Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Neal v R [2019] NSWCCA 104 Hearing dates: 8 May 2019 Date of orders: 03 June 2019 Decision date: 03 June 2019 Before: White JA at [1] Harrison J at [5] R A Hulme J at [48] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – sentence appeal – where applicant convicted of supplying a prohibited drug – where applicant sentenced to imprisonment for 5 years, with a non-parole period of 3 years – whether sentencing judge was provided with incorrect information in pre-sentence report – whether mention of gun by prosecutor and sentencing judge during sentencing proceedings was misleading – whether sentencing judge erred by not backdating sentence to date applicant entered custody – whether sentencing judge was provided with incorrect information about location of applicant's property and co-offender's property – whether sentence manifestly excessive – whether Blackberry phone pictures were misleading – appeal dismissed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), s 25 Cases Cited: Newman v R [2018] NSWCCA 208 Pannowitz v R [2016] NSWCCA 13 Category: Principal judgment Parties: Robert Neal (Applicant) Crown (Respondent) Representation: Counsel: K Jeffreys (Respondent) Solicitors: Office of the Director of Public Prosecutions (Respondent) File Number(s): 2015/322054 Publication restriction: Nil Decision under appeal Court or tribunal: District Court New South Wales Jurisdiction: Criminal Citation: [2018] NSWDC 30 Date of Decision: 27 February 2018 Before: Berman SC DCJ File Number(s): 2015/322054; 2015/319431; 2015/139398 Judgment 1. WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Harrison J. I agree with his Honour's reasons and proposed orders. 2. In particular, I agree with Harrison J that at [35] of the primary judge's reasons (quoted by Harrison J at [29]), the primary judge made a slip in referring to the sentence he proposed to impose as being partially concurrent with the sentence the applicant was serving for having breached his ICO and his Honour intended to refer to the Local Court's sentence the applicant was then serving. I agree that it should be inferred that the judge intended to say that the sentence he was imposing should be served partially concurrently with the sentences imposed in the Local Court on 6 February 2017 which were still running. It was the sentences imposed by the Local Court on 6 February 2017 that were backdated to 2 November 2015 that had run concurrently with the ICO sentence. 3. If his Honour's reasons are not a mere slip of expression but connote an error in the sentencing process that requires this Court to intervene and re-sentence, no lesser sentence would be warranted. As Harrison J says, the effective non-parole period imposed referable only to the offence of which the applicant was convicted was one year and nine months with a further parole period of two years. Having regard to the seriousness of the offence as described in the reasons of Harrison J, notwithstanding the subjective factors favourable to the applicant, no lesser sentence would be warranted. 4. I agree with the orders proposed by Harrison J. 5. HARRISON J: Robert John Neal seeks leave to appeal against the severity of the sentence imposed upon him on 27 February 2018 by Berman DCJ at the Sydney District Court. Mr Neal had pleaded guilty on 1 May 2017 in the Bathurst Local Court to one count of supplying a prohibited drug between 2 July 2015 and 30 October 2015 contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is imprisonment for 15 years and/or a fine of 2000 penalty units. 6. Mr Neal was sentenced by his Honour to imprisonment for 5 years to commence on 2 November 2016 and expire on 1 November 2021 with a non-parole period expiring on 1 November 2019. Subject to this appeal, Mr Neal will not be eligible for release on parole before that date. 7. Mr Neal is not legally represented. He appeals to this Court on a number of grounds of variable utility. However, having regard to Mr Neal's self-represented status, it is appropriate to set out his grounds of appeal in full: Ground 1: Allot [sic] of my pre-sentence report was not what I had stated to Parole Officer Debra [sic] Buckley, especially in regards to my financial status. This report gave the judge misleading and wrong information and made me look worse. Ground 2: The gun mentioned by the prosecutor and sentencing judge on 27 November 2017 was wrong and misleading. As I never owned the gun and it was not at or in my home at any point in time at XXX West Bathurst, my home address. Ground 3: The sentencing judge erred by not backdating Mr Neal's conviction to 2 November 2015, the date he was arrested for the offence of supply prohibited drug. Ground 4: The sentencing judge was told incorrect information about the location of Neal's home in relation to the co-offender Williams' home. Ground 5: I feel that I was sentenced to a term which would have been given to an offender charged with commercial supply not the charge I was sentenced on, ie the sentence was manifestly excessive. Ground 6: Blackberry phone pictures were confusing and misleading in a big way, as they show emails that were sent and received 22 and 27 days after I was taken into custody. Ground 7: I do feel very remorseful for what I have done and really need to get out of jail and show my 6 children that I have learnt from my wrong doing. Ground 8: I am finally trying to deal with what happened to me in Yasmar Boys Home at 13 years old, as this is the reason why I kept turning to heroin to block out being raped as a child. Facts 1. Mr Neal was sentenced upon the basis of agreed facts. They are in small compass and, with the exception of some matters to which Mr Neal now wishes to make reference in this appeal, they are uncontroversial. 2. In summary, Mr Neal and his co-offender Ms Small were in a relationship at the time of the offending. Their house shared a boundary with the property of a co-offender Mr Williams. It is alleged that Mr Williams would sell heroin on behalf of Mr Neal and Ms Small from his house. Mr Neal and Ms Small would pay Mr Williams for doing so. They were all part of a joint criminal enterprise to supply heroin. 3. Between 2 July 2015 and 30 October 2015 there were 292 separate transactions conducted in this fashion in which Mr Neal and Ms Small jointly supplied a total of approximately 160 grams of heroin to Mr Williams for the purposes of on-supply by him. On 13 August 2015, Mr Neal supplied another person with approximately 28 grams of heroin and agreed to repeat that transaction later. Consideration Ground 1 1. The particular errors about which Mr Neal is concerned include the reference to his six children being from three relationships, instead of two and the possible suggestion that his three children with his co-offender Ms Small had not returned to live with her on 6 March 2017, but remained with their maternal grandmother. Mr Neal says that references to him struggling financially are also wrong. He was understandably concerned about an incorrect date in Ms Buckley's first report dated 19 May 2017 for the expiration of his Intensive Corrections Order. (The ICO date is dealt with below in the consideration of ground 3). 2. Mr Neal's concerns about mistakes in Ms Buckley's pre-sentence report are clearly of no significance for present purposes unless it can be shown or it appears that his Honour's decision was or may have been influenced as a result. His Honour's remarks on sentence dealing with Mr Neal's subjective features are instructive and were relevantly as follows: "21. Mr Neal is one of 3 siblings born to his parents who have now died. He told the author of a Pre-Sentence Report that he had a difficult upbringing where he was subject to various forms of abuse which the offender believes are the underlying cause of his criminal behaviour. 22. He and his former partner, his co-offender Ms Small, have now separated which he has found difficult because he has had very little contact with their 3 children whilst he has been in custody. 23. As well as running his drug supply business at the time of his arrest he ran a lawn mowing business. This was apparently successful at times and employed a number of casual employees, including Mr Williams. Mr Neal hopes to re-establish that business upon his release from custody. 24. He has had problems with use of drugs for many many years, primarily the drugs cannabis and heroin. He was using these drugs at the time he was supplying them. He claimed that one of the reasons he took drugs was as a tool to deal with his emotional issues. He said that he was depressed at the time which the offender ascribes to the death of his father and issues of abuse related to his childhood. Despite suggestions that his lawn mowing business was successful, the offender Mr Neal also told the author of the Pre-Sentence Report that he needed money to survive at the time of his offending and was struggling financially. He said that he regretted his actions. 25. Mr Neal described his home life as horrible, being brought up by parents who were both lifelong chronic alcoholics. During his formative years he was exposed to physical, mental and sexual abuse within his family home. Mr Neal was introduced to cannabis at a young age and heroin at the tender age of 14. He has since been a user of heroin. Thus 38 years of his 52 years have been spent as a user of heroin. At times he has used in a manner which he described as not being pursuant to an addiction but at other times, including when he was committing the offence for which I must sentence him, he was using drugs quite heavily. He gave evidence that drugs were an escape from emotional trauma, especially that trauma flowing from the death of his father. 26. Mr Neal expressed his remorse saying he was sorry because he had caused three parents to be away from their children, referring here to himself, Ms Small and Mr Williams. He also expressed concerns for the people who were supplied. 27. He suggested that his level of drug use was such that he had to resort to selling it. There is however one aspect of the evidence which calls this claim into question, that is of course the circumstance that police found $143,000 hidden under his neighbour's house which it is agreed was money which he controlled. When asked about this money he at first said that it was the proceeds of his lawn mowing business but when it was pointed out to him that that suggests that he didn't need to supply drugs in order to be able to afford them, his evidence changed to some extent. 28. I will sentence Mr Neal on the basis that one part of his motivation in supplying drugs was to fund his drug habit and that of his then partner Ms Small, but it was also clearly a motivating factor that he could make money out of supplying drugs. 29. Mr Neal is currently on protection in custody following receipt of a letter in which threats were made. He spends much more time in his cell than he would in the mainstream prison population. In determining the sentence to impose upon Mr Neal I will take into account the risk that he will serve the entirety of his sentence in protection and the risk that if that happens his conditions of custody will be harsher than they would have been otherwise. 30. Mr Neal became quite distressed when giving evidence about the lack of support available to him in custody as he attempts to deal with his drug habit. Evidence suggests that he has been unable to access all the courses and supports which one might have thought should have been available to him. 31. He says that he has not used drugs since his arrest and the absence of any offences on his custodial history involving failure to undergo urinalysis or failing a urinalysis test tend to suggest the honesty of Mr Neal's evidence in that regards. Whilst Mr Neal would not accept everything put to him by counsel for Ms Small as regards the roles played by them in this drug dealing business he did accept that he was the main driver of the organisation. 32. In common with his co-offenders he does not appear to have been living a lavish luxurious lifestyle as a result of his drug dealing activities. He now has a committed band of supporters including a woman who is willing to have him live with her in Lismore upon his eventual release from custody. 33. I can't say that he has good prospects of rehabilitation. There is hope for the future but the length of Mr Neal's criminal history suggests that the path towards a law abiding lifestyle may well be a rocky one." 1. So far as Mr Neal's three eldest children are concerned, there is no reference to them by his Honour at all. The reference to Mr Neal's children with Ms Small is for sentencing purposes the only one that appears to be of any significance. 2. With respect to Mr Neal's three youngest children being in the care of Ms Small rather than her mother, the Crown suggested that was clarified when Ms Small gave evidence on sentence. That is said to arise from the following questions and answers: "Q. So at your home there's [the three children]? A. Yes, there is. Q. And you have lived together in that house for how long? A. The children come back into my care – I got the house in December, just – right before Christmas 2016 and the children actually stayed with mum for a few extra months until I got the house together and they moved in about March." 1. That evidence makes it clear that Mr Neal's three youngest children had returned to live with their mother, Ms Small, on 6 March 2017 after only a short stay with their grandmother. Subject to what seems only to be a typographical error, his Honour appears correctly to have understood the position as paragraph [40] of his remarks on sentence shows: "Ms Small has three children from her relationship with Mr Neal. When she was in custody and then when she was attending a rehabilitation program at Bennelongs Haven they were cared for by her mother. She has resumed sole custody of the children from March 2016 [sic, 2017]". 1. Mr Neal also complains that he never told Ms Buckley that he was struggling financially or that he had sold drugs for financial gain. Ms Buckley's first report says that Mr Neal had reported that his lawn mowing and garden maintenance business "was a successful enterprise which employed a number of casual employees". It also said that at the time of the offence Mr Neal "was struggling financially and he need [sic] money to survive". 2. However, Mr Neal gave evidence before his Honour in the sentencing proceedings concerning his financial position. He said: "When you get tied into something like this and all the money that I'd saved mowing and everything for so many years and burying it and putting it away, it just, it started to deteriorate and I just couldn't keep outlaying the money and that's the reason why I turned to selling drugs." 1. As the Crown points out, Mr Neal said in cross-examination that "the business is always lucrative, the business makes money" and gave details of the business earnings. He said that the $143,000 found located under his next-door neighbour's house was his and that one third of that money "would have been from the proceeds of crime". Mr Neal said that the reason he started selling heroin despite having money was that "we started using like it was going out of style… and I just tried to compensate the outlay". 2. In the circumstances, his Honour's comments at [28] of his remarks seem entirely unexceptionable. It is understandable that Mr Neal is concerned to ensure that he not be sentenced either upon the basis of incorrect information to start with or else a misunderstanding or misinterpretation of the true facts relevant to that process. However, none of the matters that Mr Neal complains about appears to me to have been either theoretically critical or crucial to his Honour's decision in the first place or otherwise central to his Honour's actual decision in any event in the second place. Put another way, I am unable to detect that there was or may have been a miscarriage of justice because of mistakes in the evidence presented to his Honour or mistakes made by his Honour in considering that evidence. I am not satisfied that his Honour's sentencing discretion has somehow miscarried as a result. 3. This ground of appeal should be dismissed. Ground 2 1. The agreed facts contained a reference to the firearm about which Mr Neal is now concerned. Those facts referred to it in these terms: "137. On 6 January 2016 police attended XXX Street, West Bathurst and found the firearm (.22 calibre shortened firearm), 15 rounds of ammunition capable of being fired by the firearm and $5,245 cash [this offence was the subject of a charge disposed of in the Local Court, see at 140]. Associated offences for [Mr Neal] that were dealt with in the Local Court on 6 February 2017 140. [Mr Neal] was charged by police with the possession of the firearm referred to at [137],the pursuit that he engaged police in on 30 October 2015, possession of some cannabis and six counts of driving a motor vehicle during a period of disqualification." 1. His Honour referred to this in his remarks on sentence at [12] as follows: "Police later went to the house previously occupied by Mr Neal where they found the firearm. It turned out to be a .22 calibre shortened firearm together with 15 rounds of ammunition and slightly more than $5,000 in cash. Mr Neal has already been dealt with in the Local Court for a number of offences relating to the firearm, the police pursuit, offences of driving whilst disqualified and possessing cannabis. He was sentenced in the Local Court to a total term of 2 years 11 months and one day with an effective non-parole period of 2 years and 3 months. It expired a few days ago on the 2nd of February 2018." [Emphasis added] 1. Mr Neal gave evidence in his sentencing proceedings, including the following: "Q. And you've had the facts read to you? A. Yes. Q. And you agree those facts are correct? A. Yes." 1. It is unclear whether Mr Neal wishes now to dispute the facts that he agreed were correct for sentencing purposes or to contend that his conviction for the firearm offence was somehow wrong. Be that as it may, it is clear that his Honour was aware that Mr Neal had both been dealt with in the Local Court for the firearm offence and that he was not to be sentenced again for the same offence. Mr Neal cannot complain that his Honour was made aware of his criminal history unless it can be demonstrated that it improperly affected his sentencing exercise. In my view there is no basis for contending that his Honour somehow improperly or incorrectly took account of the previous conviction in sentencing Mr Neal. 2. This ground of appeal should be dismissed. Ground 3 1. In sentencing Mr Neal, his Honour backdated the sentence to 2 November 2016. That was exactly one year after he was taken into custody. Mr Neal's sentence for the offences dealt with in the Local Court commenced on 2 November 2015. Accordingly, the sentence imposed by his Honour was partially concurrent with the Local Court sentences apart from the first 12 months. 2. The following table sets out the relevant history: Date Offence/Sentence 14 April 2015 Sentenced for offence of drive whilst disqualified ICO imposed for 15 months to date from 14 April 2015 to 13 July 2016 Between 2 July 2015 and 30 October 2015 Committed present offence of supplying prohibited drug 2 November 2015 Charged with present offence and taken into custody 25 November 2015 ICO revoked Sentence of imprisonment imposed, to date from 3 November 2015 to 13 July 2016 6 February 2017 Sentenced at Bathurst Local Court for offences of possess prohibited firearm, not stop for a police pursuit, possess cannabis, and six charges of drive whilst disqualified (all related to the present offence: see Agreed Facts at [140]-[142]) Sentences of imprisonment imposed, to date effectively from 2 November 2015 to 2 October 2018, with a non-parole period expiring on 2 February 2018 27 February 2018 Sentenced for the present offence Sentence commences on 2 November 2016 1. Mr Neal has complained that Ms Buckley incorrectly recorded that Mr Neal's ICO expired on 13 July 2017, rather than 13 July 2016. The Crown has submitted, and it appears to be correct, that this is a typographical error. That error would not appear in any way to have affected or influenced his Honour's decision. 2. Perhaps more significantly, his Honour noted that Mr Neal was subject to an ICO at the time of the offence that his Honour was dealing with and indicated that he intended to make the sentence to be imposed by him concurrent with the sentence for the breach of the ICO in order to avoid double counting: "[13] At the time of committing these offences Mr Neal was on an Intensive Corrections Order for an offence of driving whilst disqualified. As a result of committing the offence which I have to sentence him on the ICO was revoked. … [34] As I mentioned he was on an Intensive Corrections Order at the time he was supplying drugs. [35] That is of course a matter of aggravation but it is important that I do not double count. Accordingly there will be partial concurrence between the sentence for this offence and the sentence he was serving as a result of having breached his ICO. I will date the sentence of imprisonment I will shortly announce from the 2nd November 2016." 1. In the events that occurred, his Honour did not impose a sentence that was in any way concurrent with the sentence imposed for the breach of the ICO. Indeed, the sentence his Honour imposed did not commence until 3 months and 19 days after the ICO sentence had expired. The Crown has contended, however, that his Honour was, or should be taken to have been, clearly aware that Mr Neal was serving sentences for the Local Court matters. This is obvious because his Honour made specific reference to these sentences in his remarks. Moreover, the sentence imposed for the breach of the ICO was wholly concurrent with the sentences imposed in the Local Court so that, in effect, Mr Neal did not serve any period of imprisonment that was solely referable to the breach of the ICO. 2. It is therefore difficult to see, notwithstanding the need to have regard to the principle of totality, how his Honour could in the particular circumstances of this case have chosen an earlier commencement date for the sentence he imposed without creating the perception that Mr Neal was not being punished appropriately for the multiple offences he had committed: see, for example, Pannowitz v R [2016] NSWCCA 13 at [40]. 3. This case does not in my view give rise to a denial of procedural fairness, in the sense that Mr Neal could complain that he remained silent in the light of his Honour's intimation about partial concurrence so as to have lost a reasonable opportunity to make submissions concerning the date actually chosen by his Honour for the commencement of the sentence he imposed. It is reasonably apparent that his Honour's reference to the ICO was intended to be a reference to the Local Court sentence, and any discussion with his Honour at the time of sentencing about his proposal would have highlighted the mistake. It is extremely unlikely that any different sentence would on that analysis have been imposed. 4. Mr Neal's submissions about delays and adjournments are without substance. He was given the maximum discount of 25 percent for his plea of guilty in any event. 5. This ground of appeal should be dismissed. Ground 4 1. The agreed facts, acknowledged by Mr Neal to be correct, contained a reference to the two properties bordering each other at the rear. Mr Neal complains that this was wrong and described the correct position in his oral submissions in this Court. 2. As I have already noted, Mr Neal's concern to have all matters of fact accurately recorded is understandable. However, in the particular circumstances of this case, the precise location of the properties was not of any significance in the sentence proceedings and his Honour was perfectly entitled to take it into account as an agreed fact in any event. Ground 5 1. The Crown has proceeded to treat this ground of appeal as one contending that the sentence imposed was manifestly excessive. The principles that apply in such circumstances are well known and do not require restatement: see, for example, Newman v R [2018] NSWCCA 208 at [47]. 2. The several matters to which his Honour had regard in sentencing Mr Neal were uncontroversially summarised by the Crown as follows: 1. The offence was "serious" with a maximum penalty of 15 years imprisonment. 2. Mr Neal "was the main driver of the drug operation, something he freely admitted to". 3. The drug supply activities took place from residential premises that were also occupied by children. 4. Mr Neal had an "extensive" criminal history. 5. Mr Neal was motivated at least in part to make money. 6. His Honour was unable to conclude that Mr Neal had good prospects of rehabilitation. 7. The offence was committed whilst Mr Neal was subject to an ICO. 1. His Honour also took into account some powerful subjective factors favourable to Mr Neal. For example, his Honour concluded that this was the first occasion in which Mr Neal had been involved in drug supply. Mr Neal had a difficult upbringing and had been subject to abuse. Mr Neal had expressed remorse. His Honour also referred to the fact that there was a risk that Mr Neal would serve his entire sentence in protection. His Honour found special circumstances. 2. In this Court, Mr Neal made detailed and passionate submissions concerning these same matters. He particularly emphasised the fact that he has now removed himself from protection in order to have better access to his children, even notwithstanding the significant risks to his personal safety that he perceives exist by him re-joining the general prison population. Mr Neal also spoke in emotional terms of his unfortunate childhood and of its relationship to his descent into drug use and crime. There is no doubt that his Honour took account of these matters. 3. I am unable to conclude that his Honour's sentence was unreasonable or plainly unjust. Having regard to the sentence imposed in the Local Court, the effective non-parole period imposed by his Honour referable only to the subject offence was a term of 1 year and 9 months commencing on 1 February 2018 and expiring on 1 November 2019. It is not in my view possible to conclude that his Honour's sentencing discretion miscarried in any way at all. 4. This ground of appeal should be dismissed. Ground 6 1. The photos and the emails to which Mr Neal takes exception were not exhibits in his sentencing proceedings. However, Mr Neal's evidence at that time clearly demonstrated that the photos and emails in question were not created or sent until 22 days after he was taken into custody. His Honour did not refer to the BlackBerry at all and must be taken to have understood and taken account of Mr Neal's evidence about it. 2. This ground of appeal should be dismissed. Ground 7 1. This ground of appeal is no more than a submission on a matter that was before his Honour in the sentencing proceedings. His Honour accepted that Mr Neal was remorseful and it is not of assistance to him to reiterate it in this Court Ground 8 1. These matters were taken into account by his Honour and do not amount to a separate ground of appeal. Orders 1. In my opinion, the following orders should be made: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal. 1. R A HULME J: I agree with Harrison J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2019