R v O'Donnell No. Sccrm-01-328

R v O’DONNELL
[2002] SASC 183

Court of Criminal Appeal:  Doyle CJ, Perry and Lander JJ

1. DOYLE CJ.            I would dismiss the appeal.  I agree with the reasons given by Perry J.

2. PERRY J.               The appellant was convicted of manslaughter following a trial in this Court before a Judge and jury on a charge of murder. By leave, he appeals against the sentence which was imposed upon him, namely a head sentence of 12 years imprisonment with a non-parole period of 8 years. Both were directed to run from 22 August 2000, when the appellant was taken into custody following a breach of bail conditions.

3. Initially, the appellant advanced one ground of appeal only, namely that the sentence was manifestly excessive. Subsequently, the appellant added a further ground of appeal:

   “That the learned sentencing judge erred in his remark on sentence (9.8) that ‘whilst you are not to be positively penalised for exercising your right to defend the charge against you, you are nevertheless not entitled to any discount for a timely plea’.”

4. That ground of appeal was abandoned by Mr Stokes of counsel for the appellant on the hearing of the appeal and it is not necessary to refer to it further.

5. The offence occurred in the early hours of the morning of 30 June 2000. The appellant, then a young man of 18 years, had been drinking beer during much of the previous afternoon at a hotel at Reynella. Shortly before going to the hotel he had taken an Ecstasy tablet. At about 5.00 pm he visited his girlfriend, with whom he drank some more beer, before they travelled to a pool hall known as Sharkeys Cue Sports Centre at Reynella.

6. While there, the appellant took two more Ecstasy tablets and continued drinking, switching to Jack Daniel’s and Coke. He left the premises at about closing time, which was about 5.00 am, intending to obtain a ride with a friend to another venue.

7. As the appellant was leaving, a brawl erupted between two groups of people in the car park. Initially, it does not appear that the appellant was involved, but shortly after it broke out, the appellant saw the victim, Paul Stewart, a young man of 28 years, wielding what was described as a section of Club lock, in the midst of the affray.

8. Stewart struck another man with the section of Club lock. This provoked a reaction from the appellant. He approached Stewart and stabbed him three times in the back with a 12 centimetre long, double-edged broad-bladed knife which the appellant had been carrying. Stewart died soon afterward on the same day.

9. At his trial the appellant did not deny that he had stabbed the victim. The principal grounds of defence to the charge of murder which he raised were that he had acted in self-defence, or that there was a reasonable doubt as to whether he intended to cause grievous bodily harm.

10. During the course of his sentencing remarks, the learned sentencing judge stated…