Citation: Miles v R [2023] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 21 April 2023
Judges: Beech-Jones CJ at CL, McNaughton J, R A Hulme AJ
Background
The appellant was sentenced in the District Court in December 2021 for four offences: using an offensive weapon with intent to commit an indictable offence in company, reckless wounding in company, assault, and driving whilst disqualified. The primary judge imposed an aggregate sentence of 3 years and 9 months with a non-parole period of 2 years and 9 months, backdated to November 2020 to account for pre-sentence custody.
The offences arose from two separate incidents. The first, in December 2016, involved the appellant and a co-offender entering a service station with faces covered, each carrying a weapon, though they left without taking anything. The second, in October 2019, involved the appellant accompanying two brothers to a meeting at a shopping centre, where those brothers attacked a third party with metal objects. The appellant drove them away from the scene. The assault offence related to an earlier matter for which the appellant had been placed on a community correction order, which he then breached.
At the sentencing hearing, the appellant's legal representatives neither tendered nor referred to any evidence about his subjective circumstances. The primary judge explicitly noted that no material had been provided and that the appellant had not given evidence.
Legal Issues
- Whether the sentencing judge made a factual error in assessing the objective gravity of the reckless wounding in company offence by finding the appellant had supplied weapons to his co-offenders.
- Whether the failure of the appellant's legal representatives to present any subjective case at the sentencing hearing caused a miscarriage of justice.
Decision
On the first ground, the Court of Criminal Appeal accepted the Crown's concession that the primary judge had erred. In assessing the objective seriousness of the reckless wounding offence, the judge had included a finding that the appellant supplied the weapons used by the two co-offenders. There was no evidentiary basis for that finding. The evidence established only that the appellant observed one co-offender retrieve a metal object from the boot of the car and did not see the other do so. The Crown properly conceded this error had the capacity to affect the outcome.
On the second ground, the Court accepted that there was either available or already before the sentencing court significant material about the appellant's disadvantaged background and mental ill-health. None of it was tendered or mentioned by the appellant's representatives. The primary judge, in the absence of that material, found little basis for remorse beyond the guilty plea, expressed doubt about rehabilitation prospects, and assessed the risk of reoffending as high. The Crown again conceded that this failure caused the sentencing proceedings to miscarry.
With both grounds established, the Court proceeded to resentence the appellant in accordance with the principles in Kentwell v The Queen. The Court applied reductions for the guilty pleas and for assistance provided to authorities, arriving at individual sentences before imposing an aggregate term. On the question of parity, the Court had regard to the sentences imposed on the co-offenders. The Court declined to adjust the commencement date of the new sentence to address totality concerns arising from a subsequent Local Court sentence, noting the Crown's more appropriate remedy was an appeal to the District Court against that magistrate's decision.
Orders Made
- Leave to appeal granted and the appeal allowed.
- The sentence imposed in the District Court on 3 December 2021 was quashed.
- In lieu, an aggregate sentence of imprisonment for 3 years and 3 months was imposed, with a non-parole period of 2 years and 3 months.
- The sentence was to date from 11 November 2020.
- The Court noted the non-parole period had expired on 10 February 2023, making the appellant eligible for parole, and directed that the matter be referred to the State Parole Authority forthwith.
Key Takeaways
- A sentencing judge's reliance on a factual finding unsupported by any evidence in the proceedings constitutes an error capable of vitiating the sentence, even where the departure from the agreed facts may appear relatively contained.
- Where evidence of significant subjective matters (including disadvantaged background and mental ill-health) is available but not tendered or referred to by defence representatives, the sentencing proceedings may miscarry, warranting a resentencing on appeal.
- Resentencing by the Court of Criminal Appeal following a successful appeal proceeds in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601, including consideration of parity with co-offenders.
- The principle from Bugmy v The Queen (2013) 249 CLR 571 reinforces that evidence of a deprived background and mental ill-health forms part of the subjective case that must be properly placed before a sentencing court.
- Where a subsequent sentence has been imposed in a lower court in a manner that may raise totality concerns, the Court of Criminal Appeal may decline to cure that outcome at resentencing if the appropriate remedy is an appeal against the lower court's decision.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33B, 35 and 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23 and 44
- Criminal Procedure Act 1985 (NSW), s 166
- Road Transport Act 2013 (NSW), s 54
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Momoa v R [2020] NSWCCA 328
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nauer v R [2020] NSWCCA 174
- Newman v R [2019] NSWCCA 157
- Rae v R [2019] NSWCCA 284
- Rizk v R [2020] NSWCCA 291
- Tsiakas v R [2015] NSWCCA 187