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Court of Criminal Appeal 3 June 2019

Neal v R

[2019] NSWCCA 104

Drugs
CRIME SENTENCE APPEAL PAROLE PERIOD OF 3 YEARS SENTENCE REPORT OFFENDER’S PROPERTY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Neal v R [2019] NSWCCA 104
Court: Court of Criminal Appeal, NSW
Date: 3 June 2019
Judges: White JA, Harrison J, R A Hulme J

Background

The applicant pleaded guilty in the Bathurst Local Court to one count of supplying a prohibited drug (heroin) between July and October 2015, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 15 years' imprisonment. He was sentenced in the Sydney District Court in February 2018 to five years' imprisonment commencing 2 November 2016, with a non-parole period expiring 1 November 2019.

The offending involved a joint criminal enterprise with two co-offenders. Over approximately four months, around 160 grams of heroin was supplied through a neighbouring co-offender acting as a street-level seller, with 292 separate transactions recorded. Police also found $143,000 in cash under a neighbouring property that the applicant controlled.

The applicant, who was unrepresented, sought leave to appeal against the severity of his sentence on eight grounds. The Court of Criminal Appeal granted leave but dismissed the appeal.

  • Whether errors or inaccuracies in the pre-sentence report misled the sentencing judge and affected the sentence imposed
  • Whether references to a firearm by the prosecutor and sentencing judge were incorrect and prejudicial
  • Whether the sentencing judge erred by failing to backdate the sentence to the date of the applicant's arrest (2 November 2015)
  • Whether incorrect information about the proximity of the applicant's and co-offender's properties affected sentencing
  • Whether the sentence was manifestly excessive given the nature of the offence
  • Whether photographs from a BlackBerry phone were misleading in the sentencing proceedings
  • Whether expressions of remorse and difficult personal history constituted independent grounds of appeal

Decision

Ground 1 (pre-sentence report errors): The Court acknowledged the applicant's concerns about inaccuracies in the pre-sentence report, including details about his children and financial circumstances. However, the Court found those errors immaterial because the sentencing judge's remarks on sentence did not rely on the disputed details in any way that affected the outcome. No error was established.

Ground 2 (firearm reference): The Court did not find that the mention of a gun during sentencing proceedings produced an error in the sentence ultimately imposed. Harrison J's reasons address this ground, and the Court found no basis to conclude that any such reference caused any injustice to the applicant.

Ground 3 (backdating): The applicant argued his sentence should have been backdated to 2 November 2015. The Court found that the sentence had in fact been backdated to 2 November 2016, and that Local Court sentences imposed in February 2017 had themselves been backdated to 2 November 2015. White JA noted that a reference in the primary judge's reasons to the sentence being partially concurrent with an Intensive Corrections Order appeared to be a slip of expression rather than a substantive error. Even if it were an error requiring resentencing, no lesser sentence would be warranted given the seriousness of the offending.

Grounds 4 to 8: The Court dismissed the remaining grounds. The alleged geographic inaccuracy about property locations was not shown to have affected the sentence. The Court found the sentence was not manifestly excessive, noting the effective non-parole period attributable solely to the subject offence was one year and nine months. The BlackBerry phone photographs were not exhibits in the sentencing proceedings, and the applicant's own evidence had addressed the timing issue. Expressions of remorse and personal history (Grounds 7 and 8) had already been accepted and taken into account by the sentencing judge, and their reiteration on appeal did not constitute grounds for intervention.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that errors or inaccuracies in a pre-sentence report will only be material on appeal if they can be shown to have actually influenced the sentencing judge's decision.
  • A slip of expression in a sentencing judge's reasons does not automatically require intervention and resentencing; where no lesser sentence would be warranted on any view, the Court of Criminal Appeal will decline to intervene.
  • Remorse and difficult personal history, while relevant subjective factors, do not constitute independent grounds of appeal where the sentencing court has already accepted and weighed them.
  • Where exhibits or documents are not formally tendered in sentencing proceedings, and the sentencing judge does not refer to them, an appellate court will infer that the judge understood and properly addressed the surrounding evidence.
  • The effective non-parole period attributable to a specific offence, when calculated by reference to concurrent or partially concurrent sentences already running, may be considerably shorter than the headline term imposed, a consideration relevant to manifest excess arguments.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Newman v R [2018] NSWCCA 208
- Pannowitz v R [2016] NSWCCA 13