Neal v The Queen - [2019] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Neal v R [2019] NSWCCA 104
Hearing dates: 8 May 2019
Date of orders: 03 June 2019
Decision date: 03 June 2019
Before: White JA at [1]
Harrison J at [5]
R A Hulme J at [48]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIME – sentence appeal – where applicant convicted of supplying a prohibited drug – where applicant sentenced to imprisonment for 5 years, with a non-parole period of 3 years – whether sentencing judge was provided with incorrect information in pre-sentence report – whether mention of gun by prosecutor and sentencing judge during sentencing proceedings was misleading – whether sentencing judge erred by not backdating sentence to date applicant entered custody – whether sentencing judge was provided with incorrect information about location of applicant’s property and co-offender’s property – whether sentence manifestly excessive – whether Blackberry phone pictures were misleading – appeal dismissed
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Newman v R [2018] NSWCCA 208
Pannowitz v R [2016] NSWCCA 13
Category: Principal judgment
Parties: Robert Neal (Applicant)
Crown (Respondent)
Representation:
Counsel:
K Jeffreys (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/322054
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court New South Wales

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 30

Date of Decision:

27 February 2018

Before:

Berman SC DCJ

File Number(s):

2015/322054; 2015/319431; 2015/139398

Judgment

WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Harrison J. I agree with his Honour’s reasons and proposed orders.
In particular, I agree with Harrison J that at [35] of the primary judge’s reasons (quoted by Harrison J at [29]), the primary judge made a slip in referring to the sentence he proposed to impose as being partially concurrent with the sentence the applicant was serving for having breached his ICO and his Honour intended to refer to the Local Court’s sentence the applicant was then serving. I agree that it should be inferred that the judge intended to say that the sentence he was imposing should be served partially concurrently with the sentences imposed in the Local Court on 6 February 2017 which were still running. It was the sentences imposed by the Local Court on 6 February 2017 that were backdated to 2 November 2015 that had run concurrently with the ICO sentence.
If his Honour’s reasons are not a mere slip of expression but connote an error in the sentencing process that requires this Court to intervene and re-sentence, no lesser sentence would be warranted. As Harrison J says, the effective non-parole period imposed referable only to the offence of which the applicant was convicted was one year and nine months with a further parole period of two years. Having regard to the seriousness of the offence as described in the reasons of Harrison J, notwithstanding the subjective factors…

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 Neal v The Queen

Details

AGLC: Neal v The Queen [2019] NSWCCA 104
Case: [2019] NSWCCA 104
Decision Date: 03 June 2019

CaseChat Overview and Summary

The appellant, Neal, was convicted of supplying a prohibited drug and sentenced to imprisonment for five years, with a non-parole period of three years. Neal appealed the sentence on several grounds, including whether the sentencing judge had been provided with incorrect information in the pre-sentence report, whether the mention of a gun by the prosecutor and the sentencing judge during the proceedings was misleading, whether the sentencing judge erred by not backdating the sentence to the date Neal entered custody, whether the sentencing judge had been provided with incorrect information about the location of Neal’s property and his co-offender’s property, and whether the sentence was manifestly excessive. The appeal also questioned the impact of certain photographs from a Blackberry phone on the sentencing process.

The court considered whether the sentencing judge had been provided with incorrect information in the pre-sentence report, which could have affected the sentencing decision. The court also examined whether the mention of a gun by the prosecutor and the sentencing judge during the proceedings was misleading and whether it had influenced the sentence. Additionally, the court addressed whether the sentencing judge erred by not backdating the sentence to the date Neal entered custody and whether the sentencing judge was provided with incorrect information about the location of Neal’s and his co-offender’s property. The court further evaluated whether the sentence was manifestly excessive and the impact of the Blackberry phone pictures on the sentencing process.

After considering the arguments presented, the court found that the sentencing judge had not been provided with incorrect information in the pre-sentence report, and the mention of the gun did not mislead the sentencing process. The court also determined that the sentencing judge did not err by not backdating the sentence to the date Neal entered custody. Furthermore, the court concluded that the sentence was not manifestly excessive and that the Blackberry phone pictures did not unduly influence the sentencing decision. Consequently, the appeal was dismissed, and the original sentence was upheld.

The court dismissed the appeal and affirmed the original sentence, which involved imprisonment for five years with a non-parole period of three years. The court found no basis to interfere with the sentence, as it was not manifestly excessive and the sentencing process was not influenced by any alleged errors.

Orders