R v Millar

[2005] NSWCCA 202

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:

“[12] Transparency in sentencing is necessary in so far as it is expected that Judges will disclose, in their reasons, the process by which a sentence is reached ... Exchanges between the Bench and Counsel in the course of the proceedings do not form part of the reasons, and it would not be safe to assume that some observation passed by a Judge during submissions, necessarily represents a considered or final view as to the basis upon which a particular case is decided: R v Kain [2004] NSWCCA 143 at para [56].”

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 a standard non-parole period in those circumstances, nevertheless the standard non-parole period remains relevant as:

“... a reference point, or benchmark, or sounding board, or guidepost ...” (at [122])

4 Wood CJ at CL repeated that observation in R v Davies [2004] NSWCCA 319.

5 In my opinion the remarks of which complaint is now made illustrate that Blackmore DCJ was in fact doing precisely what he has been enjoined by this Court to do. The very fact that he departed, and departed in a very significant way, from the standard non-parole period is further illustrative that he did not regard himself as bound in the manner which is contended.

6 I agree with Barr J that the second ground of the application has been made good and it is therefore necessary for this Court to proceed to re-sentence. I agree that there are reasons, pursuant to s54B(2), for setting a shorter non-parole period than the standard non-parole period prescribed in the Table. These reasons include the plea of guilty, and that, having regard to all the circumstances, the applicant’s offence was not one that should be classified as in the mid-range of seriousness for an offence of its kind.

7 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Stephen David Millar, was committed to the District Court for trial on a charge of breaking and entering a dwelling-house and committing therein a serious indictable offence, namely assaulting the occupant, Nathan Robert Miles, occasioning to him actual bodily harm in circumstances of aggravation, namely that at the time of entering the house he knew that Mr Miles was in the house. Blackmore SC DCJ sentenced him to imprisonment for two years and six months, commencing on 26 August 2004 and fixed a non-parole period of one year and three months to expire on 25 November 2005. His Honour extended the parole period at the expense of the non-parole period to take account of the applicant’s need for counselling about his abuse of alcohol and other drugs and in recognition that it would be his first time in custody.

8 The applicant was a thirty-eight year old man who had an eighteen-year-old daughter. She was living in a relationship with a young man, Mr Miles. The applicant became concerned that things were not all as they should be between the two and that Mr Miles was assaulting his daughter. In 2003 he moved into a unit close to the one occupied by the couple. He heard yelling and screaming coming from their unit, as he put it, virtually every day. He went into the unit on one occasion and what he saw made him think that Mr Miles was about to hit his daughter. She ran away, apparently embarrassed. The applicant warned Mr Miles not to strike his daughter.

9 Shortly before 11 February 2004 the daughter left Mr Miles and moved into the residence of the applicant’s parents. On 11 February the applicant saw her there and noticed that she had a black eye. He became upset and went to Mr Miles’ unit. He broke in and attacked Mr Miles, punching him in the face. Mr Miles fell to the floor, bleeding. He had to be taken to hospital by ambulance. According to the evidence of Dr Parkinson, whose report was tendered on sentence, the following procedures were employed and the following signs noted -

…the patient had moderate peri orbital right sided haematoma with extreme tenderness immediately lateral to the right orbit and some infra orbital abrasions. The patient’s face was swollen from the right side of his nose to immediately lateral to the right orbit. Both eyes opened satisfactorily. There was no diplopia. Conjugate gaze was satisfactory. Facial sensation was normal. The patient was tender over the zygoma. There was no nasal tenderness and no septal haematoma. He was discharged home with some pain relievers to return the following morning for x-ray examination.
He returned at 1738 hrs on 12 February 2004 and was seen by Dr S Hasnain, Emergency Department Registrar. Dr Hasnain records a right sided infra orbital horizontal abrasion and an abrasion to the right side of the patient’s nose together with swelling of the nasal bridge and tenderness. There was no septal haematoma. There was some mild nasal deviation to the right. There was peri orbital tenderness. There was some conjunctival haemorrhage in the right eye.
An x-ray was taken which showed fractures of the inferior wall of the right orbit and lateral wall of the right orbit together with opacification of the right maxillary sinus. Anti inflammatory and pseudo ephedrine prescriptions were given and arrangements were made for a CT scan the following morning.
He next presented at 1233 hrs on 13 February following his CT examination. The CT showed comminuted fractures affecting the medial wall and floor of the right orbit as well as the nasal bones. There was mild prolapse of infra orbital fat into the superior aspect of the right maxillary sinus and note was made of comminution of the bony canal containing the infra orbital nerve. Secondary opacification of the right sided paranasal sinuses was noted. Mr John Hennessy, VMO Oral Surgeon, was consulted and arrangements were made for the patient to be reviewed by Mr Hennessy at 1700 hrs that afternoon. Following the examination, arrangements were made for an open reduction and internal fixation of the right orbital and nasal fractures for the following day.
The patient was formally admitted under the care of Mr Hennessy on 13 February 2004 and the proposed surgery was undertaken on 14 February 2004. His post operative progress was satisfactory and he was discharged on 15 February 2004 at 1400hrs after review by Mr Hennessy.

10 Mr Miles was rendered unfit for work for two weeks.

11 The applicant learned that the police wanted to speak to him about the attack, so he went to the police station. He admitted going to the premises, breaking in, punching Mr Miles and causing him injury. He said that he was sorry for what he had done.

12 The applicant did not plead guilty in the Local Court and was committed to the District Court for trial. He explained to the sentencing judge that that was because he was not prepared in the Local Court to agree to all the facts asserted by the police. Later on the police facts were changed to a form or version with which he was prepared to agree, and he thereupon pleaded guilty.

13 The first ground of appeal asserts that his Honour erroneously took the view that s54B Crimes (Sentencing Procedure) Act required that he provisionally commence his consideration with a five year non-parole period in mind.

14 The charge to which the applicant pleaded guilty was laid under s112(2) Crimes Act. That was a section contemplated by s54B Crimes (Sentencing Proceudure) Act. The prescribed standard non-parole period was five years.

15 It was submitted that the error appeared from things said by his Honour during the course of argument and in pronouncing sentence. These passages were relied on. During debate his Honour said this -

Even if I was to find – I have to be frank with you – even if I was to find that this particular case fell outside the parameters of that particular legislation which I am hopeful of being able to find, …
…
I will give him substantial credit for his plea but you’ve still got to come back to the legislation, it’s five years in goal.

16 In the remarks on sentence his Honour said this-

In my view despite the objective seriousness of the case, a combination of the mitigating factors takes this case outside the middle range of cases to which the standard non-parole period generally applies. In a range of seriousness it is below such a case and in my view considerably below it.

17 It was submitted that his Honour regarded himself as having to commence notionally with the standard non-parole period applicable to the offence and then determine whether there were mitigating features to justify a downwards departure from that period. That, it was submitted, was erroneous, because standard non-parole periods are to be taken as having been specified for sentences imposed for mid-range cases after conviction at trial: R v Way (2004) 60 NSWLR 168. It was submitted that his Honour had fettered the exercise of his own discretion in regarding the standard non-parole period as a bar beneath which the applicant was required to pass in order to justify the imposition of a sentence beneath the promulgated one.

18 In R v Way this Court, dealing with the application of standard non-parole periods to sentences imposed after plea, said this -

68 Although there is nothing in Division 1A of Part 4 that expressly says so, the standard non-parole periods in the Table must also be taken as having been intended for a middle-range case where the offender was convicted after trial. This follows from the fact that factor (k), being one of the mitigating factors specified in s 21A(3) which is to be taken into account as a matter which might justify a departure from the standard non-parole period, is "a plea of guilty by the offender (as provided by s 22A)". A plea of not guilty can never be an aggravating factor.

69 If the standard non-parole period had been intended to apply to cases where there had been a plea, then it may be safely inferred that such circumstance, which s 22 says "must be taken into account" would have already been factored into the assessment of the appropriate period. It would, in any event, be contrary to long-standing sentencing practice, save in exceptional circumstances, for there to be no differentiation in the setting of a non-parole period, between matters resolved by plea, and at trial.

70 The judgments in Regina v Thomson and Houlton (2000) 49 NSWLR 383 and R v Sharma (2002) 54 NSWLR 300 indicate that a deduction in the range of 10 to 25 percent would be appropriate as a general guideline, for the utilitarian value of a plea, depending on its timing. It is true that there is no presumption in favour of, or entitlement to, any specific discount (R v Scott [2003] NSWCCA 286, and there are cases involving such enormity that no discount will be extended: for example R v Kalache (2000) 111 A Crim R 152.

71 Notwithstanding, a plea will, in most instances, have a utilitarian value such as to attract some level of discount. Absent the specification of separate standard non-parole periods, we are of the view that the periods specified in the Table should be understood as having been specified for sentences imposed for midrange cases after conviction at trial. We do not understand the Crown to be contending for the contrary.
…
117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period'"

118 That question will be answered by considering:
(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).

119 Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act.

122 In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

123 The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

19 Counsel for the applicant referred to the judgment of this Court in R v Mouloudi (2004) NSWCCA 96. In that appeal, Bergin J, with whom Sperling and Simpson JJ agreed, said this -

62 The first step in re-sentencing the respondent is the fixing of a non-parole period. Both offences were in my view far more serious than an offence in the middle of the range of objective seriousness. Although the standard non-parole period does not apply in this case because the respondent was convicted after a plea rather than after a trial, the appellant submitted that it is convenient to ask the question posed in R v Way at par [117] namely "are there reasons for not imposing the standard non-parole period"' It seems to me that in sentencing after a plea the Court may have regard to the standard non-parole period applicable after conviction but it must be remembered that the discretion in fixing a non-parole period after a plea is unfettered.

20 Commenting on that passage, Wood CJ at CL said this in R v Davies (2004) NSWCCA 319 -

6 I do not understand her Honour to have intended, by the concluding reminder "that the discretion in fixing a non-parole period after a plea is unfettered", to suggest that s54B had no application, and was to be ignored in a case where the sentencing followed a plea. To the contrary, it is clear that she recognised, in accordance with para 122 of the judgment in Way , that, in such a case, the standard non-parole period specified in s54B is still to take its place as a reference point. It performs that function in so far as it specifies the standard non-parole period for a mid range case determined after trial, before any necessary adjustment which might be made in accordance with the section.

7 Otherwise the discretion which attaches to sentencing, remains to be exercised in accordance with the principles in Way . To the extent that adjustment may properly be made in accordance with those principles, then it is correct that the traditional sentencing discretion continues. I do not understand the passage in Mouloudi to have gone any further, let alone to have suggested that the sentencing discretion in such a case is entirely at large. Any such proposition would be contrary to principle.

21 I do not think that the passages extracted, first from the debate and then from the remarks on sentence, show that his Honour erred. The whole of the remarks on sentence must be considered. His Honour began by referring to the plea of guilty and the relevant maximum penalty. After referring to the facts, his Honour indicated the seriousness with which such offences as this are regarded. His Honour mentioned that the offence was one to which Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act applied. His Honour went on to state that the standard non-parole period was five years for a standard offence falling in the middle range of seriousness. His Honour quoted the relevant passages from R v Way and must be taken to have understood that the application of the standard non-parole period there discussed was to the sentencing of an offender after trial. His Honour asked himself the question postulated in Way, whether there were reasons for not imposing the standard non-parole period and answered the question by reference to the several aggravating and mitigating features referred to s21A of the Act. That was precisely in accordance with the requirements of the legislation: see s54B(3).

22 It does not appear to me that his Honour fettered the exercise of his discretion in the manner contended for. In my opinion the first ground of appeal has not been made good.

23 The second ground of appeal asserts that his Honour erred in finding that the applicant’s prior criminal history was an aggravating feature pursuant to s21A(2)(d) Crimes (Sentencing Procedure) Act.

24 In listing the aggravating features his Honour dealt with the seriousness of the injuries occasioned by the punch and continued -

Further, the offender has a criminal record which is quite extensive. He has committed offences of dishonesty and many serious traffic offences. He has not been sentenced to imprisonment before and that is a relevant factor to be taken into account. Another relevant factor is the fact that he has not been convicted for an offence involving personal violence before. It would seem that such activity is generally out of character for this offender.

25 It may be accepted that, notwithstanding the terms of s21A(2)(d) Crimes (Sentencing Procedure) Act, a record of offences unlike the one calling for sentence does not aggravate an offender’s criminality: R v Johnson (2004) NSWCCA 76 and R v Wickham (2004) NSWCCA 193.

26 It is difficult, therefore, to understand why his Honour mentioned the applicant’s criminal antecedents at all in the context of features aggravating his criminality. The Crown suggested that his Honour might have been responding to a submission made by the solicitor for the Crown in these words -

You Honour, there are some aggravating features in this matter as your Honour has already pointed out. There is a history of previous convictions going back for some time for a variety of different matters…

27 I doubt whether that explains his Honour’s reference to the applicant’s prior record. The Crown submission was plainly wrong and called for a firm rejection. I think that if his Honour had been dealing with the submission he would have given it such a firm rejection.

28 Then it was submitted that the fourth and fifth sentences of the passage criticised removed the sting of the first two sentences. That, combined with the fact that later in the remarks on sentence his Honour listed as a mitigating feature the fact that the applicant did not have any record or any significant record for such offences, led to the conclusion that his Honour did not regard the record as aggravating at all.

29 I do not think that the argument may be taken so far. It demonstrates only, I think, that his Honour balanced the two considerations, whereas the applicant was entitled to credit for having no relevant criminal history, untrammelled by any consideration of such offences as he had committed.

30 Then it was submitted that what his Honour was really doing was listing all the possible features of aggravation and mitigation, by reference to the several paragraphs in subss (2) and (3) of s21A. I do not think that this submission should be accepted. A reading of the whole of the remarks on sentence shows that his Honour did not refer generally to possible aggravating or mitigating features merely in order to conclude that they did not apply.

31 I think that this ground of appeal has been made good.

32 The third ground of appeal asserted that his Honour erred in considering himself precluded from imposing a sentence other than one of full-time custody partly because of the introduction of s54B Crimes (Sentencing Procedure) Act.

33 During the debate his Honour said this -

…It is just too serious and the legislation is too adamant about the penalty imposed for me to do anything other than that.

34 During the remarks on sentence his Honour said this -

But when one looks at the standard non-parole period and the factors outlined in s21A which apply to this case I am of the view that the only penalty that can be applied is one of full time custody.

35 It was submitted that these excerpts show that his Honour had considered that the application to this offence of s54B rendered less readily available a sentence less than of full-time custody. Reference was made to s5 Crimes (Sentencing Procedure) Act, the effect of which is that a Court is not to sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

36 It seems appropriate to place in context the words relied on by the applicant. His Honour said this -

…even if I was to find that this case fell outside the parameters of that particular offence of that particular legislation which I am hopeful of being able to find, I will be quite frank with you, but I do not think this is a case where a non-custodial sentence or even a partial custodial sentence could apply. Perhaps if this man was in a situation where he had never committed any other offences and he had committed this offence, the Court could certainly show some leniency and understanding, but even then it would be a custodial sentence of some form. It is just too serious and the legislation is too adamant about the penalty imposed for me to do anything other than that. Anything else it would be just outside the range and it would be appellably outside the range. And I am not sure that he would want to face that situation where he is incarcerated by a higher court.

37 Having dealt with the evidence of the applicant’s daughter, in which she said that she had been assaulted by Mr Miles, his Honour said this -

Well, maybe that’s the basis upon which I can find that it doesn’t fall within the legislation, but it doesn’t mean that it falls within a non-custodial sentence .
…
But, you know, accepting all of that, it just doesn’t get to the point where a non-custodial sentence in his case could be applied, in my view. I’ll leave it to you, though, to address me on that and maybe you think you can convince me otherwise. I don’t want to tie your hands.

38 During the remarks on sentence his Honour said this -

But when one looks at the standard non-parole and the factors outlined in s21A which apply to this case I am of the view that the only penalty that can be applied is one of full-time custody .
…
No matter what degree of provocation was applied in this case the offender was well beyond his rights in taking in taking the law into his own hands and assaulting the victim in his own home causing him the serious injuries that he did. The sentence that I impose must reflect the need for general deterrence in such cases.

39 It does not appear to me that his Honour believed that the application of s54B made it any more difficult or inappropriate to impose a non-custodial sentence.

40 The final submission was that the sentence was excessive. It was submitted that the applicant had never been to prison before. He had pleaded guilty at an early stage and had expressed a considerable degree of remorse and contrition. He was acting under a high degree of provocation and stress when he attacked his daughter’s assailant. He had taken substantial steps prior to sentencing to put his life right and try to free himself from his dependency on alcohol. He had a close and supportive family. The violence meted out to his daughter by Mr Miles was persisting even up to the time of sentencing. This was an exceptional case.

41 I think that these were important mitigating features. Although I would not accept the submission that a sentence of full-time custody was outside the proper range of sentencing discretion, I think that the sentence imposed was excessive and should be set aside.

42 An affidavit of the applicant was read on the appeal. It shows that he has completed a number of courses in custody. He has engaged in drug and alcohol counselling. He has reflected on his mistakes and strongly believes that he will not repeat his error. His family are supportive. His father and mother visit him frequently and bring with them his longstanding de facto partner and the mother of their children. The applicant has already begun moves to try to arrange employment when he is released from custody. The evidence shows that the applicant is well on the way to rehabilitation.

43 Taking into account the peculiar circumstances in which the offence was committed, particularly the applicant’s concern and anxiety for the welfare of his daughter and the high degree of provocation and stress which bore upon him and the unplanned nature of the attack, it seems to me that the objective seriousness of the offence fell towards the lower end of the range of seriousness of offences of this kind. This is sufficient reason to depart from the standard non-parole period.

44 I propose the following orders –

1. Grant leave to appeal, allow the appeal and quash the sentence appealed from.
2. 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.
3. Direct the release of the appellant to parole on 25 June 2005. The reasons for increasing the parole period are those cited by his Honour.

45 LATHAM J: I agree with Barr J.

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