defendant. Effective sentence of two and a half years Youth Justice detention (aggravated burglary 2 years; assault counts 6 months each; theft 6 months; cumulative structure yielding 2.5 years), declaration...
Key principles
Sentencing must take into account the offender's youth, background of severe disadvantage and intellectual disability as mitigating factors that moderate the weight of deterrence...
A guilty plea given early, which facilitates the interests of justice and is accompanied by genuine remorse and cooperation, attracts a sentencing benefit (see [2], [3], [18]).
Where appropriate and available, Youth Justice detention under s.32 of the Sentencing Act is a suitable sentencing disposition for young offenders with significant rehabilitative...
A sentencing court may declare pre-sentence detention under s.35 of the Sentencing Act to be credited against the effective sentence (see [26]).
Issues before the court
What weight should be given to the offender's youth, deprived background and intellectual disability in sentencing for aggravated burglary and...
Does an early guilty plea and partial cooperation justify a reduction in sentence?
Plain English Summary
Daimon Donnell, aged 19 at the time of violent aggravated burglary, pleaded guilty and was sentenced to an effective two and a half years Youth Justice detention after the court accepted substantial mitigation: an extremely deprived childhood, intellectual disability (IQ 63), drug dependency, early guilty plea and genuine remorse. The court considered Youth Justice detention appropriate and declared 313 days of pre-sentence custody served; it also made a compensation order for $3,500 and forfeiture of the knife. The decision applied principles recognising that youth, severe disadvantage and disability moderate deterrence and support rehabilitation-focused dispositions (see [16], [20]-[26]).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,621 words · generated 27/06/2026
What happened
On 4 September 2016, Daimon Donnell (then aged 19) attended the home of David Eastwell in Mildura with two other males. The group forced entry that evening. Donnell, whose face was masked, struck David Eastwell in the legs with a baseball bat; another occupant, Dianne Bush, was struck to the arm by another male with the handle of a knife and pushed back into her bedroom. Graeme Eastwell was demanded to produce money and $3,500 in cash was taken. Police arrested Donnell on 6 September; $680 was found on him at arrest. Donnell was interviewed in early September 2016 and made peripheral admissions but predominantly denied the offending. He was committed by hand-up brief on 24 January 2017 and pleaded guilty before His Honour Judge Bourke on 8 March 2017 (see [7]-[10], [2]).
Is Youth Justice detention an available and suitable disposition for this offender?
How should pre-sentence custody be credited?
Cited legislation
No linked legislation citations have been extracted yet.
The Crown tendered a written opening, and defence materials included a psychological report, Magistrates' Court Integrated Services Bail Program report, a family letter, a certificate for an Aboriginal language course completed in remand, and plea submissions. The court ordered and received s.80 reports from Disability Client Services and a pre-sentence assessment (see [4]-[5]).
The offending was described by the judge as serious, violent and markedly antisocial (see [16]). Donnell had an extensive prior record dominated by dishonesty offences and ongoing substance misuse. He was found to have been severely disadvantaged in childhood, subject to child protection interventions from age ten, experienced physical and sexual abuse, unstable placements, marked educational failure, and was assessed as intellectually disabled with a measured IQ of 63 (see [12]-[14]).
After assessing the material, the court found Donnell suitable for Youth Justice detention under s.32 of the Sentencing Act and sentenced him to an effective two and a half years Youth Justice detention. The judge declared 313 days of pre-sentence custody under s.35 of the Sentencing Act, made a compensation order for $3,500 to Graeme Eastwell, and a disposal order in respect of the knife (see [23]-[26], [44]).
Why the court decided this way
The sentencing decision balanced the serious nature of the offending against substantial mitigating factors.
Seriousness and deterrence: The judge explicitly characterised the offending as "serious, violent, markedly antisocial and, without doubt, frightening" (see [16]). The offences carried significant maximum penalties (aggravated burglary up to 25 years, assault up to five years, theft up to ten years), and the offender had an extensive prior record, which ordinarily engages strong considerations of general and specific deterrence, denunciation and community protection (see [16]).
Mitigation: Against that, the court accepted a suite of mitigating matters. These included an early guilty plea and a degree of cooperation that facilitated the administration of justice (see [2], [3], [18]). Most materially, the court placed weight on Donnell's youth and his particularly deprived early life, finding that this background bore directly on culpability and prospects for rehabilitation (see [12], [20]). The judge expressly applied the High Court's recognition (as in Bugmy) that socioeconomic disadvantage and a deprived upbringing may reduce culpability and the appropriateness of purely punitive responses (see [20]). The offender's intellectual disability (IQ 63) was taken to moderate further the importance of deterrence in sentencing, although not to remove culpability (see [21]). The court also noted family support and programs available through Disability Client Services and Youth Justice, which made rehabilitation in a youth setting a realistic prospect (see [15], [23]).
Disposition selection: Given those mitigating features and the availability of youth-focused rehabilitative services, the judge concluded that Youth Justice detention was more appropriate than an adult prison term. The court relied on reports, including a Youth Justice court advisor's recommendation and s.80 material, and formally found the offender suitable for Youth Justice detention under s.32 (see [5], [23]-[24]). The sentencing structure produced an effective two and a half year youth detention term, with credit for pre-sentence custody declared (see [25]-[26]).
Before and after state of the law
Before this decision: general sentencing law principles in Victoria require courts to take into account denunciation, deterrence, retribution, rehabilitation and protection of the community. The High Court decision referred to as Bugmy had earlier emphasised the relevance of severe social disadvantage and deprived upbringing in moderating culpability and sentencing outcomes. Sentencing practice also allowed for youth-appropriate dispositions where statutory criteria were met.
This judgment: The court applied those existing principles to a specific set of facts involving a violent aggravated burglary by a young offender with intellectual disability and severe childhood disadvantage. It demonstrates application of the Bugmy principle to moderate deterrence and support the use of youth-focused rehabilitative custody. The judge explicitly applied statutory procedures (s.80 reports, s.32 suitability finding, s.35 declaration of pre-sentence custody) in support of the disposition (see [5], [23]-[26], [20]).
After: The judgment is an application of existing principles rather than a doctrinal shift. It underscores that even where offending is violent, an offender's pronounced disadvantage and disability can justify placement in the youth justice system for rehabilitation, when supported by appropriate reports and recommendations.
Key passages with plain-English translation
"This was serious, violent, markedly antisocial and, without doubt, frightening offending." [16]
Plain English: The judge recognises the offence was very serious and frightening to the victims; this seriousness weighs heavily against the offender.
"You receive the benefit of your plea of guilty, which was early, and the level of cooperation that short history of the proceeding shows." [3]
Plain English: Because the accused pleaded guilty early and helped the process, he gets a reduction in sentence.
"I also take into account, as a part of this, your intellectual disability. It does not remove, but should, to some extent, moderate the importance of such sentencing considerations as deterrence." [21]
Plain English: The judge accepts the defendant's intellectual disability does not excuse the offence but means punishment intended to deter him and others should have somewhat less weight.
"As raised with counsel on 6 July, I see the appropriate sentence to be Youth Justice detention." [23]
Plain English: The judge decided the offender should be dealt with in the youth system, not in an adult prison.
"I declare under s.35 of the Sentencing Act 313 days of pre-sentence detention already served." [26]
Plain English: The time the offender has already spent in custody is formally counted towards his sentence.
What fact patterns trigger this precedent
The reasoning is most directly applicable where:
The offender is young at the time of offending and has significant prospects for rehabilitation such that youth custodial structures are more appropriate than adult prison (see [19], [23]).
The offender has experienced a markedly deprived and damaging early life, including child protection intervention, instability, abuse and disrupted schooling, such that the Bugmy principle is engaged to moderate culpability (see [12], [20]).
The offender has a documented intellectual disability that affects culpability and the weight given to deterrence (see [13], [21]).
There is an early guilty plea and genuine remorse and cooperation that justifies a sentencing discount (see [2], [18]).
Comprehensive s.80 reports, Disability Client Services input and Youth Justice recommendations are available to support a suitability finding under s.32 (see [5], [23]-[24]).
Violent offending remains serious; but these combined factors may tip the balance towards youth detention with rehabilitative emphasis rather than an adult prison term.
How later courts have treated it
This judgment itself does not record any subsequent appellate treatment. The decision applies established High Court reasoning (Bugmy) and statutory sentencing provisions (s.80, s.32, s.35 of the Sentencing Act) to the facts before the court (see [20], [5], [24], [26]). The judgment functions as an instance of applying those precedents rather than creating new law. The transcript contains no citations of later treatment or other courts' consideration of this particular sentencing decision. Any assessment of how later courts have treated DPP v Donnell would require consultation of subsequent authorities or citators, which are not contained within this judgment.
Still-open questions
Limits of Youth Justice detention for young adults: The offender was 19 at the time of offending and 20 at sentencing. The judgment finds Youth Justice detention appropriate on the facts. The broader contours of when a court should prefer youth detention over adult imprisonment for late-adolescent offenders given violent offending are fact-sensitive. This decision illustrates the outcome but does not define categorical limits (see [19], [23]).
The weight to accord intellectual disability: The judge states intellectual disability moderates deterrence "to some extent" ([21]). The boundaries of that moderation, how low an IQ and what functional impairments justify particular abatements in deterrence, remain case-specific and are not exhaustively articulated here.
Interaction between prior offending and mitigation: Donnell had an extensive prior record. The judgment balances that against severe disadvantage and disability to justify a youth disposition. Future cases will need to delineate when prior record outweighs these mitigating factors.
Practical implementation of supports: The court emphasised forwarding Disability Client Services and community correctional materials to Youth Justice and custodial services and hoped ongoing support would be provided (see [23]). Whether the promised services materially alter recidivism outcomes in similar cases remains an empirical and procedural question outside the decision.
Comparative parole prospects: The judge observed that parole prospects differ between youth and adult systems and that the offender was more likely to receive parole in the youth system (see [26]). The legal significance of such practical differences when selecting the form of custody may invite further consideration, particularly potential arguments about sentencing effects tied to parole likelihood.
These questions reflect matters the judgment touches upon but does not definitively resolve; they are therefore fertile ground for future appellate consideration and for practitioners tailoring mitigation and sentence submissions in comparable cases.
Catchwords
Legislation Cited:
Judgment (1 paragraphs)
[1]
Daimon Donnell, you are to be sentenced for one charge of aggravated burglary, two charges of assault and one charge of theft. Maximum sentences are 25 years' imprisonment for aggravated burglary, five years' imprisonment for assault and ten years' imprisonment for theft.
You pleaded guilty before me on 8 March 2017. When interviewed by police on 4, 5 and 6 September 2016, you made admissions of a peripheral kind, but essentially you denied the offending. The committal went by hand-up brief on 24 January 2017, after which you entered a plea of guilty. The matter was then listed for plea in this court.
You receive the benefit of your plea of guilty, which was early, and the level of cooperation that short history of the proceeding shows. Your plea has facillitated the interests of justice. I accept that you are genuinely remorseful.
At your plea hearing, which ran on 8 March and 6 July, Mr O'Doherty for the Crown tendered a written Crown opening. Ms Piggott for you tendered the psychological report of David Ball, dated 10 February 2017, the report dated 18 November 2016 of Stephanie Barnfield of the Magistrates' Court Integrated Services Bail Program, the letter of Samantha Dutton, mother of your partner Chantelle Walters, a certificate related to the Aboriginal language course you have completed in remand custody and Ms Piggott's summary of defence plea submissions.
On 8 March I requested reports under s.80 of the Sentencing Act. I have received a client overview report and justice plan by Kerryn Cua of Disability Client Services in the Department of Health and Human Services and the pre-sentence assessment report by Gabrielle McLeod of Mildura Correctional Services.
The circumstances of your offending are set out in the tendered Crown opening, which is tendered as Exhibit A. My own summary may therefore be shorter.
In September 2016, you were 19 and had recently moved to live with the family of your partner: Chantelle Walters. You have suffered a particularly deprived and damaging early life. Although supported by Chantelle Walters and her family, you were still using Ice amphetamine. You had known David Eastwell since your childhood in the general Mildura area. You had been friends, but there had been a falling out.
On 4 September 2016, you went to his home in Mildura a number of times during that day. Your grievance is not made clear and it would seem to me not important. Two visits did not lead to offending. However, at about 8.30 pm, you went back with two still unidentified males. You were or had become drug affected. Two of you group forced entry. The three of you went inside. You began to hit Eastwell in the legs with a baseball bat. Your face was masked. However, perhaps unsurprisingly, given the background to this, Eastwell recognised your voice. One of the others demanded money of Eastwell's father Graeme. A person named Dianne Bush was struck to the arm by another male with the handle of a knife and pushed back into her bedroom.
Further demands were made. Graeme Eastwell produced and was robbed of $3,500 in cash. It was taken by one of the other men. Upon final arrest of you on 6 September, police found $680. You had told police when interviewed on 4 September that you knew that Graeme Eastwell would have a large amount of money on him.
No victim impact statements have been tendered. However, there can be little doubt that your victims were very frightened. David Eastwell suffered pain to his left foot and ankle.
You are now aged 20 and await this sentence in remand custody. That has been in the adult prison system for about ten months. You were 19 at the time of offending.
As I have said, your early life has been particularly deprived and damaging to you, as outlined in the tendered summary of submissions by Ms Piggott and the psychological report of David Ball. You do not know your father. Your mother suffered ill health and drug and alcohol addiction. You have three older siblings.
Your situation and early life led to child protection involvement at ten years. Your family home had burned down. You had suffered burns. In that system, you were moved from place and "family to family." There was physical and sexual abuse. There were group homes. There was foster care and so-called residential care. Schooling was inconsistent and markedly unsuccessful. You are illiterate in terms of writing and numeracy. You are assessed as intellectually disabled with a measured intelligence quotient of 63 and have now, notably since the adjournment in March, become a client of Disability Client Services. In 2011, you were diagnosed with epilepsy. That has not been reviewed in some years.
You were before the courts when hardly 11. You began using drugs at 15, Ice amphetamine at 17. In my view, your criminal record reflects your personal history. It is extensive. Offences of dishonesty are predominant, rather than violence. By 2014, there was Youth Justice detention. As stated, you have been in adult remand custody since this offending.
You have known Chantelle Walters since 2013. You began a relation in June 2016. I was told that she and her family are law abiding and socially functional people. They remain, despite this offending, supportive of you. You can again live with them upon parole release. You had begun to do so a very short time before this offending. It was their attempt to assist you to stop using drugs. I found Ms Dutton's tendered letter helpful, generous and insightful.
This was serious, violent, markedly antisocial and, without doubt, frightening offending. The offence of aggravated burglary carries a maximum sentence of 25 years. As stated, you have an extensive prior criminal history. Such circumstances make relevant the sentencing purposes and considerations of both general and specific deterrence, moral culpability, condemnation of the offending and the need for proportionate punishment. Community protection is relevant.
The offence of aggravated burglary in circumstances such as this usually attracts prison sentences of considerable length. However, in your case, I see a number of factors which moderate adverse sentencing considerations and should go to reduce your sentence. They also impact upon how and where it should be served. These include the following matters.
Your plea of guilty and cooperation. The tendered reports and other materials persuade me that you are genuinely remorseful.
You are young and rehabilitation remains an important purpose.
Your personal circumstances and history are also important. The particularly harsh deprivation of your early life, as I see it, the principles stated in such cases as the High Court judgment of Bugmy relevant. Thus far, you have been given little chance in life. That you became socially isolated and began using drugs as a teenager was, in my view, very much a result of that.
I also take into account, as a part of this, your intellectual disability. It does not remove, but should, to some extent, moderate the importance of such sentencing considerations as deterrence. I see your disability not in isolation. It is a part of the great disadvantage of your general situation.
The question of your prospects for rehabilitation is difficult. There are reasons to be pessimistic. However, you have support. The tendered reports and other materials persuade me that you truly wish to do so and to have a better life. You should be given the opportunity of that, other than in the atmosphere of an adult prison.
As raised with counsel on 6 July, I see the appropriate sentence to be Youth Justice detention. My expectation is that the services and assistance proposed in the Disability Client Services and community correctional services reports I have received will be a part of your youth parole. Those materials will be forwarded to custodial services and youth justice. I would hope, for example, that Disability Client Services will maintain and enhance a relationship with you whilst in custody.
I have received the report of Steven Riordon, senior Youth Justice court advisor. You are found suitable for Youth Justice detention under s.32 of the Sentencing Act. You presented to Mr Reardon with strong motivation to engage in the programs and services available. Stand up please?
I sentence you as follows. On Charge 1, aggravated burglary, you are sentenced to two years' Youth Justice detention. On Charges 2 and 3, assault, you are sentenced to six months' Youth Justice detention on each. On Charge 4, theft, you are sentenced to six months' Youth Justice detention.
I direct that two months of each of the sentences for Charges 2, 3 and 4 be served cumulatively upon the sentence for Charge 1 and each other. That is a total effective sentence of two and a half years of youth justice detention. I declare under s.35 of the Sentencing Act 313 days of pre-sentence detention already served. Had you not pleaded guilty I would have imposed a sentence of three years, with a minimum term of two years, but in adult prison and you may reflect on this, it does not necessarily follow that you would have got parole in the adult system.
Now, you will very likely get parole in the youth system and when you are released on parole will depend on how well you prepare for that. What you need to do is think hard about what you are going to do when you are released into the community and you need to be willing to do the things arranged to help you.
Now, members of your family have travelled a long distance to be here today. They, Chantelle Walters and her family must think that you are basically a decent fellow. What you must do now is show people that you are a decent fellow. Good luck with that. What else do I need to do? Take a seat now. What else do I need to do?
MR ROONEY: Your Honour, there was a disposal order application.
HIS HONOUR: Have you got that? I'll sign it.
MR ROONEY: Look, Your Honour, I do.
HIS HONOUR: If you haven't, you can send it on Mr
MR ROONEY: I do have it. I'll just have to
HIS HONOUR: All right.
MR ROONEY: I thought it was filed and there was also a compensation order application that was made.
HIS HONOUR: All right. Well, is the compensation order a document that I have to serve, or
MR ROONEY: It's just a document that Your Honour needs to sign, if Your Honour's
HIS HONOUR: Sign, I'm sorry, yes.
MR ROONEY: Yes.
HIS HONOUR: It would have been more convenient for you to send them on. I'll make the orders.
MR ROONEY: Yes, I've got them.
HIS HONOUR: Oh, you've got them here? We can hand - one's a compensation order. What's that for? Damage to the
MR ROONEY: It's the three and a half thousand
HIS HONOUR: I see, yes. I'll sign those orders now and that's a forfeiture or disposal order in respect of the knife and I'll sign the compensation order - and I'll sign that now and that's the compensation in respect of the $3,500 that was stolen.
Now Ms Nicholson, I was told the other day, I think, that his present custodial situation is going to be raised at the Magistrates' Court, because there's a - are there pending matters? Have I got that right?
MS NICHOLSON: Your Honour, unfortunately I don't have instructions about that. My brief is to attend the sentence only
HIS HONOUR: Yes.
MS NICHOLSON: but I will follow that up and
HIS HONOUR: Yes. I think I've got it right. Do you have some matters in the Magistrates' Court soon?
PRISONER: No, I've already had them dealt with.
HIS HONOUR: All right. No, I'm confusing you with somebody else, I am sorry. So, you've got a clear road ahead, have you?
PRISONER: Yes.
HIS HONOUR: Do you think you can do it?
PRISONER: Yes.
HIS HONOUR: Well, you've got some help now. You know what I think the trick to parole is? I sit on the Youth Parole Board. The trick to it is to make sure you let people know what's going on, particularly if you think you're slipping. Particularly if something bad happens. That's the time you've got to let the people that are helping you know. Guys who do that get through their parole. The people who just stick their head in the sand and don't tell people when it's going badly, they don't get through. So, if you can do that you've got a chance.
All right, well, I think a lot of people hope you do get through and think you can. All right, well, good luck. He can be taken into custody.
MR ROONEY: Your Honour, could I just raise one minor - sorry?
HIS HONOUR: Sorry, just wait for a moment there?
MR ROONEY: Look, it just might be prudent that Your Honour simply explains that the compensation order has been made, because it wasn't
HIS HONOUR: Yes.
MR ROONEY: It's to pay Graeme Eastwell.
HIS HONOUR: Yes. A compensation order has been made for the money that has been stolen from Mr Eastwell, all right?
PRISONER: Yes.
HIS HONOUR: You understand that? Now, your solicitor will talk to you about that. Oh, do you want to speak to him briefly? You've come a long way? Do you want to speak to him?
MS NICHOLSON: If His Honour
HIS HONOUR: Oh, wait, it can only be very short. Are you his sisters, are you?
VOICE (from body of the court): Sister.
HIS HONOUR: Sister.
VOICE (from body of the court): I'm his brother's partner.
HIS HONOUR: All right. Do you want to briefly speak to him? You can. You don't have to.
MS NICHOLSON: I'm going to go see him now once we're done and then I'll come and have a chat to you. Let you know what's happening with him.
HIS HONOUR: All right, there we go. Good, thank you.
Parties
Applicant/Plaintiff:
DPP
Respondent/Defendant:
Donnell [2017] VCC 954
AI Analysis
Outcomedefendant
Disposition:
Effective sentence of two and a half years Youth Justice detention (aggravated burglary 2 years; assault counts 6 months each; theft 6 months; cumulative structure yielding 2.5 years), declaration of 313 days pre-sentence detention under s.35, compensation order for $3,500 to Graeme Eastwell and forfeiture/disposal order for the knife (see [25]-[26], [44]).