AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 21 December 2021

Donovan v R

[2021] NSWCCA 323

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE AFFRAY [2013] HCA 37

Citation: Donovan v R [2021] NSWCCA 323
Court: NSW Court of Criminal Appeal
Date: 21 December 2021
Judge(s): Simpson AJA; Rothman J; Ierace J (judgment delivered by Ierace J)

Background

The applicant pleaded guilty in the District Court to two offences arising from a group assault in a McDonald's car park at Penrith in the early hours of 3 February 2019: recklessly inflicting grievous bodily harm in company (contrary to s 35(1) of the Crimes Act 1900 (NSW)), and affray (contrary to s 93C of the same Act). The applicant was one of five offenders involved in the incident, which lasted only a few minutes but caused severe harm.

During the altercation, the applicant punched victim 1 to the head, causing him to fall and strike the back of his head on concrete. Victim 1 lost consciousness and had no pulse. Off-duty nurses present administered CPR until emergency services arrived. Victim 1 sustained a traumatic brain injury, skull fractures, and other injuries, and remained hospitalised for nine days. The applicant moved away from the group immediately after his punch and took no further part in the assault.

The District Court sentenced the applicant on 10 July 2020 to an aggregate term of 2 years and 9 months imprisonment, with a non-parole period of 1 year and 10 months. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred in assessing the applicant's moral culpability by declining to treat his deprived background as having materially contributed to his offending, on the basis that he had demonstrated prior good character.
  • Whether the correct legal principles from Bugmy v The Queen (2013) 249 CLR 571 were applied in evaluating the relationship between a deprived background, moral culpability, and sentencing.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in her treatment of the applicant's moral culpability. The sentencing judge had declined to give weight to the applicant's deprived background as a mitigating factor on the basis that, despite that background, the applicant had demonstrated prior good character. The Court found this reasoning was flawed: prior good character does not neutralise or displace the relevance of a deprived background to moral culpability. The two considerations operate independently, and the existence of prior good character does not mean a deprived background ceased to be relevant to the assessment of moral culpability.

The Court applied the principles from Bugmy v The Queen, which established that the effects of deprivation on a person's capacity for self-regulation and decision-making remain relevant to moral culpability regardless of other mitigating factors. The sentencing judge's approach conflated two distinct mitigating considerations rather than treating them separately.

Having identified legal error, the Court proceeded to resentence the applicant. It accepted that the applicant's deprived background had materially contributed to his offending and reduced his moral culpability accordingly. The Court also noted that post-sentence material showed positive progress in custody, further supporting a finding of good rehabilitation prospects. Balancing all relevant sentencing factors, including the serious nature of the first offence and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court imposed a reduced sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 10 July 2020 quashed and replaced with an aggregate term of imprisonment of 2 years and 5 months, commencing 22 May 2020 and expiring 21 October 2022, with a non-parole period of 1 year and 7 months, making the applicant eligible for parole on 21 December 2021.
  • The applicant directed to be released forthwith pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), as the aggregate sentence was less than 3 years.

Key Takeaways

  • Under the principles in Bugmy v The Queen, a deprived background remains a relevant consideration in assessing moral culpability at sentencing even where the offender has otherwise demonstrated prior good character. The two factors do not cancel each other out.
  • A sentencing court errs in law when it treats an offender's prior good character as a reason to disregard, or significantly discount, the mitigating weight of a deprived background on moral culpability.
  • Where legal error is established on appeal, the Court of Criminal Appeal will resentence the offender, taking into account all relevant circumstances including any post-sentence material that bears on rehabilitation.
  • Prior good character and a deprived background are distinct mitigating considerations that must each receive independent treatment in the sentencing exercise, rather than being treated as mutually exclusive.
  • The Court of Criminal Appeal confirmed that an aggregate sentence of less than three years triggers the entitlement to immediate release on parole under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35, 93C
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37