Miller v R

Court of Criminal Appeal (NSW)|2023-07-03|Before: Kirk JA, Rothman J, Adams J, Adams JJ

The applicant had also been subject to two community correction orders when he committed the above offences. Those matters were called up and the sentencing judge resentenced the applicant to imprisonment for 1 month for the offence of driving while unlicensed, commencing on 24 June 2020, and 3 months imprisonment for an offence of dangerous driving, commencing on 8 July 2020. Those sentences are not sought to be appealed.
One of the applicant's co-offenders, Mr Piyabut Panya, was sentenced at the same time as the applicant. He had pleaded guilty to the same three charges as the applicant, with the same further three charges taken into account on a Form 1. The equivalent indicative sentences set for Mr Panya were 6 years 6 months for the equivalent to Sequence 14 (as opposed to 6 years for the applicant), 5 years 6 months for the equivalent to Sequence 9 (as opposed to 5 years), and 5 years for the equivalent to Sequence 11 (as opposed to 4 years 9 months). Mr Panya had also pleaded guilty to a further offence arising out of the same incident of recklessly causing grievous bodily harm to Mr Wang in company, contrary to s 35(1) of the Crimes Act, for which the sentencing judge set an indicative sentence of 3 years with a non-parole period of 1 year 9 months. The judge set an aggregate sentence of 8 years with a non-parole period of 4 years and 9 months (as opposed to 7 years and 4 years non-parole for the applicant).

Circumstances of offending

On 13 June 2020 the applicant, Mr Panya, Mr Deting Kong and Mr Jason Kim were - on the facts agreed for the purposes of the sentencing of the applicant - involved in a robbery of six persons who were taking part in a poker game. The poker game took place at the home of Mr Wang, where Mr Kong had played poker on previous occasions. On the day of the offending Mr Kong contacted Mr Wang to ask whether there was a poker game that night and, receiving confirmation of such, Mr Kong advised he would attend.
In the late afternoon a number of people arrived at Mr Wang's home to play poker. Mr Kong went to Mr Wang's unit block at 8.25pm. CCTV footage captured shortly after that time shows Mr Kong speaking to Mr Panya and the applicant near a car. Mr Panya then got into the car while Mr Kong and the applicant approached the unit block. Using the intercom, Mr Kong sought entry to the block and the applicant followed behind. They then went up to Mr Wang's apartment. Mr Kong entered the apartment and the applicant walked down the fire stairs back to the ground floor, opened the door, and let Mr Panya in.
The applicant returned to Mr Wang's apartment with Mr Panya and they knocked on the door. Mr Wang opened the door and the pair entered the home. Mr Panya pointed a gun at Mr Wang, who crouched down. Either the applicant or Mr Panya said "hands up" and "get on the ground". That person then demanded money and to know who the host of the game was. Mr Panya pointed the gun at one victim, Mr Ye, and said "I'm going to kill you, take everything out". Mr Ye took approximately $500 out of his pocket and threw it on the ground, saying "please, please, I give you everything". Mr Panya then struck Mr Ye on the head which caused him to bleed. The other occupants of the unit were cowering under the poker table.
Mr Wang then confronted the offenders and said: "don't hurt anyone, I'll give you the money". Mr Panya turned to face him, still holding the gun. A struggle ensued and the gun was triggered. A bullet struck Mr Wang in the mouth and lodged in the back of his jaw. The bullet removed some of Mr Wang's teeth, a portion of his jaw and caused several fractures. Some of his teeth and fragments landed on the poker table.
Once the shot had been fired, the occupants threw their phones and wallets in the direction of the offenders. One of the offenders kicked another victim, Mr Xue. Mr Panya and the applicant collected the cash, phones and wallets and put them into a backpack. The applicant or Mr Panya told the victims not to call the police because they knew their names and addresses.
The applicant and Mr Panya then exited the apartment, ran back down the fire stairs, discarded several of the phones in the stairwell, then got into the car and drove away. The items stolen amounted to two phones, three wallets and a purse, a set of keys and between $12,000 and $13,700 of cash. The cash taken was comprised of between $4500-$5600 from Mr Ye, $1000 from Mr Xue, $500-600 from Mr Cai, about $2000 from Mr Ai, and about $4000-$4500 from Mr Cui (the sentencing judge erroneously stated at [25] that $4000-$5000 was taken from Mr Cui, but nothing was said to turn on this minor error relating to one of the Form 1 offences).

Sentencing judgment

After setting out the agreed facts, the sentencing judge considered the applicant's case on sentence, including a report of forensic psychiatrist Dr Olav Nielssen (at [31]-[43]). That report disclosed the applicant's traumatic upbringing, drug addiction issues, a history of family mental illness, two previous admissions to psychiatric facilities and discussed his actions on the night of the offending. Dr Nielssen believed the applicant was suffering from substance use disorder and substance related mood disorder. His Honour noted at [45] that the applicant had been offered full-time employment as an apprentice electrician upon his release.
After considering the circumstances of Mr Panya, the sentencing judge turned to the issue of objective seriousness of the offences, which his Honour dealt with concurrently for the applicant and Mr Panya. It is useful to set out the sentencing judge's remarks on this issue in full: Objective Seriousness [71] The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(2) robbery offences are more serious than the types of offences considered in Henry, but also that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]-[59]. [72] The weapon involved in the offences was a loaded firearm capable of causing death or serious personal injury. It was wielded in a confined space where there were a number of people and this increased the potential for its use. [73] The offences involved actual violence and threats of significant violence, including death threats and threats of reprisal if the victims went to the Police. [74] The amount taken was significant, exceeding $10,000. [75] The offences involved some planning in telephone calls over a number of days and the involvement of an "inside" man and a dedicated gateway driver. The offenders targeted the poker game where they anticipated that the players would be in possession of significant sums of cash. I am not satisfied beyond reasonable doubt on the evidence that the aggravating factor provided for by s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 is established. [76] There were a number of victims in the robbery offences. [77] Mr Wang suffered serious injuries that will have a life-long impact on him. Mr Panya caused Mr Wang grievous bodily harm through the use of the firearm and was reckless as causing actual bodily harm. [78] The offences were committed in company. The robbery offences were committed for financial gain. [79] The circumstances of Mr Miller's deprived upbringing justify a finding that his moral culpability for the offences is reduced. He was exposed to violence, alcohol abuse, drug use and was the victim of a sexual assault. [His] mental health suffered as a consequence and he turned to drugs to self-medicate. His use of drugs had further adverse impact on his mental health and decision making. [80] Mr Panya suffers from a number of mental conditions that have impacted him from childhood. The stabbing attack on him was a major cause of his PTSD. He has also used drugs as a means of coping with his mental conditions. His poor mental state impaired his judgment and decision making at the time of the offences. It is appropriate to find that his moral culpability for the offences is reduced. [81] I have taken into account the maximum penalties for the offences and the standard non-parole period for the s 35 offence.
His Honour then turned to consider issues of deterrence, aggravating factors, mitigating factors and "Other Matters". The sentencing judge made the following observations in the latter context: [96] I have taken into account the need for parity in the sentences imposed. The difference in the sentences imposed are necessary to recognise the different roles of the offenders, the possession of and use of the gun by Mr Panya including the concession that the Crown could not prove that Mr Miller knew that Mr Panya had the pistol until it was produced, the number of charges faced by each offender and the differences in the subjective cases.
In imposing the sentences he did, his Honour found special circumstances as regards each of the applicant and Mr Panya for the purposes of setting the non-parole period.

Consideration

At the heart of the applicant's arguments are overlapping complaints that the sentencing judge failed: 1. separately to assess the objective seriousness of each of the offences of which he was convicted; 2. to refer to the particular conduct of the applicant in relation to six matters (being the three offences of which he was convicted along with the three offences on the Form 1); and 3. to distinguish between the conduct and culpability of the applicant as compared to that of the co-offender, Mr Panya.
With respect to the first point, counsel for the applicant made clear that he was not suggesting that the judge erred in not having characterised the conduct on a gradient of seriousness of mid range or high range or the like.
As Simpson J said in R v Campbell [2014] NSWCCA 102 at [27], in a passage frequently cited, "assessment of objective seriousness is, and has always been, a critical component of the sentencing process". That task may be undertaken in a range of ways.
This Court's decision in Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 considered a Crown argument that the sentencing judge had failed to determine the objective criminality of the offences. The argument was rejected, with Hoeben CJ at CL stating the following at [56] (speaking for the Court): While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.
A similar argument was rejected in Yeung v R [2018] NSWCCA 52, with McCallum J saying the following (with the agreement of Hoeben CJ at CL and Simpson JA): [30] While it may be accepted that a bare recitation of the facts and the objective features of the offence may not, of itself, demonstrate adherence to the requirements of the sentencing task, it must equally be accepted, in my respectful opinion, that the failure to attach a specific label to the objective seriousness of the offence will not necessarily demonstrate a failure to undertake the necessary task of making an assessment of objective seriousness as one of the factors relevant to the value judgment as to what is the appropriate sentence in all the circumstances. The task for the appellate Court is to consider whether, reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment. [31] In the present case, although the sentencing judge did not attach a specific label to the objective seriousness or objective criminality of the applicant's offending, it is clear in my view that his Honour undertook an evaluative assessment of the relevant factors including the amount of the drug involved, the role of the applicant and the nature of his conduct.
Cases such as Delaney and Yeung illustrate that what relevantly is required is that the issue of objective seriousness of the offences in question has been considered and factored into the sentencing exercise. Whether or not that has occurred is to be judged in light of the reasons of the sentencing judge as a whole. Neither the consideration of, nor the conclusion on, the issue needs to be expressed in a particular way. Thus in Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246, for example, this Court found a sentencing judge's succinct assessment that "objectively serious offences" were committed was enough to convey that the necessary assessment had indeed occurred, in circumstances where the judge had earlier set out relevant facts and circumstances under the heading "assessment of objective seriousness": see at [9]-[12]; note similarly Kochai v R [2023] NSWCCA 116 at [47]-[59].
In this case the sentencing judge did not expressly state some conclusion as to how the objective seriousness of each of the offences of the applicant should be characterised. As noted, the applicant does not complain about the lack of attribution of a label as to where they stood within a range. It is clear that his Honour did consider the objective seriousness of what had occurred, as shown by the discussion - under the heading "Objective Seriousness" - quoted above at [16]. He set out there relevant facts and circumstances going to the assessment of objective seriousness.
The question then becomes whether his Honour erred by taking what the applicant suggested was a "global approach to the assessment of objective seriousness". The applicant referred in particular to the following remarks by the sentencing judge: 1. the sum taken by the offenders was significant, exceeding $10,000 (at [74]); 2. "[t]here were a number of victims in the robbery offences" (at [76]); 3. "Mr Wang suffered serious injuries that will have a life-long impact on him" (at [77]); and 4. "[t]he offences were committed in company" (at [78]).
The applicant argued that it "is not apparent from the remarks how, or to what extent, each of the above factors were relevant to the assessment of each offence for which the applicant was to be sentenced".
There can be dangers in not addressing the facts involved in each offence distinctly. For example, as the applicant submitted, it would be erroneous for any aggregation of the sums taken to be treated as an aggravating factor for any of the offences or as elevating the objective seriousness of all of the offences: note R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [28]; Courtney v R (2022) 102 MVR 271; [2022] NSWCCA 223 at [5]-[7], [15] and [68]-[69]. But there is no basis to suggest that that has occurred here.
None of the remarks just quoted indicate some impermissible running together of matters such as to create a risk of double-punishment or punishment for an offence more serious than that with which the applicant was charged. Each of the statements was correct. None of them was irrelevant. To refer to the total sum taken was relevant to considerations of totality, and his Honour had earlier referred more precisely to what had been taken from each victim. As for the reference to Mr Wang's serious injuries, his Honour was not suggesting that the applicant was responsible for that. That is illustrated by the next sentence at [77], where his Honour said that "Mr Panya caused Mr Wang grievous bodily harm through the use of the firearm and was reckless as causing actual bodily harm".
As the Crown argued, review of the judgment as a whole indicates the sentencing judge did consider the individual circumstances of the offences. The discussion under the heading "Objective Seriousness" has to be read together with his Honour's earlier recitation of the facts at [10]-[28] of the judgment, in which the course of events was outlined (and see also his Honour's reference to what the applicant had said to Dr Nielssen about the offences at [32]).
The fact that the judge set different indicative sentences for each of the three offences itself indicates that he took into account the facts relating to the distinct offences. The highest indicative sentence set for the applicant (of 6 years) was for Sequence 14. It was the most serious, involving a charge of assault with intent to rob with respect to Mr Wang, and being the count for which the Form 1 offences were to be taken into account. An indicative sentence of 5 years was set with respect to the robbery in company charge relating to Mr Ye (Sequence 9), from whom a phone, purse and some $4500 to $5600 was taken, and an indicative sentence which was lower again was set for the robbery in company charge relating to Mr Ai of 4 years 9 months (Sequence 11), from whom a phone, wallet, keys and some $2000 was taken (involving, thus, amounts worth less than what had been taken from Mr Ye). I note that when referring to Sequence 11 the sentencing judge erroneously referred to Mr Cai rather than to Mr Ai at [1] and [102]. The offence against Mr Cai was Sequence 10 on the charge certificate, involving the taking of the lesser amount of $500-$600 in cash. No submission was made that these erroneous references to Mr Cai rather than Mr Ai undermined the sentence.
Counsel for the applicant submitted that to refer in this way to the indicative sentences "begs the question, what factors were taken into account in relation to each of those sequences". Counsel suggested that there is a "lacuna in the remarks as to the relative seriousness of the three offences". It is true that the judge's reasons do not expressly address why the indicative sentences were set taking account of the particular circumstances of each offence. However, it can be inferred that to a significant extent this reflected the way in which the applicant's case was presented. Counsel appearing for the applicant in the Court below did not seek to draw significant distinctions between the offences - or between the roles of the applicant or Mr Panya - in her 11 pages of written submissions and brief oral submissions, beyond noting that: 1. the applicant only knew of the weapon when it was drawn at the scene and discharged; 2. that Mr Panya had been more involved in planning the offences than the applicant; 3. the objective seriousness of the crime against Mr Wang was greater (being "mid-range") than for the other two robberies in which no violence was meted out (labelling those "below mid-range").
Current counsel for the applicant accepted that a difficulty facing his client's application was that "some of the arguments raised on appeal, particularly as to role, were not advanced in the court below": cf Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82]. He was implicitly critical of counsel appearing below for failing to emphasise the differences between the offences to a greater extent. Yet the approach taken by counsel below was understandable. The offences occurred over a very short period time. Counsel for the applicant on appeal accepted that the offences "occurred as part of a single course of conduct and … that there were objective factors that were either common to each offence or capable of being described compendiously". In the circumstances it may well have seemed unnecessary to counsel appearing below to seek to emphasise the different facts involved in the offences. Further, it was always likely that these charges would be addressed by an aggregate sentence, and in any event considerations of totality would be significant with respect to the overall punishment imposed. Thus, contrary to the applicant's submission to this Court, this is not a case where there would be a serious injustice if the appellant were precluding from correcting the error: cf White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190 at [20] and [126]-[127].
As for the complaint about the failure adequately to distinguish the roles of the applicant and Mr Panya, similar points apply. The sentencing judgment read as a whole makes clear that the sentencing judge was aware of the distinct roles that the applicant and his co-accused played. So much is manifest in particular in his Honour's recitation of the facts; in his statement at [77] that it was Mr Panya who caused grievous bodily harm to Mr Wang through the use of the firearm; and in the express recognition at [96] (as quoted above at [17]) that the need for parity had to accommodate the different roles of the offenders, in particular with regard to the applicant's lack of foreknowledge of the gun. Those differences sounded in the greater indicative sentences set, and aggregate sentence imposed, on Mr Panya compared to the applicant. There were not substantial differences in the subjective considerations for each offender. For example, the sentencing judge accepted that both had good prospects of rehabilitation, had insight into their offending, were contrite, and had reduced moral culpability in light of their personal circumstances: at [79]-[80] and [88]-[93].
Moreover, all of this must be understood in a context where, again, no substantial argument was made below that there were significant differences between the conduct and culpability of the applicant and Mr Panya beyond those points noted above at [32].
The applicant did not put his complaint in terms of parity.

Conclusion

Neither ground of appeal has been made out. In the circumstances it is appropriate that there be a grant of leave to appeal but the appeal should be dismissed. The orders of the Court should thus be as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.
ROTHMAN J: I agree with both the reasons and orders proposed by Kirk JA.
The learned sentencing judge referred to and took into account the differences between each offence, particularly the most serious. The appeal is against the aggregate sentence. The robberies were three offences as part of one course of criminal conduct. The assault on one victim and shooting of another victim impacts on the other robberies and plainly had an effect on the other victims.
To differentiate these offences too much would be to elevate form over substance. The objective seriousness of each is interrelated and should be differentiated only by the different effects of the shooting in Sequence 14 and the assault in Sequence 9.
N ADAMS J: I agree with Kirk JA.

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HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mr Miller, and three co-offenders were involved in a robbery. In the course of the robbery, one of the applicant's co-offender, Mr Panya, shot one of the victims with a gun. The applicant pleaded guilty to three offences, one of assault with intent to rob in company armed with a dangerous weapon and two of robbery in company armed with a dangerous weapon. Three further offences were taken into account on a Form 1. He was sentenced to an aggregate term of imprisonment for 7 years with a non-parole period of 4 years. Mr Panya pleaded guilty to the same three charges in addition to a further offence of recklessly causing grievous bodily harm, with the same further three charges taken into account on a Form 1. He was sentenced at the same time and received an aggregate sentence of 8 years with a non-parole period of 4 years and 9 months. The indicative sentences imposed on the applicant for each of the three offences were respectively 6 years, 5 years, and 4 years 9 months. The indicative sentences imposed on Mr Panya for each of the same three offences were respectively 6 years 6 months, 5 years 6 months, and 5 years. The applicant sought leave to appeal against the severity of the aggregate sentence on the following two, overlapping grounds: (1) the sentencing judge failed separately to assess the objective seriousness of each offence for which the applicant was to be sentenced and the role he played in the offences; and (2) the sentencing judge's failure adequately to differentiate the role of the applicant caused a miscarriage of justice. The Court (per Kirk JA, Rothman and N Adams JJ agreeing) granted leave to appeal against the sentence but dismissed the appeal, and held as follows:

What relevantly is required is that the issue of objective seriousness of the offences in question has been considered and factored into the sentencing exercise. Whether or not that has occurred is to be judged in light of the reasons of the sentencing judge as a whole. Neither the consideration of, nor the conclusion on, the issue needs to be expressed in a particular way: at [24]. Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150; Yeung v R [2018] NSWCCA 52; Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246, considered.
There can be dangers in not addressing the facts involved in each offence distinctly. However, none of the sentencing remarks indicate some impermissible running together of matters to create a risk of double-punishment or punishment for an offence more serious than that with which the applicant was charged: at [28]-[29].
The sentencing judge set different indicative sentences for each of the three offences which itself indicates that he took into account the facts relating to the distinct offences: at [31]. Although the judge's reasons do not expressly address why the indicative sentences were set taking account of the particular circumstances of each offence, it can be inferred that to a significant extent this reflected the way in which the applicant's case was presented: at [32].
The sentencing judgment read as a whole makes clear that the sentencing judge was aware of the distinct roles that the applicant and his co-accused played. Those differences sounded in the greater indicative sentences set, and aggregate sentence imposed, on Mr Panya compared to the applicant: at [34].

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