New South Wales Court of Criminal Appeal CITATION: MILANE v REGINA [2006] NSWCCA 281 HEARING DATE(S): 5 September 2006 JUDGMENT DATE: 5 September 2006 JUDGMENT OF: Giles JA at 1; Sully J at 30; Latham J at 31 EX TEMPORE JUDGMENT DATE: 09/05/2006 DECISION: Leave to appeal granted. Appeal dismissed. CASES CITED: Sentencing - break, enter and steal in circumstances of aggravation - "home invasion" by two offenders - pretended to be members of Drug Squad - whether disparity in culpability not adequately reflected in applicant's sentence - whether insufficient weight given to subjective factor of his judgment being clouded by use of illegal drugs - no appealable error - depends on particular facts. PARTIES: Thomas Leslie Millane - Appellant Crown - Respondent FILE NUMBER(S): CCA 2006/1636 COUNSEL: A Radojev - Appellant P Barrett - Respondent SOLICITORS: M Bellingham - Appellant S Kavanagh (Solicitor for Public Prosecutions) - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 05/11/0440 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 18 November 2005 (Sentence) IN THE COURT OF CRIMINAL APPEAL CCAP 2006/1636 DC 05/11/0440 GILES JA SULLY J LATHAM J Tuesday 5 September 2006 Thomas Leslie MILANE v REGINA Judgment 1 GILES JA: On 12 September 2005 the applicant and a co-offender, Mr Timothy Nicholls, each pleaded guilty to a count in a joint indictment of break, enter and steal in circumstances of special aggravation (Crimes Act s 112(3)). The pleas were entered on the morning of the scheduled trial. The offence carried a maximum penalty of 25 years imprisonment. 2 On 18 November 2005 Tupman DCJ sentenced the applicant to imprisonment for 6 years and 10 months commencing on 16 June 2004, with a non-parole period of 4 years and 4 months. Her Honour also called the applicant up on bonds from the Waverley Local Court entered into on 28 May 2004 in relation to a number of offences, revoked the bonds and imposed a sentence of imprisonment of 6 months commencing on 16 June 2004. Her Honour sentenced Mr Nicholls to imprisonment for 7 years and 9 months commencing on 16 June 2004 with a non-parole period of 5 years. In doing so she took into account two offences on a Form 1 concerning use of a police badge to impersonate a police officer on the day preceding the commission of the break, enter and steal offence. 3 The applicant has applied for leave to appeal against sentence. One of the grounds of appeal was not pressed, and the grounds of appeal for consideration were, in summary - · firstly, that the applicant was substantially less culpable than his co-offender and the sentence did not reflect his lesser culpability; · secondly, that insufficient weight was given by the sentencing judge to the subjective factor in the applicant's favour that at the time of the offence his judgment was clouded by long use of illegal drugs and the effect of illegal drugs used at the time; and · thirdly, and related to the second matter, that the non-parole period should have been substantially less in aid of rehabilitation through lengthy supervision on parole. 4 The circumstances of the offence were as follows. 5 At about 6 pm on 16 June 2004 both offenders went to a home unit at Bondi. The occupants of the home unit, Mr Barrett and Mr Osei-Tutu, were at home, and the offenders expected that they would be at home. One of the offenders knocked on the door of the unit. Mr Osei-Tutu observed through a peephole Mr Nicholls produce a pistol, in fact a replica pistol, from his jacket. One or both of the offenders started kicking the door and yelling. 6 Mr Osei-Tutu left the unit over the balcony and ran to a nearby police station. Before Mr Barrett could do the same the offenders broke down the door, entered the unit and ran towards him. Mr Nicholls was holding the pistol. He pointed it at Mr Barrett's head and said, "Freeze, don't you fucking move". At the same time the applicant went from room to room in the unit, yelling out "Clear" as he finished in each room. The judge found this was intended to give, and did give, the impression that the applicant was searching for people in the rooms in the manner seen in police dramas on television. 7 Mr Nicholls punched Mr Barrett in the face and hit him over the head with the pistol, and demanded to know where the money and the drugs were. He yelled at Mr Barrett, telling him not to lie and saying they were from the Drug Squad and knew he had drugs; he said, "I've got a Glock to your head. I will fucking put a bullet to your head". 8 The applicant was in another room or rooms of the unit over this time, but when Mr Nicholls forced Mr Barrett into his bedroom at gunpoint the applicant followed them, and appropriated from Mr Barrett money which Mr Barrett took from a shirt pocket and demanded to see identification in Mr Barrett's wallet. The applicant pulled out a black pouch and flashed what appeared to be a police badge and said, "Do you know who we are? We are the fucking Drug Squad. We can do this the easy way or the hard way". Mr Barrett was told to lie on the floor of his bedroom, and when he did so the applicant kicked him in the head. The applicant yelled out, "Make it easy on yourself". It is plain this was an extremely traumatic experience for Mr Barrett. 9 The offenders ransacked the loungeroom and then returned to Mr Barrett in the bedroom, where Mr Nicholls pointed the gun at him and demanded to know who else lived in the unit. They forced Mr Barrett at gunpoint into Mr Osei-Tutu's bedroom, and demanded that he tell them where money or drugs were kept by Mr Osei-Tutu. The applicant went through Mr Osei-Tutu's clothes while Mr Nicholls kept a pistol trained at Mr Barrett's head. 10 The police had been alerted by Mr Osei-Tutu, and arrived at the unit. The offenders left, and were ultimately apprehended elsewhere in the unit building. The applicant was found to have in his possession a mobile phone and other items belonging to Mr Osei-Tutu. Mr Nicholls was found to have cash on him, presumably the cash which had been appropriated by the applicant, as well as Mr Barrett's credit card and driver's licence. The replica pistol was found hidden on the landing in the unit building. 11 Mr Barrett suffered a depressed skull fracture from being hit with the pistol, although fortunately with no long term effects. There were psychological consequences with anxiety, nightmares, sleeping difficulties and an effect on his ability to work. 12 For the grounds of appeal in relation to culpability to the effect summarised earlier the applicant relied in particular on the judge's observation that "he did not expect that the events would become violent in the way they did". He submitted this was a reference to Mr Barrett being struck on the head with the replica pistol. 13 Elaborating from this base, the applicant submitted that for a number of reasons it could be seen that Mr Nicholls had had the primary role in what was in effect a home invasion. It was pointed out it appeared Mr Nicholls had ended up in possession of the money taken by the applicant from Mr Barrett, and had ended up with Mr Barrett's credit card and driver's licence. From the offence of the preceding day involving possession of police identification, it was suggested that the apparent police badge flashed by the applicant had been provided to the applicant by Mr Nicholls. There was some reference to the evidence concerning the applicant's knowledge that Mr Nicholls was in possession of the pistol, but in the end I think it was accepted that the evidence showed that he was aware. Nonetheless it was submitted that Mr Nicholls was the prime mover in the commission of the offence, and that, in conjunction with the judge's observation that the applicant did not expect that the events would become violent in the way they did, there was a significant difference in the applicant's culpability in comparison with that of Mr Nicholls. 14 It is not entirely clear to me whether the submission appealed to disparity between the sentences imposed on the applicant and Mr Nicholls or was directed to over-assessment of the applicant's culpability in the abstract, but on either basis I do not think there is any substance in the grounds. 15 The judge's observation must be understood in context. The judge rejected the applicant's evidence that he had been drinking heavily, was adversely affected by alcohol and went along with Mr Nicholls without knowing what was planned but expecting to obtain drugs at the premises. This involved rejection of a case that the applicant had not beforehand planned with Mr Nicholls to carry out the offence, and her Honour clearly was of the view, and was entitled to be of the view, that the offence had been previously planned with Mr Nicholls. 16 Her Honour then said in her Remarks on Sentence (p10): "Almost immediately after the two prisoners forced their way into the premises, each of them behaved in a way to give the impression to Mr Barrett that they were undercover police officers. Mr Milane went from room to room shouting out 'Clear' and behaved in a way, it seems to me, which is consistent with a prearranged plan between the two of them to impersonate police officers in order to turn over those who they thought were drug dealers. I do accept, however, that Mr Milane did not expect that the events would become violent in the way they did. However, he himself acted in a violent manner towards Mr Barrett by kicking him and that was in circumstances where he must have known Mr Barrett had already been the subject of violence at the hands of Mr Nicholls because he had suffered a gash to his forehead in being pistol whipped. They both stand to be sentenced as jointly involved in a criminal enterprise. However, it seems to me that Mr Milane's role is somewhat less culpable than Mr Nicholls'. It was in fact Mr Nicholls who pistol whipped Mr Barrett and caused the most serious injury". 17 The judge said later in her Remarks on Sentence (p20): "It seems to me that, as I have said, Mr Nicholls' actual role in these offences is somewhat more culpable than Mr Milane, to the extent that he was the one who inflicted the wound on Mr Barrett. I am also required to take into account the two Form 1 offences when sentencing Mr Nicholls for this matter. On the other hand, I must also, when assessing the appropriate penalty for Mr Milane, notwithstanding his somewhat lesser culpability, take into account the fact that his commission is aggravated by the fact that he was on parole and subject to s 12 bonds at the same time. That having been said, it seems to me that there is not absolute parity between the two of them, and that Mr Milane should receive a sentence that is slightly less than that of Mr Nicholls". 18 The judge recognised a difference in culpability and, in my opinion, no greater recognition was required than she gave or than was reflected in a sentence "that is slightly less than that of Mr Nicholls". 19 I do not think the evidence supports the proposition that Mr Nicholls was the prime mover in the offence. It may or may not be that he initially had the idea of committing the home invasion, but what is quite plain is that there was joint planning between the applicant and Mr Nicholls and that the applicant was a significant, if not enthusiastic, participant in carrying out the roles of police officers. 20 The planned forced entry into the unit with the plain prospect of terrorising the occupants on the false basis that the offenders were police officers in order to obtain drugs or money, in my opinion does not call for a great differentiation between the applicant and Mr Nicholls, and although the applicant was not present when Mr Nicholls struck Mr Barrett with the pistol, that was the kind of thing which could have been expected to occur. It is difficult to give much weight to any expectation on the part of the applicant that events would not become violent, when shortly thereafter he kicked Mr Barrett in the head as part of forcing Mr Barrett to comply with the demands being made by the offenders. I am quite unpersuaded that there was any error in the view taken by the judge of the applicant's culpability. 21 Going to the other grounds of appeal summarised above, the applicant was aged 39 at the time he was sentenced. Certain events in 1991 caused him, in the words of a psychiatric report before the judge, to "unravel psychologically", and to turn to illegal drugs to which he became addicted. 22 The judge said in her Remarks on Sentence (p16): "I accept that on the day he committed the offence he was under the influence of Benzodiazepine, although I accept, more probably than not, from the psychologist's report it was a mild effect and not the overwhelming effect that he contends for in his evidence before the Court. The statement of facts does not tend to suggest that he was behaving in an incoherent way that one might have expected had he been more significantly affected than he told the psychologist he in fact was. Nonetheless, he was significantly addicted to Benzodiazepines at the time and I accept that the impact of that on him, and on people generally, is to cloud his judgment and thinking and to make him act in a somewhat bizarre manner. I accept that it had some connection with his behaving in the way he did on this particular day". 23 The judge accepted that since going into custody in June 2004 the applicant had gone back on the methadone program, had ceased using other drugs and was taking advantage of the rehabilitation programs available to him in prison. She said in her Remarks on Sentence (p17): "He seems well motivated to continue drug rehabilitation but will require considerable assistance both whilst he remains in gaol and in the community on his ultimate release to prevent him relapsing. He continues to have the benefit of support from his family, and in particular his parents, who have been supporting him in court and who are available for him during the remainder of his gaol term and when he is released in the community. As I understand it, they will provide accommodation for him on his release into the community and will assist where they can to help him obtain employment. His prospects of rehabilitation, however, are entirely dependent on his ability to remain free of the use of prohibited drugs. That will require a structured rehabilitation program and I accept will likely require a lengthy period of supervision in the community". 24 Her Honour found special circumstances in the subjective matters outlined in the psychologist's report and the need for a longer than normal period of supervision in the community. 25 The applicant in written submissions submitted that her Honour's finding that his judgment was clouded by his use of Benzodiazepine suggested that, but for its use, he would not have participated in the crime. The suggestion is not supported in the materials before her Honour. The pre-sentence report states that the applicant acknowledged he was aware Mr Nicholls intended to try and obtain drugs, and acknowledged he could have left when the door was kicked in but "felt he owed some loyalty to his co-offender who he also regarded as a friend". The psychiatric report said only he was acting at a time "when his drug dependence was problematic and his judgment poor". 26 In oral submissions the applicant said that when one compared the sentences imposed on the applicant and Mr Nicholls respectively, it appeared that her Honour gave the applicant no benefit for the subjective circumstances to which she referred, in particular the fact that his judgment at the time was clouded and had "some connection with his behaviour in the way he did what he did on this particular day". 27 I am not persuaded that that is so. Reading the Remarks on Sentence as a whole, the judge clearly recognised that those subjective circumstances were factors favourable to the applicant, but had to weigh them together with all other objective and subjective matters relevant to her sentencing exercise. There were disparate sentencing factors in relation to the applicant and Mr Nicholls. For example, in the applicant's case the judge particularly noted as an aggravating factor that the offence was committed when he was on parole and subject to bonds. The judge was entitled to, and did, take all those matters into consideration, and I am not persuaded that she failed to give the applicant some benefit for the subjective circumstances. 28 The applicant's drug addiction was not a mitigating factor, and if one concentrates in particular on the relationship between the non-parole period and the period of parole in the judge's sentence again I do not think that any error has been shown in the judge's exercise of her sentencing discretion. The applicant received a more beneficial sentence in that respect than did Mr Nicholls. He had tried and failed in rehabilitation on earlier occasions, and as I have said was on parole and otherwise on conditional release when he committed the offence. The parole period of 2 years and 6 months is, in my view, a sufficient time on conditional liberty for supervision of his re-entry into the community if he is able to persist in rehabilitation, and any lesser non-parole period would, in my view, not adequately reflect the seriousness of the offence. 29 For these reasons, in my opinion, while leave to appeal should be granted the appeal should be dismissed. 30 SULLY J: I agree. 31 LATHAM J: I also agree. 32 GILES JA: That will be the order of the Court. ********** 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.