NSWSC 858
Decision Date: 11 July 2019

CaseChat Overview and Summary

The case of R v McDonald involved the offender, an indigenous man from a disadvantaged background, who had been acquitted by a jury of murder but had his plea of guilty to manslaughter rejected by the Crown. The deceased had died from a single stab wound to the chest. The matter was heard in a court of appeal, where the primary issue was to determine the appropriate sentence for the offender, considering the factors surrounding the incident and the offender’s background. The court also had to address the principles of Bugmy and the need for specific and general deterrence in sentencing.

The court examined the nature and circumstances of the offence, which involved the offender stabbing the deceased to death. Despite the offender’s plea of guilty to manslaughter, the Crown did not accept it, and the offender was subsequently acquitted of murder. The court had to balance the principles of specific and general deterrence with the mitigating factors, including the offender’s remorse and disadvantaged background. The court also considered the discount for the guilty plea, the objective seriousness of the offence, and the principles set out in Bugmy to arrive at an appropriate sentence.

In determining the sentence, the court acknowledged the offender’s remorse and disadvantaged background, while also considering the need for specific and general deterrence. The court recognised that the offence lay well towards the bottom range of objective seriousness. After applying the Bugmy principles, the court found that the sentence should reflect both the need for deterrence and the mitigating factors. The court concluded that the appropriate sentence should be one that addressed these considerations adequately.

The court ordered that the offender be sentenced to a term of imprisonment with a non-parole period, taking into account the factors discussed. The court emphasised the importance of addressing the specific and general deterrence aspects while also recognising the offender’s background and remorse. This decision highlights the court's approach to sentencing in cases involving indigenous offenders from disadvantaged backgrounds and the balancing of various sentencing considerations.

Orders