Legal Research
Cases
R v Miller (a pseudonym)

R v Miller (a pseudonym)

Case [2022] NSWDC 696 14 April 2022

Aggravated Break and Enter

Assault Occasioning Actual Bodily Harm

Stalking/Intimidation

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Miller (a pseudonym) [2022] NSWDC 696
Hearing dates: 4 April 2022, 14 April 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 7 years with a non-parole period of 4 years.

Catchwords:
CRIME – Aggravated break and enter with intent knowing person there - Assault occasioning actual bodily harm (DV) - Stalk/intimidate intending fear physical etc harm (domestic) - Common assault (DV) - Intentionally choke etc person without consent (DV)
SENTENCING - Relevant factors on sentence -early plea - complex sentencing exercise - form 1 maters committed as a juvenile - intervening sentences of imprisonment - two victims – multiple offences against each - serious and prolonged domestic violence - victim impact- deprived background of offender - pattern of violence to women set by exposure to violence as a child - drug use - little schooling - young offender - delay - efficacy of imprisonment discussed - totality special circumstances

Legislation Cited:
Crimes Act1900
Crimes (Administration of Sentences) Act 1999
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146
Clarke-Jeffries v R [2019] NSWCCA 56
Fernando v R (1992) 76 A Crim R 58
Hoskins v R [2021] NSWCCA 169
in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v R (No 2) [2015] NSWCCA 96
KT v R [2008] NSWCCA 51
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda vWestern Australia (2013) 249 CLR 600; [2013] HCA 38
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
R v De Simoni (1981) 147 CLR 383
R v Hookey [2018] NSWCA 147
R v Lewis [2014] NSWSC 1127
R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
RvTodd [1982] 2 NSWLR 517
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:
Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991)

Category: Sentence
Parties: David Miller (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr A Booker (for the offender)
Solicitors:
Legal; Aid NSW (for the offender)
Ms N Olender (for Director of Public Prosecutions)

File Number(s): 2021/00023573, 2021/00163477
Publication restriction:
Pseudonyms have been used for the names of the offender who was a child during some of the period when the offending occurred and to protect the privacy of the victims and their children.
Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture…

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 (a pseudonym)

Details

AGLC: R v Miller (a pseudonym) [2022] NSWDC 696
Case: [2022] NSWDC 696
Decision Date: 14 April 2022

CaseChat Overview and Summary

The appellant, R v Miller, faced multiple charges stemming from a pattern of serious domestic violence, including aggravated break and enter, assault occasioning actual bodily harm, stalking and intimidation with intent to cause fear of physical harm, common assault, and intentionally choking a person without consent. The case was heard and determined in the Supreme Court of the relevant state. The primary legal issues revolved around the appropriate sentencing for these serious offences, particularly considering the early plea, the complex nature of the sentencing exercise, the appellant’s history of juvenile convictions, and the multiple victims involved. The court also had to weigh the impact of the offences on the victims, the appellant’s deprived background, and his history of drug use and limited education.

In its reasoning, the court meticulously evaluated the totality of the circumstances. The appellant’s early guilty plea and the nature of the offences, which involved prolonged domestic violence against two victims, were significant factors. The court considered the appellant’s deprived upbringing, marked by exposure to violence, as well as his limited education and drug use, which contributed to his criminal behaviour. The delay in bringing the matter to court and the efficacy of imprisonment as a deterrent and rehabilitative measure were also deliberated. Ultimately, the court determined that an aggregate sentence of seven years, with a non-parole period of four years, was appropriate, reflecting the seriousness of the crimes and the need for both punishment and rehabilitation.

The court’s decision emphasised the importance of addressing the root causes of the appellant’s offending behaviour while ensuring public safety. The detailed analysis of the mitigating and aggravating factors demonstrated the court’s commitment to a balanced and just outcome. The final orders were that the appellant should serve a total of seven years in prison, with a non-parole period of four years, reflecting the gravity of the crimes and the need for both punishment and an opportunity for rehabilitation.

Orders

Orders of the court

Aggregate sentence of 7 years with a non-parole period of 4 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Miller (a pseudonym) [2022] NSWDC 696

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

Hoskins v R
[2021] NSWCCA 169 Para 79

…onment: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Hoskins v R [2021] NSWCCA 169.…
Clarke-Jeffries v R
[2019] NSWCCA 56 Para 85

…chological immaturity that can contribute to offending behaviour which as appears here became a pattern: KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.…
R v Hookey
[2018] NSWCA 147 Para 79

…s in actions designed that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environment: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Hoskins v R [2021] NSWCCA 169.…
Kentwell v R (No 2)
[2015] NSWCCA 96 Para 79

…rses the effect of social exclusion, disempowerment, discrimination and violent environment: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Hoskins v R [2021] NSWCCA 169.…
R v Lewis
[2014] NSWSC 1127 Para 79

…mpowerment, discrimination and violent environment: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Hoskins v R [2021] NSWCCA 169.…
Munda v Western Australia
[2013] HCA 38 Para 79

…heir community than in the total population: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 326; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, Bell J at [135]; Fernando v R (1992) 76 A Crim R 58 at 63 ; Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991…
Bugmy v The Queen
[2013] HCA 37 Para 77

…derstand the impact of the harm that he has occasioned his victims. The principles set out by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, apply.…
Abbas, Bodiotis, Taleb and Amoun v R
[2013] NSWCCA 115 Para 58

…on when I sentence the matters for sentence; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. As they must taken into account, I need to synthesise their facts when I consider the appropriate sentences to be…
Muldrock v The Queen
[2011] HCA 39 Para 10

…opriate sentence given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.…
KT v R
[2008] NSWCCA 51 Para 85

…levels of cognitive, emotional and psychological immaturity that can contribute to offending behaviour which as appears here became a pattern: KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.…
Markarian v The Queen
[2005] HCA 25 Para 10

…significance and then make value judgments as to an appropriate sentence given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 58

…the matters for sentence; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. As they must taken into account, I need to synthesise their facts when I consider the appropriate sentences to be imposed for the matte…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 11

…lea, particularly in matters involving offences the matter such as this. They were referred to in the guideline judgment of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383.…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 11

…n matters involving offences the matter such as this. They were referred to in the guideline judgment of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383.…
Mill v The Queen
[1988] HCA 70 Para 86

…. Sentencing for stale crimes calls for a considerable measure of understanding and flexibility; R v Todd [1982] 2 NSWLR 517 at 519: Mill v The Queen (1988) 166 CLR 59 at [14].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 61

…el is warranted here because of the need to focus on retribution, deterrence, and community protection: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477…
Neal v The Queen
[1982] HCA 55 Para 79

…ralians sadly make that type of home environment more prevalent in their community than in the total population: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 326; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, Bell J at [135]; Fernando v R (1992) 76 A Crim R 58 at 63 ; Royal Commission int…
R v De Simoni
[1981] HCA 31 Para 53

…mulate a sentence for this matter. Miller he is not charged with a deprivation of liberty offence and as the High Court made clear in R v De Simoni (1981) 147 CLR 383, I punish him for the offence charged not some other offence.…

Legislation cited in this decision · 5

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention
Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 94)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
1 mention (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 58)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Miller (a pseudonym) [2022] NSWDC 696
Hearing dates:	4 April 2022, 14 April 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 7 years with a non-parole period of 4 years.
Catchwords:	CRIME – Aggravated break and enter with intent knowing person there - Assault occasioning actual bodily harm (DV) - Stalk/intimidate intending fear physical etc harm (domestic) - Common assault (DV) - Intentionally choke etc person without consent (DV) SENTENCING - Relevant factors on sentence -early plea - complex sentencing exercise - form 1 maters committed as a juvenile - intervening sentences of imprisonment - two victims – multiple offences against each - serious and prolonged domestic violence - victim impact- deprived background of offender - pattern of violence to women set by exposure to violence as a child - drug use - little schooling - young offender - delay - efficacy of imprisonment discussed - totality special circumstances
Legislation Cited:	Crimes Act1900 Crimes (Administration of Sentences) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 Clarke-Jeffries v R [2019] NSWCCA 56 Fernando v R (1992) 76 A Crim R 58 Hoskins v R [2021] NSWCCA 169 in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Kentwell v R (No 2) [2015] NSWCCA 96 KT v R [2008] NSWCCA 51 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda vWestern Australia (2013) 249 CLR 600; [2013] HCA 38 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 R v De Simoni (1981) 147 CLR 383 R v Hookey [2018] NSWCA 147 R v Lewis [2014] NSWSC 1127 R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 RvTodd [1982] 2 NSWLR 517 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited:	Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991)
Category:	Sentence
Parties:	David Miller (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr A Booker (for the offender) Solicitors: Legal; Aid NSW (for the offender) Ms N Olender (for Director of Public Prosecutions)
File Number(s):	2021/00023573, 2021/00163477
Publication restriction:	Pseudonyms have been used for the names of the offender who was a child during some of the period when the offending occurred and to protect the privacy of the victims and their children. Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture…