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Court of Criminal Appeal 31 May 2024

McMillan v R

[2024] NSWCCA 83

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE SENTENCE CUSTODY RESENTENCE CRIME SENTENCING

Citation: McMillan v R [2024] NSWCCA 83
Court: Court of Criminal Appeal, NSW
Date: 31 May 2024
Judge(s): McNaughton J (principal judgment); Garling J and Weinstein J (agreeing)

Background

The appellant was convicted by jury of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), arising from an incident at a suburban liquor store in Epping. During the robbery, a co-offender wielded a Samurai sword and threatened the sole employee while stealing approximately $460 in cash; the appellant stole five bottles of rum.

The complication at sentencing arose from three distinct periods the appellant spent in pre-sentence custody. The first period (29 March to 11 December 2021) was solely referable to the robbery charge. The second period (14 June to 7 September 2022) arose from unrelated offending, for which the appellant was subsequently sentenced by a Local Court Magistrate to Community Correction Orders. The third period (8 September to 9 December 2022) was again solely referable to the robbery charge.

The sentencing judge in the District Court treated both Periods 2 and 3 as partly attributable to the unrelated offending, applying a 50% apportionment to each. The appellant was sentenced to 6 years and 6 months imprisonment with a non-parole period of 4 years, backdated to 28 December 2021. The appellant sought leave to appeal on three grounds: error in calculating pre-sentence custody, manifest excess, and unjustifiable sentencing disparity with the co-offender.

  • Whether the sentencing judge erred by treating Period 3 (which was solely referable to the robbery charge) as also partly attributable to unrelated offending, thereby under-crediting the appellant's pre-sentence custody.
  • Whether the Local Court Magistrate's earlier allowance for Period 2 when sentencing on the unrelated offences meant that Period 2 had already been "used" and could not be double-counted.
  • Whether s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies only to custodial sentences, or extends to non-custodial alternatives such as Community Correction Orders imposed under Part 2, Division 3.
  • Whether the resulting sentence was manifestly excessive.
  • Whether the sentencing disparity between the appellant and his co-offender gave rise to a justifiable sense of grievance warranting intervention.

Decision

The Court found that the sentencing judge was led into error by the submissions made at the hearing. Period 3 (8 September to 9 December 2022) was solely referable to the robbery charge, yet the judge treated it as partly attributable to the unrelated offending and applied only a 50% credit. Because it was impossible to know how the judge would have dealt with Period 2 had the Magistrate's sentencing remarks been properly before the court, the error was not a simple arithmetical mistake capable of correction by adjustment. A full resentencing exercise was required.

On the s 24(a) question, the Court confirmed that the provision has a general operation and is not confined to custodial sentences. Part 3 of the Sentencing Act applies to all sentencing outcomes, including non-custodial alternatives. The phrase "must take into account" in s 24 carries a general meaning of "must consider" or "must have regard to," rather than requiring any fixed arithmetical reduction. Accordingly, pre-sentence custody is a relevant consideration even where a non-custodial penalty is ultimately imposed, particularly in borderline cases about whether imprisonment is appropriate at all.

The Court also confirmed the established principle that pre-sentence custody should be taken into account only once. Because the Magistrate had already credited Period 2 when sentencing the appellant for the unrelated offences (by imposing Community Correction Orders that reflected time already served), it was not available again. The appellant was entitled to the full benefit of Periods 1 and 3 only, totalling 351 days, to be applied by backdating the sentence under s 47(3).

On resentencing, the Court found that a less severe sentence was warranted, given the objective seriousness of the offending, the appellant's longstanding mental illness (which reduced the weight of general and specific deterrence), conditions of custody during the COVID-19 pandemic, and the parity principle viewed as an ameliorating rather than ceiling-setting consideration. Special circumstances were found. The co-offender's sentence provided a relevant point of comparison but did not operate as a binding benchmark.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Wilson SC DCJ on 9 December 2022 set aside.
  • In substitution: a non-parole period of 2 years and 9 months and an additional term of 1 year and 9 months (total head sentence: 4 years and 6 months).
  • Sentence directed to commence on 23 December 2021.
  • Non-parole period expires 22 September 2024; sentence expires 22 June 2026.

Key Takeaways

  • Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to all sentencing outcomes, not only custodial sentences. Pre-sentence custody is a mandatory consideration even when a non-custodial alternative is imposed, and it may be determinative in borderline cases about whether imprisonment is warranted.

  • The obligation to "take into account" pre-sentence custody under s 24(a) carries a general meaning of consideration or regard, not a prescribed arithmetical outcome. The preferred method of giving effect to that consideration remains backdating under s 47(3).

  • Where a period of pre-sentence custody spans both the offence being sentenced and separate unrelated offending, the sentencing court must accurately identify what portion is attributable to each. An error in characterising a period as partly referable to unrelated offending, when it was in fact solely referable to the subject offence, is a material sentencing error.

  • Pre-sentence custody must be taken into account only once across all proceedings. Where a Local Court has already credited a period of custody when imposing a penalty for unrelated offences, the sentencing court for the primary offence cannot credit that same period again.

  • In dismissing the disparity ground as a self-standing basis for appeal, the Court reiterated that the parity principle is ameliorative: a co-offender's sentence may inform the appropriate range but cannot justify imposing a heavier sentence than would otherwise be warranted, nor does an unchallenged co-offender sentence automatically set a binding comparator.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4, 5, 8, 9, 10, 10A, 11, 21A, 24, 47, 85, 86
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed), ss 32, 33

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Hunt v R [2021] NSWCCA 192
- Huynh v R [2024] NSWCCA 61
- Kljaic v R [2023] NSWCCA 225
- Mandranis v R [2021] NSWCCA 97
- R v Eckersley [2021] NSWSC 562
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Wasson [2014] NSWCCA 95