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District Court 4 December 2019

R v Miller

[2019] NSWDC 910

Assault & violenceTheft & propertyPublic order & justice offences
CRIME SENTENCE USE OF ILLICIT SUBSTANCES DYSFUNCTIONAL UPBRINGING EARLY PLEA OF GUILTY POTENTIAL FOR REHABILITATION

Citation: R v Miller [2019] NSWDC 910
Court: District Court of New South Wales
Date: 4 December 2019
Judge(s): Norrish QC DCJ

Background

The offender, a 37-year-old man, pleaded guilty in the Local Court to aggravated entry into a dwelling house with intent to intimidate, contrary to s 111(2) of the Crimes Act 1900. The aggravating circumstance was that he knew persons were present in the dwelling. The matter was committed to the District Court for sentence.

The offending arose from an unplanned confrontation. The offender attended a residential premises in Kelso with his girlfriend and another person to discuss the sale of a quad bike. An argument broke out between his girlfriend and her former partner, who was inside the house. The offender, who had initially returned to the vehicle, became angry at perceived insults directed at his girlfriend and forced entry by kicking in the screen door and shattering the glass door. He entered the dwelling, causing two occupants to flee. Upon being told children were upstairs, he left. As he departed, he apologised for the damage but also threatened to "come back and stab" another resident if the police were called.

A Form 1 offence of intentionally or recklessly destroying or damaging property was taken into account on sentence. The offender had been in custody since 14 March 2019.

  • What discount from the otherwise appropriate sentence was warranted for an early guilty plea entered at the first reasonable opportunity?
  • What weight should be given to the Form 1 property damage offence when assessing the overall sentence?
  • How did the aggravating circumstance (knowledge of occupants) affect objective seriousness?
  • What mitigating factors, including provocation, dysfunctional background, and rehabilitation potential, were relevant to the sentencing exercise?
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and total sentence.

Decision

Norrish QC DCJ assessed the objective seriousness of the offending as relatively contained. The aggravating circumstance of knowing persons were present added little to the objective gravity, because the presence of occupants was itself part of the factual context that explained how the confrontation unfolded rather than a separately significant feature. The Form 1 property damage offence was intimately connected to the principal offence and did not call for any substantial uplift to the sentence.

His Honour accepted that the offending was entirely unplanned and that there was some degree of provocation, namely the insults directed at the offender's girlfriend in his presence, though the provocation was not directed at him personally and was of limited significance. The offender's criminal history, which included prior violence and property offences, did not entitle him to any leniency, though the judge stopped short of treating it as a formal aggravating factor in this instance.

The offender gave evidence at the sentencing hearing and made a favourable impression on his Honour, who found that he demonstrated a realistic understanding of his circumstances. His dysfunctional upbringing, use of illicit substances, and personal background were taken into account consistent with the principles in Bugmy v R [2013] HCA 37. His Honour also noted the offender's prior capacity to make a positive contribution to the community and regarded rehabilitation as a live sentencing objective.

A 25% discount was applied for the utilitarian value of the early guilty plea. Special circumstances were found, resulting in a non-parole period and balance of sentence of equal length (nine months each), reflecting the offender's rehabilitation needs upon release.

Orders Made

  • The offender was convicted of the offence under s 111(2) of the Crimes Act 1900, with the Form 1 offence taken into account.
  • Sentenced to a total term of 18 months imprisonment.
  • Non-parole period of 9 months, commencing 14 March 2019 and expiring 13 December 2019.
  • Balance of sentence of 9 months, expiring 13 September 2020.

Key Takeaways

  • A 25% sentencing discount applied where a guilty plea was entered at the first reasonable opportunity in the Local Court, reflecting the utilitarian benefit of the plea.
  • Where a Form 1 offence arises from the same factual circumstances as the principal offence and is intimately connected to it, the sentencing court may decline to treat it as a basis for a substantial increase in the sentence.
  • An aggravating circumstance nominally establishing a higher-grade offence may carry limited practical weight in assessing objective seriousness where the facts underlying that circumstance do not materially worsen the nature of the conduct.
  • Under Bugmy v R [2013] HCA 37, a disadvantaged and dysfunctional upbringing remained relevant to mitigation even where the offender had an established criminal history.
  • Special circumstances were found to exist, justifying an equal non-parole period and balance of sentence, on the basis that the offender's rehabilitation needs required a longer period of supervision on release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111(2), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)

Cases:
- Bugmy v R [2013] HCA 37
- Harris v R [2005] NSWCCA 204
- Huynh v R [2005] NSWCCA 220
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2