Neal v The Queen - [2008] NSWCCA 212

New South Wales
Court of Criminal Appeal

CITATION: Neal v R [2008] NSWCCA 212

HEARING DATE(S): 8 September 2008

JUDGMENT DATE:
8 September 2008

JUDGMENT OF: Allsop P at 36; Johnson J at 37; Price J at 1

EX TEMPORE JUDGMENT DATE: 8 September 2008

DECISION: (i) Leave to appeal granted. (ii) Appeal dismissed

CATCHWORDS: Criminal law - sentencing - break, enter and commit serious indictable offence contrary to s 112(1) Crimes Act 1900 - pursuit of domestic partner - attack on partners father - sentence not manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 s 112(1), s 112(2), s 562ZG(1),
s 59(1),

CATEGORY: Principal judgment

CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048
Marshall v R [2007] NSWCCA 24
R v Edigarov (2001) 125 A Crim R 551
R v McNaughton [2006] NSWCCA 242
Regina v Fernando [2002] NSWCCA 28

PARTIES: Robert Walter Neal
Regina

FILE NUMBER(S): CCA 2007/3713

COUNSEL: Mr T Gartelmann (Applicant)
Mr P Ingram (Respondent)

SOLICITORS: Steve O'Connor (Legal aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/1018

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 3 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Neal

2007/3713

ALLSOP P
JOHNSON J
PRICE J
8 September 2008

Neal v R

EX TEMPORE Judgment

1 PRICE J: The applicant, Robert Walter Neal, seeks leave to appeal against the severity of the sentence imposed in the District Court on 3 August 2007 for the offence of break, enter and commit serious indictable offence, namely assault occasioning actual bodily harm.

2 The offence being contrary to s 112(1) of the Crimes Act 1900 is punishable by imprisonment for 14 years. A standard non-parole period has not been prescribed for this offence.

3 Pleas of guilty had been entered by the applicant in the Local Court to three charges which he adhered to in the District Court. The first charge was that he on 31 August 2006 at Ettalong Beach assaulted and occasioned actual bodily harm to Ms Amara Roberts contrary to s 59(1) of the Crimes Act. The maximum penalty for the offence is 5 years imprisonment.

4 The second charge was that he on 31 August 2006 at Ettalong Beach, broke and entered the dwelling house of David Roberts and therein committed a serious indictable offence, namely that he assaulted David Roberts and occasioned actual bodily harm to him. It is the sentence imposed for this offence which is the subject of the present appeal.

5 The third charge was that on 27 September 2006 at Ettalong Beach the applicant sent a letter and other documents intending to persuade Ms Roberts, who was then a person to be called as a witness in judicial proceedings, to withhold true evidence contrary to s 323 of the Crimes Act. The maximum penalty for this offence is 7 years imprisonment.

6 An offence contrary to s 562ZG(1) of the Crimes Act, namely a contravention of…

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 [2008] NSWCCA 212
Case: [2008] NSWCCA 212
Decision Date: 8 September 2008

CaseChat Overview and Summary

The case of Neal v The Queen involved the appellant, who was convicted of breaking and entering a dwelling with intent to commit a serious indictable offence. The offence occurred when the appellant pursued their domestic partner to their father's house, resulting in an attack on the father. The appeal was against the sentence imposed by the primary judge, who considered it appropriate given the circumstances. The High Court was tasked with determining whether the sentence was manifestly excessive.

The legal issue at the heart of this case was whether the sentence imposed by the trial judge was manifestly excessive. The appellant argued that the sentence did not adequately reflect the mitigating factors present in the case, such as the appellant's young age and the circumstances surrounding the pursuit and attack. The Crown, on the other hand, contended that the sentence was appropriate and proportionate to the gravity of the offence committed.

In delivering the judgment, the Court held that the sentence was not manifestly excessive. The judges found that the trial judge had correctly considered the relevant mitigating and aggravating factors and had exercised their discretion appropriately. The Court emphasised that the sentence imposed must be proportionate to the gravity of the offence and the circumstances of the case. The judges concluded that the sentence was within the range of reasonable outcomes and did not constitute an error of law that warranted interference by the Court.

The Court dismissed the appeal, affirming the sentence imposed by the trial judge. The judges found that the sentence was proportionate to the seriousness of the offence and took into account the mitigating factors present in the case. The Court also noted that the appellant had a history of offending and had not shown sufficient remorse for their actions. The judges held that the sentence was not manifestly excessive and did not constitute a miscarriage of justice.

Orders