Citation: Miller v R [2015] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 6 May 2015
Judges: Meagher JA, Simpson J, Schmidt J
Background
The appellant was 19 years old when he participated with two co-offenders in two separate home invasions on the same night in August 2013. Both targeted people believed to be drug dealers. The first involved a knife being pointed at a woman holding a five-week-old baby while her home was searched for drugs. The second was far more violent: occupants were threatened at knifepoint, the male occupant was kicked in the face and cut twice with a knife, and property including cash, electronics and drugs was stolen.
The appellant was convicted of aggravated break, enter and commit an indictable offence (s 112(2), Crimes Act 1900) and specially aggravated break, enter and commit an indictable offence (s 112(3), Crimes Act 1900). The special aggravation for the second offence was the wounding of the male occupant.
The sentencing judge imposed an aggregate sentence of 8 years and 4 months, with a non-parole period of 6 years and 3 months, after allowing a 25% discount. The judge declined to find special circumstances. The appellant sought leave to appeal on four grounds, contending the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge gave adequate weight to the appellant's deprived background, including childhood abuse, neglect, and exposure to drug use, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571
- Whether the sentencing judge erred by treating the standard non-parole periods as a de facto starting point rather than as a guide
- Whether the judge erred by failing to differentiate the appellant's sentence from those of his older co-offenders, given his age and differing personal circumstances
- Whether the judge erred by declining to find special circumstances warranting a departure from the standard non-parole period ratio
Decision
Leave to appeal was refused on grounds 1 and 3 but granted on grounds 2 and 4. The Court of Criminal Appeal, in reasons principally delivered by Schmidt J (with Simpson J providing agreeing reasons and Meagher JA agreeing with both), held that the sentencing judge had fallen into error in two respects.
On the standard non-parole period issue, the Court found the sentencing judge had treated the standard non-parole periods as a starting point rather than as a guide, which represented appellable error under the principles established in Muldrock v The Queen (2011) 244 CLR 120. The standard non-parole period is one of many factors to be weighed, not a baseline from which the exercise proceeds.
On the question of individualised justice, the Court found the judge failed to give adequate and separate weight to the appellant's youth, his significantly deprived background, and his prospects for rehabilitation. Applying Bugmy, the Court confirmed that the ongoing effects of serious childhood deprivation on a young offender must be properly weighed. The fact that the appellant's co-offenders received comparable sentences did not justify the same outcome where the appellant's age and background called for a meaningfully different approach.
The Court also found that special circumstances existed, given the appellant's need for extended post-release supervision to address drug and alcohol dependence and anger management difficulties. The resentenced aggregate was reduced accordingly.
Orders Made
- Leave to appeal refused on grounds 1 and 3
- Leave to appeal granted on grounds 2 and 4
- Appeal upheld
- Original sentences set aside
- Appellant resentenced to an aggregate term of 7 years imprisonment commencing 2 September 2013 and expiring 1 September 2020, with a non-parole period of 4 years and 9 months expiring 1 June 2018
Key Takeaways
- The Court of Criminal Appeal confirmed that standard non-parole periods under the Crimes (Sentencing Procedure) Act 1999 must be treated as a guide, not a starting point. Treating them as a baseline is an error of principle.
- Applying Bugmy v The Queen, the Court held that a deprived and abusive background must be given genuine and individualised weight at sentencing, particularly where the offender is young and the deprivation is recent enough that its effects have not had time to diminish.
- Where co-offenders receive the same sentence, that does not automatically justify identical treatment if one offender's age, background, and rehabilitation prospects are materially different. Sentencing remains an exercise in individualised justice.
- Special circumstances warranting a longer parole period can be established where an offender has identified needs (such as drug and alcohol treatment and anger management) that require extended supervision after release.
- In resentencing, deterrence and punishment retain their role even where the court finds the original sentence excessive. A reduction in the head sentence and non-parole period does not remove those considerations from the exercise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2) and 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; ss 44(2), 53A, 54B
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- House v The King [1936] HCA 40; 55 CLR 499
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
- Clinton v R [2009] NSWCCA 276
- IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150
- KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571
- MJ v R [2010] NSWCCA 52
- Majid v R [2010] NSWCCA 121
- JT v R [2011] NSWCCA 128
- R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511
- R v GDP (1991) 53 A Crim R 112
- R v E (a child) (1993) 66 A Crim R 14