Milane v Regina - [2006] NSWCCA 281

CITATION: MILANE v REGINA [2006] NSWCCA 281

HEARING DATE(S): 5 September 2006

JUDGMENT DATE:
5 September 2006

JUDGMENT OF: Giles JA at 1; Sully J at 30; Latham J at 31

EX TEMPORE JUDGMENT DATE: 09/05/2006

DECISION: Leave to appeal granted. Appeal dismissed.

CASES CITED: Sentencing - break, enter and steal in circumstances of aggravation - "home invasion" by two offenders - pretended to be members of Drug Squad - whether disparity in culpability not adequately reflected in applicant's sentence - whether insufficient weight given to subjective factor of his judgment being clouded by use of illegal drugs - no appealable error - depends on particular facts.

PARTIES: Thomas Leslie Millane - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 2006/1636

COUNSEL: A Radojev - Appellant
P Barrett - Respondent

SOLICITORS: M Bellingham - Appellant
S Kavanagh (Solicitor for Public Prosecutions) - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/11/0440

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 18 November 2005 (Sentence)

CCAP 2006/1636
DC 05/11/0440

GILES JA
SULLY J
LATHAM J
Tuesday 5 September 2006

Thomas Leslie MILANE v REGINA

Judgment

1 GILES JA: On 12 September 2005 the applicant and a co-offender, Mr Timothy Nicholls, each pleaded guilty to a count in a joint indictment of break, enter and steal in circumstances of special aggravation (Crimes Act s 112(3)). The pleas were entered on the morning of the scheduled trial. The offence carried a maximum penalty of 25 years imprisonment.

2 On 18 November 2005 Tupman DCJ sentenced the applicant to imprisonment for 6 years and 10 months commencing on 16 June 2004, with a non-parole period of 4 years and 4 months. Her Honour also called the applicant up on bonds from the Waverley Local Court entered into on 28 May 2004 in relation to a number of offences, revoked the bonds and imposed a sentence of imprisonment of 6 months commencing on 16 June 2004. Her Honour sentenced Mr Nicholls to imprisonment for 7 years and 9 months commencing on 16 June 2004 with a non-parole period of 5 years. In doing so she took into account two offences on a Form 1 concerning use of a police badge to impersonate a police officer on the day preceding the commission of the break, enter and steal offence.

3 The applicant has applied for leave to appeal against sentence. One of the grounds of appeal was not pressed, and the grounds of appeal for consideration were, in summary -

· firstly, that the applicant was substantially less culpable than his co-offender and the sentence did not reflect his lesser culpability;

· secondly, that insufficient weight was given by the sentencing judge to the subjective factor in the applicant’s favour that at the time of the offence his judgment was clouded by long use of illegal drugs and the effect of illegal drugs used at the time; and

· thirdly, and related to the second matter, that the non-parole period should…

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 Milane v Regina

Details

AGLC: Milane v Regina [2006] NSWCCA 281
Case: [2006] NSWCCA 281
Decision Date: 05/09/2006

CaseChat Overview and Summary

The case of Milane v Regina concerns an appeal against sentence by Thomas Leslie Millane, who, along with a co-offender, Mr Timothy Nicholls, pleaded guilty to a count of break, enter and steal in circumstances of special aggravation. The District Court sentenced Millane to imprisonment for 6 years and 10 months, with a non-parole period of 4 years and 4 months, and Nicholls to 7 years and 9 months, with a non-parole period of 5 years. Millane sought leave to appeal on the grounds that his sentence did not adequately reflect his lesser culpability compared to Nicholls, that insufficient weight was given to the subjective factor of his judgment being clouded by the use of illegal drugs, and that the non-parole period should have been substantially less to aid in his rehabilitation through lengthy supervision on parole.

The legal issues before the Court of Criminal Appeal were whether the disparity in culpability between Millane and Nicholls was adequately reflected in the sentence, whether sufficient weight was given to Millane's subjective circumstances, and whether the non-parole period should have been shorter. The Court considered these issues in light of the sentencing principles and the particular facts of the case. The Court found that the sentencing judge appropriately recognised the difference in culpability and had considered the subjective factors in Millane’s favour, including his addiction and clouded judgment, though balanced against other factors such as his parole status at the time of the offence. The Court concluded that the sentence imposed was appropriate and that no error was made in the sentencing process.

In conclusion, the Court granted leave to appeal but dismissed the appeal. The sentence imposed by the District Court was upheld as it appropriately balanced the aggravating and mitigating factors in line with sentencing principles.

Orders