Citation: R v Milligan [2019] NSWDC 562
Court: District Court of New South Wales
Date: 19 August 2019
Judge(s): Buscombe DCJ
Background
The offender pleaded guilty in the Local Court to four offences committed in August 2018 and maintained those pleas in the District Court. The offences involved two separate episodes: a series of property crimes on 4 August 2018, and a commercial premises break-in accompanied by violence on 11 to 12 August 2018.
On 4 August, the offender broke into a residential unit in Rosebery and stole a laptop, jewellery, a passport, and a bank card. On the same day, he entered a locked private courtyard of a Waterloo apartment and stole a bicycle, having unsuccessfully attempted to smash his way into the apartment itself. He subsequently used the stolen bank card to make several small fraudulent purchases.
On the night of 11 to 12 August, the offender and a co-accused entered a delicatessen in Sydney's CBD. The offender concealed himself behind a closed shop's steel security curtain, searched the office area, and took cash and chequebooks. He was carrying a large knife concealed in his pants. As he left, a staff member caught up with him outside the store and a physical struggle followed, during which the staff member suffered a cut to his forearm.
Legal Issues
- What indicative sentences were appropriate for each of the four offences, having regard to the objective seriousness of each offence and the accompanying Form 1 matters?
- How should an aggregate sentence be structured across four offences involving multiple victims?
- Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the balance of the sentence?
- What weight should be given to the offender's subjective circumstances, including any background factors relevant under the principles in Bugmy v The Queen?
Decision
Buscombe DCJ sentenced the offender on four primary offences, with three Form 1 documents containing additional offences to be taken into account. The Form 1 offences included credit card fraud, larceny, possession of a prohibited drug, and a common assault on a separate victim. The judge found that most of the Form 1 offences were of limited seriousness and had minimal impact on the primary sentences, though the common assault on Form 1 was given slightly greater weight when sentencing on the assault occasioning actual bodily harm offence.
The judge set indicative sentences for each offence individually before imposing a single aggregate sentence, consistent with the approach required under the Crime (Sentencing Procedure) Act 1999. The indicative sentences were: three years for the break, enter and steal offence; 18 months for stealing from a dwelling house; three years for the armed with intent offence under ss 114/115 of the Crimes Act; and 14 months for assault occasioning actual bodily harm. The judge noted that some accumulation of sentences was warranted given the number of offences and the distinct victims involved.
His Honour determined that special circumstances existed, which justified a non-parole period that was proportionally longer relative to the total sentence than the standard one-third balance of sentence. The aggregate sentence was five years, with a non-parole period of three years and four months. The judge also referred the offender to the Drug Court under s 18B of the Drug Court Act for consideration of a compulsory drug treatment order, reflecting the role that drug use appeared to play in the offending.
Orders Made
- Formal conviction recorded on all four offences.
- Indicative sentences:
- Break, enter and steal: 3 years imprisonment
- Steal property from a dwelling house: 18 months imprisonment
- Armed with intent (ss 114/115 Crimes Act): 3 years imprisonment
- Assault occasioning actual bodily harm: 14 months imprisonment
- Aggregate sentence: 5 years imprisonment, commencing 17 May 2019, expiring 16 May 2024.
- Aggregate non-parole period: 3 years and 4 months, expiring 16 September 2022.
- Referral to the Drug Court under s 18B of the Drug Court Act for determination of whether a compulsory drug treatment order should be made.
Key Takeaways
- The District Court applied the aggregate sentencing regime under the Crime (Sentencing Procedure) Act 1999, setting individual indicative sentences for each offence before imposing a single aggregate term that reflected the totality of the offending rather than a simple arithmetical sum.
- Form 1 offences do not automatically increase the sentence on the primary count; the sentencing court assessed each Form 1 document separately and found that most additional offences were of limited seriousness, warranting only marginal or no upward adjustment.
- Where an offender faces multiple counts with multiple distinct victims, some accumulation of sentences is appropriate to reflect the separate criminality involved against each victim.
- A finding of special circumstances can alter the statutory relationship between the non-parole period and the balance of the sentence, allowing for a longer parole period to support rehabilitation after release.
- Referral to the Drug Court for consideration of a compulsory drug treatment order remained available at sentencing, even where a substantial custodial term was imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59, 112(1)(a), 114, 115, 148
- Crime (Sentencing Procedure) Act 1999 (NSW)
- Summary Offences Act 2005 (NSW), s 6A
- Drug Court Act 1998 (NSW), s 18B
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- R v McNaughton (2006) 66 NSWLR 566
- R v Ponfield (1999) 48 NSWLR 327
- TL v The Queen [2017] NSWCCA 308
- Veen (No 2) (1988) 164 CLR 465