Regina v Stephen David Millar [2005] NSWCCA 202

New South Wales Court of Criminal Appeal

CITATION: Regina v Stephen David Millar [2005] NSWCCA 202

HEARING DATE(S): 30 May 2005

JUDGMENT DATE: 17 June 2005

JUDGMENT OF: Simpson J at 1; Barr J at 7; Latham J at 45

DECISION: Grant leave to appeal, allow the appeal and quash the sentence appealed from; Sentence the appellant to a non-parole period of ten months, commencing on 26 August 2004 and expiring on 25 June 2005, and a balance of sentence of eight months; Direct the release of the appellant to parole on 25 June 2005.

PARTIES: Regina, Stephen David Millar

FILE NUMBER(S): CCA 2005/405

J Girdham COUNSEL: A Cook

S Kavanagh SOLICITORS: S O'Conner

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/71/0042

LOWER COURT JUDICIAL OFFICER: Blackmore SC DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/405

SIMPSON J BARR J LATHAM J

17 JUNE 2005 REGINA v STEPHEN DAVID MILLAR Judgment 1 SIMPSON J: I agree with the orders proposed by Barr J, and with his Honour's reasons, and would add only this in relation to the first ground of the application. 2 Caution should be exercised in attributing error to a sentencing judge on the basis of observations or comments made during the course of argument or submissions. Such remarks, perhaps incautiously expressed, do not necessarily represent a fully considered, and certainly may not represent a final, view held by the judge. It is generally only when any erroneous view finds its way into the actual remarks on sentence, or the outcome can be explained only by an inference that an erroneous view so expressed underlies the reasoning process, that this Court should find error on such a basis. In R v A [2004] NSWCCA 292 Wood CJ at CL, with whom Hulme and Bell JJ agreed, said: "[12] Transparency in sentencing is necessary in so far as it is expected that Judges will disclose, in their reasons, the process by which a sentence is reached ... Exchanges between the Bench and Counsel in the course of the proceedings do not form part of the reasons, and it would not be safe to assume that some observation passed by a Judge during submissions, necessarily represents a considered or final view as to the basis upon which a particular case is decided: R v Kain [2004] NSWCCA 143 at para [56]." 3 In any event, I do not read the observations made by Blackmore DCJ in this case as demonstrating that his Honour regarded himself as bound by s54B of the Crimes (Sentencing Procedure) Act 1999 to commence his consideration with the standard non-parole period prescribed in respect of the offence to which the applicant pleaded guilty. The remark is at least equally consistent with his Honour's recognition of what was said in this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 in relation to the sentencing of an offender who is to be sentenced following a plea of guilty. There it was made plain that, while s54B does not oblige a sentencing judge to impose a standard non-parole period in those circumstances, nevertheless the standard non-parole period remains relevant as: "... a reference point, or benchmark, or sounding board, or guidepost ..." (at [122]) 4 Wood CJ at CL repeated that observation in R v Davies [2004] NSWCCA 319. 5 In my opinion the remarks of which complaint is now made illustrate that Blackmore DCJ was in fact doing precisely what he has been enjoined by this Court to do. The very fact that he departed, and departed in a very significant way, from the standard non-parole period is further illustrative that he did not regard himself as bound in the manner which is contended. 6 I agree with Barr J that the second ground of the application has been made good and it is therefore necessary for this Court to proceed to re-sentence. I agree that there are reasons, pursuant to s54B(2), for setting a shorter non-parole period than the standard non-parole period prescribed in the Table. These reasons include the plea of guilty, and that, having regard to all the circumstances, the applicant's offence was not one that should be classified as in the mid-range of seriousness for an offence of its kind. 7 BARR J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant, Stephen David Millar, was committed to the District Court for trial on a charge of breaking and entering a dwelling-house and committing therein a serious indictable offence, namely assaulting the occupant, Nathan Robert Miles, occasioning to him actual bodily harm in circumstances of aggravation, namely that at the time of entering the house he knew that Mr Miles was in the house. Blackmore SC DCJ sentenced him to imprisonment for two years and six months, commencing on 26 August 2004 and fixed a non-parole period of one year and three months to expire on 25 November 2005. His Honour extended the parole period at the expense of the non-parole period to take account of the applicant's need for counselling about his abuse of alcohol and other drugs and in recognition that it would be his first time in custody. 8 The applicant was a thirty-eight year old man who had an eighteen-year-old daughter. She was living in a relationship with a young man, Mr Miles. The applicant became concerned that things were not all as they should be between the two and that Mr Miles was assaulting his daughter. In 2003 he moved into a unit close to the one occupied by the couple. He heard yelling and screaming coming from their unit, as he put it, virtually every day. He went into the unit on one occasion and what he saw made him think that Mr Miles was about to hit his daughter. She ran away, apparently embarrassed. The applicant warned Mr Miles not to strike his daughter. 9 Shortly before 11 February 2004 the daughter left Mr Miles and moved into the residence of the applicant's parents. On 11 February the applicant saw her there and noticed that she had a black eye. He became upset and went to Mr Miles' unit. He broke in and attacked Mr Miles, punching him in the face. Mr Miles fell to the floor, bleeding. He had to be taken to hospital by ambulance. According to the evidence of Dr Parkinson, whose report was tendered on sentence, the following procedures were employed and the following signs noted - …the patient had moderate peri orbital right sided haematoma with extreme tenderness immediately lateral to the right orbit and some infra orbital abrasions. The patient's face was swollen from the right side of his nose to immediately lateral to the right orbit. Both eyes opened satisfactorily. There was no diplopia. Conjugate gaze was satisfactory. Facial sensation was normal. The patient was tender over the zygoma. There was no nasal tenderness and no septal haematoma. He was discharged home with some pain relievers to return the following morning for x-ray examination. He returned at 1738 hrs on 12 February 2004 and was seen by Dr S Hasnain, Emergency Department Registrar. Dr Hasnain records a right sided infra orbital horizontal abrasion and an abrasion to the right side of the patient's nose together with swelling of the nasal bridge and tenderness. There was no septal haematoma. There was some mild nasal deviation to the right. There was peri orbital tenderness. There was some conjunctival haemorrhage in the right eye. An x-ray was taken which showed fractures of the inferior wall of the right orbit and lateral wall of the right orbit together with opacification of the right maxillary sinus. Anti inflammatory and pseudo ephedrine prescriptions were given and arrangements were made for a CT scan the following morning. He next presented at 1233 hrs on 13 February following his CT examination. The CT showed comminuted fractures affecting the medial wall and floor of the right orbit as well as the nasal bones. There was mild prolapse of infra orbital fat into the superior aspect of the right maxillary sinus and note was made of comminution of the bony canal containing the infra orbital nerve. Secondary opacification of the right sided paranasal sinuses was noted. Mr John Hennessy, VMO Oral Surgeon, was consulted and arrangements were made for the patient to be reviewed by Mr Hennessy at 1700 hrs that afternoon. Following the examination, arrangements were made for an open reduction and internal fixation of the right orbital and nasal fractures for the following day. The patient was formally admitted under the care of Mr Hennessy on 13 February 2004 and the proposed surgery was undertaken on 14 February 2004. His post operative progress was satisfactory and he was discharged on 15 February 2004 at 1400hrs after review by Mr Hennessy. 10 Mr Miles was rendered unfit for work for two weeks. 11 The applicant learned that the police wanted to speak to him about the attack, so he went to the police station. He admitted going to the premises, breaking in, punching Mr Miles and causing him injury. He said that he was sorry for what he had done. 12 The applicant did not plead guilty in the Local Court and was committed to the District Court for trial. He explained to the sentencing judge that that was because he was not prepared in the Local Court to agree to all the facts asserted by the police. Later on the police facts were changed to a form or version with which he was prepared to agree, and he thereupon pleaded guilty. 13 The first ground of appeal asserts that his Honour erroneously took the view that s54B Crimes (Sentencing Procedure) Act required that he provisionally commence his consideration with a five year non-parole period in mind. 14 The charge to which the applicant pleaded guilty was laid under s112(2) Crimes Act. That was a section contemplated by s54B Crimes (Sentencing Proceudure) Act. The prescribed standard non-parole period was five years. 15 It was submitted that the error appeared from things said by his Honour during the course of argument and in pronouncing sentence. These passages were relied on. During debate his Honour said this -