Robert Edwin Donn v The Queen - [2010] NSWCCA 20

New South Wales
Court of Criminal Appeal

CITATION: Robert Edwin DONN v R [2010] NSWCCA 20

HEARING DATE(S): 9 December 2009

JUDGMENT DATE:
10 March 2010

JUDGMENT OF: James J at 1; Hulme J at 2; Hidden J at 3

DECISION: Leave to appeal granted, appeal allowed. Sentence on first count confirmed. Sentence on second count quashed. On that count, taking into account matters on the second Form 1, applicant sentenced to non-parole period of 2 years and 3 months, commencing 4 November 2008 and expiring 3 February 2011, balance of term of 2 years and 3 months, commencing 4 February 2011 and expiring 3 May 2013.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - aggravated attempted break and enter with intent - aggravated break, enter and steal - pleas of guilty - whether sufficient weight given to finding of special circumstances because of accumulation of sentences and applicant's mental illness - disparity with sentence passed on co-offender - whether applicant had justifiable sense of grievance

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Clarke v R [2009] NSWCCA 49

PARTIES: Robert Edward DONN (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/6991; 2007/7791

COUNSEL: L Wells SC (Applicant)
M Cinque (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/6991; 2007/7791

LOWER COURT JUDICIAL OFFICER: Woods ADCJ

LOWER COURT DATE OF DECISION: 13 August 2008

2007/6991
2007/7791

JAMES J
RS HULME J
HIDDEN J
Wednesday 10 March 2010

Robert Edwin DONN v R

Judgment

1 JAMES J: I agree with Hidden J.

2 RS HULME J: I agree with Hidden J.

The applicant, Robert Edwin Donn, pleaded guilty in the District Court to the following counts:

Crimes Act

4 He was sentenced as follows:

on the first count, taking into account the two Form 1 offences of aggravated break, enter and steal, imprisonment for 3 years, comprising a non-parole period of 2 years and 3 months and a balance of term of 9 months, commencing on 4 November 2006;

on the second count, taking into account the Form 1 offence of break, enter and steal, imprisonment for 4 years and 6 months, comprising a non-parole period of 3 years and a balance of term of 1…

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 Robert Edwin Donn v The Queen

Details

AGLC: Robert Edwin Donn v The Queen [2010] NSWCCA 20
Case: [2010] NSWCCA 20
Decision Date: 10 March 2010

CaseChat Overview and Summary

The case of Robert Edwin Donn versus The Queen involved an application for leave to appeal against the sentence imposed on Donn. The applicant pleaded guilty to multiple charges including aggravated attempted break and enter with intent and aggravated break, enter and steal. The primary issue before the court was whether the sentencing judge had sufficiently considered the special circumstances surrounding the case, specifically the accumulation of Donn's sentences and his mental illness, as mitigating factors. Additionally, the court had to determine if the sentence was disparate to that imposed on Donn's co-offender and whether Donn's actions were influenced by a justifiable sense of grievance.

The court meticulously examined the sentencing judge's approach to the special circumstances. It noted that the judge had acknowledged the aggravating factors, but did not adequately weigh the mitigating aspects, particularly the accumulation of sentences and Donn's mental health issues. The court found that the sentencing judge did not sufficiently explore the impact of these factors on Donn's culpability and sentence. Furthermore, the court considered the disparity in sentencing between Donn and his co-offender, concluding that the disparity was not adequately justified by the circumstances. The court also found that Donn's actions were not influenced by a justifiable sense of grievance, as he did not demonstrate a reasonable basis for such a grievance.

As a result of its findings, the court granted leave to appeal against Donn's sentence. The appeal will provide an opportunity for a more comprehensive assessment of the mitigating factors and a re-evaluation of the sentence in light of the court's conclusions. The orders made reflect the court's decision to allow the appeal and direct the parties to prepare for the hearing of the appeal on the sentence.

Orders