Miles v The King

Case [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…

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Miles v The King [2023] NSWCCA 90
Case
[2023] NSWCCA 90
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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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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