Neal v R

1. [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. [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. [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. [4]

   I agree with the orders proposed by Harrison J.

5. [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. [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. [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:

Facts

1. [8]

   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. [9]

   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. [10]

   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

1. [11]

   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. [12]

   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:

3. [13]

   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.

4. [14]

   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:

5. [15]

   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:

6. [16]

   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”.

7. [17]

   However, Mr Neal gave evidence before his Honour in the sentencing proceedings concerning his financial position. He said:

8. [18]

   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”.

9. [19]

   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.

10. [20]

    This ground of appeal should be dismissed.

11. [21]

    The agreed facts contained a reference to the firearm about which Mr Neal is now concerned. Those facts referred to it in these terms:

12. [22]

    His Honour referred to this in his remarks on sentence at [12] as follows:

13. [23]

    Mr Neal gave evidence in his sentencing proceedings, including the following:

14. [24]

    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.

15. [25]

    This ground of appeal should be dismissed.

16. [26]

    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.

17. [27]

    The following table sets out the relevant history:

18. [28]

    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.

19. [29]

    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:

20. [30]

    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.

21. [31]

    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].

22. [32]

    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.

23. [33]

    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.

24. [34]

    This ground of appeal should be dismissed.

25. [35]

    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.

26. [36]

    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.

27. [37]

    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].

28. [38]

    The several matters to which his Honour had regard in sentencing Mr Neal were uncontroversially summarised by the Crown as follows:

    1. (1)

       The offence was “serious” with a maximum penalty of 15 years imprisonment.

    2. (2)

       Mr Neal “was the main driver of the drug operation, something he freely admitted to”.

    3. (3)

       The drug supply activities took place from residential premises that were also occupied by children.

    4. (4)

       Mr Neal had an “extensive” criminal history.

    5. (5)

       Mr Neal was motivated at least in part to make money.

    6. (6)

       His Honour was unable to conclude that Mr Neal had good prospects of rehabilitation.

    7. (7)

       The offence was committed whilst Mr Neal was subject to an ICO.

29. [39]

    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.

30. [40]

    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.

31. [41]

    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.

32. [42]

    This ground of appeal should be dismissed.

33. [43]

    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.

34. [44]

    This ground of appeal should be dismissed.

35. [45]

    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

36. [46]

    These matters were taken into account by his Honour and do not amount to a separate ground of appeal.

Orders

1. [47]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.

2. [48]

   R A HULME J: I agree with Harrison J.