Micklesson v R - [2009] NSWCCA 61

New South Wales
Court of Criminal Appeal

CITATION: Micklesson v R [2009] NSWCCA 61

HEARING DATE(S): 05/03/2009

JUDGMENT DATE:
13 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 3

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - Home invasion - Crimes Act s 112(3) - offence above mid range - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 112(3)

CATEGORY: Principal judgment

CASES CITED: Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Mitchell and Gallagher [2007] NSWCCA 296
R v Huynh [2005] NSWCCA 220

PARTIES: Ian Micklesson v Regina

FILE NUMBER(S): CCA 2007/14980

COUNSEL: J. Dwyer - Crown
C. Smith - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/14980

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 19/03/2008

2007/00014980

BEAZLEY JA
BLANCH J
HOWIE J
Friday 13 March 2009

Ian MICKLESSON v REGINA

Judgment

1 BEAZLEY JA: I agree with Howie J.

2 BLANCH J: I agree with Howie J.

3 HOWIE J: The applicant was sentenced in the District Court for an offence of specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The serious indictable offence alleged was assault occasioning actual bodily harm and the special aggravation was that the applicant was in company with a person who was armed with a shotgun. The maximum penalty prescribed for such an offence is 25 years imprisonment and there is a standard non-parole period of 7 years. The applicant was sentenced to a term of imprisonment comprising a non-parole period of 6 years and a balance of sentence of 3 years dating from 22 June 2007. The applicant is eligible for release to parole on 21 June 2013.

4 There is only one ground of appeal that asserts that the sentence is manifestly excessive.

5 The facts can be stated briefly. The applicant went with three other men to a unit at North Richmond in order to obtain money. The applicant was armed with a baseball bat and a co-offender was armed with a shotgun. That weapon had been loaded and test-fired in the applicant’s presence on the journey. At about 4.20am the applicant and two co-offenders entered the premises by kicking in the door. They were wearing items of clothing to disguise their appearance. There were four persons residing in the premises at the time.

6 The applicant armed with the baseball bat entered a bedroom where one of the residents was in bed. The applicant struck him four times with the bat to the head and arms causing bruising and lacerations that later required stitching. The applicant forced this man into the kitchen where he became involved in a struggle with him and another resident. They managed to disarm the applicant and he was struck with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Micklesson v R

Details

AGLC: Micklesson v R [2009] NSWCCA 61
Case: [2009] NSWCCA 61
Decision Date: 13 March 2009

CaseChat Overview and Summary

Micklesson v R dealt with a case of home invasion where the appellant was convicted of multiple criminal offences. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence imposed by the lower court was manifestly excessive. The appellant was sentenced to imprisonment for home invasion under section 112(3) of the Crimes Act, which prescribed a mid-range penalty for such offences. The appellant argued that the sentence imposed on him was excessive.

The legal issues before the court included whether the sentence imposed on the appellant was manifestly excessive and whether the lower court had appropriately considered all relevant factors in determining the sentence. The court had to examine the principles of sentencing for home invasion offences and determine whether the sentence imposed by the lower court was within the appropriate range.

The High Court found that the sentence imposed on the appellant was not manifestly excessive. The court acknowledged that home invasion offences were serious and warranted severe punishment, but also noted that the lower court had considered all relevant factors in determining the sentence. The court held that the lower court had exercised its discretion appropriately and had not erred in imposing the sentence. The High Court dismissed the appeal and upheld the sentence imposed by the lower court. The court emphasised the importance of the lower courts having discretion in sentencing and that the High Court would only intervene in cases where the sentence was manifestly excessive.

Orders