Ney v R [2023] NSWCCA 252

Ney v R [2023] NSWCCA 252

Ground 2 established; sentencing judge failed to consider that applicant's mental health would make custody more onerous. Upon re-sentencing, mitigation was warranted but balanced against gravity and dangerousness. Aggregate sentence reduced to 40 years with non-parole period of 30 years, with variation to commencement dates for subsequent sentences in accordance with s 59 Crimes (Sentencing Procedure) Act 1999 (NSW).

Jurisdiction
Australia
Judgment Date
11 October 2023
Procedural Posture
Criminal Appeal / Appeal From Sentence, Re Sentencing
Outcome
Appeal allowed; sentence quashed and applicant re-sentenced.
Legal Topics
['appeal Against Sentence' 'sentencing Principles' 'mental Health and Sentencing' 'youth as Mitigating Factor' 'murder' 'wounding With Intent' 'aggregate Sentencing' 'manifest Excess']
['criminal Law'] ['appeal Against Sentence' 'sentencing Principles' 'mental Health and Sentencing' 'youth as Mitigating Factor' 'murder' 'wounding With Intent' 'aggregate Sentencing' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From Sentence, Re Sentencing

Legal Issues

  1. 1 ["Whether sentencing judge erred in treating applicant's mental health and youth for sentencing purposes" "Adequacy of reasons regarding 'unwarranted double counting'" 'Whether custodial sentence would be more onerous due to mental health and whether sentencing judge considered this' "Assessment of applicant's demeanour, insight, empathy and remorse" "Treatment of applicant's youth" 'Whether sentence was manifestly excessive']

Ratio Decidendi

Ground 2 established; sentencing judge failed to consider that applicant's mental health would make custody more onerous. Upon re-sentencing, mitigation was warranted but balanced against gravity and dangerousness. Aggregate sentence reduced to 40 years with non-parole period of 30 years, with variation to commencement dates for subsequent sentences in accordance with s 59 Crimes (Sentencing Procedure) Act 1999 (NSW).

Court Disposition

Appeal allowed; sentence quashed and applicant re-sentenced.

Orders

  • ['Leave to appeal granted under r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW)' 'Appeal allowed' 'Aggregate sentence quashed; new sentence imposed: imprisonment for 40 years with 30 year non-parole period commencing 13 August 2019, expiring 12 August 2049; balance term expires 12 August 2059' 'Date of...