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Court of Criminal Appeal 25 October 2023

Miller v R

[2023] NSWCCA 267

Assault & violenceTheft & propertyFirearms & weapons

Citation: Miller v R [2023] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 25 October 2023
Judges: Kirk JA (primary reasons); Rothman J and N Adams J (agreeing)

Background

The applicant was one of four co-offenders involved in an armed robbery of six people attending a poker game. During the robbery, a co-offender produced a firearm and shot one of the victims. The applicant pleaded guilty to three offences under s 97(2) of the Crimes Act 1900 (NSW): one count of assault with intent to rob in company armed with a dangerous weapon, and two counts of robbery in company armed with a dangerous weapon. Three further offences of the same type were taken into account on a Form 1.

The sentencing judge imposed an aggregate term of 7 years imprisonment with a non-parole period of 4 years. The co-offender who fired the weapon was sentenced at the same time and received a higher aggregate sentence of 8 years with a non-parole period of 4 years and 9 months. That co-offender also faced an additional charge of recklessly causing grievous bodily harm.

The applicant sought leave to appeal against the severity of his aggregate sentence, arguing that the sentencing judge had failed to properly differentiate his individual culpability from that of his co-offenders, and had not separately assessed the objective seriousness of each individual offence.

  • Whether the sentencing judge was required to separately and expressly assess the objective seriousness of each individual offence, and whether failing to do so constituted error.
  • Whether the sentencing judge failed adequately to differentiate the applicant's role from that of his co-offenders, thereby causing a miscarriage of justice.

Decision

Kirk JA (with Rothman J and N Adams J agreeing) granted leave to appeal but dismissed the appeal, finding no relevant error in the sentencing exercise.

On the first ground, Kirk JA confirmed that what is required is that the objective seriousness of each offence has been genuinely considered and factored into the sentencing exercise. The court does not need to express that consideration, or its conclusion on it, in any particular form. Whether the requirement has been satisfied is assessed by reading the sentencing judge's reasons as a whole, not by identifying the absence of a specific formulaic statement.

The court found no impermissible conflation of the offences in the sentencing remarks. The sentencing judge had set different indicative sentences for each of the three offences, which itself demonstrated that the distinct facts of each offence had been taken into account. The court acknowledged that the sentencing judge's reasons did not expressly explain the basis for each indicative sentence in detail, but noted this reflected, to a significant extent, the way the case had been presented below.

On the second ground, Kirk JA held that the sentencing judgment, read as a whole, showed the sentencing judge was clearly aware of the different roles played by the applicant and his co-offenders. In particular, the judge had expressly recognised that the applicant had no foreknowledge of the firearm. That distinction was reflected in the lower indicative sentences and lower aggregate sentence imposed on the applicant compared to the co-offender who fired the weapon. No substantial argument had been made below that there were significant additional differences in culpability beyond those the judge had acknowledged.

Rothman J added that the three robberies formed part of a single course of criminal conduct and that the shooting and assault in the more serious sequences had a direct effect on the other victims. Over-differentiating the offences in those circumstances would, in his Honour's view, elevate form over substance.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to express the assessment of objective seriousness of each offence in any particular way. What matters is that the issue has been genuinely considered, as revealed by the sentencing reasons read as a whole.
  • The setting of different indicative sentences for each individual offence is capable of demonstrating that a sentencing judge took into account the distinct facts of each offence, even where the reasons do not explicitly articulate the basis for each indicative term.
  • No error arises from a sentencing judge addressing multiple offences arising from a single course of criminal conduct without rigidly separating analysis of each, provided there is no impermissible running together of facts that risks double-punishment or punishment for an offence more serious than charged.
  • Differences in co-offenders' roles need not be addressed through explicit comparative analysis in reasons, provided those differences are reflected in the outcome, including in higher indicative and aggregate sentences for the more culpable offender.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that appellate review of sentencing reasons is a holistic exercise, not a search for omissions in structure or form.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 97(2)

Cases:
- Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246
- Courtney v R (2022) 102 MVR 271; [2022] NSWCCA 223
- Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Kochai v R [2023] NSWCCA 116
- R v Campbell [2014] NSWCCA 102
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190
- Yeung v R [2018] NSWCCA 52
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44