Ney v R [2023] NSWCCA 252

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ney v R [2023] NSWCCA 252 Hearing dates: 31 May 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Before: 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 applicant's mental health on the onerousness of his custody — contra view that despite the error, no other sentence is called for at law having regard to the objective seriousness, consideration of proportionally and specific deterrence in this case Legislation Cited: 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 10 Mental Health Act 2007 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW) rr 3.1, 3.2, 3.5 Cases Cited: AB v R [2014] NSWCCA 339 Aslan v R [2014] NSWCCA 114 Baker v David [2015] NSWCA 235 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Blake v R [2021] NSWCCA 258 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Bullock v R [2016] NSWCCA 131 CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453 Clark v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Pettitt v Dunkley [1971] 1 NSWLR 376 Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 R v Dong [2021] NSWCCA 82 R v Lowe [2003] NSWCCA 313 R v Ney [2021] NSWSC 529 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Richardson v R [2021] NSWCCA 304 Rogerson v R [2021] NSWCCA 160; (2021) 290 A Crim 239 State Railway Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 Taylor v R [2018] NSWCCA 255 Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 Turnbull v Chief Executive of Office of Environment and Heritage [2015] NSWCCA 278 Veen v R (No 2) (1987) 164 CLR 465; [1988] HCA 14 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 Category: Principal judgment Parties: Mert Ney (Applicant) Rex (Respondent) Representation: Counsel: G Brady SC and Dr K Fallah (Applicant) G Newton SC (Crown)