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Court of Criminal Appeal 22 December 2009

MILETIC v R

[2009] NSWCCA 311

Assault & violence

Citation: Miletic v R [2009] NSWCCA 311
Court: NSW Court of Criminal Appeal
Date: 22 December 2009
Judge(s): James J, RS Hulme J, Hidden J

Background

The applicant was a 36-year-old self-employed man who, following the breakdown of a relationship with his neighbour's daughter, attended the neighbour's home in July 2008 in an agitated state. He kicked open the front door, entered the premises swinging an aluminium letterbox, and struck the victim (his former partner's father) approximately six times, causing injuries including a cut, bruising, and swelling. He also made a threatening statement to the victim before leaving.

The applicant was sentenced in the District Court in February 2009 on two charges: aggravated break and enter with intent to intimidate, and assault occasioning actual bodily harm. He received three years imprisonment with an 18-month non-parole period on the first charge, and a fixed term of 18 months on the second, both commencing on the same date.

The applicant sought leave to appeal those sentences to the Court of Criminal Appeal, contending the sentences were excessive and affected by error.

  • Whether the sentencing judge correctly assessed the objective and subjective features of the offending, including the applicant's mental health, remorse, rehabilitation, and limited criminal history
  • Whether the non-parole period imposed on the first charge was disproportionate relative to the total sentence
  • Whether the fixed term imposed on the second charge was calculated in error, specifically whether it should have reflected the length of a non-parole period rather than a full head sentence

Decision

The Court found that the sentencing judge had erred in the structure of both sentences. On the first charge, the non-parole period of 18 months represented 50 percent of the three-year head sentence rather than the standard 75 percent contemplated by the sentencing legislation. While a departure from that standard can be justified by special circumstances, the court found that the starting point of three years was itself too high once the applicant's strong subjective case was properly weighed.

The court accepted that the applicant had significant mitigating factors: a near-clean criminal record, genuine remorse, a credible psychological explanation for his offending (a major depressive episode with longstanding undiagnosed origins), active engagement in rehabilitation beyond what was ordinarily expected, and character references describing the offending as entirely out of character. Hidden J emphasised that these subjective matters, rather than economic hardship, carried the greater weight in justifying the re-sentence.

On the second charge, the court identified a further error: the sentencing judge had arrived at 18 months as a starting point, reduced it to 18 months by reference to the plea, and then imposed that figure as a fixed term. In ordinary circumstances, a fixed term should represent the equivalent of a non-parole period, not the total sentence length. The court held that this produced a sentence that was manifestly excessive in structure and inconsistent with the applicant's subjective circumstances.

The Court of Criminal Appeal re-sentenced the applicant to two years with a one-year non-parole period on the first charge, and a fixed term of one year on the second charge, directing his release to parole on 20 February 2010.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by English DCJ on 20 February 2009 quashed
  • On the aggravated break and enter charge: imprisonment for 2 years with a non-parole period of 1 year, commencing 20 February 2009
  • On the assault occasioning actual bodily harm charge: fixed term of 1 year, commencing 20 February 2009
  • Applicant directed to be released to parole on 20 February 2010

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act, where a fixed term is imposed in lieu of a sentence with a non-parole period, the fixed term should ordinarily reflect the length of what the non-parole period would have been, not the length of the total head sentence.
  • A non-parole period set at 50 percent of a head sentence, rather than the standard 75 percent, requires proper justification through identified special circumstances; failure to articulate or establish that justification may constitute sentencing error.
  • Strong subjective features, including genuine remorse, engagement with psychological rehabilitation, a near-unblemished criminal record, and evidence that the offending was aberrant and explained by undiagnosed mental health conditions, can support a significant reduction from the starting point even for serious offending.
  • Hidden J's separate remarks confirm that economic hardship to the offender is a less weighty consideration than personal rehabilitation and good character when assessing subjective factors at sentence.
  • In dismissing the original sentences, the Court of Criminal Appeal demonstrated that errors in the structural calculation of sentences (not merely the headline figure) can independently justify appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter)
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period provisions)

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