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Court of Criminal Appeal 13 March 2009

Micklesson v R

[2009] NSWCCA 61

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE HOME INVASION CRIMES ACT S 112(3) OFFENCE ABOVE MID RANGE WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Micklesson v R [2009] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 13 March 2009
Judge(s): Beazley JA, Blanch J, Howie J

Background

The appellant was an 18-year-old man who, along with three others, entered a residential unit at North Richmond in the early hours of the morning to obtain money. He carried a baseball bat; a co-offender carried a loaded shotgun that had been test-fired during the journey to the premises. The group disguised their appearance and forced entry by kicking in the door.

Inside, the appellant struck a sleeping resident with the baseball bat four times, causing injuries requiring stitching. A struggle followed involving other residents, during which the co-offender discharged the shotgun three times inside the premises, including once in the direction of residents. The appellant was later identified through DNA evidence, fingerprints, phone intercepts, and the account of a driver.

In the District Court, Knight DCJ sentenced the appellant to a total term of nine years imprisonment, comprising a non-parole period of six years and a balance of three years, for an offence of specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the total sentence of nine years imprisonment (non-parole period of six years) was manifestly excessive for a specially aggravated break and enter offence under s 112(3) of the Crimes Act 1900.
  • Whether the sentencing judge gave sufficient weight to the appellant's subjective circumstances, particularly his age, remorse, and guilty plea.
  • The proper role of the standard non-parole period and maximum penalty as sentencing guideposts where an offence falls well above the mid-range of objective seriousness.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was within the sentencing discretion and could not be characterised as manifestly excessive.

The Court noted that the sentencing judge's reasons appeared to employ a two-stage approach to sentencing, which is inconsistent with the approach endorsed by the High Court in Makarian v The Queen. However, the appellant did not press this as a ground of appeal. The complaint was confined to the contention that the starting point of 14 years (before discount for the guilty plea) was too high.

Howie J concluded that, for offences falling well above the mid-range of seriousness, the standard non-parole period recedes in significance as a guide and greater weight attaches to the maximum penalty. In this case, the maximum was 25 years and the standard non-parole period was seven years. The three discharges of a loaded shotgun in close proximity to residents set this offence apart from the comparative cases relied upon by the appellant.

The Court observed that had the judge approached sentencing correctly from the outset, the appellant would likely have faced a heavier sentence than the one actually imposed. The fact that the "serious indictable offence" underpinning the charge was assault occasioning actual bodily harm, an offence at the lower end of the spectrum of qualifying serious indictable offences, was the only factor that kept the objective criminality short of the highest range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where a sentencing court assesses an offence as falling well above the mid-range of objective seriousness, the standard non-parole period carries less weight as a guidepost, and the maximum penalty becomes the primary reference point for determining the appropriate sentence.
  • A two-stage approach to sentencing, where the court identifies a starting point and then applies discounts for mitigating factors, was noted as inconsistent with Makarian v The Queen, even though this issue was not pressed on appeal.
  • Statistical sentencing data from the Judicial Commission may suggest that many sentences in a category are lenient, but statistics do not displace the principles governing the application of standard non-parole periods as sentencing guidance.
  • In dismissing the appeal, the Court observed that the nature of the "serious indictable offence" underpinning a charge under s 112(3) remains relevant to assessing overall objective seriousness, even where the qualifying offence sits at the lower end of eligibility.
  • No error was established in the sentence, and the Court noted that a corrected sentencing approach would, if anything, have produced a heavier outcome for the appellant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3) (specially aggravated break, enter and commit a serious indictable offence)

Cases:
- Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94
- R v Huynh [2005] NSWCCA 220