Donovan v R [2021] NSWCCA 323

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donovan v R [2021] NSWCCA 323 Hearing dates: 8 November 2021 Decision date: 21 December 2021 Before: Simpson AJA at [1]; Rothman J at [2]; Ierace J at [3] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) Quash the sentence imposed in the District Court on 10 July 2020 and in lieu thereof impose a term of imprisonment of 2 years and 5 months, commencing on 22 May 2020 and expiring on 21 October 2022, with a non-parole period of 1 year, and 7 months, so that the applicant will be eligible for release to parole on 21 December 2021; (4) Direct that, pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the applicant be released forthwith. Catchwords: CRIME – Appeals – Appeal against sentence – Recklessly inflict grievous bodily harm in company – Affray – Where sentencing judge did not consider applicant's deprived background to have materially contributed to his offending due to his prior good character – Whether the sentencing judge erred in her consideration of applicant's moral culpability – Application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Legislation Cited: 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 Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Category: Principal judgment Parties: Byron James Donovan (Applicant) Regina (Respondent) Representation: Counsel: E McLaughlin (Applicant) B Baker; E Lambert (Respondent)