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Court of Criminal Appeal 11 October 2023

Ney v R

[2023] NSWCCA 252

Assault & violenceHomicide

Citation: Ney v R [2023] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 11 October 2023
Judges: Beech-Jones CJ at CL, Campbell J, Weinstein J

Background

The applicant pleaded guilty to the murder of a woman he had arranged to meet through an escort service in Sydney, and to the wounding with intent to cause grievous bodily harm of a second woman he stabbed in the city streets immediately afterwards. The sentencing judge at first instance described the murder as "a cruel, brutal and terrifying attack made for no reason." That characterisation was not challenged on appeal.

At first instance, the applicant was sentenced to an aggregate term of 44 years' imprisonment with a non-parole period of 33 years. The sentencing judge considered but declined to impose a life sentence, citing the applicant's relative youth and mental health impairment. The applicant had a mental health impairment but no psychotic disorder.

The applicant sought leave to appeal on five grounds, centred on whether the sentencing judge had properly accounted for his youth, his mental health, and the likely onerousness of his custody. He also argued the sentence was manifestly excessive.

  • Whether the sentencing judge erred in referring to "unwarranted double counting" when addressing the mitigatory effect of youth and mental illness
  • Whether the sentencing judge was required to address, and failed to address, evidence and submissions that the applicant's mental health would make his custody more onerous than for a typical inmate
  • Whether the sentencing judge erred in assessing the applicant's demeanour, insight, empathy and remorse
  • Whether the sentencing judge failed to take the applicant's youth into account beyond its relevance to the question of a life sentence
  • Whether the aggregate sentence of 44 years was manifestly excessive

Decision

Ground 1 (double counting): The Court found no error. The sentencing judge had recognised that youth and mental illness carried significant mitigatory weight under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the reference to "unwarranted double counting" reflected a proper concern not to overwork those factors rather than a failure to consider them.

Ground 2 (custodial onerousness): The Court upheld this ground by majority. The applicant's written and oral submissions at sentencing, supported by expert evidence, squarely raised the proposition that his mental health would make custody more onerous than for a hypothetical average inmate. The sentencing judge's remarks contained no reference to this submission or to the applicant's likely experience in custody in light of his condition. The majority found this constituted a failure to take into account a material consideration, constituting error under the principle in House v The King (1936) 55 CLR 499.

Grounds 4 and 5 (demeanour and youth): Both grounds were dismissed. The Court found no error in the sentencing judge's assessment of the applicant's demeanour, insight, empathy or remorse. On youth, the Court was satisfied that the sentencing judge's consideration of subjective circumstances generally extended to the mitigatory effect of the applicant's relative youth, not merely for the purposes of the life sentence analysis.

Ground 6 (manifest excess) and resentencing: The Court was divided on the consequences of the Ground 2 error. Beech-Jones CJ at CL concluded, upon an independent exercise of the sentencing discretion, that the extreme objective seriousness of the offending, combined with considerations of proportionality, specific deterrence and community protection, meant no lesser sentence was warranted. Campbell J (with Weinstein J agreeing) took the contrary view and proposed a reduced sentence, finding that the applicant's mental health and its impact on the onerousness of custody remained a factor favouring some reduction. The majority (Campbell and Weinstein JJ) allowed the appeal and substituted a reduced sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original aggregate sentence of 44 years (non-parole period 33 years) quashed
  • Applicant resentenced to an aggregate term of 40 years' imprisonment with a non-parole period of 30 years, commencing 13 August 2019 and expiring 12 August 2049, with a balance of term of 10 years expiring 12 August 2059
  • Commencement date of the Goulburn Local Court sentence (assault law officer) varied to 13 November 2048
  • Commencement date of the Penrith District Court sentence (assault occasioning actual bodily harm) varied to 12 February 2050, with a non-parole period of 8 months expiring 11 October 2050
  • Earliest date of eligibility for release on parole: 12 October 2050

Key Takeaways

  • A sentencing judge's failure to address, in their reasons, a clearly raised and evidentially supported submission that an offender's mental health will make custody more onerous can constitute a failure to take into account a material consideration, amounting to error under House v The King, even where the reasons are otherwise careful and thorough.

  • Not every component of a party's submissions is, of itself, a matter a sentencing judge is obliged to take into account as a discrete consideration. Whether the omission of a particular argument constitutes error depends on how clearly the argument was raised and how significant it was to the party's overall case.

  • Where error of the House v The King variety is established, the Court of Criminal Appeal does not separately assess whether and to what degree the error influenced the outcome before proceeding to consider resentencing (following Kentwell v The Queen (2014) 252 CLR 601).

  • Even where a ground of error is established, the Court may, on an independent exercise of the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 (NSW), conclude that no lesser sentence is warranted. In this case, the bench divided on that question, with the majority favouring a modest reduction.

  • Custodial onerousness arising from an offender's mental health impairment is a recognised sentencing consideration, particularly where the offender will serve an extended term and mental health is one of the few favourable subjective factors available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 18, 19A, 33
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21, 25F, 59, 61
- Criminal Appeal Act 1912 (NSW) s 6(3), s 10
- Mental Health Act 2007 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) rr 3.1, 3.2, 3.5

Key Cases:
- House v The King (1936) 55 CLR 499 (test for appellate intervention in sentencing)
- Kentwell v The Queen (2014) 252 CLR 601 (no need to assess degree of influence of error before resentencing)
- Baker v David [2015] NSWCA 235 (judicial duty to provide reasons)
- Betts v The Queen (2016) 258 CLR 420 (sentencing principles)
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Fox v Percy (2003) 214 CLR 118 (appellate review of findings of fact)
- Hoare v The Queen (1989) 167 CLR 348
- CC v R; R v CC [2021] NSWCCA 71