Regina v Donovan

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0631 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60261/03

HIDDEN J GREG JAMES J SMART AJ

Friday 7 November 2003 REGINA v Horace James DONOVAN Judgment

1 HIDDEN and GREG JAMES JJ: This is an appeal by the Director of Public Prosecutions against the asserted inadequacy of sentences passed in the District Court upon the respondent, Horace James Donovan, in respect of the following charges: (1) Escape from lawful custody (s310D of the Crimes Act , maximum sentence ten years imprisonment); (2) Robbery in company, inflicting grievous bodily harm (s98 of the Crimes Act, maximum sentence twenty five years); (3) Robbery in company with wounding (also s98 of the Crimes Act , with the same maximum sentence); (4) Take and drive conveyance without consent of the owner (deemed larceny under s154A of the Crimes Act , maximum sentence five years); (5) Knowingly carried in conveyance taken without the consent of the owner (also s154A of the Crimes Act, carrying the same maximum sentence). 2 The primary judge sentenced the applicant as follows:- (1) Escape from lawful custody: imprisonment for a fixed term of one year, dating from 13 November 2000; (2) Robbery in company, inflicting grievous bodily harm: imprisonment for three and a half years, with a non-parole period of two years, dating from 13 November 2001; (3) Robbery in company with wounding: imprisonment for three years, with a non-parole period of two years, also dating from 13 November 2001; (4) and (5) Deemed larceny of motor vehicles: on each, imprisonment for a fixed term of eighteen months, again dating from 13 November 2001.

The overall effective sentence, then, was imprisonment for four and a half years, with a non-parole period of three years, dating from 13 November 2000. 3 The offences were committed with three co-offenders: Clarence Frederick Donovan (the respondent's cousin), Raymond James Dungay and Brett Neville Dickson. Clarence Donovan and Raymond Dungay were sentenced by his Honour at the same time as the respondent. Both were dealt with for the charge of escape from lawful custody and the two robbery charges, together with related charges in respect of the two motor vehicles. The respondent and Clarence Donovan had pleaded guilty to the escape charge and the charges in respect of the motor vehicles, but not guilty to the robbery charges. After a joint trial, both were found guilty of those charges. Raymond Dungay had pleaded guilty to all charges. 4 For his part in the incident, Brett Dickson had earlier pleaded guilty to a somewhat different set of charges. The sentences passed upon him were also the subject of a Crown appeal, which was successful: R v Dickson [2002] NSWCCA 327. Judgment in that appeal was delivered before his Honour sentenced the respondent and the other two offenders, and it will be necessary to refer to it later.

Facts 5 His Honour recited the facts which he found for the purpose of sentence in his remarks as follows: At about 8 pm on Saturday 14 October 2000 the offenders and a man called Dixon (sic) were inmates of the Grafton Correctional Centre, housed in the minimum security unit section. The offenders forcibly escaped from the gaol with Dixon by smashing a window of the unit which released them from that minimum security unit section, but they then found themselves still inside part of the prison. The four of them went to the exterior glass doors of the periodic detention centre and smashed their way out of there onto Arthur Street opposite the Grafton Base Hospital and diagonally opposite the Albion Hotel. Coincidentally, and unfortunately for them, the two victims of these offences were close to the outside part of the prison. The younger of the two victims, Cameron McMillan, then aged 19, had attended at the Grafton Hospital because he had injured his leg during a cricket match that day. He had telephoned his mother, Elizabeth McMillan, a woman then aged 47, and asked her to come to the hospital and to pick him up because he could not drive. The escapees immediately saw the opportunity of seizing a car and escaping. They may not have done so, one imagines, if they had not been fired up on illicit alcohol of the "jungle juice" variety which they had somehow brewed up illicitly inside the prison. But in any event the three of them immediately launched an attack upon Elizabeth McMillan and on her son who, it seems, were simply standing near the vehicles intending to drive off. One of the escapees attempted to start the vehicle but could not do so because of a security switch. During the attack, Cameron McMillan was dragged from the vehicle and repeatedly beaten by three of the offenders. He was "king hit", that is to say struck a heavy blow in the head while being held by the other two. He was given a thorough belting. He suffered a fractured right cheekbone, lacerated internal and external right ear and bruising to the head and body. He was subsequently admitted to the high dependency unit of the Grafton Base Hospital whence he had just come with some minor difficulty with his leg. The injuries he suffered as a result of this attack were very serious and clearly amounted in law to grievous bodily harm. The mother, Elizabeth McMillan, was beaten and flung to the ground at the rear of her vehicle between two vehicles where she was struck about the head by one of the offenders by an object he was holding in his right hand. No object of the kind capable of being used in such an attack was in fact found at or near the site when subsequently searched, but I conclude that she was not only punched and kicked but she was struck by something. It is impossible to say by whom. As she lay motionless in the gutter at the rear of her vehicle, she was, I conclude, kicked about the head and body in a separate round of attack and stomped to the head by one of the escapees. I have no doubt that that part of the attack was committed by the offender Dungay. Elizabeth McMillan suffered concussion, a lacerated scalp and a bruising to the face and body and was admitted to hospital for treatment. Being unable to start one vehicle, the escapees obtained the keys to the car next to it. The one they actually managed to steal was the one previously driven by Cameron McMillan. The four of them left the area in that vehicle which was later located near Glen Innes prison farm on the Gwyder Highway after having been involved in a single car accident. There was then another car stolen which gives rise to one of the various car charges involved in this exercise. 6 The charge of robbery in company with the infliction of grievous bodily harm related to Cameron McMillan, and the charge of robbery in company with wounding to his mother. Although the offenders' primary concern appears to have been to secure a car to make good their escape, the property the subject of each charge was a sum of money. It is those undoubtedly serious offences which are the focus of the present appeal. His Honour went on in his remarks to examine in greater detail the facts of the robberies and their effect upon the unfortunate victims, but it is unnecessary to repeat that exercise for the purpose of deciding the appeal. Nor is it necessary to refer to the circumstances in which the four offenders were apprehended and returned to custody. It is sufficient to say that the respondent surrendered to police about a week later. 7 His Honour made findings about the level of culpability of each of the three offenders with whom he was dealing. Of Raymond Dungay he said: Dungay was the ringleader who broke the glass in the window, kicked in a door and who principally effected the escape. After that he urged the others on to violence. He participated in punching the male victim and he was the principal, if not the only, attacker against the female victim.

He saw Dungay as deserving of the most severe punishment of the three men. 8 Of Clarence Donovan, his Honour said that he: … although not directly involved in the attack on the female victim, was a principal in the attack on the male victim… Whether he or Dickson king hit the male victim is unclear, but I have no doubt that Clarence Donovan certainly punched and beat him. 9 What his Honour said about the culpability of the respondent should be set out in full: Horace Donovan is the least culpable of the offenders in relation to the attacks on both the male and female victims. He left the jail somewhat after the other escapees and he lagged behind them at a sufficient distance for a sufficient space of time such that the independent witnesses, including the victim Cameron McMillan, did not observe him directly involved in the melee. I find that he did not directly strike or attack either victim. His liability arises by the doctrine of joint criminal enterprise. The jury found, and I agree, that he was present and assisting before the assaults on the victims had been completed and his presence was some encouragement, albeit I find minor. The doctrine of joint criminal responsibility permits of considerable flexibility in sentencing according to the role of particular participants. So far as Horace Donovan is concerned, he is to be seen as within the net of legal liability but at the edge of the net and he will be sentenced accordingly. 10 Generally, his Honour saw the offences as objectively very serious, noting that the robbery offences were committed in company, involved "gratuitous cruelty" and caused the victims "considerable physical injury and emotional shock". He also observed that those offences (and the offences involving motor vehicles) were aggravated by having been committed by escapees from prison. On the other hand, he found that the offences had been "hatched up over a mad drinking session" and were not "sensibly planned". Noting that all of the offenders were due to be released in the relatively near future, he described their escape as "stupid behaviour and behaviour which no doubt they are living to regret".

Subjective case 11 For the purpose of the appeal, it is unnecessary to examine the respondent's subjective case in any detail. He was twenty years old at the time of the offences, and is now twenty-three. He has a reasonably long criminal record, which includes some prior convictions for offences of violence (although none anything like as serious as the aggravated robbery offences). He is Aboriginal, and his Honour saw his record as consistent with a "troubled background of deprivation" of the kind referred to in R v Fernando (1992) 76 ACrimR 58. 12 Two weeks prior to the escape his mother had died of a heart attack at the age of forty-two. He had been allowed to attend her funeral but his grief had remained unabated. Clarence Donovan and Raymond Dungay observed that he was unable to speak about the loss of his mother and was becoming depressed. It is against this emotional background that the drinking session on the day of the escape must be understood. The respondent also smoked some marijuana, to which he was unaccustomed. His Honour found that the respondent and the other two offenders whom he had to sentence, all young Aboriginal men, were "deeply distressed by imprisonment", having come from a background "where family closeness generated particular stresses". 13 His Honour had regard to the respondent's pleas of guilty to the escape charge and the motor vehicle charges and, as is apparent from the sentences which he passed, found special circumstances. There is no complaint about these matters in the appeal.

Co-offenders 14 The subjective cases of Raymond Dungay and Clarence Donovan were similar in relevant respects to that of the respondent. Both of those men also were beset by family problems of one kind or another at the time of the escape. The distinction between the sentences passed upon them and upon the respondent was based upon his Honour's findings about the measure of their culpability, outlined above. There has been no Crown appeal against their sentences. 15 Raymond Dungay was sentenced to an overall term of imprisonment for ten years with a non-parole period of seven years. On the charge of robbery in company with the infliction of grievous bodily harm, he was sentenced to a fixed term of imprisonment for six years. On the charge of robbery in company with wounding, he was sentenced to a partly cumulative term of imprisonment for five years with a non-parole period of two years. 16 Clarence Donovan was sentenced to terms aggregating imprisonment for nine years with a non-parole period of six years. On the charge of robbery in company with the infliction of grievous bodily harm, he was sentenced to imprisonment for six years with a non-parole period of five and a half years. On the charge of robbery with wounding, he was sentenced to a partly cumulative term of imprisonment for four years with a non-parole period of eighteen months. 17 As we have said, Brett Dickson had been dealt with by another judge and the sentences imposed upon him were increased by this Court after a Crown appeal. Apart from the charge of escape, he had pleaded guilty to robbery with the infliction of grievous bodily harm in respect of Cameron McMillan (s96 of the Crimes Act, maximum sentence twenty five years) and robbery with the infliction of actual bodily harm in relation to Mrs McMillan (s95 of the Crimes Act, maximum sentence twenty years). He had taken into account on a Form 1 a charge of deemed larceny of the motor vehicle at Grafton. (He was not involved in the taking of the second vehicle.) 18 Both at first instance and on appeal, Mr Dickson was dealt with on the following basis: (a) that he became involved in the escape at the last minute; (b) that he got into a car in which Cameron McMillan was seated and hit him (although he was not the one who "king hit" him); and (c) that, after Mr McMillan had been removed from the car, he tried unsuccessfully to start it.

He is Aboriginal and it appears that he also had a deprived background, although it may be that the evidence about this was not entirely satisfactory: see the judgment of Meagher JA in the appeal at par 13.

19 In the District Court, on each of the robbery charges (taking into account the matter on the Form 1), Mr Dickson was sentenced to concurrent terms of imprisonment for three years with a non-parole period of eighteen months. On the escape charge he was sentenced to a fixed term of imprisonment for eighteen months, concurrent with the non-parole period in respect of the robbery charges. On appeal, the sentencing judge was found to have erred in a number of respects, including the fact that the sentence on the escape charge was wholly concurrent with those passed in respect of the robbery charges: s57(2) of the Crimes (Sentencing Procedure) Act. 20 However, what is significant for present purposes is that the Court found that the sentences on the robbery charges were manifestly inadequate. The sentences were re-assessed and restructured, resulting in an aggregate sentence of imprisonment for eight years with a non-parole period of five years and nine months. This involved an increase of the sentence on the charge of robbery with the infliction of grievous bodily harm to imprisonment for five years with a non-parole period of four years and nine months and, on the charge of robbery with the infliction of actual bodily harm, to a partly cumulative term of imprisonment of four years with a non-parole period of one year and nine months. 21 Meagher JA described the robbery offences as "extremely serious and very revolting crimes, injurious to the health of the victims to the extent that, very easily with a slight change in circumstances, a fatality could have been involved" (par 15). Howie J (at par 28) expressed the view that the effective sentence which had been substituted was the least which could have been imposed, given that it was the product of a Crown appeal, and that it was less than that which should have been imposed at first instance.

The appeal 22 Before us, no complaint was made about the sentences in respect of the escape and motor vehicle charges. The thrust of the appeal is that the sentences passed upon the respondent in respect of the robbery charges are manifestly inadequate. In particular, the Crown prosecutor in this Court argued that: (a) in assessing the respondent's culpability, his Honour does not appear to have had regard to evidence suggesting that it was he who first got into a car outside the prison and tried to start it, knowing that his companions were inflicting violence upon someone; (b) in any event, his Honour's finding about the limited role of the respondent did not justify sentences so much shorter than those passed upon Raymond Dungay and Clarence Donovan; (c) his Honour failed to have due regard to the sentences imposed by this Court upon Brett Dickson, whose culpability was not markedly different from that of the respondent; (d) his Honour did not advert to the guideline judgment in R v Henry (1999) 46 NSWLR 346, which was applicable even though the charges were robbery in company, rather than armed robbery: R v Murchie (1999) 108 A Crim R 482; (e) his Honour gave undue weight to the respondent's subjective case, so that the sentences fail adequately to reflect the objective gravity of the crimes; and (f) the sentences on the two charges should not have been wholly concurrent. 23 It is convenient to deal immediately with the first and last of those arguments. It is true that his Honour did not refer to evidence that the respondent was the first to attempt to start a car, at a time when he was aware of the violent behaviour of at least some of his co-offenders. However, that does not appear to me to be a significant matter for present purposes. That evidence points towards the respondent's criminal responsibility for the violent behaviour of his companions, a finding inherent in the jury's verdict on each charge. It was upon that basis that his Honour sentenced him. However, it remained open to his Honour to have regard to the fact that the respondent himself inflicted no violence in determining the appropriate measure of his punishment. 24 It was also open to his Honour to direct that the sentences on the two robbery charges be served concurrently, given the respondent's limited involvement and the fact that the offences were committed in the course of the same criminal episode. The Crown prosecutor took us to the now familiar principles in Pearce v The Queen (1998) 194 CLR 610. However, his Honour expressly referred to that case in his remarks and nothing in the High Court's decision fetters the discretion of a sentencing judge to determine whether sentences should be served concurrently or cumulatively, in whole or in part. Nor does it appear to us that his Honour's hands were tied in that respect by the fact that this Court directed the partial accumulation of the sentences imposed upon Brett Dickson. Of course, this leaves open the question whether the sentences are manifestly inadequate individually, or in combination as a reflection of the total criminality of the episode. 25 As to the comparison between the respondent's sentences and those passed upon Raymond Dungay and Clarence Donovan, it is true that the distinction is marked but, in the light of his Honour's careful examination of the roles of each of the three offenders, a significant distinction was warranted. As to this Court's decision in respect of Brett Dickson, his Honour acknowledged it, saying that what the Court had said in that case "cannot and will not be ignored by me." He went on to observe, however, that there were "points of factual distinction" between Dickson and the three offenders he was to sentence. No doubt, it was to these distinctions that his Honour was referring when he later said that he did not regard himself "as being bound in detail by that decision …". Clearly, the respondent was entitled to be dealt with more leniently than Dickson. Dickson was directly involved in the infliction of violence upon Cameron McMillan, having struck him, and it would seem that he was not able to make out as favourable a subjective case as the respondent. 26 It would have been appropriate for his Honour to have regard to the Henry guideline, although it should be borne in mind that that guideline does not expressly deal with a person who is not the principal offender and whose criminal liability is founded upon the doctrine of joint criminal enterprise or common purpose. All that said, the ultimate question to be determined is whether the sentences on the robbery charges are manifestly inadequate. About that we have wavered. The sentences are markedly lenient. However, after careful reflection, we are not persuaded that they were so far outside the range as to call for this Court's intervention on a Crown appeal. 27 This was an unusual case, given the respondent's limited role, as his Honour found it, and the emotional background arising from his recent bereavement. That background was of particular significance and, generally, it does not appear to us that his Honour afforded the respondent's subjective case more weight than it deserved. Given the well recognised constraints upon this Court's intervention in an appeal such as this, any adjustment which might be made to the sentences would be of limited significance, such as to be unwarranted in the circumstances of the case. 28 In so far as we have wavered about the question of inadequacy, we should add that, in any event, we would have dismissed this appeal in the exercise of this Court's residual discretion. The Notice of Appeal was filed by the Director of Public Prosecutions within a reasonable time after sentence was passed. However, there was considerable delay in the District Court proceedings coming to finality. The offences were committed in October 2000. The respondent's trial took place in September 2002. There were then a number of adjournments of the sentence proceedings, so that sentence was not passed until 6 June 2003. The cause of this delay is not apparent from the material before us, and we should say that there is nothing to suggest that it should be sheeted home to the Crown. 29 The result, however, is that the respondent faces this Crown appeal in respect of sentences which commenced in November 2000 and November 2001. He would be eligible for release on parole in the very near future. We would be reluctant, by allowing the appeal, to delay the opportunity to foster by a period of supervised liberty the rehabilitation of an offender who is still a very young man. 30 We would dismiss the appeal. 31 SMART AJ: The facts and circumstances and the contentions of the parties are set out in the judgment of Hidden and Greg James JJ. 32 Mr H J Donovan was engaged in a criminal enterprise of much gravity. During the robbery in company grievous bodily harm was inflicted upon Mr Cameron McMillan (count 2). After being dragged from a vehicle he was severely and repeatedly beaten. He suffered a fractured right cheekbone, lacerated internal and external right ear and bruising to the head and body. He was rendered unconscious. After being treated in the Emergency Department he was transferred to the intensive care unit of Grafton Base Hospital. He spent some days in hospital and needed subsequent operative care. The report of Dr G R Varley, consultant general surgeon highlights the seriousness of the injuries suffered. 33 During the robbery in company with wounding Mrs Elizabeth McMillan was beaten and flung to the ground (count 3). She was struck about the head by one of the offenders by an object. She was punched and kicked about the head and body and stomped to the head by one of the escapees. The stomping was the work of the offender, Dungay. Mrs McMillan was hospitalised from 14 to 20 October 2000 (both inclusive). She suffered a lacerated scalp and bruising to the face and body. Dr Varley wrote that she had "a serious head injury evidenced by the considerable bleeding she had around both orbits." She had a considerable problem with dizziness. 34 The effects on each victim of the offence committed against that victim were marked and far reaching. The particular role played by Mr H J Donovan did not appear with clarity from the materials. He gave this account in his record of interview of what happened after he left the gaol and came on to the street outside it. ... when I come out onto the street I seen, seen the boys there sort of like wrestlin around and that. So I stood back and, to see what was goin' on, but I couldn't, couldn't really see what was goin' on. It was, pretty, pretty dark at the time. So um, I - um, I wanted to get, get out of it, so I ran to a car and um, I jumped, jumped, jumped in, in the driver's seat. I couldn't get, couldn't get the car going. Then I jumped out and come back around. I could see the boys fightin'. I didn't know who, who it was there that was fightin' at the time .Uhm You know, I just, I seen them laying on, on the ground there and I, and I looked at them I heard them, heard them snoring sort of like, snoring and that and sort of like gargling, like something like that, you know, snoring, snoring and that. The boys are just, the boys are just still wrestlin' and that and throwin' punches and kicks and all that sort of stuff and I started, strated ( sic) freakin' out and I said, Boys, youse are fuckin' gunna kill him, youse killed him, youse killed him. I just freaked right out on them and that and they um, they um, they had one of the cars got started up and um, I was there, just, just froz and that you know, 'cause I thought, I thought they was gunna die. I thought they were dead, and um, I started goin' off at the boys and that and um, they grabbed me and they threw me, they threw me in the back of the car and um, that's when we, we was headin' headin; somewhere. I didn't know where we were going. 35 Notwithstanding that Mr H J Donovan was a minor player in the enterprise and his subjective features, the sentences imposed by the judge in respect of counts 2 and 3 were below the minimum sentences which could be sensibly imposed. There are two outstanding features of the offences, namely, the high level of violence and the extent of the injuries. Mr H J Donovan was a participant in each of them, albeit in a minor role. These offences were committed in the course of the four offenders making good their escape from gaol. 36 Making the sentences on counts 2 and 3 wholly concurrent does not adequately reflect the total criminality involved in the offences and the result is one which is manifestly inadequate. 37 In my opinion there was manifest error in making the overly lenient sentences on counts 2 and 3 wholly concurrent. The sentences should have been partly cumulative. 38 The judge correctly found special circumstances. The next question which arises is whether this Court should, in the exercise of its residual discretion, decline to interfere principally because of the delay in the proceedings in the lower Courts. The offences were committed on 14 October 2000. I do not know when the committal proceedings took place. The trial took place between 9-13 September 2002. The papers do not explain why the trial took nearly two years to begin. In respect of the delay between September 2002 and June 2003 part at least of that delay was due to the unavailability of counsel for the offenders. The judge tried to overcome this and was anxious to proceed to sentence at an early date. 39 In the absence of full information as to the reasons for the delay I am reluctant to rely on this as a powerful factor. It should not be assumed that the offenders wanted early finalisation of the matters. The judge, after a hearing on sentence on 29 May and 2 June 2003, imposed the various sentences on 6 June 2003. The Crown's Notice of Appeal was served on 12 July 2003. That was timely. With the escape and the two robberies Mr H J Donovan should have expected lengthy sentences. 40 In any event these offences are so serious that delay of the order which occurred in the present case should not lead to the Court exercising its residual discretion to dismiss these appeals. 41 In considering the question of totality I have borne in mind that the accused was in gaol for other offences from 25 October 1999 until his escape on 14 October 2000 and that he was due for release on 25 October 2000. The sentence on count 3 should be partly accumulative on that imposed on count 2. The extent of that partial accumulation should be 18 months. Because of that partial accumulation there will need to be an adjustment to the non-parole period on count 3. The overall effect of what I propose will be head sentences totalling 5 years 6 months and non-parole periods of 4 years. These are still lenient sentences. They are only so lenient because of re-sentencing and the restraint which this Court exercises on re-sentencing. Lesser sentences than those proposed could not be imposed. 42 I propose the following orders: 1. Crown appeal against the sentences imposed on counts 1, 2, 4, and 5 dismissed 2. Crown appeal against the sentence imposed on count 3 (robbery in company with wounding) allowed in part, sentence quashed. 3. In lieu of the sentence imposed on count 3 Horace James Donovan is sentenced to imprisonment for 3 years commencing from 13 May 2003 with a non-parole period of 18 months starting that day and ending on 12 November 2004 on which day Mr Donovan will be eligible for release on parole. **********

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