Donaczy v Regina [2010] NSWCCA 143

New South Wales Court of Criminal Appeal

CITATION: Donaczy v Regina [2010] NSWCCA 143

HEARING DATE(S): 19 April 2010

JUDGMENT DATE: 6 July 2010

JUDGMENT OF: Allsop P at 1; Grove J at 57; Hislop J at 58

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – discount for guilty plea – manslaughter by unlawful and dangerous act – offender struck victim with fatal blow to the head – open to sentencing judge to set discount - CRIMINAL LAW – appeal against sentence – considerations – application of R v Fernando in weighing personal subjective circumstances against objective seriousness of the offence – sentence not manifestly excessive

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

CATEGORY: Principal judgment

Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Hopley v R [2008] NSWCCA 105 KT v R [2008] NSWCCA 51 Melchers v R [2003] NSWCCA 119 Nanai v R [2010] NSWCCA 21 R v Bashford [2007] NSWSC 1380 R v Borkowski [2009] NSWCCA 102 R v Carroll [2008] NSWCCA 218; 188 A Crim R 253 R v Carroll [2010] NSWCCA 55 R v CK; R v TCS [2007] NSWSC 1424 CASES CITED : R v Edward David Zammit [2008] NSWCCA 317 R v El Hani [2004] NSWCCA 162 R v Fernando (1992) 76 A Crim R 58 R v Forbes [2005] NSWCCA 377 R v Heikkinen [2006] NSWCCA 50 R v KT [2007] NSWSC 83 R v Maclurcan [2003] NSWSC 799 R v O'Hare [2003] NSWSC 652 R v Risteski [1999] NSWSC 1248 R v Smith [2008] NSWSC 201 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Solkan Mohammad Donaczy (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/11315

COUNSEL: Mr G Turnbull SC (Appellant) Mr D Arnott SC (Respondent)

SOLICITORS: Heenan & Company (Appellant) Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11315

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 6 March 2009

IN THE COURT OF CRIMINAL APPEAL 2008/11315

ALLSOP P GROVE J HISLOP J

Tuesday 6 July 2010 SOLKAN MOHAMMAD DONACZY v REGINA Judgment 1 ALLSOP P: The applicant seeks leave to appeal from the sentence imposed upon him in the District Court on 6 March 2009 in relation to the offence of manslaughter by unlawful and dangerous act. 2 The applicant pleaded guilty in the Local Court on 23 July 2008 to the manslaughter of Scott Mahoney on 17 March 2007. He adhered to that plea in the District Court on 31 October 2008. The sentencing hearing proceeded before Conlon DCJ on 31 October 2008, 17 December 2008 and 6 March 2009. On 6 March 2009, the applicant was sentenced to a term of imprisonment of six years to commence on 6 March 2009 and to expire on 5 March 2015 with a non-parole period of three years six months commencing on 6 March 2009 and expiring on 5 September 2012.

Background and facts 3 In the early hours of 17 March 2009, outside the Port Kembla Hotel, the applicant punched Scott Mahoney (the deceased) on the side of the head causing him to fall and strike the back of his head on the roadway. The deceased lost consciousness and did not regain consciousness, being pronounced dead approximately one hour later.

4 With the exception of one matter, the facts were significantly agreed in an agreed statement of facts. The applicant gave evidence. Aspects of that evidence contradicted parts of the agreed facts that asserted that the applicant was observed to be behind and to the right of the deceased when, without warning, he threw a single punch striking the victim and causing him to fall to the ground. The inconsistency between the statement of facts and the evidence of the applicant reflected what was said to have always been a dispute as to whether the applicant "king hit" the deceased. This necessitated the calling of further evidence on 17 December 2008. 5 A folder of witness statements was tendered by consent (exhibit C). The sentencing judge noted that those statements contained versions of events that were inconsistent with one another. Some of the witnesses who made statements were acquaintances of the deceased and others of the applicant. Many of the witnesses had been consuming alcohol over a period of time. The sentencing judge noted that the descriptions of what happened and the various verbal altercations on the evening in question were imprecise. The sentencing judge concluded that it was impossible to be satisfied beyond reasonable doubt of observations contained in those statements without the opportunity (which he did not have) to make an assessment of the witnesses having heard their evidence, including cross-examination. The sentencing judge made the following remarks drawn from his reading of these statements before proceeding to make findings beyond reasonable doubt about other matters: "… However, from those statements, being exhibit C, I can at least be satisfied that Scott Mahoney was upset and agitated concerning the presence of a person at the hotel on that night and that that other person was within the group the offender was socialising with on that night. I can be satisfied that the offender, initially at least, was trying to calm down Scott Mahoney. As the interaction between the various persons continued, I am satisfied, on the balance of probabilities, that there was aggressive posturing at different times between the offender and Scott Mahoney, causing other persons to intervene. Beyond that, it is difficult to make any other findings of fact beyond reasonable doubt." 6 His Honour then indicated that he was satisfied of facts beyond reasonable doubt, which, for present purposes, can be summarised in the following narrative. 7 On the evening of Friday 16 March 2007, the applicant was in the company of a group of friends at his home in Port Kembla. They sat around talking and drinking beer until midnight when the group, including the applicant, Phillip Charles, Troy Troncone, Neville Luland and Katrina Muddle, walked to the Commercial Hotel in Wentworth Street, Port Kembla. On that evening, the deceased, Scott Mahoney, was drinking at the hotel. 8 The first group of events recounted by the sentencing judge was drawn from the evidence of a Ms Stephanie Woods who was at the Commercial Hotel from approximately 12.30 am on 17 March 2007. She was not drinking alcohol and the sentencing judge was satisfied of the accuracy of her evidence. The acceptance of Ms Woods' evidence is reflected in his Honour's findings in accordance with it. From that evidence, the following can be stated. At about 2 am, she observed the applicant and Scott Mahoney inside the Commercial Hotel, outside the male toilets, apparently arguing. Her boyfriend broke them up and they moved away from each other. A little later she saw them again in the same location, but each had a drink in his hand and they were talking. Shortly thereafter, she heard the applicant say that if he (Scott Mahoney) wanted to take it any further he could come outside. Ms Woods said that after these words were said to Scott Mahoney, her boyfriend once again intervened. She and her boyfriend stayed at the bar and spoke to Scott Mahoney for 10 to 15 minutes, after which they played pool and left at about 2.45 am. 9 The CCTV footage from the Commercial Hotel showed interaction between Scott Mahoney, the applicant and several of the applicant's companions. The footage showed the deceased at 2.31 am to be standing outside the hotel on the footpath. At 2.34 am, a male left the hotel and interacted with Scott Mahoney. Shortly thereafter, the applicant left the hotel with Neville Luland and was joined by Phillip Charles. The applicant spoke to Scott Mahoney. At this time, Scott Mahoney kicked off his thongs into the gutter. Approximately five minutes later, Neville Luland, Phillip Charles and the applicant re-entered the hotel leaving Scott Mahoney outside, who was observed to put his thongs back on and talk to a security guard. Shortly thereafter, Scott Mahoney re-entered the hotel. 10 At 2.51 am, the applicant again walked out of the hotel, followed almost immediately by Scott Mahoney, Neville Luland and Troy Troncone. Shortly thereafter, Steven O'Donnell left the hotel and stood in between Scott Mahoney, Neville Luland and the applicant in what appeared to be an attempt to separate them. Soon after that, the applicant and his companions ceased interacting with Scott Mahoney. They all re-entered the hotel. 11 The sentencing judge said that he was satisfied beyond reasonable doubt that whatever was the precise subject matter of the disagreement leading to the various verbal altercations, "no one seem[ed] to hear anyone uttering racial taunts or insults at the Commercial Hotel". The applicant is of indigenous background. 12 At 3 am, the Commercial Hotel ceased trading for the night. At 3.02 am the deceased left the hotel for the last time and set off, initially by himself, in the direction of the Port Kembla Hotel. 13 As he walked in the direction of the Port Kembla Hotel, Scott Mahoney was joined by Mr Epeli Aholelei. The applicant together with Troy Troncone, Douglas Moylan, Michael Naylor, Neville Luland and Phillip Charles left the hotel and also headed off in the direction of the Port Kembla Hotel. The applicant then began to walk in the direction of his home; however, one of his friends called him back to join them. The applicant rejoined the group on the footpath just outside the Port Kembla Hotel where Scott Mahoney stood. The sentencing judge said that, whilst the quality of the CCTV footage in exhibit D was rather poor, he was satisfied beyond reasonable doubt that it showed the offender in close proximity to Scott Mahoney and that he suddenly punched Scott Mahoney to the head causing him to fall to the ground. Scott Mahoney lay motionless on the pavement and, as the applicant moved towards him, he was grabbed by his companions and led away. 14 Mr Aholelei gave evidence. He did not see the blow, but the sentencing judge was satisfied from his evidence that the altercation and contact between the applicant and Scott Mahoney occurred within a matter of seconds. 15 The sentencing judge set out, over two and a half pages, evidence given by the applicant about what happened that night. It should be recognised that the applicant said that he had drunk at least 15 schooners, or more. The burden of his evidence, recounted by the sentencing judge, was that the victim had been "throwing racist remarks" in the Commercial Hotel. The evidence also dealt with the question whether Scott Mahoney was facing the applicant or whether the applicant "king hit" Mahoney. The sentencing judge was critical of the evidence of the applicant. He rejected his evidence as to the throwing of the punch. The sentencing judge said that he was satisfied that there was a further brief conversation and that the applicant struck Scott Mahoney a "devastating blow to the head". The findings of the sentencing judge also contain an express rejection of the assertion that there were racial taunts or remarks by Scott Mahoney at the Commercial Hotel. 16 The sentencing judge said that he was satisfied that the applicant struck the blow to the deceased at a time when the applicant was surrounded by his own friends and Scott Mahoney was not posing any genuine threat. He said that he was satisfied that the heavy blow to the head was carried out following a further brief verbal exchange. He rejected the evidence of the applicant concerning the immediate circumstances of the blow, though he accepted that the applicant did not intend such a catastrophic result. 17 After dealing with victim impact statements the sentencing judge turned to subjective circumstances. These were as follows. The applicant was, at the time of sentencing, 29 years of age. In 1998, he had been convicted of assault occasioning actual bodily harm and malicious damage for which he received a deferred sentence. Those events took place at the Commercial Hotel when the applicant was affected by alcohol. In 2005, the applicant was convicted of being carried in a stolen car. While on bail for the present offence, the applicant was charged with offensive behaviour in an incident on 10 November 2007, which was dealt with by way of a fine. 18 The sentencing judge said that this was not an extensive criminal history, but the applicant was not entitled to the same leniency as a person who comes before the court with no criminal record. 19 The sentencing judge set out background material from the pre-sentence report of the probation and parole officer and a report of a psychologist. The applicant's father was half Aboriginal and half Indonesian. His mother was half Aboriginal and half Hungarian. His parents divorced approximately one year after his birth. His mother formed a relationship with another man, with whom she had two sons. That relationship also ended. When the applicant was eight his mother met his current stepfather and the family relocated from Victoria to the Wollongong area. There was one child from this relationship of his mother and stepfather. The stepfather had three children from a former relationship who lived with them in the family home. The applicant told the probation officer that his stepfather was physically and verbally abusive towards his mother and the children and that members of his stepfather's family were involved in alcohol and drug abuse, violence and criminal offending. The applicant said that he was bullied by two of his stepfather's children. The applicant informed the psychologist that he has hated his stepfather all of his life and as a result of his abusive behaviour, particularly towards his mother, stated that he will never speak to him again. The applicant left school at the age of 17, prior to the completion of his School Certificate. The applicant later attended college and completed Year 10. Since leaving school, he has generally maintained stable employment, primarily as a labourer. The applicant acknowledged that he had engaged in regular cannabis use between the ages of 13 and 17 and said that the drug was readily available within the family environment. He also informed the psychologist that his stepfather was dealing in drugs, including amphetamines, cannabis and speed. 20 The applicant said that his eldest stepsister, who had been his main emotional support, had died from a heroin overdose when she was 23. He claimed that his drug abuse assisted him to cope with the emotional distress arising from her death. The applicant stated that he had regularly abused alcohol since he was 16 or 17 years of age and typically consumed alcohol to the point of intoxication every weekend until the offence. 21 The applicant has been in a relationship for the past 10 years and has three children. He met his partner while attending the college at which he obtained his School Certificate. He has two daughters aged seven and two and a nine month old son. 22 He said that apart from the emotional distress that he had experienced following the death of his half sister he was traumatised by the death of a half brother who was killed seven years ago in a knife attack. He has also lost two cousins to heroin overdose and another cousin who died in a motor vehicle accident after having robbed a bottle shop for money to buy drugs. The probation officer indicated that the applicant repeatedly expressed remorse for his actions and a desire to atone for them and that he had demonstrated insight into the impact of the offence upon Mr Mahoney's family and friends. The probation officer assessed the applicant as suitable for a community service order and both eligible and suitable for periodic detention. 23 In discussion with the psychologist, and in giving evidence to the Court, the applicant expressed remorse. The sentencing judge assessed this expression of remorse as entirely genuine and that it was a matter that would be taken into account. 24 A statement from the applicant's partner described him as a loving and supporting father. She said that since the accident he had continually apologised to her and the children for the stress and turmoil that the incident had caused her and the children. She said that she was at a loss as to how the family would cope with the applicant in gaol. The sentencing judge at this point recognised that hardship to family and dependents is an unavoidable consequence of a custodial sentence and not a mitigating factor unless hardship was truly, wholly, or highly exceptional which he was of the view was not the case here. 25 The sentencing judge then dealt with various reference and testimonial material. The applicant has been a member of the Wadi Wadi Aboriginal Dance Troupe for a number of years and in this capacity had travelled overseas as an indigenous ambassador. At the beginning of 2008 the applicant applied to be enrolled in the Community Services Certificate IV at TAFE. Mr Michael Caine, a senior counsellor, interviewed the applicant about his history in order to make a risk assessment for TAFE. As a result of that initial contact, the applicant had voluntarily attended a counselling service on the TAFE campus. Mr Caine commented that the applicant demonstrated considerable remorse over the manslaughter and had tried very hard to accept what he had done. 26 Ms Lyn Dooley, a vocational education teacher at TAFE, spoke of the applicant's positive progress in his studies throughout 2008. She said that she had no doubts that he had turned his life around and will continue to make an important contribution to his own community and the broader community he lives within. 27 Ms Diane Miller, an acting head teacher at TAFE, stated that the applicant had successfully undertaken leadership roles for class assessments and projects, performed very well in his field placement and had demonstrated competence in all his units studied in the year. 28 Mr Daniel Deighton, a project coordinator of the Port Kembla Men's Group, gave evidence in a statement that the applicant had joined the group shortly after the commission of the offence. He stated that he is now a most valued member of the group. Mr Deighton gave evidence that the applicant cooked for people who were in need of meals; he did gardening for people, clerical duties when required and assisted in dispute resolution when people were having difficulties. 29 The sentencing judge then turned the applicant's Aboriginality. In his reasons the sentencing judge said the following: "In submissions placed before the court today on behalf of the offender, reliance was placed on the principles in R v Fernando (1992) 76 ACR 58. The principles in Fernando apply irrespective of the ethnic background of an offender and irrespective of whether in a case of indigenous persons their upbringing is urban, rural or communal. The dysfunctional home background with abuse of alcohol and drugs and deaths of siblings explained to a significant degree some of the offender's problematic reactions and behaviour. However I do not place significant regard to these matters in granting leniency. As indicated in the defence submissions: 'In contrast with all other members of his family Solkan Donaczy has been in full time employment virtually since leaving school. His last position landscaping with Shellharbour Council was terminated on his being charged with this offence. Solkan Donaczy has always impressed his employers as being hard working and conscientious.' I should now refer to the last page of the report of the psychologist where he expressed the following opinion: 'Solkan's prospects for rehabilitation given his intelligence and motivation to redeem himself are satisfactory. He is prepared to undergo clinical psychological treatment for his principal psychological disorder of substance/alcohol abuse to further consolidate the gains that he has made to date insofar as minimising his drinking. Solkan's ongoing participation in disciplined activity involving gym training, his remorse his community connections and his decade long relationship with the same woman with whom he has three children can be considered reasonable prognostic indicators in relation to reducing the likelihood of re-offending.' From a consideration of all this material I am satisfied that the offender indeed does have good prospects of rehabilitation and I am also satisfied that provided he can overcome his alcohol abuse he is unlikely to re-offend."

30 The sentencing judge then turned to the plea of guilty and stated the following: "The offence was committed on 17 March 2007 and as earlier indicated a plea was entered in the Local Court on 23 July 2008. Following the calling of evidence in the District Court on 31 October 2008 there was then the need to call further evidence on 17 December 2008 in respect of that factual dispute. The offender is entitled to have that plea taken into account in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system and also to reflect contrition. I regard this as a plea at an early opportunity and accordingly my assessment of the utilitarian benefit of that plea in the circumstances of this case will be affected by a discount of about twenty per cent."

31 The sentencing judge then turned to the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A and 5. He said that having considered all possible alternatives he was satisfied that given the objective seriousness of the offence no penalty other than imprisonment was appropriate. He said that he had given careful consideration to all of the subjective material presented on behalf of the offender and in particular his rehabilitation. He said that these matters, however, could not outweigh the gravity of the offence and that the proper balancing of the two competing considerations (subjective circumstances and objective seriousness of the offence) had not been an easy task. 32 The sentencing judge then referred to R v Forbes [2005] NSWCCA 377 and the cases to which the parties had referred: R v Carroll [2008] NSWCCA 218; 188 A Crim R 253; Hopley v R [2008] NSWCCA 105; R v Edward David Zammit [2008] NSWCCA 317; R v Smith [2008] NSWSC 201; R v CK; R v TCS [2007] NSWSC 1424; R v KT [2007] NSWSC 83; and R v O'Hare [2003] NSWSC 652. 33 The sentencing judge found special circumstances being that at age 29 this would be the applicant's first time serving a custodial sentence and the need for an extended period of supervision to assist with his rehabilitation was relevant.

Arguments on the application for leave to appeal 34 There were three grounds of appeal. The applicant argued that the sentencing judge erred in:

1. assessing the discount for the guilty plea of 20 per cent (instead of 25 per cent);

2. not having regard to the principles in R v Fernando (1992) 76 A Crim R 58;

3. imposing a sentence that was manifestly excessive.

The disposition of the appeal

Ground 1: the 20 per cent discount 35 It was submitted that the sentencing judge wrongly reduced the discount for the plea because of the disagreement that the applicant had with the agreed facts (which disagreement was resolved against the applicant). Reference was made to R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [119]-[123] and R v Borkowski [2009] NSWCCA 102. 36 I reject this submission. 37 The applicant is not entitled to any particular discount: R v Heikkinen [2006] NSWCCA 50 and Nanai v R [2010] NSWCCA 21. The plea came 16 months after the applicant was arrested and charged, after time and resources had been spent in taking statements and preparing the prosecution. A 20 per cent discount was plainly open. 38 I do not read his Honour's remarks on sentence as indicating that he took the factual dispute into account. Even if he had, this was not illegitimate: R v El Hani [2004] NSWCCA 162 at [80]. 39 It was entirely open to the judge to set a 20 per cent discount for the plea of guilty. 40 Reference was made to the development of a common expectation in the profession for 25 per cent that is reinforced by such things as the terms of the Criminal Case Conferencing Trial Act 2008 (NSW), s 17. That Act has only limited application: s 4. In any event, a discount of 25 per cent can be accepted as usual for a plea at the earliest opportunity. Here, the plea took 16 months to come. 41 No error in the trial judge's approach has been demonstrated.

Ground 2: Fernando 42 I have earlier set out the impugned part of the sentencing judge's reasons. It was submitted that the personal background, in particular the abuse, exposure to drugs and alcohol and the Aboriginality of the applicant called in aid Fernando in a manner necessarily of greater weight than given by the sentencing judge. 43 It is clear that the sentencing judge had regard to the principles in Fernando. What he refused to do was to place "significant" regard to these matters in granting leniency. 44 I will not set out in full the principles enunciated by Wood J (as his Honour then was) in Fernando at [62]-[63]. The circumstances of the applicant here do not place the applicant in any special category. He had a history of family violence and drug and alcohol abuse. He had managed, despite this, to undertake a degree of education. 45 The sentencing judge weighed all the personal subjective circumstances of the applicant carefully. He had regard to Fernando. His Honour did not say that the applicant was disentitled to considerations of the matters in Fernando by reason of the steps that he had taken to advance his life. Rather, having considered all the subjective circumstances, his Honour considered that he could not place "significant regard to these matters in granting leniency" in the balancing exercise he was undertaking. 46 I see no error of principle in the approach of the sentencing judge.

Ground 3: whether manifestly excessive 47 Reference was made in submissions to the protean character of manslaughter as an offence: Forbes. That can be accepted. 48 Sentences can range widely for the offence. The facts and circumstances need to be examined carefully. 49 Comparison was made in submissions with a number of cases to support the proposition that the sentence was manifestly excessive: Carroll [2008] NSWCCA 218 (per Simpson J, who was in dissent in the first Court of Criminal Appeal proceedings); R v Bashford [2007] NSWSC 1380; R v Maclurcan [2003] NSWSC 799; R v Risteski [1999] NSWSC 1248; Melchers v R [2003] NSWCCA 119; O'Hare; Smith; and KT v R [2008] NSWCCA 51. It is not helpful, with respect, to over analyse these cases. Virtually all of them were reviewed by McClellan CJ at CL in KT. As the Crown submitted the most helpful of the cases to the applicant were Maclurcan, Melchers and Smith. 50 Though the first decision of this Court in Carroll ([2008] NSWCCA 218) was overturned by the High Court (Carroll v The Queen [2009] HCA 13; 83 ALJR 579), that did not occur because of the view of the High Court that the sentence imposed by the majority was excessive or that the views of Simpson J on the level of sentence were to be preferred. Rather, error was found in the approach to fact finding by the first Court of Criminal Appeal. On remitter to the second Court of Criminal Appeal, the resentencing of Mr Carroll (R v Carroll [2010] NSWCCA 55) was determined by reference to particular circumstances peculiar to Mr Carroll's position. 51 In Maclurcan there was one punch to the head; however, the 49 year old offender suffered from a psychiatric illness, bipolar disorder and was psychotic when first seen by psychiatrists after the offence. Before the onset of his mental illness he had been an impressive citizen. Nothing in his history suggested future danger as a factor. The head sentence was three years with a non-parole period of 17 months. Melchers was a one punch manslaughter with a head sentence of three years and non-parole period of two years three months. There is little in the reasons to provide information about the subjective case of the appellant. In Smith, Hulme J imposed a head sentence of three years nine months with a non-parole period of two and a half years following a plea of guilty. The victim received one punch to the head. The 22 year old offender who had just left a Christmas party had a minor criminal record of no significance save for a drunk driving conviction. 52 The present offence was a serious one. The character of the single blow to the head was described by the judge as "heavy" and "sharp and devastating", delivered unexpectedly, at a time when the victim was defenceless with his hands by his side and when the victim posed no threat to the applicant who had the support of a number of his friends. The Crown submissions described the blow as cowardly and brutal. That can be accepted as an accurate description. 53 As was said in Hopley, violence perpetrated in a public place after consumption of alcohol is a serious crime for which adequate punishment is required for the element of general deterrence. See also R v Carroll [2010] NSWCCA 55 at [60]. 54 It is unnecessary to enter any exegesis on the seriousness of alcohol fuelled violence in public places to understand that the sentence imposed by the learned sentencing judge was well within the range for an offence of this character. 55 The sentence was not manifestly excessive.

Orders 56 I would grant leave to appeal and dismiss the appeal. 57 GROVE J: I agree with Allsop P. 58 HISLOP J: I agree with Allsop P. **********

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