Miller v R

Date of Decision: 20 March 2013 Before: Blackmore DCJ File Number(s): 2013/265641

Judgment

1. MEAGHER JA: I agree with the orders proposed by Schmidt J. My reasons for doing so are sufficiently expressed in the judgment of Simpson J.
2. SIMPSON J: I have read in draft the judgment of Schmidt J. I agree with the orders her Honour proposes. My reasons follow.

The facts

1. Both offences were committed on the same evening, 31 August 2013, in company with the same two co-offenders (Matthew Ford and Brett Mallon). The first offence was at the home of a person the applicant knew or believed to be a drug dealer, and was for the purpose of obtaining drugs. The drug dealer was not at home but his female partner, with five children, was. When the woman responded to their knock, she was holding a five week old baby. Upon the woman opening the door, the applicant or one of his co-offenders pointed a large hunting knife at her and demanded drugs. They searched drawers and cupboards in the kitchen and bathroom. One of the offenders behaved aggressively. This prompted the applicant to tell him that the purpose of their invasion was not to hurt the woman or the children.
2. The offenders left when they found the drugs they had come in search of.
3. This event gave rise to the count under s 112(2) of the Crimes Act 1900 (NSW), of aggravated break, enter and commit an indictable offence. The circumstance of aggravation was that the applicant was in company with two co-offenders. An offence against s 112(2) carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 5 years is applicable.
4. The second offence was committed at the home of another person the offenders knew or believed to be a drug dealer. That person and his girlfriend were at home. One or more of the offenders kicked the front door, demanded that it be opened, and plunged a knife through a glass bedroom window pane, shattering it. The offenders entered through the shattered window; one of them forced the male occupant backwards, holding a knife against his throat. They told him to get on his "fucking knees" and threatened to kill him. The male was kicked in the face.
5. The applicant demanded drugs. The male indicated where the drugs could be found. The offender holding the knife dragged it from the male's left shoulder towards his left hip, splitting the skin. A second cut was made from his left rib cage to his right hip. Photographs in evidence demonstrate that the extent of the wounding was significant.
6. The applicant took the male's laptop and wallet (containing $1100), PlayStation, mobile telephone and jewellery. The offenders took an esky containing drugs (almost certainly marijuana). They left the house; on exiting, they smashed the window of a car that belonged to the female occupant by stabbing at it with a knife.
7. This event gave rise to the second count, under s 112(3) of the Crimes Act, of specially aggravated break, enter and commit indictable offence. The circumstance of special aggravation was the wounding of the male occupant. Such an offence carries a maximum penalty of imprisonment for 25 years, and a standard non-parole period of 7 years.
8. The sentencing judge used the provisions of s 53A of the Sentencing Procedure Act and imposed an aggregate sentence of imprisonment for 8 years and 4 months, with a non-parole period of 6 years and 3 months. In doing so, in compliance with s 53A(2)(b) he recorded the individual ("indicative") sentences that he would have imposed had he sentenced for the offences separately. For the first offence, he nominated an indicative sentence of imprisonment for 6 years with a non-parole period of 4 years and 6 months; for the second offence, he nominated an indicative sentence of imprisonment for 7 years and 3 months, with a non-parole period of 5 years and 5 months.
9. The resultant aggregate sentence obviously had a degree of concurrency built into it.
10. His Honour also specified that he allowed a reduction of 25 per cent on the sentence he otherwise would have imposed. A simple calculation shows that the starting point was therefore just over 11 years.
11. The judge declined to find that special circumstances justified departure from the ratio between the head sentence and the non-parole period provided by s 44(2) of the Sentencing Procedure Act. The non-parole period imposed is, in accordance with those proportions, 75 per cent of the head sentence.

The applicant's personal circumstances

1. The applicant did not give evidence in the sentencing proceedings. Evidence as to his personal history and circumstances was provided in the form of a Pre-Sentence Report, and a psychiatric report prepared by a consultant forensic psychiatrist engaged in the Justice Health network. From those reports, the following was disclosed.
2. The applicant was born in Broken Hill in March 1994, and was 19 years of age at the time of the offences. He has a record of offences in South Australia, which includes possession of drugs, two separate offences of assault, two of carrying offensive weapons, possession of a firearm without a licence, and a variety of others. Although, in respect of the firearms offence, he was sentenced to imprisonment for 3 years and 8 months with a non-parole period of 2 years, that sentence was suspended, subject to conditions. That sentence was imposed on 26 March 2013 and both it and the bond that accompanied it were current at the time of these offences. The applicant has never previously served a sentence of imprisonment.
3. The psychiatric report noted that the applicant is recorded in Justice Health documents as Aboriginal, but that he denies this. The psychiatrist took a history from the applicant of significant childhood deprivation. His father was Italian, but left the family when the applicant was born. The applicant has had no contact with him. When he was 8 years of age his mother was incarcerated for fraud, and he lived for a time with his grandmother. This was not a happy placement, because his grandmother imposed strict rules and discipline. The applicant considered her to be a "control freak". The applicant told the psychiatrist that he has, from an early age, experienced problems with anger management.
4. It seems that on his mother's release from custody, he returned to live with her; she was in a relationship with another man who physically and sexually abused the applicant, by, for example, beating him with a belt, kicking him with steel toed boots, locking him in his room for periods of time, and, on one occasion, in a chicken coop.
5. From the age of 12 the applicant lived with his mother in Adelaide. She was a drug user, and he remained with her only for 6 months. The applicant said that he began using cannabis at around the age of 12 years, and alcohol at about 13 years. He denied use of other drugs.

The Remarks on Sentence

1. In the opening paragraph of the Remarks on Sentence, the sentencing judge said: "I note that the standard non-parole periods attaching to each charge have been taken into account on the sentence."
2. Having then recounted, in some detail, the facts of the offences, his Honour said: "It is plain from the facts that the offenders were on the hunt for drugs. They were prepared to enter private homes to carry out that hunt. They did that without concern for the persons who were living in those homes." He went on to say, with respect to the first offence: "… the house appears to be no more than a family home with a woman and her children. Despite this, the woman was threatened in the presence of her children. It is clear from the facts that the offenders were aware that this victim was present in the house before entering it. It was submitted that the offenders were merely breaking into a house that had been used for the sale of drugs and consequently cannot be viewed as a home for the purpose of assessing whether it is an aggravating fact on sentence. [His Honour was here referring to s 21A(2)(eb) of the Sentencing Procedure Act.] However, there is no evidence that at the time of the break-in, the house was being used for the sale of drugs. The offenders have given no sworn evidence and any assertions made in the various medical and probation reports, tendered in the proceedings about this offence, must be viewed with some circumspection. I regard it as a serious aggravating factor that the offenders were prepared to attack this woman in her own home in the presence of her children."
3. However, in respect of the second offence, his Honour said: "In this case, it does appear from the evidence, that the house was being used for the sale of drugs. I accept that in those circumstances, the victims cannot expect to receive the same protection of the law as if the house was merely a home. It can [be] viewed as in effect, a business address where illegal products were being sold. As such, the occupants can expect that criminals will be attracted to the house and that is of course what happened. On the other hand there was a woman who does not appear to have been involved in the offence - any offences with respect to the house - and the facts make it plain that she was terrified by the actions of the offenders." [I pause to note that the second sentence of this passage probably reflects an unguarded moment, or loose language in the delivery of extempore remarks. It cannot, however, receive the endorsement of this Court.]

The proposed grounds of appeal

1. The proposed grounds of appeal are pleaded as follows: "1. His Honour erred in giving primary or determinative significance to the applicable standard non-parole periods. 2. His Honour erred in failing to have proper regard to the applicant's deprived background. 3. His Honour erred in failing to take into account the fact that the applicant was serving his sentence in protective custody. 4. The sentence imposed was otherwise manifestly excessive."

Ground 1: the applicability of the standard non-parole periods

1. This ground is based upon the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
2. There are only two references in the Remarks on Sentence to the standard non-parole periods. In the first, his Honour said that they had been taken into account - a course which Muldrock expressly approves and requires (now enacted in s 54B(2) of the Sentencing Procedure Act). In the second, his Honour merely said that the offences did not call for the imposition of the standard non-parole periods. This was plainly a finding that the objective seriousness of the offences was not of mid-range on a scale of objective seriousness applicable to offences of the kind.
3. This ground is, as Schmidt J has found, without foundation. There is nothing in the Remarks on Sentence that lends the slightest support to the complaint. To the contrary, the Remarks show that correct principles were applied. The ground should be rejected.

Ground 3: protective custody

1. The only basis for a finding that the applicant is to serve his sentence in protective custody is the note in the psychiatric report, recording part of the history given by the applicant. There is nothing in the evidence that supports any contention that, assuming that the applicant is currently serving his sentence in protective custody, he will continue to do so; nor is there any evidence of the circumstances of that custody. The time has long since passed when it can be assumed that serving a sentence in protective custody is more onerous than other forms of custody: R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581; Clinton v R [2009] NSWCCA 276; R v Ah-See [2004] NSWCCA 202; Majid v R [2010] NSWCCA 121.
2. I agree with Schmidt J, for the reasons that she gives, that this ground should be rejected.

Ground 2: deprived background

1. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 the High Court (specifically in reference to an Aboriginal offender) said: "37 An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence …" The High Court went on to accept a submission (by the Director of Public Prosecutions) that: "42 … the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of the appropriate sentence in every case. 43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision …" The High Court, however, went on to note that evidence of an offender's deprived background does not necessarily have the same mitigatory relevance for all of the purposes of punishment.
2. As the Court in Bugmy makes plain ([24]), the weight to be accorded to any sentencing consideration, including childhood deprivation, is a matter for the sentencing judge. However, where a relevant factual circumstance has been overlooked, it may be seen that the sentencing discretion has miscarried: House v The King [1936] HCA 40; 55 CLR 499.
3. In this case, the sentencing judge did make brief reference to the applicant's personal history. But when the features that he mentioned are contrasted with the history taken by the psychiatrist, it seems to me that a material consideration was overlooked. That is because the full extent of the applicant's personal history and circumstances was not taken into account. That went far beyond the somewhat cursory reference in the Remarks that I have extracted above.
4. I agree with Schmidt J that this ground has been made out.

Ground 4: manifest excess

1. As Muldrock also makes plain, the standard non-parole period remains a relevant guidepost in sentencing for offences to which Div 1A is applicable. It also remains the case that the standard non-parole period is intended to apply to sentencing after trial (R v Way [2004] NSWCCA 131; 60 NSWLR 168), and allowance must be made for pleas of guilty. In accordance with s 54B(4) of the Sentencing Procedure Act, the sentencing judge specified the non-parole periods he would have imposed had he sentenced separately for the two offences. In this case, he found that the objective seriousness of the offences did not call for the imposition of the standard non-parole period. But the indicative sentence nominated in respect of the first offence included a non-parole period of 4 years and 6 months, against a standard non-parole period of 5 years. It is plain that that failed to take into account either the plea of guilty, or the finding of objective gravity as less than mid-range. It cannot have accommodated both.
2. Section 54B(5) also requires a sentencing court to make a record of the reasons for setting a non-parole period that is longer or shorter than the standard non-parole period, and to identify each factor taken into account. In this case, the sentencing judge overlooked this requirement. That does not invalidate the sentence: s 54B(7). However, a record of the reasons would have shown that the departure from the standard non-parole period was insufficient to reflect the finding that the offences were of less than mid-range gravity, and the plea of guilty.
3. Similarly, in respect of the second offence, against a standard non-parole period of 7 years, an indicative sentence that included a non-parole period of 5 years and 5 months was nominated. After reduction by 25 per cent (in recognition of the plea of guilty), that is greater than the standard non-parole period and again does not reflect the finding of less than mid-range gravity.
4. In my opinion, error has thus been demonstrated in the sentencing process. This Court must proceed to exercise its own independent sentencing discretion: Kentwell v The Queen [2014] HCA 37; 313 ALR 451.
5. In contemplation of such a result, the Court received affidavit evidence as to the applicant's conduct while in custody. In an affidavit, affirmed on 26 February 2015, the applicant said that he had been in a number of different prisons, but has, since December 2014, been working as a sweeper at Junee Prison, and undertaking an education course working towards a Year 10 Certificate, and is about to start a building, construction and welding course. He has put his name down for an anger management course, but this had not yet started. He has been attending weekly Alcoholics Anonymous meetings. This suggests that there is more optimism for the applicant's rehabilitation than the sentencing judge was able to find at the time of sentencing.

Ground 1 - the standard non-parole periods

1. This ground was pressed on the basis of his Honour's observation that "I note that the standard non-parole periods attaching to each charge have been taken into account on the sentence". His Honour concluded, after considering the agreed facts, that each of Mr Miller's offences was serious, but "not ones that attract the standard non-parole period". This was submitted to have revealed error of the kind identified in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, that is, erroneously giving the standard non-parole period primary or determinative significance in the sentencing exercise.
2. This submission cannot be accepted. To the contrary, his Honour did precisely what s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required of him, namely, to take account of an applicable standard non-parole period, as one of the many matters necessary to be taken into account when undertaking the instinctive synthesis on sentencing discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37[ - [39].
3. As discussed in Muldrock at [27], such a standard non-parole period, together with the maximum penalty fixed for the offence, are two statutory guideposts which must be taken into account in a sentencing exercise such as this. It may not be overlooked that s 54B provides, amongst other things: (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.
4. I consider that leave to appeal on this ground should be refused. It is baseless.

Ground 3 - protective custody

1. This ground relied on a comment in a psychiatric report, that Mr Miller was serving his custodial sentence in protection, to which no reference was made in the sentencing remarks or at the sentencing hearing. The bare written submission was that this constituted an error of law.
2. Leave to appeal on this ground should also be refused.
3. The submissions advanced on sentence did not place any reliance on the fact that Mr Miller was then serving his sentence in protection. Those submissions related to the two premises invaded having been used for drug supply, which meant, it was argued, that the aggravating factor that the offence had occurred in someone's home, was not available. It was also argued that the evidence did not leave open a finding that it was Mr Miller who wounded Mr Whitfield. Submissions were also advanced as to Mr Miller's youth, criminal record and background, to support the argument that his criminal conduct was somewhat explained by that background, which would provide a basis for a finding of special circumstance.
4. That aspect of the psychiatrist's report was relied on for the first time on appeal. It did not provide a sound basis for any finding as to the circumstances in which Mr Miller was serving his sentence, or the conclusion that it was more onerous than usual, even if any submission about this matter had been advanced on sentencing (see RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209 at [192] - [195]).
5. As discussed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]: "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]."

Ground 2 - Mr Miller's background and Ground 4 - manifest excess

1. It is convenient to deal with these grounds together.
2. To establish manifest excess Mr Miller must establish that the sentence imposed upon him was "unreasonable or plainly unjust" (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]).
3. As the Crown submitted, there is no single correct sentence (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24]). Sentencing judges have considerable flexibility in their approach to sentencing, consistent with binding principle and the statutory sentencing regime (see Markarian at [27]). This Court may not simply substitute its opinion for that of a sentencing judge, because it would have exercised the sentencing discretion differently (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]).
4. Nevertheless, I am satisfied that relevant error has here been established, with the result that leave to appeal on these grounds should be given and the appeal upheld.
5. In the guideline judgment in Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327, how the seriousness of offences under s 112(1) is to be assessed was considered. As the Crown submitted, those considerations also apply to the sentencing of offences to which Mr Miller and his co-offenders entered pleas under s 112(2) and (3). They are there to be used as a "check" or "sounding board" or "guide" (see R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [113]). The factors identified in the guideline judgment, which had to be considered separately in relation to each offender, were identified at [48] to be: " A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organization and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen 1998 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f) ), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e) ). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s105A(1)(a) )."

The offences

1. The facts were not in issue.
2. Mr Miller and his two co-offenders went in a car with Ms Mallon, at about 9.15 pm, to the home of Ms Lehman, where she resided with her five children, who were aged between 12 years and 5 weeks. One of them knocked on the door and asked for "her bloke". She told him that he no longer lived there. Soon afterwards the three offenders entered Ms Lehman's home, one of them pointing a large hunting knife at her. She knew one of the offenders, Mr Mallon, who asked her where "the meth" was. She told him there was none there. Mr Miller remained with her, while the others then searched the house.
3. Ms Lehman asked Mr Miller if she could put her kids together in one room. When she looked, two of them were not in their beds. He did not believe that she had other children. She started screaming out for them and he told her that she was lying about the children.
4. When searching the kitchen Mr Ford began screaming at Ms Lehman. Mr Miller said to him "we're not here to hurt her or the kids". She was then holding her baby and directed them to the bathroom. While in the bathroom, one of them said "I've got it. Let's go." The offenders then left, taking her phone and other phones with them.
5. Ms Lehman was frightened and attempted to drive her car to look for her other children. It would not start. Police then arrived with the children, who had earlier jumped out of a window and had run to neighbours, who had called police.
6. At 9.40 pm the same night, the offenders went to the home of a Mr Whitfield, where they knocked and kicked at his front door. From the window Mr Whitfield saw Mr Mallon, who he knew. He heard yells of "[o]pen the door" and then a knife came towards the glass and put a hole through it. Mr Whitfield then saw Mr Mallon and Mr Miller at the door and Mr Mallon stab at the glass window with the knife, causing it to smash. He then saw a tomahawk being used to strike the glass.
7. Mr Whitfield got dressed. Mr Mallon and Mr Miller then jumped through the window and pushed him back by the throat. His girlfriend hid in the corner of the room, fearing that she would be harmed by the knife, or physically assaulted.
8. Mr Whitfield did not see who then assaulted him with a knife held to his throat. He was held by a hand placed to the back of his neck, causing it to lift to the ceiling, while being told "on your fucking knees or we'll fucking kill you". He was then kicked in the face and the two offenders ran into the lounge room.

The sentencing remarks

1. The three offenders were sentenced together. None of the three offenders gave evidence. The one who actually wounded Mr Whitfield was not identified.
2. After considering the evidence as to the nature and seriousness of these offences, Blackmore DCJ turned to Mr Miller's subjective circumstances and relevant aggravating and mitigating matters.
3. These were objectively both very serious offences. As his Honour found, the offenders were on the hunt for drugs that night, prepared to enter private homes, without concern for those living there, armed and prepared to threaten and injure those who they found there.
4. While Blackmore DCJ took the view that Mr Whitfield's wounding involved gratuitous cruelty, as it plainly did, he did not find the offences aggravated as a result of that fact, because the person who wielded the knife could not be identified. His Honour also concluded that Mr Whitfield's house was in effect a business address where illegal products were being sold and so the occupants had to expect that criminals would be attracted to the house and that they could not expect to receive the same protection of the law, than if the house had only been a home.
5. As to the seriousness of the offences, his Honour concluded: "When one comes to consider the seriousness of the offences on a range of seriousness, it should be observed that stealing is not the most serious indictable offence that could be contemplated under the section. Of itself, that must reduce the seriousness of the offences on an objective analysis of them. Each of the offences was in effect a home invasion and as such is something that the law treats very seriously. Clearly the second offence involves the injury inflicted but that is part of the statutory aggravation. The wounds whilst serious, were not life threatening although they are likely to leave lifelong scars. Ultimately, each of the offences was serious but in my view, they are not ones that attract the standard non-parole periods."
6. His Honour then turned to subjective matters. He observed that Mr Miller was much younger than his co-offenders, Mr Mallon, who was in his early 30s and Mr Ford, who was 41. Mr Miller was 20 when he committed these offences.
7. His Honour found that Mr Miller's substantial criminal record did not, however, permit a lenient approach in his sentencing exercise. That conclusion reflected that Mr Miller had a lengthy and serious juvenile record and was on conditional liberty for prior offending, when he committed these offences. He was also on a s 9 bond. This was properly considered to be an aggravating matter under s 21A(2) of the Crimes (Sentencing Procedure) Act.

Resentence

1. In the result I would resentence Mr Miller to an aggregate sentence of 7 years imprisonment, with a non-parole period of 4 years 9 months, commencing on 2 September 2013, that reflecting, after discount, partially accumulated indicative individual sentences of imprisonment of 5 years, with a non-parole period of 3 years for count 1 and imprisonment for 6 years, with a non-parole period of 3 years and 10 months for count 2.

Orders

1. The orders I would propose are: 1. Leave to appeal is refused in relation to grounds 1 and 3. 2. Leave to appeal is granted in relation to grounds 2 and 4. 3. The appeal is upheld. 4. The sentences are set aside. 5. Mr Miller is resentenced to an aggregate sentence of 7 years imprisonment, commencing on 2 September 2013, and expiring on 1 September 2020, with a non-parole period of 4 years 9 months, expiring on 1 June 2018.

Amendments 07 May 2015 - Amendment made to the representation field on coversheet 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: 07 May 2015