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Brendan Neil v The Queen

Brendan Neil v The Queen

Case [2019] VSCA 64 25 March 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0047

BRENDAN NEIL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST AP, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2019
DATE OF JUDGMENT:	25 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 64
JUDGMENT APPEALED FROM:	[2017] VSC 761R (Jane Dixon J)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Murder – Sentence of 26 years with non-parole period of 22 years following plea of guilty – Co-accused sentenced to 24 years with non-parole period of 20 years following trial – Parity – Whether judge erred in application of parity principle – Whether non-parole period manifestly excessive – Not reasonably arguable that judge erred in application of parity principle – Not reasonably arguable that non-parole period manifestly excessive – Application for leave to appeal refused.

OPEN COURTS – Non-publication order – Whether non-publication order necessary to prevent prejudice to administration of justice – Whether non-publication order necessary to protect applicant’s safety – Non-publication order not necessary – Ancillary order varied – Open Courts Act 2013, ss 17 and 18 – Criminal Procedure Act 2009, s 325.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Lethbridges Barristers & Solicitors
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

PRIEST AP

BEACH JA
T FORREST JA:

For about four months leading up to 25 August 2015, the applicant and Simone Quinlan were in an intimate relationship. On that day (25 August), Ms Quinlan was savagely beaten by the applicant. She later died.

On 24 April 2017, following pre-trial legal argument, the applicant pleaded guilty in the Supreme Court to the murder of Ms Quinlan. On 15 May 2017, following a 10 day trial, the applicant’s co-accused, Wayne Marmo, was also convicted of Ms Quinlan’s murder.

On 14 December 2017, the trial judge sentenced the applicant to a term of imprisonment of 26 years, with a non-parole period of 22 years. At the same time, she sentenced Marmo to a term of imprisonment of 24 years, with a non-parole of 20 years.[1]
[1]DPP v Neil & Marmo [2017] VSC 761R (‘Reasons’).

The applicant now seeks leave to appeal against his sentence on the following grounds:

1.The judge erred in the application of the parity principle by imposing a greater sentence on [the applicant] than Marmo in circumstances where [the applicant] pleaded guilty and Marmo pleaded not guilty and where [the applicant] offered to give evidence against Marmo and by finding that Marmo played a ‘subordinate role’ in the offending (sic).
2.The non-parole period is manifestly excessive.

Circumstances of the offending

At the time of the murder, the applicant was 28 years of age and Ms Quinlan was 33. They had been involved in an intimate relationship for about four months. During the relationship, Ms Quinlan lived ‘on and off’ with the applicant in a house on a property owned by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brendan Neil v The Queen

Details

AGLC: Brendan Neil v The Queen [2019] VSCA 64
Case: [2019] VSCA 64
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the case of Brendan Neil v The Queen, the appellant sought leave to appeal against his sentence following a guilty plea to the charge of murder. The High Court of Australia was tasked with determining whether the appellant's sentence, consisting of 26 years imprisonment with a non-parole period of 22 years, was manifestly excessive and whether the sentencing judge had erred in applying the principle of parity in sentencing compared to a co-accused. Additionally, the court considered whether a non-publication order should be maintained to prevent prejudice to the administration of justice and to protect the appellant's safety.

The primary legal issues before the court were whether the sentencing judge had made an error in the application of the parity principle by imposing a sentence on the appellant that was more severe than that given to his co-accused, who received a sentence of 24 years with a non-parole period of 20 years. Furthermore, the court assessed whether the non-parole period was manifestly excessive, given the nature of the crime and the circumstances of the case. The court had to balance these considerations with the principle of parity in sentencing, ensuring that sentences for similar crimes are proportionate.

The court found that it was not reasonably arguable that the sentencing judge had erred in applying the principle of parity. The disparities in the sentences were justified by the differences in the roles and contributions of the appellant and his co-accused to the crime. The court concluded that the non-parole period was not manifestly excessive, considering the severity of the offence and the need for deterrence and retribution. Therefore, the application for leave to appeal was refused. The court also varied the ancillary order under the Open Courts Act 2013 and the Criminal Procedure Act 2009, determining that a non-publication order was not necessary to prevent prejudice to the administration of justice or to protect the appellant’s safety.

Orders