Nean v The Queen - [2019] NSWCCA 164

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nean v R [2019] NSWCCA 164
Hearing dates: 12 July 2019
Date of orders: 24 July 2019
Decision date: 24 July 2019
Before: Leeming JA at [1]
R A Hulme J at [2]
Davies J at [3]
Decision:
(1) Grant leave to appeal.

(2) The appeal is allowed.

(3) The sentence imposed by Judge McLennan SC in the District Court on 30 April 2018 is quashed.
(4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for 8 years and 9 months commencing 1 February 2017 and expiring 31 October 2025 with a non-parole period of 5 years expiring 31 January 2022. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 31 January 2022.
Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to four offences of robbery in company and one offence of police pursuit – further offence of steal motor vehicle taken into account on sentence – offending all occurred in the course of one criminal enterprise – robbery in company perpetrated against a number of complainants who all lived at the same premises – degree of violence involved in the robbery offences – use of weapons – several of the offences committed in the presence of minors – after the robberies the applicant and co-offenders stole the vehicle of one of the complainants and fled the premises – police pursuit ensued – where the applicant had served time in custody for other offences whilst refused bail for index offences – backdating of sentences - whether the sentencing judge erred in his assessment of the time spent by the applicant in custody solely referable to the index offences – whether the sentencing judge erred in his application of the Bugmy principles – whether the sentencing judge erred in his assessment of the applicant’s criminal antecedents – need for re-sentence – no lesser sentence warranted – adjustment to commencement date for sentence
Legislation Cited: Crimes Act 1900 (NSW) ss 51B, 97
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Turnbull v R [2019] NSWCCA 97
Texts Cited: Nil
Category: Principal judgment
Parties: Johnathan Alex Nean (Applicant)
Crown (Respondent)
Representation:
Counsel:
C Wasley (Applicant)
A Bonnor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/273383
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

30 April 2018

Before:

McLennan SC DCJ

File Number(s):

2016/273383

Judgment

LEEMING JA: I agree with Davies J.
R A HULME J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty to the following offences:

(1) Counts 1-4: Robbery in company contrary to s 97(1) of the Crimes…

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 Nean v The Queen

Details

AGLC: Nean v The Queen [2019] NSWCCA 164
Case: [2019] NSWCCA 164
Decision Date: 24 July 2019

CaseChat Overview and Summary

The applicant, Nean, appealed against his sentence for four counts of robbery in company, one count of police pursuit, and one count of stealing a motor vehicle. The robberies occurred in the company of co-offenders, and involved violence and the use of weapons. The incidents took place at a premises where several complainants lived, some of whom were minors. After the robberies, the applicant and his co-offenders stole a complainant's vehicle and fled, leading to a police pursuit. The applicant had already served time in custody for other offences while awaiting bail for the index offences. The appeal centred on whether the sentencing judge erred in assessing the time spent in custody solely referable to the index offences, the application of the Bugmy principles, and the assessment of the applicant's criminal antecedents.

The appeal raised several legal issues for the court to decide. The first was whether the sentencing judge erred in backdating the sentences to the time the applicant was remanded in custody for the index offences. The second issue was whether the sentencing judge correctly applied the principles set out in Bugmy v The Queen. The third issue was whether the sentencing judge erred in his assessment of the applicant's criminal antecedents. The fourth issue was whether a re-sentence was warranted, and if not, whether a lesser sentence was appropriate. Finally, the court needed to determine whether an adjustment to the commencement date for the sentence was necessary.

The court found that the sentencing judge did not err in backdating the sentences to the time the applicant was remanded in custody for the index offences. The court held that the sentencing judge correctly applied the principles in Bugmy, which required consideration of the offender's Indigenous status. The court also found that the sentencing judge did not err in his assessment of the applicant's criminal antecedents. Given the seriousness of the offending, the court held that no lesser sentence was warranted. However, the court did find that an adjustment to the commencement date for the sentence was appropriate. The appeal was therefore partly allowed, and the case was remitted for re-sentencing with the appropriate adjustment to the commencement date.

Orders