Micklesson v R [2009] NSWCCA 61

New South Wales Court of Criminal Appeal

CITATION: Micklesson v R [2009] NSWCCA 61

HEARING DATE(S): 05/03/2009

JUDGMENT DATE: 13 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 3

DECISION: Application for leave to appeal is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - Home invasion - Crimes Act s 112(3) - offence above mid range - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900 - s 112(3)

CATEGORY: Principal judgment

Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 CASES CITED : R v Mitchell and Gallagher [2007] NSWCCA 296 R v Huynh [2005] NSWCCA 220

PARTIES: Ian Micklesson v Regina

FILE NUMBER(S): CCA 2007/14980

COUNSEL: J. Dwyer - Crown C. Smith - Applicant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/14980

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 19/03/2008

IN THE COURT OF CRIMINAL APPEAL 2007/00014980

BEAZLEY JA BLANCH J HOWIE J

Friday 13 March 2009 Ian MICKLESSON v REGINA Judgment 1 BEAZLEY JA: I agree with Howie J. 2 BLANCH J: I agree with Howie J. 3 HOWIE J: The applicant was sentenced in the District Court for an offence of specially aggravated break, enter and commit a serious indictable offence contrary to s 112(3) of the Crimes Act 1900. The serious indictable offence alleged was assault occasioning actual bodily harm and the special aggravation was that the applicant was in company with a person who was armed with a shotgun. The maximum penalty prescribed for such an offence is 25 years imprisonment and there is a standard non-parole period of 7 years. The applicant was sentenced to a term of imprisonment comprising a non-parole period of 6 years and a balance of sentence of 3 years dating from 22 June 2007. The applicant is eligible for release to parole on 21 June 2013. 4 There is only one ground of appeal that asserts that the sentence is manifestly excessive. 5 The facts can be stated briefly. The applicant went with three other men to a unit at North Richmond in order to obtain money. The applicant was armed with a baseball bat and a co-offender was armed with a shotgun. That weapon had been loaded and test-fired in the applicant's presence on the journey. At about 4.20am the applicant and two co-offenders entered the premises by kicking in the door. They were wearing items of clothing to disguise their appearance. There were four persons residing in the premises at the time. 6 The applicant armed with the baseball bat entered a bedroom where one of the residents was in bed. The applicant struck him four times with the bat to the head and arms causing bruising and lacerations that later required stitching. The applicant forced this man into the kitchen where he became involved in a struggle with him and another resident. They managed to disarm the applicant and he was struck with the baseball bat and a machete causing him lacerations to the head. 7 During this altercation the co-offender armed with the shotgun entered the kitchen and discharged the weapon into the wall. This did not cause the residents to stop their struggle with the applicant so the co-offender discharged the weapon again but this time in the direction of the residents although no one was struck. The co-offender then left the premises. A second co-offender who was armed with a knife threatened one of the residents before also leaving the premises. The residents tried to detain the applicant and the gun was again discharged this time into the front door. The applicant was then able to escape. 8 The applicant was arrested as a result of DNA material and his fingerprints obtained from the flat. The co-offender with the gun was recognised by one of the residents and calls on his mobile phone were intercepted. The woman who drove the vehicle to the unit was interviewed and nominated the applicant as one of the offenders. 9 The applicant was born on 19 May 1988 and was aged 18 years at the time of the offence. He was subject to good behaviour bonds as a result of offences of malicious damage to property dealt with in February 2007 in the Local Court. There was a psychological report in evidence but there was little in the applicant's background of relevance although as a child he had been diagnosed with an attention deficit disorder for which he was given medication. The applicant was at the time of the offending using amphetamines on a regular basis. The psychologist reported that the applicant was remorseful and had been attempting to address his drug usage while in custody. 10 The Judge described the offence as "of very considerable criminality" and noted aggravating features in that the offence was planned, was committed in company, the shotgun was loaded, there were a number of victims, multiple criminal acts, and that people were residing in the premises. He concluded that the offence was "well above the mid range". He noted that the offence was committed while the applicant was subject to conditional liberty. However he took into account in mitigation that the applicant had no significant criminal record, that he had shown remorse and he had good prospects of rehabilitation. He also took into account that the applicant had pleaded guilty. 11 The Judge indicated that he was departing from the standard non-parole period because of the plea of guilty, the applicant's remorse and, because of his young age, the greater need for rehabilitation. Having considered the statistical information from the Judicial Commission, his Honour then stated: