Miles v The King - [2023] NSWCCA 90

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Miles v R [2023] NSWCCA 90
Hearing dates: 27 February 2023
Date of orders: 27 February 2023
Decision date: 21 April 2023
Before: Beech-Jones CJ at CL
McNaughton J
R A Hulme AJ
Decision:
(1)   Grant leave to appeal and allow the appeal.
(2)   Quash the sentence imposed in the District Court on 3 December 2021 and in lieu impose an aggregate sentence of imprisonment for 3 years and 3 months with a non-parole period of 2 years and 3 months.
(3)   The sentence is to date from 11 November 2020.

Catchwords:
CRIME – appeals – appeals against sentence –use offensive weapon with intent to commit indictable offence in company – reckless wounding in company – assault – drive whilst disqualified – mistake of fact in assessment of objective gravity – failure of legal representatives to present subjective case causing miscarriage of justice where there was evidence of disadvantaged background and mental ill-health – errors conceded by Crown – appeal allowed – appellant re-sentenced

Legislation Cited:
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 Cited:
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

Category: Principal judgment
Parties: Scott Raymond Miles (Appellant)
Rex (Respondent)
Representation:
Counsel:
J Roy (Appellant)
M Millward (Respondent)
Solicitors:
C Pittman, Legal Aid NSW (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/18100; 2019/333086; 2018/173539
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

3 December 2021

Before:

Townsden DCJ

File Number(s):

2020/18100; 2019/333086; 2018/173539

HEADNOTE

[This headnote is not part of the judgment]

Mr Scott Miles (the appellant) applied for leave to appeal against a sentence imposed on 3 December 2021 by his Honour Judge Townsden in the District Court.

An aggregate sentence of 3 years and 9 months with a non-parole period of 2 years and 9 months was imposed for use offensive weapon with intent to commit an indictable offence (assault) in company, reckless wounding in company, assault and drive whilst disqualified. The offences are contrary to ss35B(2), 35(2) and 61 of the Crimes Act 1900 (NSW) and s 54 of the Road Transport Act 2013 (NSW) respectively.

The appellant’s case relied on four grounds of appeal although it was only necessary for two to be determined. They were that the sentencing judge erred in his assessment of objective gravity of the reckless wounding in company offence by mistaking a certain…

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 Miles v The King

Details

AGLC: Miles v The King [2023] NSWCCA 90
Case: [2023] NSWCCA 90
Decision Date: 21 April 2023

CaseChat Overview and Summary

The case of Miles v The King involves an appellant who was found guilty of using an offensive weapon with intent to commit an indictable offence while in the company of others, reckless wounding in company, assault, and driving while disqualified. The appellant appealed against the sentence imposed by the trial judge, contending that the sentence was excessive and that there was a miscarriage of justice due to the failure of legal representatives to adequately present the subjective circumstances of the appellant's background and mental health. The appellant's legal representatives conceded errors in the assessment of the objective gravity of the offences and in the failure to present the appellant's subjective circumstances.

The court was required to consider whether the sentence imposed was excessive and whether there had been a miscarriage of justice due to the failure of the appellant's legal representatives to adequately present the subjective circumstances of the appellant's background and mental health. The court also had to consider whether the appellant's disadvantageous background and mental ill-health should have been taken into account in the sentencing process. The Crown conceded that there were errors in the assessment of the objective gravity of the offences and in the failure to present the appellant's subjective circumstances.

The court held that the sentence imposed was excessive and that there had been a miscarriage of justice due to the failure of the appellant's legal representatives to adequately present the subjective circumstances of the appellant's background and mental health. The court found that the appellant's disadvantageous background and mental ill-health should have been taken into account in the sentencing process, and that the Crown's concession of errors in the assessment of the objective gravity of the offences and in the failure to present the appellant's subjective circumstances was accepted. The court allowed the appeal, re-sentenced the appellant, and reduced the sentence imposed by the trial judge.

The court ordered that the appellant be re-sentenced and that the sentence be reduced to reflect the appellant's disadvantageous background and mental ill-health. The court also ordered that the appellant's legal representatives be required to present the appellant's subjective circumstances in any future sentencing proceedings.

Orders