Citation: R v Middlemiss [2010] NSWDC 292
Court: District Court of New South Wales
Date: 26 November 2010
Judge(s): Berman SC DCJ
Background
The offender, a 45-year-old woman, faced sentencing across multiple sets of proceedings involving drug supply offences, armed robbery, and armed robbery with wounding. After a law-abiding period of nearly two decades following the birth of her son in 1991, the offender relapsed into drug use following a series of personal losses including a relationship breakdown, a nephew's suicide, and the death of a close friend.
The drug offences arose from the offender's involvement in two heroin supply transactions in mid-2008, in which she assisted a high-level drug dealer. She was placed on unconditional bail following her arrest for those matters, and the subsequent offences were committed while that bail was on foot.
On 4 October 2009, while under the influence of drugs and medication, the offender entered a swimwear store and attacked the sole employee with a hammer, striking her approximately ten times to the head including after the victim had fallen to the ground. The victim sustained lacerations and bruising but no skull fractures. Later that month, having unsuccessfully attended a police station to confess to an offence so she could be imprisoned, the offender committed a further armed robbery using a syringe filled with red cordial, telling the victim she was a drug addict with AIDS. She was arrested shortly after and had already made arrangements for her anticipated imprisonment, including selling furniture and arranging care for her pets.
Legal Issues
- What individual sentences were appropriate for each of the five offences, having regard to objective seriousness and the offender's personal circumstances?
- What weight should be given to the aggravating features of offending on bail and while subject to a section 9 bond?
- Whether special circumstances existed justifying a departure from the standard one-third ratio between the non-parole period and the head sentence under the totality principle.
- How to structure a just and proportionate aggregate sentence across multiple proceedings using the totality principle.
Decision
Berman SC DCJ described the case as "sadder than most," noting that the offender had deliberately committed the final armed robbery in order to be imprisoned, believing that was the only path to rehabilitation available to her. His Honour accepted that this reflected the depth of her addiction rather than any predatory criminality as such, but emphasised that the offences remained serious and that a significant custodial term was unavoidable.
For the two drug supply offences (July and August 2008), the court imposed concurrent fixed terms of two years each. For the armed robbery committed on 23 October 2009 (the syringe robbery), a further fixed term of two years was imposed, to be served consecutively to the drug sentences. The fixed terms were structured in this way to accommodate the final and most serious sentence.
For the armed robbery with wounding on 4 October 2009, the court imposed a non-parole period of eighteen months with a head sentence of four and a half years. His Honour found special circumstances on the basis that the offender had demonstrated a capacity for a law-abiding life over nearly two decades, and that extended supervision on parole would maximise her prospects of rehabilitation. The non-parole period for that final matter, viewed in isolation, appeared shorter than usual, but this was necessary to ensure the overall aggregate non-parole period did not exceed three-quarters of the overall head sentence.
Applying the totality principle, the overall effective sentence was a non-parole period of three and a half years with a head sentence of six and a half years, commencing from 25 October 2009, with the offender eligible for release to parole on 24 April 2013.
Orders Made
- Drug supply offences (9 July 2008 and 8 August 2008): concurrent fixed terms of two years each, commencing 25 October 2009.
- Armed robbery (23 October 2009): fixed term of two years, commencing 25 October 2010.
- Armed robbery with wounding (4 October 2009): non-parole period of 18 months commencing 25 October 2011, with a head sentence of four and a half years.
- Overall effective sentence: non-parole period of three and a half years; head sentence of six and a half years; parole eligibility date of 24 April 2013.
Key Takeaways
- The District Court applied the totality principle across five offences in three separate sets of proceedings, structuring fixed terms and a concluding parole-eligible sentence so that the aggregate non-parole period did not exceed three-quarters of the overall head sentence.
- Special circumstances under sentencing law were established where the offender had demonstrated a prolonged capacity for law-abiding conduct and stood to benefit substantially from extended post-release supervision through Probation and Parole.
- Offending on bail and while subject to a section 9 bond were treated as aggravating features, though those circumstances were considered alongside the offender's significantly compromised mental state arising from addiction.
- A deliberate decision to commit an offence for the purpose of securing imprisonment did not reduce the seriousness of the offending, but the court treated it as part of a broader picture of an offender in crisis rather than evidence of calculated criminality.
- Genuine remorse and a lengthy prior offence-free period remained relevant mitigating factors even where the objective gravity of individual offences, particularly the sustained hammer attack, was significant.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) (armed robbery, armed robbery with wounding provisions)
- Bail Act 1978 (NSW) (offending while on bail as an aggravating circumstance)
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 9 (conditional bond referred to in the judgment)
Cases:
No specific cases were cited in the judgment text.