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District Court 23 March 2007

R v Lillian Patricia MILES

[2007] NSWDC 169

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE LARCENY SHOPLIFTING ASSAULT OCCASIONING ACTUAL BODILY HARM PLEA OF GUILTY

Citation: R v Lillian Patricia Miles [2007] NSWDC 169
Court: District Court of New South Wales
Date: 23 March 2007
Judge(s): Berman SC DCJ

Background

The offender, a 26-year-old Aboriginal woman, attended a handbag store in the Pitt Street Mall on 7 June 2006 and stole a handbag alongside a co-offender. An off-duty police officer witnessed the theft and pursued both women, identifying himself and purporting to arrest the offender for stealing.

Rather than submitting to arrest, the offender produced a pen and lunged at the officer with it. He believed it was a syringe and released his grip. What followed was a sustained and violent confrontation: the offender punched the officer repeatedly (causing a bleeding nose and eye injuries), bit him multiple times, spat at him, and continued trying to flee. Her co-offender also kicked and spat on the officer during the struggle. A second off-duty officer intervened before uniformed police arrived and secured the offender.

The offender appeared before the District Court for sentencing on three charges arising from these events: larceny (shoplifting), assaulting a police officer in the execution of his duty occasioning actual bodily harm (which carries a standard non-parole period), and using an offensive weapon with intent to prevent lawful apprehension while in company.

  • What sentence was appropriate for each of the three offences, having regard to the standard non-parole period applicable to the assault charge?
  • Whether the objective seriousness of the assault offence placed it at the mid-range, above it, or below it?
  • Whether departure from the standard non-parole period was justified, and on what grounds?
  • How the principles of totality and concurrency should apply across the three sentences?
  • What weight should be given to the plea of guilty, the offender's personal circumstances, and her prospects of rehabilitation?

Decision

Berman SC DCJ found that the assault offence fell at the mid-range of objective seriousness. The injuries to the officer were significant rather than minor, and the circumstances of the assault, involving multiple acts of violence and a weapon, were serious. However, the weapon element was accounted for by the separate offensive weapon charge, so the court considered that circumstance in its proper place rather than doubling it up in the assault assessment.

The court departed downward from the standard non-parole period on three grounds: the guilty plea, the fact that the two offences of violence were unplanned (they arose spontaneously from the offender's attempt to avoid arrest for the shoplifting), and the court's acceptance that the offender was genuinely remorseful for what she had done to the officer.

On personal circumstances, the court acknowledged the offender's difficult background, including the intergenerational effects of the Stolen Generation on her upbringing, exposure to domestic violence, and a heroin addiction linked clearly to her property offending. The court noted some prospect of rehabilitation, connected to periods of sobriety the offender had previously maintained when she had responsibilities for young family members. However, the court was candid that those prospects could not be described as good, given prior relapses and a significant criminal history.

Applying the principle of totality, the court imposed a short fixed term for the larceny offence followed by concurrent sentences for the two violent offences. It also applied a discount for the guilty plea, noting that without it the overall sentence would have been three years.

Orders Made

  • Larceny: Fixed term of six months' imprisonment, commencing 13 October 2006 (backdated to account for presentence custody).
  • Assault occasioning actual bodily harm / offensive weapon charges: Head sentence of two years and six months, with a non-parole period of nine months, commencing 13 April 2007.
  • Non-parole period to expire 12 January 2008, on which date the offender is to be released to parole.
  • The two violent offence sentences run concurrently with each other, commencing after the larceny fixed term.

Key Takeaways

  • The District Court confirmed that a standard non-parole period remains a relevant guidepost even where an offender pleads guilty, though it can be departed from on appropriate grounds including the plea itself, the unplanned nature of the offending, and genuine remorse.
  • Objective seriousness sits at the mid-range where injuries are significant but not catastrophic, and where a weapon was used but that element is captured by a separate charge rather than being double-counted.
  • Unplanned violence arising opportunistically from an attempt to avoid arrest for a separate planned offence was treated as a mitigating factor on the seriousness scale, even though the violence itself remained grave.
  • The principle of totality was applied by structuring sentences as a short fixed term for the initial planned offence followed by concurrent sentences for the violent offences, producing a coherent overall sentence rather than simply accumulating terms.
  • The connection between drug addiction and property offending was explicitly recognised, and prospects of rehabilitation were assessed soberly: acknowledged as real but not good, given the offender's history of relapse once stabilising circumstances changed.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited by name in the judgment. The court referenced the standard non-parole period applicable to the offence of assaulting a police officer occasioning actual bodily harm, indicating parliamentary intent behind that provision.

Cases:
- No cases were cited in the judgment text provided.