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R v Neal (No. 2)

R v Neal (No. 2)

Case [2022] NSWDC 215 17 June 2022

Sentencing

Robbery

Break and Enter Offences

Supply Prohibited Drugs

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Neal (No. 2) [2022] NSWDC 215
Hearing dates: 13 May 2022
Date of orders: 17 June 2022
Decision date: 17 June 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For orders see [127].

Catchwords:
SENTENCE – robbery; various break and enter offences; supply prohibited drugs.

Legislation Cited:
Crimes Act 1900
Drug Court Act 1998
Drug Misuse & Trafficking Act 1985
Road Transport Act 2013

Cases Cited:
Biddle v R [2017] NSWCCA 128
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Hoskins v R [2021] NSWCCA 169
JMS v R [2010] NSWCCA 229
Lloyd v R [2022] NSWCCA 18
Mandranis v R [2021] NSWCCA 97
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88
Palijan v R [2010] NSWCCA 142
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Huynh [2005] NSWCCA 220
R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100
R v Neal [2022] NSWDC 23
R v Van Ryn [2016] NSWCCA 1
Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Daniel Shane Neal (Offender)
Representation:
Counsel:
C. Dobraszczyk (Crown)
B. Robinson (Offender)
Solicitors:
H. Braid (Crown)
H. Shaw (Offender)

File Number(s): 2018/311358
Publication restriction: Nil.

Remarks on sentence

The offender who was born in November 1983 is to be sentenced in respect of the following offences:

Aggravated break and enter and commit serious indictable offence (sequence 6). This is an offence pursuant to s 112(2) of the Crimes Act 1900, to which the offender and his co-offender McCutchen pleaded guilty. The maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.

In addition, the offender is to be sentenced on the following four counts on an Indictment to which he pleaded not guilty. Following a Judge alone trial that commenced 9 February 2022, the offender was found guilty on each of the four counts on 18 February 2022:

Count 1 – offence of robbery pursuant to s 94(a) of the Crimes Act 1900. The maximum penalty prescribed is 14 years imprisonment and there is no standard non-parole period.

Count 2 – aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900. The maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.

Count 3 – supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985 (“DMTA”). The maximum penalty prescribed is 15 years imprisonment and/or 2,000 penalty units. There is no standard non-parole period prescribed.

Count 4 – break and enter house and steal goods of a value less than $60,000 pursuant to…

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 R v Neal (No. 2)

Details

AGLC: R v Neal (No. 2) [2022] NSWDC 215
Case: [2022] NSWDC 215
Decision Date: 17 June 2022

CaseChat Overview and Summary

The case of R v Neal (No. 2) involved the defendant, Neal, who faced sentencing following convictions for robbery, various break and enter offences, and supply of prohibited drugs. The matter was heard in the relevant court, which determined the appropriate penalty for these serious criminal activities.

The primary legal issues revolved around the determination of an appropriate custodial sentence that reflected the gravity of the offences. The court had to consider the nature and circumstances of each offence, the culpability of the offender, and the need for deterrence and rehabilitation. Additionally, the court needed to balance these considerations with the principles of proportionality and justice.

The court, in its reasoning, emphasised the severity and premeditated nature of the crimes committed. The judge took into account the cumulative effect of the offences and the impact on the victims. The court also highlighted the defendant's criminal history, indicating a pattern of similar offending behaviour. After weighing all relevant factors, the court concluded that a full-time custodial sentence was necessary to adequately address the seriousness of the crimes, protect the community, and provide a measure of deterrence. The detailed sentencing orders were outlined in the judgment at paragraph [127].

Orders

Orders of the court

Full time custodial sentence. For orders see [127].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Neal (No. 2) [2022] NSWDC 215

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

R v Neal
[2022] NSWDC 23 Para 13

…The facts in respect of counts 1 to 4 on the Indictment were those facts set out in my judgment on verdict dated 18 February 2022 ([2022] NSWDC 23). That judgment, including the facts agreed at trial and my findings of fact should be read in conjunction with these remarks. A summary of the offences is as follows.…
Lloyd v R
[2022] NSWCCA 18 Para 101

…th (Exhibit 1.1). Whilst such reports not supported by evidence must be approached, as a general observation, with some circumspection (see Lloyd v R [2022] NSWCCA 18), there was no objection by the Crown to any part of the report and I accept the family history as set out by Ms North. It is clear that the offender…
Hoskins v R
[2021] NSWCCA 169 Para 105

…ulpability for the offending, as well as moderating the weight to be given to personal and general deterrence (see Lloyd v R at [32]). In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]:…
Mandranis v The Queen
[2021] NSWCCA 97 Para 75

…In determining whether any sentence could be served in the community, counsel submitted the court would have regard to Mandranis v R [2021] NSWCCA 97 per Simpson AJA at [61] and following, with which Garling J had agreed. It was submitted having regard to the pre-sentence custody, any sentence could be reduced to b…
Wany v Director of Public Prosecutions
[2020] NSWCA 318 Para 119

…An ICO is a way of serving a term of imprisonment and cannot be an alternative to imprisonment – see Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318 per McCallum JA at [18]. The offender relied on Mandranis v R (supra) to submit this was an appropriate case for the sentence to be served by way of an ICO where the…
R v Holder
[2019] SASCFC 73

…“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
Parente v R
[2017] NSWCCA 284 Para 78

…In respect of drug offences, the Crown referred to Parente v R [2017] NSWCCA 284 where at [107]-[115], the Court noted the purposes of sentencing including general deterrence, protection of the community, together with the maximum penalties and any standard non-parole periods which must be considered by the sentenci…
Biddle v R
[2017] NSWCCA 128 Para 110

…It has been held that assistance under the section does not necessarily require a reduction in the sentence – see Biddle v R [2017] NSWCCA 128. I accept that there were extensive facts agreed at trial, however, the Crown was still put to proof as to the identity of the offender in each count. Any reduction in penalt…
R v Van Ryn
[2016] NSWCCA 1 Para 114

…some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with prope…
Munda v Western Australia
[2013] HCA 38 Para 82

…o the community and specific deterrence as the prospects of rehabilitation must be considered to be very slim, relying on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88 at [56]-[57]; JMS v R [2010] NSWCCA 229 at [42].…
Bugmy v The Queen
[2013] HCA 37 Para 63

…ife, causing his drug use to escalate and become entrenched. It was submitted this background engaged the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37. The articles from the Bugmy Bar Book, which formed part of the defence evidence, provided reference material in addressing the deleterious effect of…
JMS v R
[2010] NSWCCA 229 Para 82

…of rehabilitation must be considered to be very slim, relying on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88 at [56]-[57]; JMS v R [2010] NSWCCA 229 at [42].…
Palijan v R
[2010] NSWCCA 142 Para 78

…was something particularly repugnant about the forced entry of an offender into a house and violating the safety of the home, relying on Palijan v R [2010] NSWCCA 142 at [21].…
R v Merrin
[2007] NSWCCA 255 Para 77

…r, the principle of totality will rarely, if ever, justify wholly concurrent sentences for a series of break and enter offences relying on R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 at [38]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [38]-[42]. With respect to the circumstances of aggravatio…
R v Harris
[2007] NSWCCA 130 Para 77

…ly concurrent sentences for a series of break and enter offences relying on R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 at [38]; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [38]-[42]. With respect to the circumstances of aggravation relevant to the s 112(2) offences, the Crown referred to the…
Cahyadi v R
[2007] NSWCCA 1 Para 115

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:…
R v Huynh
[2005] NSWCCA 220 Para 77

…circumstances of aggravation relevant to the s 112(2) offences, the Crown referred to the judgment of Simpson J (as her Honour then was) in R v Huynh [2005] NSWCCA 220 where her Honour held the seriousness of the offending must be determined by reference to the particular facts of each case. Whilst there was no grad…
Veen v The Queen (No 2)
[1988] HCA 14 Para 99

…rther, the offender’s extensive criminal history does not entitle him to any leniency. I have regard to what the plurality said in Veen v R [No. 2] (1998) 164 CLR 465 at 477:…
[2013] HCA 88
[2013] HCA 88 Para 82

…specific deterrence as the prospects of rehabilitation must be considered to be very slim, relying on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88 at [56]-[57]; JMS v R [2010] NSWCCA 229 at [42].…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
1 mention (from Para 1)
Drug Court Act 1998 (NSW)
1 mention (from Para 87)
Road Transport Act 2013 (NSW)
1 mention (from Para 2)
Trafficking Act 1985 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	R v Neal (No. 2) [2022] NSWDC 215
Hearing dates:	13 May 2022
Date of orders:	17 June 2022
Decision date:	17 June 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [127].
Catchwords:	SENTENCE – robbery; various break and enter offences; supply prohibited drugs.
Legislation Cited:	Crimes Act 1900 Drug Court Act 1998 Drug Misuse & Trafficking Act 1985 Road Transport Act 2013
Cases Cited:	Biddle v R [2017] NSWCCA 128 Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Hoskins v R [2021] NSWCCA 169 JMS v R [2010] NSWCCA 229 Lloyd v R [2022] NSWCCA 18 Mandranis v R [2021] NSWCCA 97 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 88 Palijan v R [2010] NSWCCA 142 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v Huynh [2005] NSWCCA 220 R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100 R v Neal [2022] NSWDC 23 R v Van Ryn [2016] NSWCCA 1 Wany v DPP (2020) 103 NSWLR 620; [2020] NSWCA 318
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Daniel Shane Neal (Offender)
Representation:	Counsel: C. Dobraszczyk (Crown) B. Robinson (Offender) Solicitors: H. Braid (Crown) H. Shaw (Offender)
File Number(s):	2018/311358
Publication restriction:	Nil.