R v Miller - [2019] NSWDC 910

District Court

New South Wales

Medium Neutral Citation: R v Miller [2019] NSWDC 910
Hearing dates: 3 December 2019
Decision date: 04 December 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to a term of 18 months imprisonment; non-parole period 9 months.

Catchwords: CRIME – sentence – aggravated enter dwelling with intent knowing people there – use of illicit substances – dysfunctional upbringing – early plea of guilty - potential for rehabilitation – special circumstances
Legislation Cited: Crimes Act 1900
Cases Cited: Bugmy v R [2013] HCA 37
Harris v R [2005] NSWCCA 204
Huynh v R [2005] NSWCCA 220
R v Henry (1999) 46 NSWLR 346
R v Millwood [2012] NSWCCA 2
Category: Sentence
Parties: Regina (Crown)
Shayne Miller (offender)
Representation: Solicitors:
Mr A Meredith (DPP)
Mr D Mulligan (offender)

File Number(s): 2019/00082300
Publication restriction: No

Judgment

The prisoner, Shayne Miller, appears today for sentence in relation to an offence for which he was committed for sentence to the District Court. He pleaded guilty at the Local Court. In my view, he is entitled to a discount of 25% upon the otherwise appropriate sentence to represent the utilitarian benefit of the plea of guilty being entered at the first reasonable opportunity.
The offence that he pleaded guilty to is an offence contrary to s 111(2) Crimes Act 1900. That offence, I am told by the Crown, has a maximum penalty of 14 years imprisonment and has no standard non-parole period. I am also required to take into account on a Form 1, which I have signed, an offence of recklessly or intentionally destroy or damage property; an offence contrary to s 195(1)(a) Crimes Act 1900, which, I understand, ordinarily has a maximum penalty of five years imprisonment.
I should point out from the outset, as the facts make clear, that this is not a case as discussed by the Court of Criminal Appeal in the guideline judgment in relation to Form 1 matters, in 2002, where, in taking into account matters on the Form 1, it may be appropriate to substantially increase the sentence for the principal offence.
Having regard to the character of the matters on the Form 1, in my view the offence on the Form 1 is intimately bound-up with the facts relating to the principal offence. The two offences occurred at the same time, and, in my view, this is not a case calling for greater weight to be given to retribution and deterrence by reason of the presence of the matter on the Form 1.
The prisoner has been in custody since 14 March 2014 thus, the sentence I impose will commence from that date. The particulars of the offence are that the prisoner entered the dwelling house of a woman situated at Rivett Place, Kelso, with intent to, to paraphrase it, “intimidate” people or a person in circumstances of aggravation; namely, that he knew that there were persons within the said dwelling house.
I should also point out in relation…

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 Miller

Details

AGLC: R v Miller [2019] NSWDC 910
Case: [2019] NSWDC 910
Decision Date: 04 December 2019

CaseChat Overview and Summary

The appellant, Miller, was convicted for entering a dwelling with intent to commit an indictable offence, knowing that people were present. The case came before the court for sentencing, where the appellant’s background and circumstances were considered. Miller had a history of drug use and a troubled upbringing, which the defence argued should be taken into account. The prosecution highlighted the seriousness of the offence, the appellant’s early plea of guilty, and the potential for rehabilitation. The court had to balance these factors in determining an appropriate sentence.

The central legal issues revolved around the appropriate sentencing principles to apply, given the appellant’s background and the nature of the offence. The court had to consider whether to impose a custodial sentence, the length of the sentence, and the non-parole period. The appellant's early plea and potential for rehabilitation were weighed against the seriousness of the offence and the need to protect the community. The court also considered the special circumstances of the appellant's dysfunctional upbringing and drug use.

In delivering the judgment, the court recognised the appellant's troubled background and the potential for rehabilitation. However, it emphasised the seriousness of the offence, which involved entering a dwelling with intent to commit an indictable offence while knowing that people were present. The court also noted the appellant's early plea of guilty as a mitigating factor. After weighing all the relevant factors, the court sentenced Miller to a term of 18 months imprisonment with a non-parole period of 9 months, considering both the need for punishment and the potential for rehabilitation.

The final orders of the court were that Miller be sentenced to 18 months imprisonment with a non-parole period of 9 months. The sentence took into account the appellant’s background, the nature of the offence, and the mitigating factor of the early plea of guilty.

Orders

Orders of the court

Sentenced to a term of 18 months imprisonment; non-parole period 9 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Miller [2019] NSWDC 910
Hearing dates:	3 December 2019
Decision date:	04 December 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to a term of 18 months imprisonment; non-parole period 9 months.
Catchwords:	CRIME – sentence – aggravated enter dwelling with intent knowing people there – use of illicit substances – dysfunctional upbringing – early plea of guilty - potential for rehabilitation – special circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	Bugmy v R [2013] HCA 37 Harris v R [2005] NSWCCA 204 Huynh v R [2005] NSWCCA 220 R v Henry (1999) 46 NSWLR 346 R v Millwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Regina (Crown) Shayne Miller (offender)
Representation:	Solicitors: Mr A Meredith (DPP) Mr D Mulligan (offender)
File Number(s):	2019/00082300
Publication restriction:	No