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District Court 28 July 2022

R v Miller; R v Panya

[2022] NSWDC 314

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Miller; R v Panya [2022] NSWDC 314
Court: District Court of New South Wales
Date: 28 July 2022
Judge(s): Scotting DCJ

Background

In June 2020, two men in their mid-twenties carried out a planned armed robbery at a private poker game held in a Wolli Creek apartment. The group had spent two days planning the offence, as revealed by intercepted telephone calls. A third co-offender used an existing relationship with the host to gain access to the secure building, allowing the two offenders to follow him inside.

Once inside the unit, one offender produced a firearm and threatened the poker players. During a confrontation with the host, the firearm discharged. The bullet struck the host in the mouth, fracturing his jaw, removing several front teeth, and lodging a fragment in his jaw that required surgery to remove. Cash, mobile phones, and wallets worth a substantial combined amount were stolen from multiple victims.

Both offenders pleaded guilty in the Local Court and were committed to the District Court for sentencing. Each asked the court to take into account additional robbery charges on a Form 1 (a mechanism under NSW law allowing related charges to be considered at sentencing without recording further convictions).

  • The appropriate aggregate sentence for each offender, having regard to the objective seriousness of the offences and the full range of sentencing factors under s 3A of the Crimes (Sentencing Procedure) Act 1999
  • The quantum of the guilty plea discount available to each offender under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory default ratio, thereby extending the parole period
  • The relevance of standard non-parole periods as guideposts where guilty pleas have been entered
  • The approach to fact-finding adverse or favourable to an offender at sentencing, applying R v Olbrich

Decision

Scotting DCJ applied a 25% discount to each sentence in recognition of the guilty pleas entered in the Local Court. The judge identified the standard non-parole period for the grievous bodily harm offence as a relevant guidepost, even though it does not apply automatically where a guilty plea has been entered.

The court found special circumstances for both offenders. Each was serving his first term of custody and each had significant mental health and addiction issues. Those factors justified extending the parole period beyond the standard one-third proportion, giving greater opportunity for supervised rehabilitation.

For Miller, the court imposed an aggregate sentence of seven years' imprisonment with a non-parole period of four years, dating from 24 July 2020. For Panya, who faced the additional and more serious charge of recklessly causing grievous bodily harm (the shooting of the host), the court imposed an aggregate sentence of eight years with a non-parole period of four years and nine months, dating from 24 September 2020.

Miller was also in breach of three Community Correction Orders imposed in 2020 for separate driving offences. The judgment does not elaborate on how those breaches were resolved beyond noting their existence.

Orders Made

Jarryd Miller:
- Convicted on all counts
- Aggregate term of imprisonment: 7 years
- Non-parole period: 4 years, commencing 24 July 2020
- Non-parole period expires: 23 July 2024
- Head sentence expires: 23 July 2027
- Eligible for parole: 23 July 2024

Piyabut Panya:
- Convicted on all counts
- Aggregate term of imprisonment: 8 years
- Non-parole period: 4 years and 9 months, commencing 24 September 2020
- Non-parole period expires: 23 June 2025
- Head sentence expires: 23 September 2028
- Eligible for parole: 23 June 2025

Key Takeaways

  • A 25% sentence discount applied to both offenders for guilty pleas entered in the Local Court, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard non-parole periods do not apply automatically upon a guilty plea, but the District Court confirmed they remain relevant as guideposts when calibrating an appropriate sentence.
  • Special circumstances were established for both offenders on the basis of first-time custody and significant mental health and addiction issues, justifying a non-parole period below the standard statutory proportion.
  • Where co-offenders played different roles, distinct sentencing outcomes resulted: the offender who discharged the firearm and caused grievous bodily harm received a longer aggregate term and a longer non-parole period than the other.
  • Fact-finding adverse to an offender at sentencing must be established beyond reasonable doubt, while findings favourable to an offender need only satisfy the balance of probabilities, following R v Olbrich (1999) 199 CLR 270.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(a), 53A

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Henry (1999) 46 NSWLR 346
- Legge v The Queen [2007] NSWCCA 244