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R v Millar

R v Millar

Case [2005] NSWCCA 202 17 June 2005

Sentencing

Plea of Guilty

Standard Non-Parole Period

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CITATION:
Regina v Stephen David Millar [2005] NSWCCA 202

HEARING DATE(S): 30 May 2005

JUDGMENT DATE:

17 June 2005

JUDGMENT OF:
Simpson J at 1; Barr J at 7; Latham J at 45

DECISION:
Grant leave to appeal, allow the appeal and quash the sentence appealed from; Sentence the appellant to a non-parole period of ten months, commencing on 26 August 2004 and expiring on 25 June 2005, and a balance of sentence of eight months; Direct the release of the appellant to parole on 25 June 2005.

PARTIES:
Regina, Stephen David Millar

FILE NUMBER(S):
CCA 2005/405

COUNSEL:
J Girdham
A Cook

SOLICITORS:
S Kavanagh
S O'Conner

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/71/0042

LOWER COURT JUDICIAL OFFICER:
Blackmore SC DCJ

2005/405

SIMPSON J
BARR J
LATHAM J
17 JUNE 2005

REGINA v STEPHEN DAVID MILLAR

Judgment

1 SIMPSON J: I agree with the orders proposed by Barr J, and with his Honour’s reasons, and would add only this in relation to the first ground of the application.

2 Caution should be exercised in attributing error to a sentencing judge on the basis of observations or comments made during the course of argument or submissions. Such remarks, perhaps incautiously expressed, do not necessarily represent a fully considered, and certainly may not represent a final, view held by the judge. It is generally only when any erroneous view finds its way into the actual remarks on sentence, or the outcome can be explained only by an inference that an erroneous view so expressed underlies the reasoning process, that this Court should find error on such a basis. In R v A [2004] NSWCCA 292 Wood CJ at CL, with whom Hulme and Bell JJ agreed, said:

R v Kain

[2004] NSWCCA 143

3 In any event, I do not read the observations made by Blackmore DCJ in this case as demonstrating that his Honour regarded himself as bound by s54B of the Crimes (Sentencing Procedure) Act 1999 to commence his consideration with the standard non-parole period prescribed in respect of the offence to which the applicant pleaded guilty. The remark is at least equally consistent with his Honour’s recognition of what was said in this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 in relation to the sentencing of an offender who is to be sentenced following a plea of guilty. There it was made plain that, while s54B does not oblige a sentencing judge to impose…

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 R v Millar

Details

AGLC: R v Millar [2005] NSWCCA 202
Case: [2005] NSWCCA 202
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the case of Regina v Stephen David Millar, the NSW Court of Criminal Appeal reviewed a sentence imposed by the District Court for breaking and entering and assault occasioning actual bodily harm. Stephen David Millar had broken into a unit and assaulted Nathan Robert Miles, causing him significant injuries. Millar pleaded guilty and was sentenced to two years and six months imprisonment, with a non-parole period of one year and three months. The appeal focused on whether the District Court judge had erred in applying the standard non-parole period from the Crimes (Sentencing Procedure) Act. The Court of Criminal Appeal found no error in the District Court's approach and rejected the argument that the standard non-parole period should only apply to cases tried after a contested trial. However, the Court did find that the sentence was excessive, taking into account the mitigating factors such as Millar's plea of guilty, his remorse, and the high degree of provocation. The appeal was allowed, the original sentence was quashed, and Millar was re-sentenced to a non-parole period of ten months and a balance of sentence of eight months, with direction for his release on parole on 25 June 2005.

Orders