R v Donnelly - [2011] NZCA 433

IN THE COURT OF APPEAL OF NEW ZEALAND

CA235/2011
[2011] NZCA 433

BETWEEN THE QUEEN
Appellant

AND SEAN JAMES DONNELLY
Respondent

Hearing: 1 August 2011

Court: Ellen France, Heath and Lang JJ

Counsel: M D Downs for the Appellant
L O Smith for the Respondent

Judgment: 1 September 2011 at 10.30 am

JUDGMENT OF THE COURT

A Leave to appeal is granted.

BThe appeal is allowed to the extent that a minimum period of imprisonment of three years and six months is imposed. The sentence of seven years imprisonment imposed by the High Court otherwise stands.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

The respondent was charged with murder of a young child but was convicted after trial of manslaughter. He was sentenced by the trial judge, MacKenzie J, to a term of seven years imprisonment.[1]
[1] R v Donnelly HC Palmerston North CRI-2009-054-3582, 25 March 2011.
The Solicitor-General seeks leave to appeal against sentence on the basis that seven years imprisonment without a minimum period of imprisonment (MPI) is manifestly inadequate. The appeal raises issues about the adequacy of the nine-year starting point adopted by the Judge and the absence of an MPI.

Background

The incidents leading to the death of the victim, Cash McKinnon, took place on 19 August 2009. At that time, the respondent was living in Palmerston North with his two young daughters. Cash’s mother lived in the house as well. It appears that the respondent offered her a place to live when she had left a previous address. Her two older daughters lived with her full time. Cash usually lived with her grandparents but would come and stay with her mother from time to time.
Three year old Cash was staying at the respondent’s house on 19 August. Her mother left for work and the oldest child went to school. That left the respondent at home asleep with his two daughters, Cash, and her other sister. After waking, and over the course of the morning, the respondent consumed a considerable amount of cannabis.
As MacKenzie J observed, the only evidence from an adult of what took place is that of the respondent who gave evidence at trial.[2] The respondent said that, at some stage, he went to the toilet where he saw a roll of toilet paper in the toilet bowl. He became angry with Cash, who said she had put the roll in the toilet. The respondent put her in her room for time out. She started squealing and called out that she had wet herself. The respondent was angry with Cash, slapped her on the face, grabbed her by the arm and took her to the bathroom. The respondent slapped her again before leaving her to shower and dress herself.
[2] At [3].
After these events, Cash came into the room where the respondent had been sleeping. The respondent said she became defiant. He described picking her up by the ankles and swinging her around. She came out of his…

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 R v Donnelly

Details

AGLC: R v Donnelly [2011] NZCA 433
Case: [2011] NZCA 433
Decision Date: 1 September 2011

CaseChat Overview and Summary

The case of R v Donnelly is an appeal by the Crown against the sentence imposed on the respondent, Sean James Donnelly, who was convicted of manslaughter. Donnelly was sentenced to seven years imprisonment without a minimum period of imprisonment (MPI) by the trial judge, MacKenzie J. The Crown sought leave to appeal on the basis that the sentence was manifestly inadequate. The appeal raised issues about the adequacy of the nine-year starting point adopted by the Judge and the absence of an MPI. The Court of Appeal considered the appropriate starting point for the sentence and whether an MPI should have been imposed.

The Court of Appeal noted that the starting point adopted by the trial judge was within the appropriate band as per Taueki guidelines, although it was at the lower end. The Court considered the nature of the offending and the fact that the consequence of the serious violence in this case had resulted in death. The Court found that the sentence imposed was lenient, but it was not prepared to intervene on a Solicitor-General appeal. However, the Court found that an MPI was necessary to hold Donnelly accountable for the offending and for the purposes of denunciation and deterrence. The Court noted that the enactment of s 9A of the Sentencing Act 2002 emphasised the legislative concern about cases involving violence against, or neglect of, children under 14.

The Court of Appeal allowed the appeal to the extent that an MPI of three years and six months was imposed. The sentence of seven years imprisonment imposed by the High Court otherwise stands. The appeal was allowed, and the sentence was amended to include an MPI of three years and six months.

Orders