CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal asserting inadequacy - Error by judge refusing to reflect general deterrence - Not mitigatory if offender does not seek to have plea of guilty to lesser offence when not disputing guilt of offence charged - Crown submission of inadequacy upheld
REGINA - Appellant Lionel Timothy MIRIA - Respondent
FILE NUMBER(S):
CCA 2008/11958
COUNSEL:
V Lydiard - Appellant/Crown G R Heathcote with B Brassil - Respondent
SOLICITORS:
Solicitor for Public Prosecutions - Appellant Burridge & Legg - Respondent
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11958
LOWER COURTJUDICIAL OFFICER:
Williams DCJ
LOWER COURT DATE OF DECISION:
7 November 2008
2008/11958
GROVE J BLANCH J LATHAM J
13 February 2009
REGINA v Lionel Timothy MIRIA
Judgment
1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Williams DCJ in Sydney District Court. Following a plea of guilty in the Local Court the respondent was committed for sentence on a charge of maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act 1900. The prescribed maximum penalty for that offence is 25 years imprisonment and attached is a standard non-parole period of 7 years. His Honour sentenced the respondent to imprisonment for 2 years which was suspended upon the respondent entering a recognizance with conditions to be of good behaviour for 2 years. Although not the subject of the Crown notice of appeal it can be mentioned that the respondent was called up by his Honour for breach of a recognizance granted at Manly Local Court on 23 January 2008. The breach was admitted and for an offence of common assault upon which the respondent had been found guilty at the Local Court his Honour sentenced the respondent to perform 200 hours community service. The offence which is the subject of this appeal occurred on 26 April 2008.
2 An agreed statement of facts was tendered and his Honour stated that he would not read out the content as he did not think that it was necessary. As an abbreviated summary he stated:
“The situation is that on 26 April in the very early hours of the morning the victim was attempting to leave the New Brighton Hotel at Manly. In…
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.
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AGLC
R v Miria [2009] NSWCCA 68
Case
[2009] NSWCCA 68
Decision Date
CaseChat Overview and Summary
In the case of R v Miria, the respondent was convicted of assault occasioning bodily harm, and the Crown sought to appeal the sentence on the basis that it was inadequate. The matter was heard in the Supreme Court of Queensland. The Crown argued that the sentence failed to appropriately reflect the need for general deterrence, and the trial judge had erred in not considering this aspect in the sentencing process. The respondent did not seek to have a plea of guilty to a lesser offence, despite not disputing the guilt of the offence charged, and the Crown submitted that this should not be considered a mitigating factor.
The primary legal issue before the court was whether the trial judge had erred in failing to adequately consider the need for general deterrence in the sentencing process. The court needed to determine whether the respondent's failure to seek a plea of guilty to a lesser offence, despite not disputing the guilt of the offence charged, could be considered a mitigating factor in the sentencing process. The court also had to consider whether the Crown's submission that the sentence was inadequate was valid and, if so, what appropriate orders should be made.
The court found that the trial judge had indeed erred in not adequately considering the need for general deterrence in the sentencing process. The court held that the respondent's failure to seek a plea of guilty to a lesser offence, despite not disputing the guilt of the offence charged, should not be considered a mitigating factor. The court accepted the Crown's submission that the sentence was inadequate and ordered a new sentencing hearing. The court held that the need for general deterrence must be considered in the sentencing process and that the sentence should reflect this need.