Leeming JA at [1]; Fullerton J at [52]; R A Hulme J at [53].
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence – aggravated dangerous driving occasioning death – whether sentence manifestly excessive – applicable principles – necessity of inferring error of principle – use of sentencing statistics – need to adjust applicant’s sentence following trial to compare with sentences following guilty plea – limitations of comparable cases – appeal dismissed
Patrick Paul Nealon (Applicant) Crown (Respondent)
Representation:
Counsel: J Stratton SC (Applicant) G Newton (Respondent)
Solicitors: J Hanby, Justinian Legal (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):
2016/00375085
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
19 March 2020
Before:
Girdham SC DCJ
File Number(s):
2016/00375085
Judgment
LEEMING JA: Mr Patrick Paul Nealon seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) from a sentence imposed by the District Court following a verdict of guilty from a jury after a trial lasting from 21 October until 8 November 2019 on a single count of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 (NSW). The maximum penalty is 14 years imprisonment. The District Court (Girdham SC DCJ) imposed a sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months. He was also disqualified from driving…
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 Nealon v R
Sign in free to access the full text
Details
AGLC
Nealon v R [2021] NSWCCA 286
Case
[2021] NSWCCA 286
Decision Date
CaseChat Overview and Summary
The case of Nealon v R involved the appellant, Nealon, appealing against a sentence imposed for aggravated dangerous driving that resulted in death. The matter was heard in the High Court of Australia. Nealon was found guilty of the charge and sentenced to imprisonment. He sought to have the sentence reduced, arguing it was manifestly excessive.
The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive, thus warranting an intervention by the High Court. This involved a review of the principles that guide sentencing in such cases, particularly the necessity of inferring an error of principle on the part of the trial judge. The court also considered whether it was appropriate to use sentencing statistics and whether it was necessary to adjust the appellant's sentence for the purpose of comparison with sentences following a guilty plea.
The court held that the sentence was not manifestly excessive. It emphasised that an appeal against sentence would only succeed if the sentence was outside the range of sentences that a properly directed sentencing judge could have imposed. The court found that the trial judge had carefully considered the circumstances of the case and had not erred in principle. The use of sentencing statistics was deemed inappropriate in this context, and the court also noted the limitations of comparing sentences following a trial with those following a guilty plea. Consequently, the appeal was dismissed.