Citation: Regina v Stephen David Millar [2005] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 17 June 2005
Judges: Simpson J, Barr J, Latham J
Background
The appellant was a 38-year-old man who, after discovering his teenage daughter had been physically assaulted by her partner, broke into the partner's unit and attacked him. The victim suffered significant facial injuries, including comminuted orbital fractures requiring surgery, and was unfit for work for two weeks.
The appellant voluntarily attended a police station, admitted the offence, and expressed remorse. He did not plead guilty in the Local Court but entered an early guilty plea in the District Court. The offence was breaking and entering a dwelling-house and committing a serious indictable offence therein, namely assault occasioning actual bodily harm in circumstances of aggravation.
Blackmore SC DCJ sentenced the appellant to two years and six months imprisonment with a non-parole period of one year and three months, extending the parole period partly to accommodate the appellant's need for drug and alcohol counselling and to acknowledge that this would be his first time in custody.
Legal Issues
- Whether the sentencing judge erred by treating the standard non-parole period under s 54B of the Crimes (Sentencing Procedure) Act 1999 as a mandatory starting point rather than a reference point.
- Whether the original sentence was excessive, having regard to the significant mitigating circumstances present.
Decision
The Court addressed the first ground with some care. Simpson J cautioned against inferring error from a sentencing judge's remarks made during submissions, noting that such observations do not necessarily reflect a final or considered view. Error arises only when a wrong view appears in the actual remarks on sentence, or the outcome can only be explained by that erroneous reasoning.
Simpson J found the sentencing judge's remarks were at least equally consistent with correctly applying the standard non-parole period as a reference point, in accordance with R v Way [2004] NSWCCA 131. The fact that the judge departed substantially from the standard non-parole period further indicated he did not treat it as binding.
On the second ground, however, the Court found the sentence excessive. Barr J identified a combination of substantial mitigating factors: the early guilty plea, genuine remorse, the unplanned nature of the attack, the high degree of provocation and stress arising from the ongoing abuse of the appellant's daughter, and significant pre-sentence steps toward rehabilitation. The appellant had also made progress during custody, completing courses and engaging in drug and alcohol counselling.
Barr J concluded that, taking these circumstances together, the objective seriousness of the offence fell toward the lower end of the range for offences of this kind. This constituted sufficient reason to depart from the standard non-parole period under s 54B(2). The Court re-sentenced the appellant accordingly, and Simpson and Latham JJ agreed.
Orders Made
- Leave to appeal granted; appeal allowed; sentence appealed from quashed.
- Appellant re-sentenced to a non-parole period of ten months, commencing 26 August 2004 and expiring 25 June 2005, with a balance of sentence of eight months.
- Appellant directed to be released to parole on 25 June 2005.
Key Takeaways
- Remarks made by a judge during submissions or argument do not form part of the reasons for sentence and are not a safe basis on which to establish error on appeal, unless the erroneous view is reflected in the actual sentencing remarks or the outcome cannot otherwise be explained.
- Under R v Way, the standard non-parole period prescribed by s 54B of the Crimes (Sentencing Procedure) Act 1999 operates as a reference point, benchmark, or guidepost for sentencing, not as a mandatory minimum from which the judge must begin.
- Where a sentencing court departs substantially from the standard non-parole period, that departure itself can serve as evidence that the court did not treat the standard period as binding.
- A combination of factors, including an early guilty plea, genuine remorse, an unplanned offence committed under high provocation, and demonstrated pre- and post-sentence rehabilitation, can collectively support a finding that the objective seriousness of an offence falls toward the lower end of the relevant range.
- The Court of Criminal Appeal confirmed that the reasons required to depart from a standard non-parole period under s 54B(2) may include both the guilty plea and a finding that the particular offence did not fall in the mid-range of seriousness for offences of its kind.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
Cases:
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v A [2004] NSWCCA 292
- R v Davies [2004] NSWCCA 319
- R v Kain [2004] NSWCCA 143