AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 20 July 2006

MIRINGAORANGI v R

[2006] NSWCCA 397

Assault & violenceTheft & property

Citation: MIRINGAORANGI v R [2006] NSWCCA 397
Court: New South Wales Court of Criminal Appeal
Date: 20 July 2006
Judge(s): McClellan CJ at CL, Hulme J, Hall J

Background

The appellant had pleaded guilty in the District Court to three serious offences arising from a home invasion on 23 July 2001. He and an unidentified co-offender, both masked and armed with knives, broke into the victims' home at night, bound and restrained the couple with tape, and demanded money and PIN numbers. The offenders stole jewellery, a vehicle, and later withdrew $1,000 from the female victim's bank account using a stolen keycard.

The appellant was not arrested until November 2003, after DNA from a balaclava found in the stolen vehicle linked him to the offences. He was sentenced by English DCJ on 15 August 2005 to three concurrent sentences, the longest being six years with a four-year non-parole period, commencing 3 January 2005.

The sole ground of appeal was that the sentencing judge had failed to accurately account for the appellant's pre-sentence custody when setting the commencement date of the sentences.

  • Whether the sentencing judge erred by backdating the sentences only to 3 January 2005, thereby failing to credit the full 450 days of pre-sentence custody the appellant had served
  • Whether, even if that error was established, the proviso under s 6(3) of the Criminal Appeal Act applied such that no lesser sentence was warranted in law

Decision

Both the Crown and the Court accepted that the sentencing judge had made an error in backdating. The appellant had spent 450 days in pre-sentence custody across two periods (143 days from November 2003 to April 2004, and 307 days from October 2004 to sentencing). The correct commencement date should have been 23 May 2004, not 3 January 2005 as ordered.

However, the Crown relied on the proviso in s 6(3) of the Criminal Appeal Act, which requires the Court of Criminal Appeal to form a positive opinion that some other sentence is warranted in law before it can quash and substitute a sentence. Hulme J (with whom McClellan CJ at CL and Hall J agreed) applied the principle stated by the Chief Justice in R v Simpson (2001) 53 NSWLR 704 that establishing error alone is not sufficient to justify intervention.

Hulme J identified several compounding errors by the sentencing judge in the appellant's favour. Making all three sentences wholly concurrent was described as treating the appellant "very leniently" and as an error in principle, given that there were two distinct victims. The Form 1 matters were not properly reflected in any increase to the sentence, and the appellant's criminal record, which included prior break and enter and assault offences, had not been adequately addressed. The appellant had also been on conditional liberty at the time of the offences.

Taking those matters together, the Court concluded that even had the commencement date been correctly calculated, no lesser overall sentence was warranted. The sentencing errors in the appellant's favour effectively offset the backdating error, and the proviso applied.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that establishing a sentencing error does not automatically result in a different sentence being imposed: under s 6(3) of the Criminal Appeal Act, the Court must positively conclude that some other sentence is warranted in law before substituting a sentence.
  • Where a sentencing judge has made multiple errors that collectively favour an offender, those errors may counterbalance a separate error that disadvantaged the offender, supporting application of the proviso.
  • Making all sentences concurrent across offences involving two distinct victims was identified as an error in principle, consistent with the Court's observation in R v Dunn that harming one victim and harming two are materially different matters.
  • A failure to give proper weight to Form 1 matters, or to properly consider a relevant criminal record, each constitutes an error in the sentencing process.
  • Offending during conditional liberty (such as while on bail) and the commission of home invasions involving planning, weapons, and actual violence were reaffirmed as seriously aggravating factors attracting strong general and personal deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Simpson (2001) 53 NSWLR 704
- The Queen v Veen (1988) 164 CLR 465
- R v Knight [2002] NSWCCA 12
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Hoang [2003] NSWCCA 380
- R v Dunn [2004] NSWCCA 41
- R v Vincent [2005] NSWCCA 135
- R v Richards (1981) 2 NSWLR 464
- R v Moffitt (1990) 20 NSWLR 114
- R v Skrill [2002] NSWCCA 484
- R v Price [2004] NSWCCA 186
- R v Janceski [2005] NSWCCA 288
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146