Nean v R [2019] NSWCCA 164

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nean v R [2019] NSWCCA 164 Hearing dates: 12 July 2019 Date of orders: 24 July 2019 Decision date: 24 July 2019 Before: Leeming JA at [1] R A Hulme J at [2] Davies J at [3] Decision: (1) Grant leave to appeal.

(2) The appeal is allowed.

(3) The sentence imposed by Judge McLennan SC in the District Court on 30 April 2018 is quashed.

(4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for 8 years and 9 months commencing 1 February 2017 and expiring 31 October 2025 with a non-parole period of 5 years expiring 31 January 2022. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 31 January 2022. Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to four offences of robbery in company and one offence of police pursuit – further offence of steal motor vehicle taken into account on sentence – offending all occurred in the course of one criminal enterprise – robbery in company perpetrated against a number of complainants who all lived at the same premises – degree of violence involved in the robbery offences – use of weapons – several of the offences committed in the presence of minors – after the robberies the applicant and co-offenders stole the vehicle of one of the complainants and fled the premises – police pursuit ensued – where the applicant had served time in custody for other offences whilst refused bail for index offences – backdating of sentences - whether the sentencing judge erred in his assessment of the time spent by the applicant in custody solely referable to the index offences – whether the sentencing judge erred in his application of the Bugmy principles – whether the sentencing judge erred in his assessment of the applicant's criminal antecedents – need for re-sentence – no lesser sentence warranted – adjustment to commencement date for sentence Legislation Cited: Crimes Act 1900 (NSW) ss 51B, 97 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 24, 47 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Turnbull v R [2019] NSWCCA 97 Texts Cited: Nil Category: Principal judgment Parties: Johnathan Alex Nean (Applicant) Crown (Respondent) Representation: Counsel: C Wasley (Applicant) A Bonnor (Respondent)