Citation: Regina v Solkan Mohammad Donaczy [2009] NSWDC 63
Court: District Court of New South Wales
Date: 6 March 2009
Judge(s): Conlon SC DCJ
Background
The offender was charged with the manslaughter of Scott Mahoney at Port Kembla on 17 March 2007, on the basis of death by an unlawful and dangerous act. The two men had been drinking at the Commercial Hotel on the night in question, where a series of verbal confrontations occurred inside and outside the venue. CCTV footage captured multiple interactions between the offender, the deceased, and their respective companions over the course of the evening.
After the hotel closed at 3am, both men ended up on the footpath near the Port Kembla Hotel. The offender delivered a punch that caused the deceased to fall to the ground, striking his head. The deceased died as a result of the injuries sustained.
A contested factual issue arose during sentencing about whether the punch was a "king hit" (a blow struck without warning from behind or beside the victim). The offender disputed this characterisation, and the court received additional evidence on the point before proceeding to sentence.
Legal Issues
- Whether the available facts could be established to the requisite standard, given inconsistencies across witness statements from persons who had been drinking
- Whether the fatal punch constituted a "king hit" (an unprovoked blow without warning), or whether it arose in the context of a face-to-face confrontation
- Whether racial taunts or provocation played a role in the events leading to the offence
- What sentence was appropriate, taking into account the objective seriousness of the offence, the offender's subjective circumstances, his guilty plea, and the relevant principles governing manslaughter sentencing
- Whether special circumstances existed justifying a departure from the standard non-parole ratio
Decision
Conlon SC DCJ made findings of fact beyond reasonable doubt based on the CCTV footage, the accepted witness evidence of Ms Stephanie Woods, and the largely agreed statement of facts. The court found that both men had been involved in escalating verbal confrontations throughout the evening, and that the offender had at one point invited the deceased to "take it outside." The court was not satisfied beyond reasonable doubt that the punch was a "king hit" delivered without warning, nor that any racial taunts were made.
The court applied the principles from R v Blacklidge governing the wide range of objective seriousness in manslaughter cases, and reviewed a body of recent sentencing decisions for manslaughter by unlawful and dangerous act. The court also applied the R v Fernando principles, which address sentencing considerations relevant to Aboriginal offenders, and had regard to R v Privitera on provocation as a mitigating factor.
On subjective matters, the court accepted evidence of the offender's remorse, his rehabilitation efforts, his lack of prior criminal history, and testimonials from family and community. A discount of approximately twenty per cent was applied for the utilitarian value of the guilty plea, though the court noted the plea came after the facts had been substantially established. The court concluded that no alternative to imprisonment was appropriate given the objective gravity of the offence.
Special circumstances were found, on the basis that this would be the offender's first custodial sentence at age twenty-nine and that an extended period of supervised parole would assist his rehabilitation. This justified setting a longer additional term than the standard ratio would otherwise produce.
Orders Made
- Non-parole period of 3 years and 6 months, commencing 6 March 2009 and expiring 5 September 2012
- Additional term of 2 years and 6 months, expiring 5 March 2015
- Total sentence of 6 years imprisonment
- Eligible for release to parole on 5 September 2012
Key Takeaways
- Manslaughter by unlawful and dangerous act carries a maximum of 25 years imprisonment in NSW, but the District Court confirmed that only offences in the most grave category could attract a sentence approaching that maximum.
- Factual findings at sentencing require satisfaction beyond reasonable doubt; where witness statements are internally inconsistent and witnesses have not been tested in cross-examination, courts cannot rely on contested details within those statements.
- A guilty plea entered after the facts were substantially established attracted a discount of approximately twenty per cent, reflecting a reduced utilitarian value compared with an early plea.
- Special circumstances under the sentencing legislation can be established where a first-time custodial offender requires an extended supervisory period on parole to support rehabilitation, permitting a non-parole period shorter than the standard ratio.
- The R v Fernando principles were engaged given the offender's background, and the sentencing court had regard to a substantial body of comparable manslaughter decisions in calibrating the appropriate penalty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Privitera (1997) 94 A Crim R 75
- R v Bollen (1998) 99 A Crim R 510
- R v Fernando (1992) 76 A Crim R 58
- R v Forbes [2005] NSWCCA 337
- R v Carroll [2008] NSWCCA 218
- Hopley v R [2008] NSWCCA 105
- R v Edward David Zammit [2008] NSWCCA 317
- R v Smith [2008] NSWSC 201
- R v CK and R v TCS [2007] NSWSC 1424
- R v KT [2007] NSWSC 83
- KT v R [2008] NSWCCA 51
- R v O'Hare [2003] NSWSC 652