Regina v Danuca - [2005] NSWCCA 45

CITATION:
Regina v Danuca [2005] NSWCCA 45

HEARING DATE(S): 17/2/05

JUDGMENT DATE:

7 March 2005

JUDGMENT OF:
Grove J at 1; Bell J at 3; Buddin J at 66

DECISION:
1. Grant leave to appeal; 2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced as follows; On count one (taking into account the four matters on the Form 1) to a term of imprisonment for six years' to commence on 31 May 2002 and to expire on 30 May 2008. Specify a non-parole period of three years and six months. The non-parole period will expire on 30 November 2005; On counts two, three, four, five and six (including the four matters on the Form 1 with respect to count five) concurrent terms of five years' imprisonment to date from 31 May 2002 and to expire on 30 May 2007. Specify a non-parole period of three years in each case to expire on 30 May 2005; On count seven (taking into account the three matters on the Form 1) a term of seven years' imprisonment to date from 31 May 2003 and to expire on 30 May 2010. Specify a non-parole period of four years and six months. The non-parole period will expire on 30 November 2007.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
R v Bala [2004] NSWCCA 345
R v Engert (1995) 84 A Crim R 67
R v Ponfield (1999) 48 NSWLR 327
R v Simpson [2001] 52 NSWLR 704
R v Wright (1997) 93 A Crim R 48

PARTIES:
Regina
Dino Danuca (Applicant)

FILE NUMBER(S):
CCA 2004/2393

COUNSEL:
T.S. Girdham (Crown)
P. Boulton SC (Applicant)

SOLICITORS:
S Kavanagh
The Law Practice (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0333

LOWER COURT JUDICIAL OFFICER:
O'Reilly DCJ

2004/2393

GROVE J
BELL J
BUDDIN J
Monday 7 March 2005

Regina v Dino Danuca

Judgment

1 GROVE J: I have had the advantage of reading, in draft form, the judgment of Bell J. I agree with the orders which she proposes and with her reasons.

2 As her Honour has observed, the overall practical effect of the sentences imposed by O’Reilly DCJ was a term of eight years imprisonment with a non parole period of six years and six months. The proportion between those specified terms clearly did not give effect to his Honour’s finding of special circumstances and consequent intention to depart (in the appellant’s favour) from the formula prescribed in the relevant statute. I wish to stress that my concurrence in the proposed resentence is based upon findings which are coordinate with those of O’Reilly DCJ but implement his plain intention concerning proportion between total sentence and non parole period, an intention which it is appropriate for this Court to carry into effect.

3 BELL J: Dino Danuca applies for leave to appeal against the severity of sentences imposed on him by his Honour,…

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 Regina v Danuca

Details

AGLC: Regina v Danuca [2005] NSWCCA 45
Case: [2005] NSWCCA 45
Decision Date: 7 March 2005

CaseChat Overview and Summary

Dino Danuca was convicted and sentenced in the District Court for seven counts of breaking, entering, and stealing, with further offences taken into account under the Crimes (Sentencing Procedure) Act 1999. Danuca appealed against the severity of the sentences imposed by the District Court Judge. The Court of Criminal Appeal was required to determine whether the District Court Judge erred in his sentencing, specifically whether he gave inadequate weight to the appellant’s subjective circumstances and troubled psychological state, failed to set a non-parole period on count seven, and set a total effective non-parole period of six years, six months despite finding special circumstances. The Court also needed to decide if the sentences were manifestly excessive.

The Court found that the District Court Judge was not wrong in his assessment of the psychologist’s report and the appellant’s psychological state. The Court accepted that the Judge found special circumstances justifying a departure from the statutory proportion between the non-parole period and the head sentence. However, the Court found that the Judge's intention to depart from the statutory proportion was not adequately carried through in the sentences structured. The Court re-sentenced Danuca, taking into account the purposes of sentencing, aggravating and mitigating factors, and the objective seriousness of the offending. The Court allowed the appeal, quashed the original sentences, and imposed new sentences with specific non-parole periods.

Orders