Micklesson v R

Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 CASES CITED : R v Mitchell and Gallagher [2007] NSWCCA 296 R v Huynh [2005] NSWCCA 220

COUNSEL: J. Dwyer - Crown C. Smith - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/00014980

BEAZLEY JA BLANCH J HOWIE J

Friday 13 March 2009 Ian MICKLESSON v REGINA Judgment 1 BEAZLEY JA: I agree with Howie J. 2 BLANCH J: I agree with Howie J. 3 HOWIE J: The applicant was sentenced in the District Court for an offence of specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The serious indictable offence alleged was assault occasioning actual bodily harm and the special aggravation was that the applicant was in company with a person who was armed with a shotgun. The maximum penalty prescribed for such an offence is 25 years imprisonment and there is a standard non-parole period of 7 years. The applicant was sentenced to a term of imprisonment comprising a non-parole period of 6 years and a balance of sentence of 3 years dating from 22 June 2007. The applicant is eligible for release to parole on 21 June 2013. 4 There is only one ground of appeal that asserts that the sentence is manifestly excessive. 5 The facts can be stated briefly. The applicant went with three other men to a unit at North Richmond in order to obtain money. The applicant was armed with a baseball bat and a co-offender was armed with a shotgun. That weapon had been loaded and test-fired in the applicant's presence on the journey. At about 4.20am the applicant and two co-offenders entered the premises by kicking in the door. They were wearing items of clothing to disguise their appearance. There were four persons residing in the premises at the time. 6 The applicant armed with the baseball bat entered a bedroom where one of the residents was in bed. The applicant struck him four times with the bat to the head and arms causing bruising and lacerations that later required stitching. The applicant forced this man into the kitchen where he became involved in a struggle with him and another resident. They managed to disarm the applicant and he was struck with the baseball bat and a machete causing him lacerations to the head. 7 During this altercation the co-offender armed with the shotgun entered the kitchen and discharged the weapon into the wall. This did not cause the residents to stop their struggle with the applicant so the co-offender discharged the weapon again but this time in the direction of the residents although no one was struck. The co-offender then left the premises. A second co-offender who was armed with a knife threatened one of the residents before also leaving the premises. The residents tried to detain the applicant and the gun was again discharged this time into the front door. The applicant was then able to escape. 8 The applicant was arrested as a result of DNA material and his fingerprints obtained from the flat. The co-offender with the gun was recognised by one of the residents and calls on his mobile phone were intercepted. The woman who drove the vehicle to the unit was interviewed and nominated the applicant as one of the offenders. 9 The applicant was born on 19 May 1988 and was aged 18 years at the time of the offence. He was subject to good behaviour bonds as a result of offences of malicious damage to property dealt with in February 2007 in the Local Court. There was a psychological report in evidence but there was little in the applicant's background of relevance although as a child he had been diagnosed with an attention deficit disorder for which he was given medication. The applicant was at the time of the offending using amphetamines on a regular basis. The psychologist reported that the applicant was remorseful and had been attempting to address his drug usage while in custody. 10 The Judge described the offence as "of very considerable criminality" and noted aggravating features in that the offence was planned, was committed in company, the shotgun was loaded, there were a number of victims, multiple criminal acts, and that people were residing in the premises. He concluded that the offence was "well above the mid range". He noted that the offence was committed while the applicant was subject to conditional liberty. However he took into account in mitigation that the applicant had no significant criminal record, that he had shown remorse and he had good prospects of rehabilitation. He also took into account that the applicant had pleaded guilty. 11 The Judge indicated that he was departing from the standard non-parole period because of the plea of guilty, the applicant's remorse and, because of his young age, the greater need for rehabilitation. Having considered the statistical information from the Judicial Commission, his Honour then stated:

"It seems to me that in dealing with this matter a proper course would be to take something in the order of fourteen years as a total head sentence, having regard to the nature of the offence. If one then discounts that to take into account the plea of guilty, the remorse and your age and your previous good record, it seems to me that one derives a sentence of something in order of a total term of nine years and non-parole period needs to be fixed in that context."

With respect this passage appears to contain a two-stage approach to sentencing contrary to what was said by the majority of the High Court in Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [39]. 12 However the applicant makes no complaint about that passage except that it is contended that the starting point of 14 years was too high. It was conceded that "the offence was very serious and that a significant sentence was required to be imposed" but the submission is that the sentence gives insufficient weight to the subjective matters particularly the applicant's age, remorse and the guilty plea. 13 The applicant relies upon statistical information, presumably the same, or similar to, that which was placed before the sentencing Judge. As I have previously noted in this Court, and as the Judge commented, reference to that material in standard non-parole period cases usually indicates that the sentences that have been imposed are remarkably lenient. They reveal that in most cases insufficient regard is apparently being given to the standard non-parole period as any sort of guide. However, it is the application of the principles that have arisen in relation to the application of the standard non-parole period provisions that will inform the court as to the appropriate range for the sentence and not necessarily reliance upon statistics. If this is an apparent conflict between the statistics and the standard non-parole, the latter is the most reliable guide. 14 The applicant also calls in aid decisions of this Court in other cases in an attempt to show that the sentence is outside the available range and that the sentencing discretion must have miscarried even though no error is attributed to the Judge. But the matter that sets this offence apart from those to which the applicant referred was the firing of the shotgun on three occasions in close proximity to the residents. 15 If the Judge was correct in deciding that the facts in this case placed the offence "well-above mid range", and it is not suggested by the applicant that it was not open to the Judge to come to that assessment, then the standard non-parole period has less importance as a guide to the appropriate sentence than the maximum penalty for the offence. 16 R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 was concerned with a different offence but one where, like the present, there was a maximum penalty of 25 years and a standard non-parole period of 7 years. There it was held:

[37] Where a particular case falls well above the mid-range of offending, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty in determining the appropriate sentence. This must be so otherwise an offence falling within the worst category of case, and so notionally attracting the maximum penalty, would be drawn away from that point by the standard non-parole period and a court could never impose the maximum penalty. This does not mean that the standard non-parole period loses all relevance and it may still have work to do as a guide to determining the non-parole period. So, for example, with an offence of objective seriousness well above mid-range it may be unlikely that, even after a discount for the plea of guilty, or a consideration of the subjective circumstances of the offender or a finding of special circumstances the result would be a non-parole of, or below, the standard non-parole period prescribed.

[38] Of course when the maximum penalty is the principal factor used as a guide in determining the appropriate sentence rather than the standard non-parole period, the court is then considering primarily what the total term of the sentence should be. The court determines as against the maximum penalty, and taking into account that this is the prima facie sentence for an offence falling within the worst category of offending encompassed by the section, how serious is the criminality in the particular case and how much of the maximum penalty is warranted having regard to all relevant sentencing considerations including of course those matters specified in s 21A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing as set out in s 3A of that Act. 17 In the present case the Judge should have considered what sentence would have been appropriate to be imposed by a consideration of both the objective seriousness of the offence and the subjective case and before taking into account the discount for the plea of guilty. In determining that starting point he should have had regard chiefly to the maximum penalty. He then would have turned his mind to setting the non-parole period bearing in mind the applicable standard non-parole period as a guide. In my view, notwithstanding the young age of the applicant, the Judge would not have been in error in deciding that the appropriate sentence was 14 years before applying the discount for the guilty plea. If that had been his Honour's approach, the applicant would have been faced with a heavier sentence than that which was imposed upon him. 18 The only matter that kept this offence from being towards the top of the range on an assessment of the objective criminality of cases coming within the section was the fact that the "serious indictable offence" alleged was an assault occasioning actual bodily harm. That is an offence that carries a maximum penalty of imprisonment for 5 years and is at the lowest range of offences that could fall within the scope of "serious indictable offence" for the purposes of s 112(3). The relevance of the nature of the offence which was to be committed after breaking and entering the premises was considered by Simpson J in R v Huynh [2005] NSWCCA 220. That was an offence contrary to s 112(2) and the serious indictable offence was larceny, which also carries a maximum penalty of 5 years imprisonment. Her Honour held that the fact that the offence was one that just fell within the scope of a "serious indictable offence" did not prevent a particular instance of the offence from falling within the mid-range of seriousness even though there could be more serious examples of offences falling within the scope of that section. As her Honour noted, the sentencing court looks at all the surrounding circumstances when assessing the degree of objective seriousness. 19 Because the offence was so serious less regard could be had to the applicant's age, his lack of relevant criminal record and his prospects of rehabilitation. The sentence imposed by his Honour was a heavy one but it cannot be said that it fell outside of his discretion. 20 I propose that the application for leave to appeal be granted but that the appeal be dismissed. **********

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