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Court of Criminal Appeal 5 June 2006

REGINA v MISKI

[2006] NSWCCA 178

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL ROBBERY IN COMPANY OFFENSIVE WEAPON POST OFFENDING CONDUCT

Citation: Regina v Miski [2006] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 5 June 2006
Judge(s): McClellan CJ at CL; Hall J; Latham J

Background

The respondent pleaded guilty in the District Court to four counts of robbery: one robbery in company and three robberies armed with an offensive weapon (a handgun in two instances and a knife in another). The offences were committed across three separate days in March 2004, targeting service stations and a motel, with multiple victims threatened at close range. Critically, all offences were committed while the respondent was on parole, having been released from custody only four months earlier in November 2003.

The District Court (Puckeridge DCJ) imposed a total sentence of 4 years and 5 months with a non-parole period of 3 years. The sentences on counts 2 and 3 were structured so their non-parole periods were entirely subsumed by the concurrent sentences on counts 1 and 4, meaning the totality of the sentence did not adequately reflect the number and seriousness of the offences.

The Crown appealed under section 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate and failed to properly account for the respondent's criminal history, the fact that offences were committed while on parole, and the need for general and specific deterrence.

  • Whether the overall sentence was manifestly inadequate given the seriousness and number of the offences
  • Whether the sentencing judge gave sufficient weight to the respondent's criminal record and the fact that the offences were committed while on parole
  • Whether the Henry guideline applied and whether the respondent's criminal history warranted departure above that guideline
  • Whether the Form One matter (being conveyed in a stolen vehicle) had a sufficient temporal and causal connection to count 2 to be taken into account on that count
  • Whether the significant delay in bringing the Crown appeal warranted the court exercising its residual discretion to decline to intervene

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentences were manifestly inadequate. McClellan CJ at CL, with whom Hall J and Latham J agreed, held that the sentencing judge failed to impose an overall sentence that reflected the true criminality of four serious armed robberies committed in quick succession while the respondent was on parole.

The Court accepted that the Henry guideline for armed robbery informed the sentencing exercise but concluded the respondent's criminal history took the appropriate sentence beyond the guideline range. A guilty plea discount of 25% was applied. The Court found no relevant distinction in the level of criminality across the four counts and structured the new sentences accordingly with partly cumulative non-parole periods.

On the Form One matter, the Court was satisfied there was a sufficient temporal and causal connection between the stolen vehicle offence and the robbery charged in count 2, given the respondent was driven to the scene in the stolen car and was aware it was stolen from the outset of that day's events.

Regarding delay, the Court acknowledged the Crown appeal was not brought with ideal speed but found the delay did not justify exercising the residual discretion to decline resentencing. The inadequacy of the original sentences was sufficiently serious to warrant intervention notwithstanding that delay. The Court also declined to find special circumstances justifying a longer balance of term, expressing reservations about the respondent's prospects of rehabilitation given his history of reoffending while on parole.

Orders Made

  • Crown appeal allowed
  • Original sentences quashed and the respondent resentenced as follows:
  • Count 1: Non-parole period of 4 years commencing 18 February 2005, expiring 17 February 2009; balance of term of 1 year and 4 months expiring 17 June 2010
  • Count 2 (including Form One matter): Non-parole period of 4 years commencing 18 November 2005, expiring 17 November 2009; balance of term of 1 year and 6 months expiring 17 May 2011
  • Count 3: Non-parole period of 4 years commencing 18 February 2006, expiring 17 February 2010; balance of term of 1 year and 4 months expiring 17 June 2011
  • Count 4: Non-parole period of 3 years and 9 months commencing 18 August 2006, expiring 17 May 2010; balance of term of 1 year and 9 months expiring 17 February 2012
  • Total effective non-parole period: 5 years and 3 months; balance of term: 1 year and 9 months

Key Takeaways

  • Committing serious offences while on parole is a significant aggravating factor that can push an appropriate sentence beyond the Henry guideline range for armed robbery.
  • Where a sentencing judge structures multiple sentences so that non-parole periods are entirely subsumed by concurrent sentences, the Court of Criminal Appeal may find the overall sentence fails to adequately reflect the cumulative criminality of the offending.
  • A Form One offence may be taken into account on a particular count where there is a clear temporal and causal connection between that offence and the principal count, as illustrated here by the respondent's use of the stolen vehicle as the means of committing the robbery.
  • Delay in bringing a Crown appeal does not automatically attract the residual discretion to decline resentencing where the original sentence was sufficiently inadequate.
  • Reservations about rehabilitation prospects can be legitimately held where an offender has a history of reoffending during supervision, and such reservations may weigh against a finding of special circumstances.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 97(1), 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry & Ors [1999] NSWCCA 111
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 137 A Crim R 180
- R v Baker [2000] NSWCCA 85
- R v Fernando (2002) NSWCCA 28
- R v Gip (2006) NSWCCA 115
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Hammoud (2000) 118 A Crim R 66
- R v Hernando (2002) 136 A Crim R 451
- R v Murchie (1999) 108 A Crim R 482
- R v Poihipi [2001] NSWCCA 306
- R v Sharma (2002) NSWCCA 142
- R v Spiero (1979) 22 SASR 543
- R v Thomson and Houlton [2000] NSWCCA 309
- R v Vranic NSWCCA, unreported, 7 May 1991
- R v Wall [2002] NSWCCA 42