MILETIC v R [2009] NSWCCA 311

New South Wales Court of Criminal Appeal

CITATION: MILETIC v R [2009] NSWCCA 311 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 December 2009

JUDGMENT DATE: 22 December 2009

JUDGMENT OF: James J at 1; Hulme J at 2; Hidden J at 34

(i) Leave to appeal granted; (ii) Appeal allowed; DECISION: (iii) Quash the sentences imposed on the Applicant by English DCJ on 20 February 2009; (iv) In respect of the charge of aggravated break and enter a dwelling house with intent to commit a serious indictable offence namely intimidation with the intent to cause fear of physical harm, sentence the Applicant to imprisonment for a period of 2 years including a non-parole period of 1 year, both periods commencing on 20 February 2009; (v) In respect of the charge of assault occasioning actual bodily harm, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 20 February 2009; (vi) Direct release of the Applicant to parole on 20 February 2010.

PARTIES: Robert MILETIC Regina

FILE NUMBER(S): CCA 2008/16719

COUNSEL: AJ Bellanto QC - Applicant M Cinque - Respondent

SOLICITORS: Shaddicks Lawyers - Applicant S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/16719

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 20 February 2009

- 10 - IN THE COURT OF CRIMINAL APPEAL 2008/16719

JAMES J RS HULME J HIDDEN J 9 December 2009 Robert MILETIC v REGINA Judgment 1 JAMES J: I have had the advantage of reading in draft the judgments of RS Hulme J and Hidden J. I also agree with the orders proposed by RS Hulme J and generally with his Honour's reasons. I agree with the further remarks of Hidden J. 2 RS HULME J: On 20 February 2009 the above named Applicant for leave to appeal was sentenced by English DCJ in respect of two offences. They and the sentences imposed were:- (i) Aggravated break and enter a dwelling house with intent to commit a serious indictable offence namely intimidation with the intent to cause fear of physical harm – imprisonment for 3 years including a non-parole period of 18 months, both periods commencing on 20 February 2009. (ii) Assault occasioning actual bodily harm – imprisonment for a fixed term of 18 months commencing 20 February 2009. 3 The first of these offences arose pursuant to section 113(2) of the Crimes Act, 1900 and the maximum penalty prescribed for such an offence is 14 years. The second offence arose pursuant to section 59(1) of the Crimes Act 1900 and the maximum penalty prescribed for such an offence is 5 years. 4 The circumstances of the offences were as follows. The Applicant and the victim lived next door to each other. Until a month or two prior to the occurrence of the offences on 2 July 2008 the Applicant and the victim's daughter had been in a relationship. On 2 July 2008 at about 7.20pm the Applicant attended at the victim's home, knocked over the victim's Otto bin which was in his path, picked up an aluminium house shaped letterbox situate near the front doors, kicked a door open breaking the deadlock barrel and damaging one or both doors. The Applicant charged inside the premises and up the stairs, shouting "where is she, where is she" and swinging the letterbox "axe style" towards the victim who was struck about six times causing a scratch, a red and sore right shoulder, a small amount of bleeding to the right forearm and soreness and swelling to the right side of the forehead and other, fortunately not serious, injuries. Damage was also effected by the letterbox coming in contact with the floor and stairs leading to the upper level of the house. After the victim told the offender that his daughter was at the airport, the offender dropped the letterbox and left the house. However, when the victim went to the front door to check the damage and lock it, he was again confronted by the offender whose breath appeared to smell of stale alcohol. He said words to the effect:- "You tell Julie when she gets home to get over to my place straight away. If you want this to end here, you'll do as I say or you'll get worse." 5 Although the damage to the premises seems to have been confined mainly to the double front entry doors, the adjoining doorjamb and architraves, one tread on the stairs and a 5 square metre section of timber floorboards, the cost of repairs was only a little under $8000. 6 Her Honour also had before her a statement from the victim's daughter containing accounts of SMS messages from the Applicant over the preceding 24 hours that demonstrated an immature, insulting and offensive reaction to the breakdown in their relationship. Not all messages were consistent but it is clear that in the hour or so before the Applicant's arrival at the victim's house, the Applicant was insisting on seeing the victim's daughter, irrespective of her wishes and a threat she made to call the police. 7 At the time of offending the Applicant was aged 36, self employed and residing in his own home which was heavily mortgaged. His only prior conviction was in January 2002 for driving with in excess of the prescribed concentration of alcohol in the mid-range. Following the offence, the Applicant attended upon a psychologist no later than 25 July 2008 and, subject to a break over the Christmas – New Year period, pursued weekly counselling sessions thereafter up until at least 5 February 2009. 8 Two reports from Mr Henkelman, the psychologist, were tendered in evidence and in these Mr Henkelman said that the Applicant's symptoms were consistent with a Major Depressive Episode and that he had described psychological symptomology and impaired functioning relating back to events when the Applicant was 19 which had been essentially undiagnosed and untreated. While capable of acting responsibly in other aspects of his life, in the context of a relationship, particular a failing one, he had become dysfunctional. In his second report Mr Henkelman observed that the Applicant had deteriorated during the Christmas period when he was not receiving counselling and advised that a psychiatrist be consulted with a view to commencing anti-depressant medication. However, Mr Henkelman also recorded that the Applicant had developed skills in managing his depression and anger management and had shown compliance and interest in counselling and rehabilitation beyond what could be normally expected. Mr Henkelman's conclusions were not challenged and certainly provide a credible explanation for the apparent inconsistency between, on the one hand, the offences and the SMS messages and, on the other, the Applicant's success in other aspects of his life. 9 A pre-sentence report before her Honour indicated that the Applicant, after attaining the year 12 certificate, completed a 3 year course in electronics at TAFE and then studied in a faculty of engineering part time for 2 years. He has been a self-employed audio visual technician for some 14 years, became bankrupt some 3 years ago but then subsequently redeveloped his business. A number of references were tendered attesting to his competence and professionalism in the course of those business activities. Another five references from personal friends, a number of whom had known the Applicant for some 14 years were very complimentary and described the offending as entirely out of character. However, it is appropriate to note, as her Honour did, that in talking to the author of the pre-sentence report at some stage after psychological counselling the Applicant said:- "I was not aware how dominant I came across to people… I didn't realise how intimidating I was. Had I known how negative my attitude and my confrontational behaviour was, I would not have done it. My manner did come across as threatening to people." 10 Her Honour accepted that the Applicant was remorseful, had developed insight to his offending behaviour and accepted responsibility for it. She found that the Applicant was unlikely to re-offend, the process of rehabilitation had commenced and there were reasonable prospects of it succeeding. 11 Her Honour referred to the cost of repairs, to the fact that the victim's insurance company had met them and that no compensation was sought. Nothing was said to indicate what weight, if any, her Honour placed on this. Nor, although her Honour referred to the "serious economic consequences that will result if this offender goes into full-time custody" did her Honour indicate what, if any significance she gave to this fact beyond not regarding it as sufficient to justify a non-custodial sentence. 12 The inspiration for this last mentioned reference were statements from the bar table, not challenged and apparently accepted by her Honour, to the effect that the Applicant's home was substantially mortgaged and the Applicant had monthly mortgage commitments of some $2,700 and total outgoings, including business expenses, of some $6,000. There was other evidence that the home had been owned for some 8 years and, as has been said, the Applicant had his own business. 13 Her Honour went on to say that while the offence, the subject of the first charge was not one falling within the mid-range of objective seriousness it nevertheless was one that required a sentence of full time custody if the gravity of the offence was to be adequately reflected in the sentence and the requirements of general and specific deterrence met. 14 So far as the assault offence is concerned, her Honour also found this not to be a mid-range offence and continued:- "Had the matter proceeded to trial I would have imposed a head sentence of 2 years imprisonment. Once again the offender is entitled to a discount for his plea of 25%, … " 15 As has been said her Honour then went on to impose for that offence a fixed term of imprisonment of 18 months. 16 The sole ground of appeal was that:- "English DCJ gave excessive weight to the concept of general deterrence and insufficient weight to the factors relevant to the personal circumstances of the applicant resulting in a sentence that was outside the permissible range". 17 In the course of submissions on behalf of the Applicant, counsel referred the Court to the Judicial Commission's statistics for the offence and to three authorities, viz, R v Elmir: R v Salami [2003] NSWCCA 192, R v Timu [2002] NSWCCA 421 and R v Ponfield [1999] NSWCCA 422 and submitted that in totality these matters indicated that, in light of the facts before her Honour, the sentence she imposed was outside the appropriate range. 18 The statistics indicate that something of the order of one-third of offenders convicted of offences under section 113(2) have not been sentenced to full time custody but throw no light whatsoever on the circumstances when this has occurred. They reveal sentences as high as 8 years for the total term and 5 years for a non-parole period. They indicate that 45% of offenders receive sentences of 2½ years or less and 25% receive sentences between 2½ and 3 years: 41% of offenders received non-parole periods of 12 months or less and 25% of offenders received parole periods of between 12 months and 18 months. 19 In short the statistics do nothing more of present relevance than to show that the sentence for the break and enter offence under consideration here falls well within the range indicated by them. They provide no guidance as to whether the sentence is appropriate for the Applicant's particular offending and subjective situation. 20 In R v Elmir: R v Salami this Court allowed a Crown appeal from a sentence of 3 years periodic detention imposed by English DCJ upon the ground that as the sentences were not of full time custody, they did not adequately reflect the gravity of the offence committed by reach of the offenders. They and a third offender had broken the front door of a house, chased the occupants when the latter ran to the backyard, caught one of them, punched and beat him with broken cues they had taken to the premises, forced him back into the house where he was again beaten and told him he would be killed. The victim's injuries turned out to be welts, bruising and abrasions with only one to his face. Adams J recorded that they did not reflect a sustained course of serious violence. Elmir had prior acts of violence on his record although Adams J observed that he had been largely law abiding. Salami was on bail at the time and, though he ultimately joined in the visit to the victim's house and violence, had earlier sought to persuade Elmir against the offending. Elmir's motivation was anger and vengeance for an attack on his brother that he thought was being inadequately dealt with by police. Both offenders had taken steps towards rehabilitation and had been allowed a discount of 20% for their pleas. The sentences imposed by the Court included non-parole periods of 9 and 12 months and a balance of term of 12 months reflecting the fact that they were imposed after a Crown appeal. 21 In R v Timu this Court refused to interfere with a sentence of 2 years and 3 months, including a non-parole period of 9 months on an offender who, on being refused admission to a house by the victim with whom he had been in a romantic relationship, forced the door, pushed the victim so that her head hit a wall, punched the victim to the face causing swelling and a split lip and punched her to the stomach twice winding her and grabbed her by the throat. The offender was accepted as contrite and regarded as having no prospect of re-offending. He had been allowed a discount of 25% for his plea and treated by the trial judge as of unblemished character. This Court held that the sentence was within the range of a proper sentencing discretion. 22 In R v Ponfield in a Crown Appeal this Court set aside good behaviour bonds imposed for 3 counts of breaking, entering and stealing and imposed concurrent sentences of 2 years including non-parole periods of 6 months. The offender had a lengthy criminal record including for similar offences and one of the 3 offences charged was committed while the offender was on bail. Prior to his appearance in this Court, he had made, in the words of Grove J at 18 "steps, indeed strides towards rehabilitation". The offences with which Ponfield was charged were, of course, offences arising pursuant to section 112(1) of the Crimes Act not Section 113(2), though carrying the maximum penalty of 14 years imprisonment. 23 I find reference to these cases of limited assistance. They are but three of the hundreds of cases involving offences against the sub-sections just mentioned that have come before this Court over the last 10 years and the point has been made time and time again that a small number of cases, normally selected because they favour offenders, will not be relied on as indicating what the result should be in a particular case. What the three cases do tend to indicate, however, is that her Honour's decision to impose a full time custodial sentence was not beyond the bounds of the legitimate exercise of her sentencing discretion. Indeed, counsel for the Applicant did not argue to the contrary. The issue is whether the length of the sentences makes the sentences manifestly excessive. 24 In addressing that issue, counsel for the Crown emphasised the objective seriousness of the offence, the invasion of the victim's home, and the wielding of the weapon. Counsel for the Applicant emphasised the subjective features and findings of her Honour to which I have referred. There is no doubt that each group is entitled to significant weight. 25 Ultimately I have concluded that the sentence imposed on the first count was manifestly excessive. In summary, the factors arguing for a lesser rather than a greater sentence seem to me so numerous and, in totality of such weight, that her Honour erred in imposing the sentence she did. 26 There is firstly the fact that the Applicant had, to the time of this offence when he was 36, had a productive and, with one relatively minor glitch, a law abiding life. Secondly, any premeditation was of short duration and when he was clearly emotionally charged. The offence was not the product of cold calculated criminality. Thirdly, prior to sentence, the Applicant had progressed significantly on the road to rehabilitation – a factor very relevant to sentencing - see R v Todd (1982) 2 NSWLR 517 at 519, 522; Wright (aka Cashman) (1989) 45 A Crim R 423 at 425, 427. This, and her Honour's finding that the Applicant was unlikely to re-offend meant that specific deterrence, prison as a means of rehabilitation, and protection of the community were of significantly lesser weight than usual, though it must also be acknowledged that Mr Henkelman did not suggest all the Applicant's psychological problems were over. 27 However, had the matter rested there, the circumstances would not have been sufficient to distinguish the Applicant's case from one or more of those to which reference has been made. What does distinguish the case is the additional losses that the Applicant has or is likely to suffer in consequence of the offences and his imprisonment. Her Honour referred to the fact that the victim's insurer had met the cost of repairs to the victim's property. That fact however said nothing about whether the Applicant would ultimately have to bear them. The Applicant's ownership, for a period of 5 years, of the property in which he lived meant that there had to be a reasonable prospect that the insurer would pursue him under its subrogated rights and he would in due course have to reimburse the sum of about $8,000. 28 More significant however were the "serious economic consequences" to which her Honour referred. Enough information appeared concerning that business as to make it inherently probable that, while the Applicant might be able to resurrect it after his release from custody, it was likely to be substantially damaged due to his absence in the interim. While incarcerated, he would not be earning the $2,700 per month necessary to meet payments under his house mortgage and clearly, that house was at least at risk. 29 It is clear law that serious loss or detriment suffered by an offender in consequence of committing an offence is something that a sentencing court can, and ordinarily should, take into account in determining a proper sentence - R v Daetz (2003) 139 A Crim R 398 at [62-66] and the cases therein cited: R v Oudomvilay [2006] NSWCCA 275, yet her Honour seems to have given these matters no weight at all. When they are added to the other subjective factors to which I have referred, they lead me to the conclusion that the sentence imposed on the first count was manifestly excessive. 30 The conclusion means that the sentence on the first count must be set aside and that this Court should re-sentence the Applicant. In my view an appropriate sentence for the first count is imprisonment for a period of 2 years, including a non-parole period of 1 year. 31 Such a decision is of no benefit to the Applicant unless the sentence on the second count is also reduced. That sentence is clearly affected by a separate error in that her Honour simply moved from a 2 year starting point, reduced that period to 18 months on account of the Applicant's plea and then imposed the 18 months as a fixed term. In the ordinary course – and there was nothing to justify a different course here - the 18 months originally arrived at could be expected to include both a non-parole period and a balance of term and, if a fixed term was to be imposed, it should have been of the length of such a non-parole period not the length of the total term. 32 At least most of the factors that argue for the non-parole period for the first count being 50% of the total sentence for that charge argue for the non-parole period (or fixed term) in the case of the assault charge sentence also being less than the 75% envisaged in s section 44 of the Crimes (Sentencing Procedure) Act. In my view the sentence on the assault charge also be quashed and in lieu thereof a fixed term of 1 year imposed. 33 Accordingly the orders I propose are:- (i) Leave to appeal granted; (ii) Appeal allowed; (iii) Quash the sentences imposed on the Applicant by English DCJ on 20 February 2009; (iv) In respect of the charge of aggravated break and enter a dwelling house with intent to commit a serious indictable offence namely intimidation with the intent to cause fear of physical harm, sentence the Applicant to imprisonment for a period of 2 years including a non-parole period of 1 year, both periods commencing on 20 February 2009; (v) In respect of the charge of assault occasioning actual bodily harm, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 20 February 2009; (vi) Direct release of the Applicant to parole on 20 February 2010. 34 HIDDEN J: I agree with the orders proposed by RS Hulme J and, generally, with his Honour's reasons. I must say that I do so only after anxious consideration. Her Honour faced a most difficult task in determining the appropriate sentences for offences which were undoubtedly serious but which amounted to aberrant behaviour by a mature man of good character. In agreeing that the applicant should be re-sentenced, I would place much less weight on the economic consequences for the applicant outlined by RS Hulme J than I would upon the other subjective matters to which his Honour has referred.