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 2010JUDGMENT 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
2007/7791Wednesday 10 March 2010JAMES J
RS HULME J
HIDDEN J
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:
- (1) aggravated attempted break and enter with intent to steal, an offence under s 113(2) of the Crimes Act 1900, carrying a maximum sentence of 14 years imprisonment;
- (2) aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act , carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years.
He asked the sentencing judge to take into account on a Form 1 two further charges of aggravated break, enter and steal when sentencing him for the first count. When sentencing him for the second count, he asked his Honour to take into account a charge of break, enter and steal on a second Form 1.
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…
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- AGLC
- Robert Edwin Donn v The Queen [2010] NSWCCA 20
- Case
- [2010] NSWCCA 20
- Decision Date
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.
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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