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Court of Criminal Appeal 6 July 2010

Donaczy v Regina

[2010] NSWCCA 143

Homicide
CRIMINAL LAW APPEAL AGAINST SENTENCE DISCOUNT FOR GUILTY PLEA CRIMINAL LAW APPEAL AGAINST SENTENCE CONSIDERATIONS

Citation: Donaczy v Regina [2010] NSWCCA 143
Court: New South Wales Court of Criminal Appeal
Date: 6 July 2010
Judge(s): Allsop P; Grove J; Hislop J

Background

The appellant, a man of indigenous background, pleaded guilty in the Local Court to manslaughter by unlawful and dangerous act, following the death of the victim outside a hotel in Port Kembla in the early hours of 17 March 2007. The appellant struck the victim with a single punch to the side of the head, causing him to fall and strike the back of his head on the roadway. The victim lost consciousness immediately and was pronounced dead approximately one hour later.

The sentencing hearing in the District Court proceeded over multiple dates before Conlon DCJ. There was factual dispute about whether the blow was a "king hit" delivered without warning, which required the calling of additional evidence. The sentencing judge ultimately found, beyond reasonable doubt, that the blow was heavy and delivered unexpectedly when the victim's hands were at his sides and he posed no threat to the appellant.

The District Court imposed a sentence of six years imprisonment, with a non-parole period of three years and six months. The appellant sought leave to appeal, contending the sentence was manifestly excessive and that the discount for his guilty plea was inadequate.

  • Whether the sentencing judge erred in the discount applied for the guilty plea entered in the Local Court
  • Whether the sentencing judge correctly applied the principles in R v Fernando when weighing the appellant's personal subjective circumstances (including his indigenous background) against the objective seriousness of the offence
  • Whether the sentence of six years with a non-parole period of three years and six months was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds.

On the guilty plea discount, the court found it was open to the sentencing judge to set the discount at the level he did. The plea had been entered in the Local Court and maintained in the District Court, but the factual dispute about the nature of the blow complicated the sentencing proceedings and was a relevant consideration.

On the R v Fernando principles, the court examined whether the sentencing judge had properly weighed the appellant's subjective circumstances, including his indigenous background, against the objective gravity of the offence. The court found no error in this exercise. The blow was characterised as cowardly and brutal, delivered to a defenceless victim who posed no threat, in a public place after alcohol consumption, at a time when the appellant had the support of companions.

The court reviewed comparable manslaughter cases involving single punches to the head and concluded that the sentence imposed by Conlon DCJ was well within the available range. The court endorsed the observation from Hopley v R that violence in public places after alcohol consumption is a serious matter requiring adequate punishment for the purposes of general deterrence. The sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge retains a discretion to calibrate the guilty plea discount where factual disputes complicate or prolong sentencing proceedings.
  • The principles in R v Fernando require a sentencing court to weigh an offender's personal subjective circumstances, including indigenous background, against the objective seriousness of the offence; they do not mandate a reduction where the objective gravity is high.
  • A single punch resulting in death can attract a sentence well within the upper range for manslaughter, particularly where the blow is delivered without warning to a defenceless victim in a public place after alcohol consumption.
  • General deterrence carries significant weight in sentencing for alcohol-fuelled violence in public places, consistent with the approach confirmed in Hopley v R and R v Carroll [2010] NSWCCA 55.
  • No error was established merely because sentences in comparable cases were lower; the court examined the specific facts and found the six-year head sentence with a three-year-six-month non-parole period to be within range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Criminal Case Conferencing Trial Act 2008 (NSW), ss 4, 17

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Hopley v R [2008] NSWCCA 105
- R v Carroll [2008] NSWCCA 218; 188 A Crim R 253
- R v Carroll [2010] NSWCCA 55
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- R v Borkowski [2009] NSWCCA 102
- Nanai v R [2010] NSWCCA 21
- R v Maclurcan [2003] NSWSC 799
- Melchers v R [2003] NSWCCA 119
- R v Smith [2008] NSWSC 201
- R v El Hani [2004] NSWCCA 162
- R v Forbes [2005] NSWCCA 377
- KT v R [2008] NSWCCA 51
- R v Heikkinen [2006] NSWCCA 50
- R v Edward David Zammit [2008] NSWCCA 317
- R v Bashford [2007] NSWSC 1380