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Court of Criminal Appeal 5 September 2006

MILANE v REGINA

[2006] NSWCCA 281

Assault & violenceTheft & propertyFirearms & weapons

Citation: Milane v Regina [2006] NSWCCA 281
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2006
Judge(s): Giles JA; Sully J; Latham J

Background

The appellant pleaded guilty in the District Court to break, enter and steal in circumstances of special aggravation under s 112(3) of the Crimes Act, alongside a co-offender. The offence involved a planned home invasion at a Bondi unit, during which both men posed as Drug Squad officers. The co-offender brandished a replica pistol, struck one of the occupants with it causing a depressed skull fracture, and made repeated threats to shoot. The appellant moved through the unit mimicking police search procedures, took money from one occupant, kicked him in the head, and flashed what appeared to be a police badge.

Tupman DCJ sentenced the appellant in the District Court to 6 years and 10 months imprisonment with a non-parole period of 4 years and 4 months. The co-offender received 7 years and 9 months with a non-parole period of 5 years. The appellant applied to the Court of Criminal Appeal for leave to appeal against his sentence.

  • Whether the appellant's sentence adequately reflected his substantially lesser culpability compared to that of his co-offender.
  • Whether the sentencing judge gave insufficient weight to the subjective factor that the appellant's judgment was clouded at the time of the offence by long-term use of illegal drugs.
  • Whether, in light of the drug-use factor, the non-parole period should have been materially shorter to facilitate rehabilitation through extended parole supervision.

Decision

Culpability disparity: The Court rejected the argument that the appellant was substantially less culpable than his co-offender in a way not reflected in the sentence. The sentencing judge had found that the offence was planned jointly, and had rejected the appellant's evidence that he attended without knowing what was planned and was heavily affected by alcohol. Although the judge noted that the appellant did not anticipate the violence escalating as it did, this observation could not be read in isolation from her finding that both offenders acted from the outset in a coordinated and intimidating manner. The difference in the sentences already reflected the distinct aggravating features applicable to each offender, including the co-offender's Form 1 matters involving impersonation of a police officer the preceding day.

Drug use as a subjective factor: The Court was not persuaded that the sentencing judge failed to account for the appellant's drug dependence and impaired judgment. Reading the remarks on sentence as a whole, the judge recognised those circumstances as factors favouring the appellant but weighed them against all other relevant objective and subjective considerations. One significant aggravating factor specific to the appellant was that the offence was committed while he was on parole and subject to conditional bonds.

Non-parole period and rehabilitation: The Court held that the parole period of 2 years and 6 months was sufficient time under conditional supervision to support any rehabilitation the appellant could sustain. The Court noted that the appellant had previously attempted and failed rehabilitation programs, and was on parole when the offence occurred. A shorter non-parole period would not adequately reflect the seriousness of the offending. No error in the sentencing discretion was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's observation that an offender did not anticipate the level of violence that unfolded does not, in isolation, establish a substantial difference in culpability sufficient to reduce a sentence, particularly where joint planning has been found as a fact.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to weigh drug dependence and impaired judgment as subjective factors without those factors operating as a direct reduction in penalty, especially where other aggravating circumstances are present.
  • Committing an offence while on parole and subject to conditional bonds is a significant aggravating factor that can counterbalance subjective mitigating circumstances such as impaired judgment from drug use.
  • No appealable error arises simply because a co-offender received a longer sentence; the sentencing exercise involves disparate considerations specific to each offender, and differences in sentence can legitimately flow from differences in those individual factors.
  • The appropriate length of a non-parole period for rehabilitation purposes remains highly fact-specific; a prior failure to rehabilitate is a relevant consideration in assessing how much time on conditional liberty is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 112(3) (break, enter and steal in circumstances of special aggravation; maximum penalty 25 years imprisonment)

Cases:
No cases were cited in the portion of the judgment provided.