Regina v Deborah Anne McDonald - [2001] NSWCCA 301

Reported Decision:
124 A Crim R 17

New South Wales

Court of Criminal Appeal

CITATION: Regina v Deborah Anne McDonald [2001] NSWCCA 301

FILE NUMBER(S): CCA 60224/00

HEARING DATE(S): Thursday 2 August 2001

JUDGMENT DATE:
2 August 2001

PARTIES :

Regina
Deborah Anne McDonald

JUDGMENT OF: Mason P at 1 & 32; Sully J at 2; Newman AJ at 32

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70221/98

LOWER COURT JUDICIAL
OFFICER : Ireland AJ

COUNSEL : R. A. Hulme - Crown
S. M. Kluss - Appellant

SOLICITORS: S. E. O'Connor - Crown
Stacks, Taree - Appellant

LEGISLATION CITED: Crimes Act 1900 NSW

CASES CITED:
Ex Parte Corbishley; re Locke (1967) 2 NSWLR 547 at 549
R v Brown & ors. (1994) 1 AC 212 at 237

DECISION: Leave to appeal granted; appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60224/00

MASON P

SULLY J

NEWMAN AJ

Thursday 2 August 2001

REGINA v DEBORAH ANNE McDONALD

JUDGMENT

1 MASON P: I invite Sully J to give the first judgment.

2 SULLY J: This is an application for leave to appeal against sentence. The applicant is Mrs Deborah Anne McDonald. The sentence is one that was passed upon Mrs McDonald by Ireland AJ on 14 April 2000.

3 The applicant pleaded guilty before his Honour to the manslaughter by gross negligence of one Shannon John Faichney. Such an offence contravenes sections 18(1)(b) and 24 of the Crimes Act 1900 NSW and attracts upon conviction a statutory maximum penalty of imprisonment for twenty five years. His Honour imposed a sentence of imprisonment for seven years, fixing in respect of it a non parole period of five years.

4 The facts of the matter, put shortly, are as follows.

5 On or about 6 June 1998 the victim was living in the home of the applicant and her husband. Also there at the relevant times was another young person who is identified only as BJT, he then being aged some fourteen or fifteen years.

6 During the afternoon of 6 June BJT set upon the victim and beat him with such ferocity that the injuries thus caused to the victim proved to be fatal.

7 The learned sentencing Judge, speaking of those injuries, says that they were, as his Honour puts it:

"Simply appalling. On almost every aspect of the body the examination revealed a variety of injuries consistent only with prolonged and repeated physical abuse derived from a variety of sources and objects

Death was due to a collection of blood over the brain. This had been caused by trauma probably in the form of the head being violently shaken or hit against a flat surface such as to cause the wide spread bruising of the face."

The victim was aged chronologically seventeen but his developmental age was closer to about twelve.

8 Exhibit 1 before his Honour is a summary of the relevant background of the victim. It runs to five closely typed pages spanning the…

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.

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Details

Case: [2001] NSWCCA 301
Decision Date: 2 August 2001

CaseChat Overview and Summary

Deborah Anne McDonald applied for leave to appeal against her sentence following her conviction for manslaughter by gross negligence. The case was heard in the New South Wales Court of Criminal Appeal. The key legal issues were whether the sentence imposed was appropriate and whether there was any error in the application of the special circumstances provision in the Sentencing Act. The Court found that the sentencing judge had correctly assessed the objective criminality of the case and had properly considered the subjective circumstances of the offender. The Court also found that the sentence imposed was not manifestly excessive and that the plea of guilty was appropriately considered. The application for leave to appeal was dismissed, and the original sentence was upheld.

Orders