R v O'Donnell - [2016] VSC 390

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0145

DIRECTOR OF PUBLIC PROSECUTIONS

DANIEL THOMAS O’DONNELL

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 & 27 May and 14 July 2016
DATE OF JUDGMENT:	14 July 2016
CASE MAY BE CITED AS:	R v O’Donnell
MEDIUM NEUTRAL CITATION:	[2016] VSC 390

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CRIMINAL LAW – Sentence – Early plea of guilty to manslaughter – Assault on elderly victim in course of burglary – Victim savagely beaten by co-accused and found dead one week later – No active participation in the assault – Attempts made to stop the assault – Severely disadvantaged background – Institutionalisation – Sexual and other abuse as a young child – Prior convictions – Good prospects of rehabilitation – Time in prison particularly onerous – Undertaking to give evidence against co-accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr B. Newton	Randles Cooper Lawyers

HER HONOUR:

Daniel O’Donnell, you have pleaded guilty to killing Raymond Parker between 6 January 2015 and 13 January 2015, at Bayles in Victoria. Mr Parker died as a result of an assault while you and your co-accused were trying to rob him.

You entered a plea of guilty to manslaughter at an early stage. You also gave an undertaking to give evidence against your two co-accused in accordance with your statement made to police on 8 March 2015.

Each of your co-accused has now also entered a plea of guilty to manslaughter.

At the time of your offending, you were staying at the home of one of your co-accused, Garren Philp, in Pakenham. Philp was very old friend of yours. He was such a close friend that you named your first child after him.

You went to stay with Philp in late August or early September 2014 because he had asked you to help out while he undertook treatment for alcohol abuse. You are a recovering alcoholic and a participant in the Alcoholics Anonymous program and you believed that you could help him.

The second co-accused, Dean Brooks, was also living at Philp’s house in January 2015. Brooks’ mother was in a relationship with Philp. You barely knew Brooks, who had only lived at Philp’s house for a couple of weeks at the time of the offending. He is in his early 20s and therefore considerably younger than you.

The deceased, Raymond Parker, had been known to you since about 2009 and to Philp since around 2007.

Mr Parker was a retired butcher. He was also a long-time cultivator of cannabis. By the time of his death, he had been growing cannabis for about 30 years without being detected by authorities. He regularly sold cannabis to Philp. Philp told you that he was selling three pounds of cannabis a week for Mr Parker, for about $3,000 per pound.

Mr Parker was living alone in a large rented house outside of Bayles,…

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 O'Donnell

Details

AGLC: R v O'Donnell [2016] VSC 390
Case: [2016] VSC 390
Decision Date: 14 July 2016

CaseChat Overview and Summary

The case of R v O'Donnell involved the defendant, O'Donnell, who was charged with manslaughter in relation to an assault on an elderly victim during a burglary. The victim was found dead a week later, having been savagely beaten by a co-accused. The dispute centred around the appropriate sentence for O'Donnell, considering his early plea of guilty, his limited role in the actual assault, and his background, which included severe disadvantage, institutionalisation, and a history of abuse and prior convictions.

The legal issues before the court included the assessment of the appropriate sentence for manslaughter, particularly taking into account O'Donnell's early plea of guilty, his limited active participation in the assault, his attempts to stop the assault, and his disadvantaged background. The court was also required to weigh the mitigating factors against the severity of the crime and the need for deterrence and denunciation.

The court considered O'Donnell's early plea of guilty, which was a significant mitigating factor. It also noted that while O'Donnell was present during the assault, he did not actively participate in it and even attempted to stop it. The court recognised the severe disadvantage O'Donnell faced from a young age, including institutionalisation and a history of abuse, which contributed to his criminal behaviour. Despite these mitigating factors, the court acknowledged the need for punishment and deterrence. Ultimately, the court balanced these considerations and determined that a sentence of imprisonment was appropriate, but it would be particularly onerous for O'Donnell given his background. The court also noted O'Donnell's undertaking to give evidence against his co-accused as an additional mitigating factor.

The court ordered that O'Donnell be sentenced to imprisonment, taking into account the totality of the circumstances and the need to balance punishment with rehabilitation. The specific term of the sentence was not detailed in the provided text.

Orders