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Court of Criminal Appeal 18 July 2002

Regina v Miles [2002] NSWCCA 276 revised - 24

[2002] NSWCCA 276

Homicide
CRIMINAL LAW OFFENCES AGAINST THE PERSON MURDER SENTENCING

Citation: Regina v Miles [2002] NSWCCA 276 revised – 24/07/2002
Court: NSW Court of Criminal Appeal
Date: 18 July 2002
Judges: Stein JA; Bergin J; Carruthers AJ (majority: Bergin J and Carruthers AJ; Stein JA dissenting)

Background

The respondent was serving a determinate sentence for murder when he escaped from custody in July 1999. While at large, he killed his partner, the victim in the second murder, and was subsequently charged with that offence. He pleaded guilty.

At first instance, Hidden J imposed a substantial but determinate sentence for the murder, along with a cumulative two-year term for the escape offence. The Crown appealed, arguing the murder sentence was manifestly inadequate and that this was a case requiring a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999.

The central question for the Court of Criminal Appeal was whether the respondent's culpability was so extreme that the community interest in retribution, punishment, community protection, and deterrence could only be satisfied by imprisonment for life.

  • Whether the sentencing judge erred by failing to give adequate weight to the respondent's escape from custody as an aggravating circumstance in the commission of the murder.
  • Whether the sentencing judge erred in his assessment of letters written by the respondent, particularly a passage that the Crown argued demonstrated the respondent's awareness of his own capacity and propensity to kill.
  • Whether the case met the threshold under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 for the imposition of a life sentence, having regard to the extreme level of culpability and the community interest in protection, retribution, punishment, and deterrence.
  • Whether the double jeopardy principle applicable to Crown appeals against sentence leniency was overcome on the facts.
  • Whether any discount for the guilty plea was available in the circumstances.

Decision

The majority (Bergin J and Carruthers AJ) upheld the Crown appeal and imposed a life sentence. The majority found that Hidden J had failed to give sufficient weight to the cumulative weight of aggravating factors, including that the respondent had killed twice within nine years, that the second murder was committed while he was an escapee, and that letters written by the respondent demonstrated an awareness of his dangerousness. The majority concluded that the original sentence displayed a degree of leniency sufficient to warrant intervention, consistent with the approach taken in R v Harris.

On the life sentence threshold, the majority held that the respondent's level of culpability in committing the offence was so extreme that the community interest in retribution, punishment, community protection, and deterrence could only be met by a sentence of life imprisonment under s 61(1). The majority noted that while the respondent's relative youth was the only subjective factor of any note, it did not displace that conclusion given he had already killed twice.

Regarding the guilty plea, the majority confirmed that no discount was available. The law recognises that some offences are of such gravity that the maximum sentence is appropriate without any reduction for a plea of guilty.

Stein JA dissented. His Honour was not satisfied that Hidden J had erred in the manner alleged by the Crown. In Stein JA's view, the sentencing judge had taken proper account of the escape and the letters, and the case did not meet the high threshold required for a life sentence, which demands features of very great heinousness and an absence of mitigating circumstances.

Orders Made

  • The sentence imposed by Hidden J was quashed.
  • In lieu thereof, the respondent was sentenced to imprisonment for life, to date from 25 April 2005.
  • No non-parole period was fixed, the Court having no jurisdiction to do so in relation to a life sentence.

Key Takeaways

  • Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999, a life sentence is warranted only where the level of culpability in the commission of the offence is so extreme that community interests in retribution, punishment, community protection, and deterrence cannot be met by any lesser sentence.
  • Committing a murder whilst an escapee from a sentence already being served for a prior murder constitutes a factor of substantial aggravation, and a sentencing court must visibly and adequately account for it.
  • A prior killing can be directly relevant at sentencing for a subsequent murder, particularly where letters or other evidence demonstrate that the offender possessed awareness of their own capacity and propensity to kill.
  • The double jeopardy principle applicable to Crown sentence appeals does not operate as an absolute bar to intervention: where criminality and dangerousness reach a sufficient level, the Court of Criminal Appeal confirmed it will intervene despite that principle.
  • No discount for a guilty plea is available where the gravity of the offence is such that the maximum sentence is the only appropriate outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 19A, 310D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 57(2), 61, 61(1)
- Criminal Appeal Act (NSW), s 5D

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Director of Public Prosecutions v Ottewell [1970] AC 642
- Ibbs v The Queen (1987) 163 CLR 447
- R v Allpass (1994) 72 A Crim R 561
- R v Camilleri (unreported, NSWCCA, 8 November 1990)
- R v Fernando (1997) 95 A Crim R 533
- R v Garforth (unreported, CCA, 23 May 1994)
- R v Harris (2000) 50 NSWLR 409
- R v Kalache [2000] NSWCCA 2
- R v Robinson [2000] NSWCCA 182
- R v Thomson [2000] 49 NSWLR 383
- R v Twala (unreported, NSWCCA, 4 November 1994)
- R v Warfield (1994) 34 NSWLR 200
- Veen v The Queen [No 2] (1987–1988) 164 CLR 465