Regina v Solkan Mohammad Donaczy

[2009] NSWDC 63

CITATION:	Regina v Solkan Mohammad Donaczy [2009] NSWDC 63
HEARING DATE(S):	6 March 2009
JUDGMENT DATE:	6 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	The offender is sentenced to a non-parole period of 3 years and 6 months to date from 6 March 2009 and to expire on 5 September 2012. And an additional term of 2 years and 6 month expiring on 5 March 2015. The offender is elegible to be released to parole on 5 September 2012.
CATCHWORDS:	offences against the person - manslaughter - sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes(Sentencing and Procedure) Act 1999
CASES CITED:	R v Blacklidge(unreported NSWCCA 12 December 1995) R v Privitera(1997) 94 ACR 75 R v Bollen (1998) 99 ACR 510 R v Fernando (1992) 76 ACR 58) R v Forbes (2005) NSW CCA 337 R v Carroll (2008) NSW CCA 218 Hopley v R(2008) NSW CCA 105 R v Edward David Zammit (2008) NSW CCA 317 R v Smith (2008) NSW SC 201 R v CK and R v TCS (2007) NSW SC 1424 R v KT (2007) NSW SC 83 R v O’Hare (2003) NSW SC 652 KT v R (2008)NSWCCA 51
PARTIES:	Crown Solkan Mohammad Donaczy
FILE NUMBER(S):	2008/11315
COUNSEL:	Mr M.Fox (Crown) Mr P.Young SC and Ms C.Doosey ( Defence)

- 1 -

JUDGMENT

1 HIS HONOUR: The offender, Solkan Mohammad Donaczy, was charged with manslaughter of the deceased, Scott Mahoney, at Port Kembla on 17 March 2007. The basis of the manslaughter charge was death by an unlawful and dangerous act. The offence carries a maximum penalty of imprisonment for twenty-five years. Of course, only a matter falling within the most grave category could attract a sentence approaching the maximum penalty.

2 The offender pleaded guilty in the Local Court on 23 July 2008. He adhered to that plea in the District Court on 31 October 2008. The Crown tendered a bundle of documents (exhibit A) including a document purporting to be an “agreed” statement of facts.

3 The offender was called to give evidence. At the conclusion of his evidence, I drew Counsels’ attention to that part of the agreed facts that asserted the offender was observed to be behind and to the right of the deceased, when without warning, he threw a single punch striking the victim and causing him to fall to the ground. I then drew attention to the offender’s evidence that seemed to dispute such an assertion. Mr Young of Senior Counsel submitted that his client had always disputed the fact that this was a “king hit” (see discussion on pp 24 and 25 of the transcript of 31 October 2008). It was agreed that further evidence would need to be called in respect of this issue and that was done on 17 December 2008.

4 In addition, a folder of statements was tendered by consent, that is exhibit C. Those statements contained a version of events within the Commercial Hotel that were, in my view, inconsistent with one another. Some of those witnesses were acquaintances of the victim, others knew the offender. It appears many had been consuming alcohol. Descriptions of who were actually involved in the various verbal altercations inside the Commercial Hotel were imprecise. It is impossible to be satisfied beyond reasonable doubt of observations contained in those statements without the opportunity to make an assessment of those witnesses, to hear their evidence and to have it tested in cross-examination. I make that statement despite the fact that it was apparently agreed between the parties that those statements be produced to the court, to assist in coming to some conclusions as to precisely what occurred in the Commercial Hotel. However, from those statements, being exhibit C, I can at least be satisfied that Scott Mahoney was upset and agitated concerning the presence of a person at the hotel on that night and that that other person was within the group the offender was socialising with on that night. I can be satisfied that the offender, initially at least, was trying to calm down Scott Mahoney. As the interaction between the various persons continued, I am satisfied on the balance of probabilities, that there was aggressive posturing at different times between the offender and Scott Mahoney, causing other persons to intervene. Beyond that, it is difficult to make any other findings of fact beyond reasonable doubt.

5 Upon consideration of all of the evidence and in particular the “agreed facts” document contained in exhibit A (the great majority of which is not in dispute), I am satisfied of the following facts beyond reasonable doubt.

6 On the evening of Friday, 16 March 2007, the offender had been in the company of a group of friends at his home in Port Kembla. They sat around talking and drinking beer until about midnight. At about that time the group, including the offender, a Philip Charles, a Troy Troncone, Neville Lewin and Katrina Muddle, walked to the Commercial Hotel in Wentworth Street, Port Kembla. The deceased, Scott Mahoney, was also drinking at the hotel on that evening.

7 Ms Stephanie Woods gave evidence that she also attended the Commercial Hotel, arriving there with her boyfriend, Ivan Buchanon at approximately 12.30am. She was not drinking alcohol at the hotel and knew both the offender and Scott Mahoney. On her evidence she had been at the hotel for about an hour and a half when she observed the offender and Scott Mahoney inside the hotel, outside the male toilets and they were only a couple of feet away from each other. She said she could tell by their body language that they were arguing, although she could not hear what was actually being said. She said her boyfriend broke them up and they moved away from each other. A little later she again saw them in that same location but she said they had a drink in their hands and they were just talking. The next time she saw them was when she went to the bar. She said “There was a little bit of tension between the two”. Asked whether she heard them say anything, she said “Not anything specific but they were still sort of wanting to fight, yeah”. Asked if she heard the offender say anything, she replied “He said that if he wants to take it further then come outside”. She said these words were spoken to Scott Mahoney and her boyfriend, once again, intervened. She said she and her boyfriend then stopped at the bar and spoke with Scott for about ten to fifteen minutes. She then played pool with her boyfriend and left about 2.45am. I accept Ms Woods’ evidence, as I have assessed her as being both truthful and reliable. I am also satisfied beyond reasonable doubt that following these incidents, as described by Ms Woods, that the offender and Scott Mahoney are observed on the footpath outside the Commercial Hotel.

8 The parties agree that CCTV footage of the Commercial Hotel shows interaction between Scott Mahoney, the offender and several of the offender’s companions. At around 2.31am (17/03/07), Scott Mahoney is observed to be standing outside the hotel on the footpath. Around 2.34am, a male exits the hotel and interacts with Scott Mahoney. Shortly after the offender exits the hotel with Neville Lewin and is then joined by Philip Charles. The offender speaks to Scott Mahoney. At this time Mr Mahoney kicks off his thongs into the gutter. Approximately five minutes later Neville Lewin, Philip Charles and the offender re-enter the hotel, leaving Mr Mahoney outside. He was observed to put his thongs back on and talk to a security guard. Shortly thereafter Mr Mahoney also re-enters the hotel.

9 Around 2.51am, the offender again walks out of the hotel followed almost immediately by Scott Mahoney and Neville Lewin and Troy Troncone. Shortly after Steven O’Donnell comes from the hotel and stands in between Scott Mahoney, Neville Lewin and the offender, in what appears to be an attempt to separate them. Soon after the offender and his companions cease interacting with Scott Mahoney. Scott Mahoney also eventually re-enters the hotel.

10 I am satisfied beyond reasonable doubt that whatever was the precise subject matter of the disagreement leading to the various verbal altercations, no one seems to hear anyone uttering racial taunts or insults at the Commercial Hotel.

11 At 3am the hotel ceased trading for the night. At around 3.02am, Scott Mahoney leaves the hotel for the last time and sets off initially by himself in the direction of the Port Kembla Hotel.

12 Then a Mr Epeli Ahohelei, an acquaintance of Scott Mahoney, spoke briefly with him and was walking with him in the direction of the Port Kembla Hotel. The offender, together with Troy Troncone, Douglas Moylan, Michael Naylor, Neville Lewin, Philip Charles, all leave the hotel and also head off in the direction of the Port Kembla Hotel. The offender started to walk towards Alan Street in the direction of his home. One of his friends called out to him to come back and to join them for a few beers at a friend’s place. He re-joined the group on the footpath just outside the Port Kembla Hotel. Scott Mahoney is also on that footpath. Whilst the quality of the CCTV footage (exhibit D) is rather poor, I am satisfied beyond reasonable doubt that it shows the offender in close proximity to Scott Mahoney and he suddenly punched Scott Mahoney to the head, causing him to fall to the ground. Scott Mahoney was lying motionless on the pavement and as the offender moved towards him, he was grabbed by companions and led away.

13 Mr Ahohelei gave evidence. Following his cross-examination by Mr Young, I am satisfied that Mr Ahohelei had been walking with Scott Mahoney across the road and onto the footpath outside the Port Kembla Hotel. He then decided to return to the Commercial so he could get a lift home. Just after turning around and taking two or three steps, he then turned back in the direction of the victim and saw him on the ground. He did not see the punch. From this evidence, I am at least satisfied that the altercation/contact between the offender and the victim happened within a matter of seconds.

14 The offender gave evidence that at the Commercial Hotel the victim was “throwing racist remarks”. He said on p 7 of the transcript line 25:

“Fuck all you black cunts, you know you are all the same”.

15 The offender further said:

“You know I tried to walk away from it and then you know then he came up later on in the night you know and just throwing obscenities again and it’s like you know I even bought him a beer to try and settle him down. I said ‘Listen, no one wants to fight you know’, I said ‘I don’t want to fight you man you know, just let it go’”.

16 On p 25 of the transcript at line 31 this question:

“Q. Up until the time you left the hotel had there been any physical contact between you, had there been any pushing, wrestling, punching or anything of that description?

A. No, no, I shook his hand like you know”.

17 In reference to what had actually occurred outside the Port Kembla Hotel he was asked this on p 8, line 41:

“Q. What happened when you rejoined the group?

A. When I rejoined the group Scott’s, well you know, we got ready to go up to my cousin’s place and then Scott started again you know.

Q. By doing or saying what?

A. Wanting to fight you know and calling us black cunts and this and that you know.

Q. What happened after that?

A. And then I don’t know, we just - I just remember hitting him.

Q. How close were you to him at the time he was saying those things you’ve just told us about?

A. Pretty close, I just remember his face and I just hit him and he hit the ground.

Q. Which way was he looking when you hit him?

A. He was - I can remember his face and like in my face.

Q. Do you know whereabouts you hit him exactly?

A. Not really, I just remember hitting him in the face and he hit the ground.

Q. Did you remain there or did you go away?

A. I went over to see if he was all right you know because he didn’t move.

Q. What happened there, anything?

A. Well he wasn’t moving and the people just pushed me away, like I said turn him on his side you know and ring the ambulance you know and I was worried for him.

Q. What happened after that?

A. Then I’ve walked home.

Q. Were you in the company with anyone else, you left?

A. Neville Lewin, Philip Charles, Troy Troncone, Kate Muddle, Steve O’Donnell, yeah, that’s pretty much it”.

18 In cross-examination at p 17 this question was put to him:

“Q. I suggest he never said anything to you when he was outside the Port Kembla Hotel?

A. He did say to me ‘come on you black cunts, youse want to fight now’ you know and like all I remember was hitting him and then he hit the ground, I remember his face.

Q. You say he was facing you when you hit him?

A. Yeah, that’s what I remember.

Q. He had his hands down by his side at that stage?

A. No, like I was you know I thought that he you know he’s ready to fight, he was in a like you know he was in an aggressive - maybe he wanted to fight.

Q. I suggest that he was never in an aggressive stance to you before you hit him?

A. I thought he was in an aggressive stance you know, he wanted to fight”.

The offender acknowledged that prior to this evening he never had a fight with Scott Mahoney and that on this evening he had fifteen schooners or more.

In re-examination by Mr Young of Senior Counsel the following appears, p 22, line 29:

“Q. When you crossed the road to go back to the group how many people did you estimate were in that group?

A. About eight people.

Q. How long after you crossed the road when you joined the group did you throw the punch?

A. Practically, well I don’t know, a couple of minutes, 2 minutes after maybe because I went over and joined the group, Scott’s come and started again.

Q. A couple of minutes, as long as that?

A. Yeah”.

And then this question was by me: (p. 22 line 45)

“Q. What was taking place in that couple of minutes?

A. Like within 2 minutes like Scott’s come over again you know, come on you black cunts, youse want to start now you know, let’s have a go, like wanting to fight you know, then all I just remember you know and the me cousin Philip you know he was going to take his shirt off and fight Scott and then I got - I jumped in between Philip and Scott and pushed him away and then Scott’s like come on Sol you know like you know he was a big man and all this stuff, let’s have a go you black cunt you know and just kept throwing racial remarks and all that and I just you know I threw a punch, hit him in the face and he hit the ground”.

19 This is significant. The answer that I have just read is significantly different to the version he gave in chief and indeed to the version he gave in cross-examination in this court. In my view, this was an embellishment on the part of the offender. I found his evidence generally concerning the throwing of the punch most unconvincing. Indeed, in giving this last response in re-examination, I am of the view that it was merely an attempt to provide to the court a further justification for his response in lashing out and striking the victim. It is simply not supported by the CCTV footage. I reject that part of his evidence. I am satisfied on the balance of probabilities that there was a further brief conversation between the victim and the offender and I am satisfied beyond reasonable doubt that this resulted in a sharp, devastating blow by the offender to the head of the victim.

20 At no time did Scott Mahoney regain consciousness. He was conveyed by ambulance to the Wollongong Hospital. Dr Berry pronounced life extinct around 4.20am on 17 March 2007. Following an autopsy by Dr Paul Morrow, pathologist, it was concluded that the cause of death was traumatic subarachnoid haemorrhage to the base of the brain. There was noted a laceration to the occipital region of the scalp. There was contusion associated with some swelling on the left side of the cheek, extending onto the side of the nose and onto the left eye over an area measuring approximately seven by seven centimetres. There was a lineal laceration approximately 1.5 centimetres in length at the corner of the left eye.

21 The offender was arrested on 19 March 2007 and taken to the Port Kembla Police Station where he was charged with manslaughter.

22 The courts have often referred to comments by Gleeson CJ in R v Blacklidge (unreported NSWCCA 12 December 1995):

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various and the ranges of degrees of culpability are so wide that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the court has repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of human life. That is the starting point for a consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case”.

23 Single blow manslaughter cases are not uncommon in this State. The present case is but another example of the disastrous consequences that can flow from a single act of violence on a public street. I have no doubt that this crime was alcohol fuelled but whatever was actually spoken in the verbal exchanges in the hotel between the offender and the victim, it was the offender’s evidence that he was merely trying to settle the victim down. According to his evidence he must have been successful in doing that, as he acknowledged that up until the time he left the Commercial Hotel, there had been no physical contact between the two, apart from an assertion by the offender that he shook the victim’s hand.

24 I am satisfied that the offender struck the blow to the victim at a time when the offender was surrounded by his own friends and the victim, in those circumstances, was not posing any genuine threat. I am satisfied that the heavy blow to the head of the victim was carried out following a further brief verbal exchange outside the Port Kembla Hotel. As earlier indicated, I have rejected the offender’s version as contained in the transcript, commencing on p 22, line 45 on 31 October 2008. As I have already indicated, it simply cannot be supported by the CCTV footage which shows an aggressive violent act on the part of the offender. The CCTV shows the victim was struck when his arms and hands are down by his side. As earlier stated, the victim collapsed to the ground with the back of his head striking the pavement. The CCTV footage shows the offender quickly following in but is then grabbed and pulled away by his companions. This happens very quickly and the offender certainly does not stay to render assistance. However, I accept that the offender never intended such a catastrophic result.

VICTIM IMPACT STATEMENTS

25 I have received and considered victim impact statements (part of exhibit A) from Christine Mahoney, mother of the victim, Beryl Mahoney, grandmother and Tamara Mahoney, sister. Indeed, Tamara read her statement to the court on 31 October 2008. It is obvious that your loss has been a devastating one, the affects of which will be felt by all of you, family and friends alike, for a long time to come. Whilst I do understand and appreciate your grief, I also readily acknowledge that the court process is not always capable of doing much to alleviate your sense of loss. Having considered all of what has been placed before me in those statements, in accordance with R v Privitera (1997) 94 ACR 75 and also R v Bollen (1998) 99 ACR 510, I have not had regard to those particular affects in assessing the quantum of sentence.

SUBJECTIVE CIRCUMSTANCES

26 I now turn to the offender’s subjective circumstances. The offender is now twenty-nine years of age. In 1998 the offender was convicted of assault occasioning actual bodily harm and malicious damage for which he received a deferred sentence (s 558) recognizances. The facts in relation to that matter (see tab 10 of exhibit A) indicate that those offences also occurred at the Commercial Hotel, Port Kembla when the offender was affected by alcohol. There is no further criminal offending until 2005 when he was convicted of being carried in a conveyance without the consent of the owner. He received a s 9 bond to be of good behaviour for a period of nine months.

27 Whilst on bail for the present offence the offender was charged with offensive behaviour arising from an incident on 10 November 2007 (facts appear at tab 11 of exhibit A).This was dealt with by way of fine. The offender also gave some evidence concerning that last mentioned incident (see transcript at pp 11, 12 and 14). Whilst this is by no means an extensive criminal history the offender is not entitled to the same leniency as a person who comes before the court with no criminal record.

28 I have extracted the following background material, both from the pre-sentence report (tab 6 of exhibit A) of Miss Deborah Jenkin, Probation and Parole officer and the report of psychologist Mr Stephen Dragutinovich (exhibit 2).

29 The offender’s father Maxwell Solkan Islam was half Koori, half Indonesian. His mother Maria Donaczy was half Koori, half Hungarian. His parents divorced approximately one year after the offender’s birth. His mother then formed a relationship with another man with whom she had two sons. That relationship also ended and when the offender was eight his mother met with his current stepfather and the family relocated from Victoria to the Wollongong area. They had one child together (a son now eighteen years of age) and the stepfather had three children from a former relationship and they also lived together in the family home. The offender informed the probation officer that his stepfather was physically and verbally abusive towards the children and that members of his stepfather’s family were involved in alcohol, drug abuse, violence and criminal offending.

30 The offender reported that he was bullied by two of the stepfather’s children. He informed the psychologist that he has hated his stepfather all of his life and as a result of his abusive behaviour particularly towards his mother, stated that he will never speak to him again. He left school at age seventeen prior to the completion of his School Certificate. To the probation officer he stated that while his academic performance was good he had little motivation to complete school due to the difficulties in the home environment. When nineteen he attended Senior College and completed year 10. Since leaving school he has generally maintained stable employment primarily in the labouring fields.

31 He acknowledged that he engaged in regular cannabis use between the ages of thirteen and seventeen and said that this drug was readily available within the family environment. He informed the psychologist that his stepfather was dealing drugs, amphetamines, pot and speed. He said:

“I would steal drugs off him and I’d get the alcohol off uncles and older cousins - we lived in the Coomaditchie mission - you’d go from household to household and everyone when they had money would be smoking cannabis, drinking and shooting up (speed/heroin) - but I never shot up heroin - I shot up speed twice when I was seventeen and smoked heroin three times - but mostly I just smoked pot and drank alcohol”.

32 He said that his elder stepsister and main support Sandy, died from a heroin overdose when she was twenty-three years of age. He claimed his drug abuse assisted him to cope with the emotional distress arising from her death. He stated that he had regularly abused alcohol since sixteen to seventeen years of age and typically consumed alcohol to the point of intoxication every weekend up until the time of the offence.

33 He met his partner when he attended Senior College. They have been in a relationship for the last ten years and have three children. The daughters are now aged seven and two and a young nine month old son.

34 Apart from the emotional distress that he experienced following the death of his half sister he was further traumatised by the death of a half brother Clive who was killed seven years ago in a knife attack by a man who was apparently found not guilty on the grounds of self-defence. He has also lost two cousins to heroin overdose and another cousin who died in a motor vehicle accident after having robbed a bottle shop for money to buy drugs.

35 He informed the probation officer that on the evening of the offence he had been in the company of family and friends to commemorate the birthday of his stepsister who had died approximately ten years before. He then attended the Commercial Hotel and by 3am believed he had consumed about fifteen schooners of full strength beer. The probation officer reported:

“Mr Donaczy repeatedly expressed remorse for his actions and the desire to atone for them. He demonstrated insight into the impact of the offence upon the victim’s family and friends”.

36 The probation officer assessed him as suitable for a community service order and both eligible and suitable for a periodic detention order.

37 To the psychologist the offender stated inter alia:

“When I realised he was dead I felt shock - I felt empty in the stomach - I felt devastated - I think he had a daughter and I feel like my heart is ripped out for what I’ve done - I wrote a letter of apology to his family - I honestly mean it from the bottom of my heart - I know how they feel from losing my brother - some days I wish it was me (who died) - I can’t sleep - I think about him every day - it’s never out of my mind...”.

38 When giving evidence in this court on 31 October 2008 he confirmed those expressions of remorse. When asked how he felt (transcript 9, line 41) he said:

“Traumatised. It’s not every day you wake up and think you know someone died hey from a stupid mistake that you’ve made. Every day I’ve got to think about it, you know I don’t sleep properly, you know, you know it’s like, it’s going to be with me for the rest of my life”.

He also said:

“You know the deepest of sympathies towards his family...you know I feel for his family, you know they’ve lost a member of you know a son, a brother, you know a father”.

39 My assessment of the offender’s expression of remorse is that they were entirely genuine and this is another matter that I have taken into account.

40 Exhibit 4 is a document under the hand of the offender’s partner,Ms Tamar, I think it is pronounced Widarena but the spelling apparently is W-I-W-A-R-E-N-A. She described the offender as a loving and supporting father. She said “Since the incident he has continually apologised to me and the children for the stress and turmoil that this has done to me and the children”. She also stated “As all our family members are busy raising their own families it would be extremely difficult for them to give me the support that Solkan gives me every day”. She continued “I am at a loss as to how our two daughters aged six and two will cope with not having their father there every day as they are extremely close to him and would fret for him tremendously”.

41 This of course is unfortunate. However the relevant principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating factor unless hardship is truly, wholly or highly exceptional. The matters referred to by Ms Wiwarena in her letter do not reach such a level.

42 Exhibit 3 contains various reference/testimonial material. The offender has been a member of the Wadi Wadi Aboriginal Dance Troupe for a number of years and in this capacity has travelled overseas as an indigenous ambassador. At the beginning of 2008 he applied to be enrolled in the Community Services Certificate IV at TAFE. Mr Michael Kane in his report dated 21 October 2008 stated that he first met the offender when he came forward with information about himself as part of that enrolment process. He said that process asked potential students about any history of violence. As senior counsellor Mr Kane interviewed the offender about his history in order to make a risk assessment to anyone he might come into contact with as a TAFE student.

43 As a result of that initial contact the offender has voluntarily attended a counselling service on campus on approximately eight occasions since February 2008. Mr Kane also commented “He demonstrates considerable remorse over the manslaughter and has tried very hard to accept what he has done”. He also said the offender has made a significant and positive impression on all those who have come into contact with him. Ms Lyn Dooley, vocational education teacher at TAFE spoke of the offender’s positive progress in his studies throughout 2008. She commented “I have no doubts that Solkan has turned his life around and will continue to make an important contribution to his own community and the broader community he lives within”.

44 Ms Diane Miller, acting head teacher stated “He has successfully undertaken leadership roles for class assessment and projects and performed very well in his field work placement. He has also demonstrated competence in all units studied this year”.

45 Exhibit 1 is under the hand of Mr Daniel Deighton, project co-ordinator of the Port Kembla Men’s Group. Whilst indicating that the offender joined the group shortly after the commission of this offence in 2007, he stated that he is now a most valued member. Mr Deighton’s letter lacked clarity as to the role the offender plays in this men’s group. Mr Deighton was also called to give evidence in the sentence proceedings and apart from stating that the “Port Kembla Community Project is an organisation that works to support disadvantaged people in our community through building a social cohesion”, for some reason he was unable to articulate exactly what it was that the offender did within the group. I was extremely grateful to Mr Young of Senior Counsel who eventually extracted from Mr Deighton that the offender would do cooking for people who were in need of meals, he would do gardening for people, he would do clerical duties when required and he would also assist in dispute resolution when people were having difficulties.

46 In submissions placed before the court today on behalf of the offender, reliance was placed on the principles in R v Fernando (1992) 76 ACR 58). The principles in Fernando apply irrespective of the ethnic background of an offender and irrespective of whether in a case of indigenous persons their upbringing is urban, rural or communal. The dysfunctional home background with abuse of alcohol and drugs and deaths of siblings explained to a significant degree some of the offender’s problematic reactions and behaviour. However I do not place significant regard to these matters in granting leniency. As indicated in the defence submissions:

“In contrast with all other members of his family Solkan Donaczy has been in full time employment virtually since leaving school. His last position landscaping with Shellharbour Council was terminated on his being charged with this offence. Solkan Donaczy has always impressed his employers as being hard working and conscientious”.

47 I should now refer to the last page of the report of the psychologist where he expressed the following opinion:

"Solkan's prospects for rehabilitation given his intelligence and motivation to redeem himself are satisfactory.He is prepated to undergo clinical psychological treatment for his principal psychological disorder of substance/alcohol abuse to further consolidate the gains that he has made to date insofar as minimising drinking.

Solkan’s ongoing participation in disciplined activity involving gym training, his remorse, his community connections and his decade long relationship with the same woman with whom he has three children can be considered reasonable prognostic indicators in relation to reducing the likelihood of re-offending”.

48 From a consideration of all this material I am satisfied that the offender indeed does have good prospects of rehabilitation and I am also satisfied that provided he can overcome his alcohol abuse he is unlikely to re-offend.

The Plea

49 The offence was committed on 17 March 2007 and as earlier indicated a plea was entered in the Local Court on 23 July 2008. Following the calling of evidence in the District Court on 31 October 2008 there was then the need to call further evidence on 17 December 2008 in respect of that factual dispute. The offender is entitled to have that plea taken into account in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system and also to reflect contrition. I regard this as a plea at an early opportunity and accordingly my assessment of the utilitarian benefit of that plea in the circumstances of this case will be reflected by a discount of about twenty per cent.

50 I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act and having considered all possible alternatives I am satisfied that given the objective seriousness of the offence no penalty other than imprisonment is appropriate. Of course I have given careful consideration to all of the subjective material presented on behalf of the offender and in particular his rehabilitation. These matters however cannot outweigh the gravity of the offence. The proper balancing of the two competing considerations has not been an easy task.

51 In R v Forbes (2005) NSW CCA 337 Hall J analysed sentences which had been more recently imposed for manslaughter. His Honour’s consideration included offences of manslaughter by an unlawful and dangerous act. With a view to giving assistance in this area both Counsel for the Crown and Counsel for the offender have provided a number of even more recent decisions including:

R v Carroll (2008) NSW CCA 218

Hopley v R(2008) NSW CCA 105

R v Edward David Zammit (2008) NSW CCA 317

R v Smith (2008) NSW SC 201

R v CK and R v TCS (2007) NSW SC 1424

R v KT (2007) NSW SC 83, and

R v O’Hare (2003) NSW SC 652.

52 These cases have been of assistance in determining what I consider to be an appropriate penalty in the circumstances.

53 I find special circumstances being that at age twenty-nine this will be the offender’s first time serving a custodial sentence and the need for an extended period of supervision to assist with the offender’s rehabilitation back into the community.

54 Mr Donaczy, you are convicted of this offence and I sentence you to a non-parole period of three years six months to date from today 6 March 2009 and to expire on 5 September 2012. I sentence you to an additional term of two years and six months expiring on 5 March 2015. This is a total term of six years and you will be eligible for release to parole on 5 September 2012.

55 If I can just indicate to all of those persons here to leave the court in a calm fashion if you can.

56 FOX: Your Honour referred to R v KT, there’s also the CCA decision your Honour obviously took account of KT v R.

57 HIS HONOUR: Yes I did, the cases I specifically referred to were included in the material handed up by Counsel. I have them all here. I have read all of them. Thank you.

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