Beech-Jones CJ at CL at [1] Campbell J at [9] Weinstein J at [113]
Decision:
(1) Under r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW) grant leave for the application for leave to appeal from sentence, filed on 22 November 2022, to be made.
(2) Grant leave to appeal.
(3) Appeal allowed.
(4) Quash the aggregate sentence passed on the applicant in the Common Law Division of the Supreme Court on 14 May 2021 and instead order that the applicant is sentenced to an aggregate term of imprisonment for the murder of Michaela Dunn and the offence of wounding Lin Bo with the intent to cause grievous bodily harm for a term of 40 years comprising a non-parole period of 30 years commencing on 13 August 2019 and expiring on 12 August 2049 with a balance of term of 10 years commencing on 13 August 2049 and expiring on 12 August 2059.
(5) Under s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) vary the date of commencement of the sentence passed on the applicant in the Goulburn Local Court on 7 June 2022 for the offence of assault law officer (not police officer) (charge number H85969280) so that it commences on 13 November 2048 (and expires on 12 February 2050).
(6) Under s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) vary the date of commencement of the sentence passed on the applicant in the Penrith District Court on 2 February 2023 for the offence of assault occasioning actual bodily harm (charge number H79387308) to 12 February 2050 (and expires on 11 May 2051) with a non-parole period of 8 months (expiring on 11 October 2050).
(7) The earliest date on which the applicant is eligible for release on parole is 12 October 2050.
Catchwords:
APPEALS — crime — appeals against sentence — murder — wounding with intent to cause grievous bodily harm — relative youth — applicant has mental health impairment but no psychotic disorder — sentence judge gave consideration to but did not impose a life sentence due to applicant’s age and mental health
CRIME — whether the sentencing judge gave adequate reasons regarding the meaning of “unwarranted double counting” — no error
CRIME — whether the sentencing judge considered that the applicant’s term of imprisonment could be more onerous than the theoretical inmate — error established
CRIME — whether the sentence judge erred in assessing the applicant’s demeanour — no error
CRIME — whether the learned sentencing judge erred in failing to take into account the applicant’s youth other than for the purpose of consideration of a life sentence — no error
CRIME — appeals against sentence — resentence — a somewhat reduced sentence is warranted having regard to the sentence judge’s error in not considering the impact of the…
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.
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Details
AGLC
Ney v The King [2023] NSWCCA 252
Case
[2023] NSWCCA 252
Decision Date
CaseChat Overview and Summary
The appeal before the court was brought by the applicant, Ney, against his sentence for murder and wounding with intent to cause grievous bodily harm. The case was heard in the High Court of Australia. Ney's legal team contended that the original sentencing judge had failed to properly consider the impact of Ney's mental health on the severity of his sentence, and that this constituted an error warranting a resentencing. The applicant also argued that the sentencing judge had not adequately considered the onerousness of imprisonment for someone with his mental health condition, and that this oversight warranted a reduced sentence.
The central legal issues before the court were whether the sentencing judge had adequately considered the applicant's mental health and age in determining the sentence, and whether the sentence was appropriate given the seriousness of the crimes. The court had to determine if the sentencing judge erred in not considering the impact of the applicant's mental health on the onerousness of his custody, and whether this error warranted a resentencing. The court also examined whether the sentencing judge had adequately considered the applicant's demeanour and age, apart from the consideration of a life sentence.
The court found that the sentencing judge had not erred in considering the meaning of "unwarranted double counting" but did find an error in the judge's failure to consider the impact of the applicant's mental health on the onerousness of his custody. The court held that despite this error, the sentence imposed was appropriate given the objective seriousness of the crimes and the need for specific and general deterrence. However, the court also concluded that a somewhat reduced sentence was warranted given the error in not considering the impact of the applicant's mental health on the onerousness of his custody.
The final orders of the court were to reduce the applicant's sentence slightly, taking into account the error in not considering the impact of the applicant's mental health on the onerousness of his custody. The court did not find any other grounds for resentencing, affirming the sentence in all other respects.