Miles v R

Court of Criminal Appeal (NSW)|2023-02-27|Before: Beech-Jones CJ, McNaughton J, Hulme AJ

Solicitors: C Pittman, Legal Aid NSW (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/18100; 2019/333086; 2018/173539 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 3 December 2021 Before: Townsden DCJ File Number(s): 2020/18100; 2019/333086; 2018/173539

HEADNOTE [This headnote is not part of the judgment] Mr Scott Miles (the appellant) applied for leave to appeal against a sentence imposed on 3 December 2021 by his Honour Judge Townsden in the District Court. An aggregate sentence of 3 years and 9 months with a non-parole period of 2 years and 9 months was imposed for use offensive weapon with intent to commit an indictable offence (assault) in company, reckless wounding in company, assault and drive whilst disqualified. The offences are contrary to ss35B(2), 35(2) and 61 of the Crimes Act 1900 (NSW) and s 54 of the Road Transport Act 2013 (NSW) respectively. The appellant's case relied on four grounds of appeal although it was only necessary for two to be determined. They were that the sentencing judge erred in his assessment of objective gravity of the reckless wounding in company offence by mistaking a certain fact and that the appellant's representatives failed to present any subjective case on sentence, occasioning a miscarriage of justice. The Court held, in granting leave and allowing the appeal: As to ground 1 In the assessment of objective gravity of the reckless wounding in company offence the judge mistakenly included that the appellant had provided the weapons used by two co-offenders in carrying out the attack upon the victim. There was no evidence of this. The Crown's concession as to the error and its capacity to have affected the outcome was appropriate: Newman v R [2019] NSWCCA 157 at [12]; Rizk v R [2020 NSWCCA 291 at [7]-[11] referred to. As to ground 2 There was either available, or already before the sentencing court, evidence of significant subjective matters including as to a disadvantaged background and mental ill-health. Counsel for the appellant neither tendered nor referred to any of it, leading the judge to observe, "The offender did not give evidence at the sentencing hearing and no further material was provided to the Court". The Crown's concession that the absence of the subjective material caused the sentence proceedings to miscarry was again appropriate. It was necessary for the appellant to be re-sentenced according to the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

JUDGMENT

THE COURT: Mr Scott Miles applied for leave to appeal against a sentence imposed in the District Court by his Honour Judge Townsden on 3 December 2021. At the conclusion of the hearing of the application on 27 February 2023 the Court made orders granting leave to appeal, allowing the appeal and resentencing the appellant. The following explains why the Court took that course.
There were three groups of offences. The first was using an offensive weapon with intent to commit an indictable offence (assault) in company (with Ian Poulton). This was contrary to s 33B(2) of the Crimes Act 1900 (NSW) for which there is a maximum penalty of imprisonment for 10 years.
The second group involved reckless wounding in company (with Ian and Shane Poulton), contrary to s 35(2) of the Crimes Act, and driving whilst disqualified (first offence), contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW). The wounding offence has a maximum penalty of imprisonment for 10 years with a standard non-parole period of 4 years and the disqualified driving offence has a maximum penalty of imprisonment for 6 months. (The latter was before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1985 (NSW).)
The third matter was an offence of assault contrary to s 61 of the Crimes Act. The appellant was resentenced following call-up for breaching a community correction order. The maximum penalty for this offence is imprisonment for 2 years.
The primary judge imposed an aggregate sentence of imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months. It was backdated to 11 November 2020 to take into account pre-sentence custody.
The grounds of appeal were: 1. The sentencing judge erred in his assessment of objective gravity, including by mistaking the facts and finding the appellant was involved in the provision of weapons to his co-offenders. 2. The failure of the appellant's representatives to present the appellant's subjective case on sentence occasioned a miscarriage of justice. 3. The sentencing judge erred in failing to have regard to the Sentencing Assessment Report (SAR), it being relevant to: 1. remorse; 2. prospects of rehabilitation; 3. risk of reoffending; 4. the appellant's subjective circumstances generally; 5. special circumstances to vary the statutory ratio; and 6. alternatives to full time custody. 1. The sentencing judge erred in finding there was no evidence of remorse apart from the plea of guilty.
The Crown conceded Grounds 1 and 2 were made out and that there was a need for resentencing. The Court accepted these concessions as well-founded.

The offences

The agreed facts for the use offensive weapon offence described the appellant and Ian Poulton entering a service station late at night in December 2016 with their faces covered. The appellant carried a baseball bat and Poulton carried a knife. Poulton directed the two attendants to come out from behind the counter. One of them walked towards the offenders who backed away and left without taking anything. DNA recovered from clothing discarded in nearby bushland provided a link to the appellant. When he was arrested in June 2020, he said he could not remember what happened. He was released without charge but four days later he voluntarily made a statement containing admissions and an apology.
The wounding and driving offences concerned an incident at Minto Mall in October 2019. The appellant received a call from the victim in the presence of Ian and Shane Poulton. All parties knew each other and there was an existing dispute between the victim and the Poulton brothers concerning money and property. A meeting was arranged for later that day at Minto Mall.
Shane Poulton drove his brother and the appellant to the location using a car belonging to the appellant's mother. The appellant was disqualified from driving at the time. He alighted from the vehicle and walked away while looking back in the direction of the car. He saw Shane Poulton take a long metal bar from the boot of the car before returning it and taking a shorter metal object and hiding it up his jumper. Ian Poulton took a long metal bar and hid it under his jumper but the appellant did not see that. The three joined up, Shane Poulton gave the appellant the car keys, and they entered the shopping centre and ultimately met up with the victim. The brothers attacked him with the metal objects, inflicting a wound to the forehead and lacerations to the legs. The victim fled but was pursued by the brothers to a nearby fast food store where he was struck again by one of them. The brothers left and met up with the appellant who drove them away from the scene.
The appellant and Shane Poulton were arrested later that day. The appellant admitted that he was present at the scene of the attack but denied any involvement. He was released but was subsequently arrested and charged.
The third matter involved an assault which, together with two other offences, was the subject of sentencing by his Honour Judge Arnott SC on 21 August 2019. For offences of intimidation and contravention of an apprehended violence order he imposed sentences of imprisonment for 12 months and 2 months respectively. For an assault upon the same victim, he imposed a 12 month community correction order (CCO). The assault occurred during an argument with his girlfriend during which the appellant threw an opened can of drink at her which did not hit her but the drink spilled on her shirt. The CCO was breached by the commission of the Minto Mall offences.

Remarks on sentence

The judge recounted the facts in considerable detail during his sentencing remarks. Then under the heading "Offender's subjective case" he simply said: The offender did not give evidence at the sentencing hearing and no further material was provided to the Court.
After discussing various matters pertinent to the objective seriousness of the offences, he stated that the use offensive weapon offence was "below the midrange but not towards the lower end of offences of this type". The reckless wounding in company offence was "slightly below the midrange and only slightly less than that of the co-offenders".
The judge noted that it was an aggravating factor that the appellant was on conditional liberty at the time of both of those offences. He referred to the appellant's lengthy criminal history disentitling any leniency. There was "some evidence of remorse - being his plea of guilty" but his Honour placed little weight on that because the appellant had not given evidence and there was no other evidence. He was not satisfied that there were good prospects of rehabilitation and the risk of reoffending was high.
General and specific deterrence were considered important factors to be taken into account.
The appellant was aged 27 at the time of sentencing. Youth was not a significant factor in relation to the 2019 reckless wounding offence but his Honour considered "some weight" could be given to it in respect of the 2016 use offensive weapon offence.
A reduction of 25% was allowed for the plea of guilty prior to committal for the use offensive weapon offence with a further reduction of 25% for the appellant's assistance to authorities (his voluntary admissions made subsequent to being released without charge), thereby yielding a total allowance of 50%. In respect of the reckless wounding offence, only 5% was allowed for the plea after the trial was listed to commence and 25% was allowed for each of the disqualified driving and assault offences.
The judge specifically took into account the restrictions that applied to the offender's custodial experience due to the COVID-19 pandemic.
Finally, his Honour was not satisfied there were special circumstances for reducing the non-parole period "given the lack of material touching upon the offender's subjective circumstances".
The judge said that if he were not imposing an aggregate sentence he would have imposed sentences of 1 year and 3 months (use offensive weapon), 3 years and 2 months (reckless wounding) and 3 months each for the other two offences.

Ground 1 - error in assessment of objective gravity - mistaking the facts and finding the appellant was involved in providing weapons to his co-offenders

Although he recited the agreed facts correctly, when subsequently summarising factors pertinent to the objective seriousness of the reckless wounding offence, the judge said the appellant was "involved in providing the metal bars".
There was no evidence of this in the case concerning the appellant. The judge may have mistakenly had in mind evidence in the case of a co-offender or have been misled by erroneous submissions made by the Crown.
In this Court it was submitted that "it was an error to sentence the applicant on aggravating facts not agreed or not supported by evidence". [1]
The Crown accepted that there was error and that it was material in that it had the capacity to have affected the outcome: Newman v R [2019] NSWCCA 157 at [12]; Rizk v R [2020] NSWCCA 291 at [7]-[11].
This concession was well-founded. The error involved the judge wrongly taking into account a matter adverse to the appellant that was of significance in the assessment of the objective seriousness of the use offensive weapon offence. Ground 1 was upheld for these reasons.

Ground 2 - failure of the appellant's representatives to present a subjective case thereby occasioning a miscarriage of justice

The sentencing hearing had been adjourned for more than four months to 5 November 2021 to enable a neuropsychological report to be obtained. When the hearing resumed the appellant was represented by a different barrister who told the judge he "only came into this yesterday". After some toing and froing, he ultimately told the judge, "There is no other material we rely on as we were forced to abandon the neuropsychologist's report as it did not assist Mr Miles".
The appellant's submissions note that the solicitor instructing counsel had appeared in the original sentencing proceedings for the assault matter before Arnott SC DCJ in which a positive subjective case, including material concerning mental illness had been put before the Court. However, counsel was instructed by the solicitor (by text message): "Don't press any points about mental health as we were unable [to] fund relevant health material". This contrasted with records indicating that Legal Aid NSW had granted an application for funding for a report but it was never claimed. The records also indicate that the solicitor had sought additional preparation time with Legal Aid on 13 August 2021 because it was a "complex matter where client has previous brain injury and we have to investigate and prepare submissions in relation to that injury which involves reading over 1000 pages of medical history". The grant was claimed three weeks after the sentence hearing. [2]
Written submissions prepared by counsel who had earlier been briefed to appear and who had successfully sought the adjournment on the first hearing date were before the judge and they made reference to subjective matters including the appellant's history of mental illness. There was also the Sentencing Assessment Report (SAR) referring to various subjective matters and the remarks on sentence of Arnott SC DCJ in which his Honour referred in some detail to the appellant's subjective case. However, counsel then appearing for the appellant made no attempt to rely upon any of this material.
The appellant's written submissions in this Court referred to other cases in which appeals were allowed on the basis of a failure of legal representatives to put an available subjective case before the sentencing court: Rae v R [2019] NSWCCA 284 and Momoa v R [2020] NSWCCA 328. Reference was also made to the summary of principles provided by Cavanagh J in Nauer v R [2020] NSWCCA 174: [42] As identified by Beech-Jones J in Tsiakas v R the question is whether there is a significant possibility that the asserted omissions of the applicant's legal representative affected the outcome on sentence. [43] As identified by Johnson J in Brown v R, something of real significance should be presented to the Appeal Court which is capable of affecting materially the outcome of the sentencing hearing and it is for the applicant to demonstrate that practical injustice has resulted. [44] In Rae v R, Harrison J stated (Macfarlan JA and Cavanagh J agreeing) that the applicant should not be bound by a decision made by his legal representative if the sentencing tribunal can be shown to have been deprived, for whatever reason, of the significant advantage of having material before it that potentially informed a very significant aspect of the subjective case. [45] As I have accepted that there were deficiencies in the presentation of the applicant's case on sentencing, the real issue in this appeal is whether the material that the applicant said should have been presented was of such significance that it would have been capable of materially affecting the outcome of the sentencing hearing. (Footnotes omitted)
The evidence in the present case founded a submission that there was no question of the appellant having elected not to seek a report; an adjournment and funding had been sought but inexplicably not pursued. There was available material that could have been but was not tendered. There was the SAR which included relevant material but which was not relied upon. Accordingly, it was submitted that there was a miscarriage of justice arising from the failure to obtain, and to rely on, existing material in relation to the appellant's subjective circumstances, particularly in respect of his mental health. [3]
As the Crown submitted, the question is whether material relied upon in this Court but not in the District Court, including a neuropsychological assessment report of Dr Sally McSwiggan dated 23 November 2022, is of such significance as to materially affect the outcome of the sentence hearing: Tsiakas v R [2015] NSWCCA 187 at [67] (Beech-Jones J). The Crown summarised significant aspects of the material as follows: [4] 1. The report of Dr McSwiggan opined that the appellant fulfilled the diagnostic criteria of Intellectual disability (borderline) and that he displayed symptoms consistent with Generalised Anxiety Disorder with periods of moderately depressed mood. The former was consistent with testing conducted in 2001 and 2005. 2. School records indicated the appellant attended a school for students with severe behaviour disabilities and emotional disorders from 2006 to 2008. 3. In June 2016, the appellant was prescribed an antidepressant and was evaluated by Macarthur Community Mental Health a month later when he reported increasing symptoms of depression and anxiety in connection with a relationship breakdown and legal proceedings as well as paranoia since an earlier home invasion. 4. In December 2019, a mental health care plan was completed and the appellant was prescribed antidepressant and antipsychotic medication. 5. Numerous documents referred to the appellant suffering from PTSD while Dr McSwiggan opined that his symptoms were more consistent with Generalised Anxiety Disorder with periods of moderately depressed mood. 6. The appellant was diagnosed with ADHD as a child. He told the author of the SAR he had been taking medication for his mental health since the age of nine. Other material indicated he had, in fact, been infrequently medicated for PTSD.
The Crown conceded that the absence of the new material caused the sentence proceedings to miscarry. [5] This concession was also well-founded and it followed that Ground 2 should be upheld.

Grounds 3 and 4

Ground 3 asserted failure to have regard to the SAR and Ground 4 asserted error in finding there was no evidence of remorse apart from the plea of guilty whereas there was material relevant to that issue in the SAR. The Crown submitted that there could be no error imputed to the sentencing judge when neither party tendered the SAR.
There is no utility in dwelling upon these grounds as the Court's conclusion in relation to Grounds 1 and 2 was sufficient to invoke the requirement to resentence.

Resentencing

It was necessary for the Court to engage in the task of re-sentencing the appellant afresh in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Findings as to the objective seriousness of the offences were contentious. The Court's assessment was that having regard to the overall circumstances of the use offensive weapon and reckless wounding offences but being mindful of the lesser role played by the appellant in relation to the latter, they both fell below the middle of the range. The other two offences were unremarkable examples of their type.
The Court was mindful of the aggravating fact that the use offensive weapon and reckless wounding offences were committed by the appellant while under forms of conditional liberty.
The fresh material relied upon by the appellant in this Court concerning his subjective case was significant and required reconsideration of a number of relevant factors. Submissions for the appellant invited attention to material which invoked the principles in Bugmy v The Queen (2013) 249 CLR 6571; [2013] HCA 37 (traumatic and disadvantaged aspects of the appellant's upbringing) and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (the appellant's intellectual disability). These submissions were accepted.
The appellant's moral culpability was somewhat less than it otherwise would have been on account of the circumstances of his upbringing and mental health conditions and this warranted less weight being given to the otherwise important sentencing considerations of general and personal deterrence. It remained necessary, however, to have regard to other purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly recognition of the harm occasioned to the victims.
Material in the SAR and the neuropsychologist's report justified finding that the appellant had expressed remorse, that he had some prospects of rehabilitation and that he presented a lesser risk of reoffending than his criminal history would tend to suggest.
The appellant required a greater need for supervision on parole to assist him make good his claimed motivation for rehabilitation and for that reason a finding of special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act was justified.
There was no issue that the appellant should receive the same reduction of sentence on account of his pleas of guilty as allowed by the primary judge. However, the reduction pursuant to s 23 of the Crimes (Sentencing Procedure) Act of a further 25% was overly generous. Having regard to the factors listed in s 23(2), particularly the significance, usefulness, nature and extent of the assistance and the lack of any suggestion of detrimental consequences or potential consequences, a reduction of 10% was more appropriate. In factoring in these reductions some rounding was necessary to achieve a practical result.
It was necessary for the Court to bear in mind the sentencing outcomes in the cases concerning the Poulton brothers in applying the principle of parity.
The appellant was sentenced in the District Court on 3 December 2021. On 20 December 2022 he was sentenced in the Local Court at Campbelltown for an offence of assault occasioning actual bodily harm which had been committed on 11 November 2020. He received a sentence of 2 years with a non-parole period of 18 months which was backdated to 20 December 2020. Accordingly, the new sentence was entirely subsumed by the District Court sentence but there was nothing placed before this Court as to why the magistrate chose that course. However, the Crown contended there should be an adjustment to the commencement date of the new sentence to be imposed to give effect to the principle of totality. The Court declined to do so as an alternative to the Crown having taken the more appropriate course of challenging the magistrate's decision by way of appeal to the District Court.
The Court imposed an aggregate sentence. It otherwise would have imposed individual sentences after discounting as follows: Use offensive weapon in company 1 year 3 months Reckless wounding in company 2 years 6 months Drive whilst disqualified (first offence) 2 months Assault 2 months

Orders

The following orders were made at the conclusion of the hearing on 27 February 2023: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed in the District Court on 3 December 2021 and in lieu impose an aggregate sentence of imprisonment for 3 years and 3 months with a non-parole period of 2 years and 3 months. 3. The sentence is to date from 11 November 2020.
The Court noted that the non-parole period would have expired on 10 February 2023 whereupon the appellant would have become eligible for release on parole. In light of this, it directed that the matter be referred to the State Parole Authority forthwith.

Endnotes

Appellant's written submissions (AWS) [53]
AWS [58]-[62]
AWS [85]
Crown written submissions (CWS) [41]
CWS [42] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2023

Criminal Procedure Act 1985(NSW)

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