Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Miller v R [2015] NSWCCA 86 Hearing dates: 11 March 2015 Date of orders: 06 May 2015 Decision date: 06 May 2015 Before: Meagher JA at [1]; Simpson J at [2]; Schmidt at [45] Decision: (1)Leave to appeal is refused in relation to grounds 1 and 3. (2)Leave to appeal is granted in relation to grounds 2 and 4. (3)The appeal is upheld. (4)The sentences are set aside. (5)Mr Miller is resentenced to an aggregate sentence of 7 years imprisonment, commencing on 2 September 2013, and expiring on 1 September 2020, with a non-parole period of 4 years 9 months, expiring on 1 June 2018. Catchwords: CRIMINAL LAW – leave to appeal and appeal against sentences – standard non-parole periods – deprived background – protective custody – whether sentence manifestly excessive – leave to appeal refused in relation to two grounds – leave to appeal granted in relation to two grounds – appeal upheld – sentences set aside – resentenced Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW), s 112(2), s 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, s 44(2), s 53A, s 54B Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Clinton v R [2009] NSWCCA 276 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 House v The King [1936] HCA 40; 55 CLR 499 IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150 JT v R [2011] NSWCCA 128 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 KT v The Queen [2008] NSWCCCA 51; (2008) 182 A Crim R 571 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Majid v R [2010] NSWCCA 121. Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 MJ v R [2010] NSWCCA 52 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 R v Ah-See [2004] NSWCCA 202 R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 R v E (a child) (1993) 66 A Crim R 14 (WACCA) R v GDP (1991) 53 A Crim R 112 R v Maher [2004] NSWCCA 177 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Re Attorney-General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327 RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Category: Principal judgment Parties: Cody Aaron Miller Regina Representation: Counsel: W Hunt (Applicant) S Dowling SC (Crown) Solicitors: S E O'Connor – Legal Aid NSW (Applicant) C Hyland – Solicitor for Public Prosecutions (Crown) File Number(s): 2013/265641 Publication restriction: None Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Law Date of Decision: 20 March 2013 Before: Blackmore DCJ File Number(s): 2013/265641 Judgment 1. MEAGHER JA: I agree with the orders proposed by Schmidt J. My reasons for doing so are sufficiently expressed in the judgment of Simpson J. 2. SIMPSON J: I have read in draft the judgment of Schmidt J. I agree with the orders her Honour proposes. My reasons follow. The facts 1. Both offences were committed on the same evening, 31 August 2013, in company with the same two co-offenders (Matthew Ford and Brett Mallon). The first offence was at the home of a person the applicant knew or believed to be a drug dealer, and was for the purpose of obtaining drugs. The drug dealer was not at home but his female partner, with five children, was. When the woman responded to their knock, she was holding a five week old baby. Upon the woman opening the door, the applicant or one of his co-offenders pointed a large hunting knife at her and demanded drugs. They searched drawers and cupboards in the kitchen and bathroom. One of the offenders behaved aggressively. This prompted the applicant to tell him that the purpose of their invasion was not to hurt the woman or the children. 2. The offenders left when they found the drugs they had come in search of. 3. This event gave rise to the count under s 112(2) of the Crimes Act 1900 (NSW), of aggravated break, enter and commit an indictable offence. The circumstance of aggravation was that the applicant was in company with two co-offenders. An offence against s 112(2) carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 5 years is applicable. 4. The second offence was committed at the home of another person the offenders knew or believed to be a drug dealer. That person and his girlfriend were at home. One or more of the offenders kicked the front door, demanded that it be opened, and plunged a knife through a glass bedroom window pane, shattering it. The offenders entered through the shattered window; one of them forced the male occupant backwards, holding a knife against his throat. They told him to get on his "fucking knees" and threatened to kill him. The male was kicked in the face. 5. The applicant demanded drugs. The male indicated where the drugs could be found. The offender holding the knife dragged it from the male's left shoulder towards his left hip, splitting the skin. A second cut was made from his left rib cage to his right hip. Photographs in evidence demonstrate that the extent of the wounding was significant. 6. The applicant took the male's laptop and wallet (containing $1100), PlayStation, mobile telephone and jewellery. The offenders took an esky containing drugs (almost certainly marijuana). They left the house; on exiting, they smashed the window of a car that belonged to the female occupant by stabbing at it with a knife. 7. This event gave rise to the second count, under s 112(3) of the Crimes Act, of specially aggravated break, enter and commit indictable offence. The circumstance of special aggravation was the wounding of the male occupant. Such an offence carries a maximum penalty of imprisonment for 25 years, and a standard non-parole period of 7 years. 8. The sentencing judge used the provisions of s 53A of the Sentencing Procedure Act and imposed an aggregate sentence of imprisonment for 8 years and 4 months, with a non-parole period of 6 years and 3 months. In doing so, in compliance with s 53A(2)(b) he recorded the individual ("indicative") sentences that he would have imposed had he sentenced for the offences separately. For the first offence, he nominated an indicative sentence of imprisonment for 6 years with a non-parole period of 4 years and 6 months; for the second offence, he nominated an indicative sentence of imprisonment for 7 years and 3 months, with a non-parole period of 5 years and 5 months. 9. The resultant aggregate sentence obviously had a degree of concurrency built into it. 10. His Honour also specified that he allowed a reduction of 25 per cent on the sentence he otherwise would have imposed. A simple calculation shows that the starting point was therefore just over 11 years. 11. The judge declined to find that special circumstances justified departure from the ratio between the head sentence and the non-parole period provided by s 44(2) of the Sentencing Procedure Act. The non-parole period imposed is, in accordance with those proportions, 75 per cent of the head sentence. The applicant's personal circumstances 1. The applicant did not give evidence in the sentencing proceedings. Evidence as to his personal history and circumstances was provided in the form of a Pre-Sentence Report, and a psychiatric report prepared by a consultant forensic psychiatrist engaged in the Justice Health network. From those reports, the following was disclosed. 2. The applicant was born in Broken Hill in March 1994, and was 19 years of age at the time of the offences. He has a record of offences in South Australia, which includes possession of drugs, two separate offences of assault, two of carrying offensive weapons, possession of a firearm without a licence, and a variety of others. Although, in respect of the firearms offence, he was sentenced to imprisonment for 3 years and 8 months with a non-parole period of 2 years, that sentence was suspended, subject to conditions. That sentence was imposed on 26 March 2013 and both it and the bond that accompanied it were current at the time of these offences. The applicant has never previously served a sentence of imprisonment. 3. The psychiatric report noted that the applicant is recorded in Justice Health documents as Aboriginal, but that he denies this. The psychiatrist took a history from the applicant of significant childhood deprivation. His father was Italian, but left the family when the applicant was born. The applicant has had no contact with him. When he was 8 years of age his mother was incarcerated for fraud, and he lived for a time with his grandmother. This was not a happy placement, because his grandmother imposed strict rules and discipline. The applicant considered her to be a "control freak". The applicant told the psychiatrist that he has, from an early age, experienced problems with anger management. 4. It seems that on his mother's release from custody, he returned to live with her; she was in a relationship with another man who physically and sexually abused the applicant, by, for example, beating him with a belt, kicking him with steel toed boots, locking him in his room for periods of time, and, on one occasion, in a chicken coop. 5. From the age of 12 the applicant lived with his mother in Adelaide. She was a drug user, and he remained with her only for 6 months. The applicant said that he began using cannabis at around the age of 12 years, and alcohol at about 13 years. He denied use of other drugs. 6. The psychiatrist reported that the applicant said that he had been in protection whilst in custody, because he was advised that he was at risk from members of a bikie gang who were associated with the victims of the offences. (There was no other evidence to support this, or to give any detail of the circumstances of his custodial arrangements.) 7. The psychiatrist found no evidence of thought disorder, but noted that the applicant had had problems with anger, paranoia and anxiety from early to mid-adolescence. He noted anxiety symptoms that reflected a mild obsessive compulsive personality or disorder. The Remarks on Sentence 1. In the opening paragraph of the Remarks on Sentence, the sentencing judge said: "I note that the standard non-parole periods attaching to each charge have been taken into account on the sentence." 1. Having then recounted, in some detail, the facts of the offences, his Honour said: "It is plain from the facts that the offenders were on the hunt for drugs. They were prepared to enter private homes to carry out that hunt. They did that without concern for the persons who were living in those homes." He went on to say, with respect to the first offence: "… the house appears to be no more than a family home with a woman and her children. Despite this, the woman was threatened in the presence of her children. It is clear from the facts that the offenders were aware that this victim was present in the house before entering it. It was submitted that the offenders were merely breaking into a house that had been used for the sale of drugs and consequently cannot be viewed as a home for the purpose of assessing whether it is an aggravating fact on sentence. [His Honour was here referring to s 21A(2)(eb) of the Sentencing Procedure Act.] However, there is no evidence that at the time of the break-in, the house was being used for the sale of drugs. The offenders have given no sworn evidence and any assertions made in the various medical and probation reports, tendered in the proceedings about this offence, must be viewed with some circumspection. I regard it as a serious aggravating factor that the offenders were prepared to attack this woman in her own home in the presence of her children." 1. However, in respect of the second offence, his Honour said: "In this case, it does appear from the evidence, that the house was being used for the sale of drugs. I accept that in those circumstances, the victims cannot expect to receive the same protection of the law as if the house was merely a home. It can [be] viewed as in effect, a business address where illegal products were being sold. As such, the occupants can expect that criminals will be attracted to the house and that is of course what happened. On the other hand there was a woman who does not appear to have been involved in the offence - any offences with respect to the house - and the facts make it plain that she was terrified by the actions of the offenders." [I pause to note that the second sentence of this passage probably reflects an unguarded moment, or loose language in the delivery of extempore remarks. It cannot, however, receive the endorsement of this Court.] 1. His Honour then went on to consider the objective seriousness of the offences, and said: "Ultimately, each of the offences was serious but in my view, they are not ones that attract the standard non-parole periods." 1. He turned to the personal circumstances of the applicant, and referred to the Pre-Sentence and psychiatric reports. He said: "The offender is now 20 years of age. The offender reported a difficult upbringing in a house where violence was common. He was expelled from school for violent behaviour. He started using drugs and alcohol from around the age of 14. His juvenile criminal record bespeaks of [sic] his history. He was a disruptive and violent child who has now emerged as a violent drug addicted adult. Based on his history to date, there are no reasonable prospects of rehabilitation." 1. He declined to make a finding of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act. Such a finding, if made, would have permitted departure from the ratio there specified between the non-parole period and the head sentence. He proceeded to impose the sentence set out above at [10]. The proposed grounds of appeal 1. The proposed grounds of appeal are pleaded as follows: "1. His Honour erred in giving primary or determinative significance to the applicable standard non-parole periods. 2. His Honour erred in failing to have proper regard to the applicant's deprived background. 3. His Honour erred in failing to take into account the fact that the applicant was serving his sentence in protective custody. 4. The sentence imposed was otherwise manifestly excessive." Ground 1: the applicability of the standard non-parole periods 1. This ground is based upon the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 2. There are only two references in the Remarks on Sentence to the standard non-parole periods. In the first, his Honour said that they had been taken into account - a course which Muldrock expressly approves and requires (now enacted in s 54B(2) of the Sentencing Procedure Act). In the second, his Honour merely said that the offences did not call for the imposition of the standard non-parole periods. This was plainly a finding that the objective seriousness of the offences was not of mid-range on a scale of objective seriousness applicable to offences of the kind. 3. This ground is, as Schmidt J has found, without foundation. There is nothing in the Remarks on Sentence that lends the slightest support to the complaint. To the contrary, the Remarks show that correct principles were applied. The ground should be rejected. Ground 3: protective custody 1. The only basis for a finding that the applicant is to serve his sentence in protective custody is the note in the psychiatric report, recording part of the history given by the applicant. There is nothing in the evidence that supports any contention that, assuming that the applicant is currently serving his sentence in protective custody, he will continue to do so; nor is there any evidence of the circumstances of that custody. The time has long since passed when it can be assumed that serving a sentence in protective custody is more onerous than other forms of custody: R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581; Clinton v R [2009] NSWCCA 276; R v Ah-See [2004] NSWCCA 202; Majid v R [2010] NSWCCA 121. 2. I agree with Schmidt J, for the reasons that she gives, that this ground should be rejected. Ground 2: deprived background 1. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 the High Court (specifically in reference to an Aboriginal offender) said: "37 An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence …" The High Court went on to accept a submission (by the Director of Public Prosecutions) that: "42 … the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of the appropriate sentence in every case. 43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision …" The High Court, however, went on to note that evidence of an offender's deprived background does not necessarily have the same mitigatory relevance for all of the purposes of punishment. 1. As the Court in Bugmy makes plain ([24]), the weight to be accorded to any sentencing consideration, including childhood deprivation, is a matter for the sentencing judge. However, where a relevant factual circumstance has been overlooked, it may be seen that the sentencing discretion has miscarried: House v The King [1936] HCA 40; 55 CLR 499. 2. In this case, the sentencing judge did make brief reference to the applicant's personal history. But when the features that he mentioned are contrasted with the history taken by the psychiatrist, it seems to me that a material consideration was overlooked. That is because the full extent of the applicant's personal history and circumstances was not taken into account. That went far beyond the somewhat cursory reference in the Remarks that I have extracted above. 3. I agree with Schmidt J that this ground has been made out. Ground 4: manifest excess 1. As Muldrock also makes plain, the standard non-parole period remains a relevant guidepost in sentencing for offences to which Div 1A is applicable. It also remains the case that the standard non-parole period is intended to apply to sentencing after trial (R v Way [2004] NSWCCA 131; 60 NSWLR 168), and allowance must be made for pleas of guilty. In accordance with s 54B(4) of the Sentencing Procedure Act, the sentencing judge specified the non-parole periods he would have imposed had he sentenced separately for the two offences. In this case, he found that the objective seriousness of the offences did not call for the imposition of the standard non-parole period. But the indicative sentence nominated in respect of the first offence included a non-parole period of 4 years and 6 months, against a standard non-parole period of 5 years. It is plain that that failed to take into account either the plea of guilty, or the finding of objective gravity as less than mid-range. It cannot have accommodated both. 2. Section 54B(5) also requires a sentencing court to make a record of the reasons for setting a non-parole period that is longer or shorter than the standard non-parole period, and to identify each factor taken into account. In this case, the sentencing judge overlooked this requirement. That does not invalidate the sentence: s 54B(7). However, a record of the reasons would have shown that the departure from the standard non-parole period was insufficient to reflect the finding that the offences were of less than mid-range gravity, and the plea of guilty. 3. Similarly, in respect of the second offence, against a standard non-parole period of 7 years, an indicative sentence that included a non-parole period of 5 years and 5 months was nominated. After reduction by 25 per cent (in recognition of the plea of guilty), that is greater than the standard non-parole period and again does not reflect the finding of less than mid-range gravity. 4. In my opinion, error has thus been demonstrated in the sentencing process. This Court must proceed to exercise its own independent sentencing discretion: Kentwell v The Queen [2014] HCA 37; 313 ALR 451. 5. In contemplation of such a result, the Court received affidavit evidence as to the applicant's conduct while in custody. In an affidavit, affirmed on 26 February 2015, the applicant said that he had been in a number of different prisons, but has, since December 2014, been working as a sweeper at Junee Prison, and undertaking an education course working towards a Year 10 Certificate, and is about to start a building, construction and welding course. He has put his name down for an anger management course, but this had not yet started. He has been attending weekly Alcoholics Anonymous meetings. This suggests that there is more optimism for the applicant's rehabilitation than the sentencing judge was able to find at the time of sentencing. 6. An affidavit filed on behalf of the Crown annexed a letter from the Junee Correctional Centre which confirmed that the applicant is currently a "Special Management Area Placement (SMAP) inmate". He was admitted to this placement at his own request, possibly precipitated by an assault upon him. According to the letter, the majority of the population at the Junee Correctional Centre are of the same classification and have the same access to services and programs as other SMAP and normal discipline inmates within the centre. He has unhindered access to education, programs and medical services. This does not suggest undue hardship resulting from his serving his sentence in protective custody. He has no disciplinary infringements since being transferred to Junee. 7. Notwithstanding the applicant's more favourable circumstances, and the disadvantage of his early life, the seriousness of the offences cannot be underestimated. In my opinion, due regard is paid to both of those important considerations by the sentences proposed by Schmidt J. 8. I agree with the orders proposed by her Honour. 9. SCHMIDT J: The applicant, Mr Cody Aaron Miller, seeks leave to appeal sentences imposed upon him by Blackmore DCJ on 20 March 2014, after he pleaded guilty to two offences of break, enter and steal under s 112 of the Crimes Act 1900 (NSW), committed at Broken Hill in August 2013, for which he received a discount of 25% on sentencing. 10. Mr Miller and his two co-offenders, Mr Mathew Josh Ford and Mr Brett David Mallon, were each sentenced to an aggregate sentence of 8 years and 4 months imprisonment, with a non-parole period of 6 years and 3 months, commencing in Mr Miller's case on 2 September 2013. His Honour began the sentencing exercise at a total sentence of 11 years. The individual sentences imposed were made partially concurrent: Count 1 – Offence of break, enter and commit serious indictable offence (larceny) in circumstances of aggravation under s 112(2) of the Crimes Act with a maximum term of 20 years imprisonment and a standard non-parole period of 5 years: Imprisonment for 6 years with a non-parole period of 4 years and 6 months. Count 2 – Offence of break, enter and commit serious indictable offence (larceny) in circumstances of special aggravation under s 112(3) of the Crimes Act with a maximum term of 25 years imprisonment and a standard non-parole period of 7 years: Imprisonment for 7 years and 3 months with a non-parole period of 5 years and 5 months. 1. Mr Miller presses the following grounds of appeal: "1. His Honour erred in giving primary or determinative significance to the applicable standard non-parole periods. 2. His Honour erred in failing to have proper regard to the applicant's deprived background. 3. His Honour erred in failing to take into account the fact that the applicant was serving his sentence in protective custody. 4. The sentence imposed was otherwise manifestly excessive." Ground 1 - the standard non-parole periods 1. This ground was pressed on the basis of his Honour's observation that "I note that the standard non-parole periods attaching to each charge have been taken into account on the sentence". His Honour concluded, after considering the agreed facts, that each of Mr Miller's offences was serious, but "not ones that attract the standard non-parole period". This was submitted to have revealed error of the kind identified in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, that is, erroneously giving the standard non-parole period primary or determinative significance in the sentencing exercise. 2. This submission cannot be accepted. To the contrary, his Honour did precisely what s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) required of him, namely, to take account of an applicable standard non-parole period, as one of the many matters necessary to be taken into account when undertaking the instinctive synthesis on sentencing discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37[ - [39]. 3. As discussed in Muldrock at [27], such a standard non-parole period, together with the maximum penalty fixed for the offence, are two statutory guideposts which must be taken into account in a sentencing exercise such as this. It may not be overlooked that s 54B provides, amongst other things: (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account. 1. I consider that leave to appeal on this ground should be refused. It is baseless. Ground 3 – protective custody 1. This ground relied on a comment in a psychiatric report, that Mr Miller was serving his custodial sentence in protection, to which no reference was made in the sentencing remarks or at the sentencing hearing. The bare written submission was that this constituted an error of law. 2. Leave to appeal on this ground should also be refused. 3. The submissions advanced on sentence did not place any reliance on the fact that Mr Miller was then serving his sentence in protection. Those submissions related to the two premises invaded having been used for drug supply, which meant, it was argued, that the aggravating factor that the offence had occurred in someone's home, was not available. It was also argued that the evidence did not leave open a finding that it was Mr Miller who wounded Mr Whitfield. Submissions were also advanced as to Mr Miller's youth, criminal record and background, to support the argument that his criminal conduct was somewhat explained by that background, which would provide a basis for a finding of special circumstance. 4. That aspect of the psychiatrist's report was relied on for the first time on appeal. It did not provide a sound basis for any finding as to the circumstances in which Mr Miller was serving his sentence, or the conclusion that it was more onerous than usual, even if any submission about this matter had been advanced on sentencing (see RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209 at [192] - [195]). 5. As discussed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]: "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]." Ground 2 - Mr Miller's background and Ground 4 - manifest excess 1. It is convenient to deal with these grounds together. 2. To establish manifest excess Mr Miller must establish that the sentence imposed upon him was "unreasonable or plainly unjust" (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]). 3. As the Crown submitted, there is no single correct sentence (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [24]). Sentencing judges have considerable flexibility in their approach to sentencing, consistent with binding principle and the statutory sentencing regime (see Markarian at [27]). This Court may not simply substitute its opinion for that of a sentencing judge, because it would have exercised the sentencing discretion differently (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]). 4. Nevertheless, I am satisfied that relevant error has here been established, with the result that leave to appeal on these grounds should be given and the appeal upheld. 5. In the guideline judgment in Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327, how the seriousness of offences under s 112(1) is to be assessed was considered. As the Crown submitted, those considerations also apply to the sentencing of offences to which Mr Miller and his co-offenders entered pleas under s 112(2) and (3). They are there to be used as a "check" or "sounding board" or "guide" (see R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [113]). The factors identified in the guideline judgment, which had to be considered separately in relation to each offender, were identified at [48] to be: " A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organization and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen 1998 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f) ), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e) ). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s105A(1)(a) )." 1. Deterrence is also an important consideration in such cases (see R v Maher [2004] NSWCCA 177 at [44]). 2. Mr Miller's offences and those of his co-offenders were objectively serious, which had to be reflected in the sentence imposed upon each of them. As was also observed in the guideline judgment, however, at [49], in the case of each offender, Blackmore DCJ was also obliged to "give appropriate weight to matters in mitigation as manifest in the particular case". 3. It is in undertaking this exercise in Mr Miller's case, that his Honour fell into error. The offences 1. The facts were not in issue. 2. Mr Miller and his two co-offenders went in a car with Ms Mallon, at about 9.15 pm, to the home of Ms Lehman, where she resided with her five children, who were aged between 12 years and 5 weeks. One of them knocked on the door and asked for "her bloke". She told him that he no longer lived there. Soon afterwards the three offenders entered Ms Lehman's home, one of them pointing a large hunting knife at her. She knew one of the offenders, Mr Mallon, who asked her where "the meth" was. She told him there was none there. Mr Miller remained with her, while the others then searched the house. 3. Ms Lehman asked Mr Miller if she could put her kids together in one room. When she looked, two of them were not in their beds. He did not believe that she had other children. She started screaming out for them and he told her that she was lying about the children. 4. When searching the kitchen Mr Ford began screaming at Ms Lehman. Mr Miller said to him "we're not here to hurt her or the kids". She was then holding her baby and directed them to the bathroom. While in the bathroom, one of them said "I've got it. Let's go." The offenders then left, taking her phone and other phones with them. 5. Ms Lehman was frightened and attempted to drive her car to look for her other children. It would not start. Police then arrived with the children, who had earlier jumped out of a window and had run to neighbours, who had called police. 6. At 9.40 pm the same night, the offenders went to the home of a Mr Whitfield, where they knocked and kicked at his front door. From the window Mr Whitfield saw Mr Mallon, who he knew. He heard yells of "[o]pen the door" and then a knife came towards the glass and put a hole through it. Mr Whitfield then saw Mr Mallon and Mr Miller at the door and Mr Mallon stab at the glass window with the knife, causing it to smash. He then saw a tomahawk being used to strike the glass. 7. Mr Whitfield got dressed. Mr Mallon and Mr Miller then jumped through the window and pushed him back by the throat. His girlfriend hid in the corner of the room, fearing that she would be harmed by the knife, or physically assaulted. 8. Mr Whitfield did not see who then assaulted him with a knife held to his throat. He was held by a hand placed to the back of his neck, causing it to lift to the ceiling, while being told "on your fucking knees or we'll fucking kill you". He was then kicked in the face and the two offenders ran into the lounge room. 9. Outside, Mr Whitfield heard Mr Ford yelling "stab him stab him get rid of him lets go let's get out of here". Mr Miller returned and repeatedly asked Mr Whitfield "where's all your shit, where's your fucking gear?". He was still on his knees and pointed to his wallet on the tallboy. He then felt a blade touch his shoulder, split the skin, the knife dragging slowing down his back and then along towards his left hip. He was then cut again, from the left hand side of his rib cage, to his right hip. He then saw Mr Miller take his laptop and his wallet, containing some $1,100 cash. A PlayStation 3, watch, a mobile p[hone and jewellery were also taken. 10. Mr Whitfield was then asked where his "blue esky" and "fucking green" were. He handed them over to Mr Ford, who was still outside. Mr Miller and Mr Mallon then left through the window. Mr Whitfield saw them smash the window of his girlfriend's car and run away. He saw one of them get into a car. 11. Police and ambulance attended on Mr Whitfield's home shortly afterwards. He and his girlfriend were treated at hospital. 12. The incident had been captured on CCTV. Mr Whitfield identified Mr Mallon. Mr Ford was identified from the footage, holding the tomahawk and handling the esky. It also depicted the three offenders running away and Mr Mallon damaging the car window. 13. Mr Ford was arrested at 10:20 am on 1 September at his home. Ms Mallon was present. The tomahawk was found in his car and the esky at his home. Ms Mallon made admissions in relation to the two offences. On 2 September, Mr Miller was arrested at his home, where knives and property stolen from Mr Whitfield were found. He admitted his involvement in the offence at Ms Lehman's home, where he was armed with a knife. He also admitted his involvement in the offences at Mr Whitfield's home, where he said that weed had been stolen, but he denied knowing that he had injured Mr Whitfield. He explained he had been armed with a weapon, because he believed that 10 people might be present there, and a big dog. He disclosed that his knife was under his pillow at that address. The sentencing remarks 1. The three offenders were sentenced together. None of the three offenders gave evidence. The one who actually wounded Mr Whitfield was not identified. 2. After considering the evidence as to the nature and seriousness of these offences, Blackmore DCJ turned to Mr Miller's subjective circumstances and relevant aggravating and mitigating matters. 3. These were objectively both very serious offences. As his Honour found, the offenders were on the hunt for drugs that night, prepared to enter private homes, without concern for those living there, armed and prepared to threaten and injure those who they found there. 4. While Blackmore DCJ took the view that Mr Whitfield's wounding involved gratuitous cruelty, as it plainly did, he did not find the offences aggravated as a result of that fact, because the person who wielded the knife could not be identified. His Honour also concluded that Mr Whitfield's house was in effect a business address where illegal products were being sold and so the occupants had to expect that criminals would be attracted to the house and that they could not expect to receive the same protection of the law, than if the house had only been a home. 5. As to the seriousness of the offences, his Honour concluded: "When one comes to consider the seriousness of the offences on a range of seriousness, it should be observed that stealing is not the most serious indictable offence that could be contemplated under the section. Of itself, that must reduce the seriousness of the offences on an objective analysis of them. Each of the offences was in effect a home invasion and as such is something that the law treats very seriously. Clearly the second offence involves the injury inflicted but that is part of the statutory aggravation. The wounds whilst serious, were not life threatening although they are likely to leave lifelong scars. Ultimately, each of the offences was serious but in my view, they are not ones that attract the standard non-parole periods." 1. His Honour then turned to subjective matters. He observed that Mr Miller was much younger than his co-offenders, Mr Mallon, who was in his early 30s and Mr Ford, who was 41. Mr Miller was 20 when he committed these offences. 2. His Honour found that Mr Miller's substantial criminal record did not, however, permit a lenient approach in his sentencing exercise. That conclusion reflected that Mr Miller had a lengthy and serious juvenile record and was on conditional liberty for prior offending, when he committed these offences. He was also on a s 9 bond. This was properly considered to be an aggravating matter under s 21A(2) of the Crimes (Sentencing Procedure) Act. 3. His Honour also observed that Mr Miller's offending had continued into adulthood, despite warnings he no doubt received, as to the penalties which would apply, if his offending continued. In the result Blackmore DCJ concluded that Mr Miller had to be sentenced as an adult and that while an offender of his age would usually attract a discount for youth, to encourage rehabilitation, in the face of Mr Miller's record, "the prospect of rehabilitation must necessarily take on a lesser role". 4. His Honour also took the view that considerations of specific deterrence, retribution and protection of the community, had to be emphasised by the sentences imposed upon Mr Miller. 5. His Honour then turned to the Probation and Parole report and a psychologist's report in evidence. He observed: "The offender reported a difficult upbringing in a house where violence was common. He was expelled from school for violent behaviour. He started using drugs and alcohol from around the age of 14. His juvenile criminal record bespeaks of his history. He was a disruptive and violent child who has now emerged as a violent drug addicted adult. Based on his history to date, there are no reasonable prospects of rehabilitation." 1. Mr Miller's case on appeal was that his Honour had failed to have proper regard to the detailed information led as to his deprived background and extreme deprivation, considerably more serious than the mere description, 'difficult upbringing', encompassed. 2. The result of his Honour's approach was submitted to be that Mr Miller did not have the benefit of a finding of good prospects of rehabilitation, which should have been made had proper account been taken of this evidence. It was also submitted that the fact that the same aggregate sentences were imposed on all three offenders, despite Mr Miller's very different circumstances, revealed error of the kind identified in Bugmy. There it was observed at [44] - [45]: "44. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult [Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 14.]. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. 45. The point was made by Gleeson CJ in R v Engert in the context of explaining the significance of an offender's mental condition in sentencing [(1995) 84 A Crim R 67 at 68.]: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen [No 2]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 1. The Crown did not concede these alleged errors, submitting that Blackmore DCJ had made appropriate reference to the relevant evidence, on which it was open to his Honour to conclude that there was an increased need to consider deterrence and protection of the community, in Mr Miller's case. 2. There was plainly no error in his Honour's conclusions as to the nature and seriousness of this offending and there is force in the Crown's case in relation to deterrence. However, given that Mr Miller was a young offender with a significant criminal record on conditional liberty at the time of his offending, as he was, it is my view that his Honour fell into error of the kind discussed in Bugmy. The result is that what is required to be achieved in every sentencing exercise, individualised justice, was not achieved in Mr Miller's case. 3. As the Crown submitted, both deterrence and protection of the community had to be considered in Mr Miller's case, in determining the sentence to be imposed upon him, given the nature and seriousness of his offences. Nevertheless in his case, proper account also had to be taken of the evidence as to the effect of his youth, his deprived background and his very difficult upbringing and its ongoing consequences. Despite that evidence, his Honour, came to the same conclusion in relation to all three offenders, their moral culpability for their respective offending, their prospects of rehabilitation and the role which deterrence had to play in the sentence imposed on each of them. 4. These conclusions revealed the error into which his Honour fell. 5. While all three offenders had considerable records, it was relevant that Mr Miller's juvenile record in South Australia was for offences including theft and possession of firearms, assault, damage property, dishonestly taking property, trespass, drug offences, graffiti, interfering with motor vehicles, driving offences and drug offences, as well as breaches of bail. He had not, however, yet served any custodial sentence. 6. Given Mr Miller was aged only 20 years at the time of his offence, his age was one important distinguishing factor in this sentencing exercise, given the age of his considerably older and more mature co-offenders, as was the evidence of his background and its effects on his functioning. 7. Proper attention was not given to this evidence, even though the capacity for young people to reform and mould their character to conform to society's norms, by comparison to older offenders, has repeatedly been recognised. In the result, considerable emphasis has been placed on the need to provide them with the opportunity for rehabilitation (see R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [30].) Thus, in the case of offenders under 21 years of age, the Court may direct that the whole or any part of the term of sentence imposed for an indictable offence, be served as a juvenile offender: s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW). 8. It is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person, to contribute to their breach of the law (see KT v The Queen [2008] NSWCCCA 51; (2008) 182 A Crim R 571 at [23]). Further, an offender's mental health problems need not amount to a serious psychiatric illness, before they will be relevant on sentencing. The circumstances may also indicate that a mental disorder of modest severity, may moderate the need for general or specific deterrence (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [178]). 9. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation (see IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150 at [16]; MJ v R [2010] NSWCCA 52 at [37] - [39]; and JT v R [2011] NSWCCA 128 at [34] - [35].) 10. Even so, in assessing moral culpability for particular offending and considering whether special circumstances should be found, real consideration must be given to evidence of a disadvantaged background, such as that which it was not disputed that Mr Miller had suffered. 11. As discussed in Bugmy at [42] - [43] where an offender relies on a background of deprivation in mitigation of sentence, it is necessary to consider the material tending to establish that background, accepting that the "the effects of profound deprivation do not diminish over time" and that they must be "given full weight in the determination of the appropriate sentence in every case"." 12. If such evidence is not to be accepted as having any relevant impact on the sentence to be imposed on a young offender such as Mr Miller, compared to considerably older and more experienced co-offenders, a proper explanation for the conclusion reached should be given. 13. In Mr Miller's case, the Justice Health report given by Dr Clark noted that he had lived in Broken Hill, where he had been born, for only 6 weeks before he committed these offences, having moved there from Adelaide, he said, in order to get away from drug associates and the trouble he was getting into there. 14. Mr Miller had never known his father, who was Italian. His mother was Australian. He lived with his grandmother when aged 8, when his mother was gaoled for fraud. He had long term problems with anger management, drug abuse and offending. 15. Mr Miller had been physically and sexually abused by his stepfather, between the ages of 10 and 12 years. He lived with his mother in Adelaide from age 12. She was a drug user and there was often no food. After 12 months he left her to live with friends and in hostels. He had been placed in classes for slow learners. He left school in Year 8, after having fights and conflicts there. 16. Mr Miller had no history of medical psychiatric treatment, except when in custody. He described himself as a "clean freak", who had some past physical problems with a shoulder injury and hernia. Mr Miller also denied past treatment for schizophrenia, but a nursing record noted that he was on medication for that condition. 17. Mr Miller had been a heavy cannabis user and had experienced suspicious and paranoid thoughts about others, from age 15 or 16. They had lessened over time and ceased when he stopped using cannabis, he said, about a year before these offences. Mr Miller reported that his cannabis use had commenced at age 12 and he had begun drinking alcohol at age 13. Before stopping using cannabis, he was smoking daily. His alcohol abuse had contributed to his stealing behaviour, but he denied other drug use. 18. While living in hostels he said that he had spent the day engaged in shoplifting and other criminal behaviour, in order to support himself and his drinking habit. There was little evidence of gainful employment. Mr Miller claimed to have been pressured into committing these offences, having been drinking heavily that night. 19. No mental illness was identified in this report, but counselling and psychotherapy were recommended for his alcohol and anger problems, anxiety and mild paranoia, physical and sexual abuse, as well as vocational assistance. He was considered to be potentially vulnerable and subject to exploitation by others. 20. The pre-sentence report noted a similar history given as to Mr Miller's background, apart from references to his having stayed in youth refuges and with foster carers, under the supervision of the Child Protection Service, from age 13. Violent tendencies in community settings, school and home were, however, also identified. It was also noted that sound levels of literacy skills had been reported after his attendance at TAFE classes in literacy and numeracy. 21. It was also noted that Mr Miller had demonstrated remorse for his offences and towards his victims. Vocational training and assessment for mental health, physical health, drug and alcohol intervention, anger management and job seek assistance were recommended. 22. On sentencing it was argued that these reports provided some basis for cautious optimism in Mr Miller's case, reflecting as they did on his part, a desire to pursue rehabilitation, not present in the past. It was submitted to be relevant that he was substantially younger than the other offenders, being only just an adult, although with a significant juvenile record in South Australia. He had not, however, served a custodial sentence. That he was on conditional liberty at the time of these offences was conceded also to be relevant, but in the result, a finding of special circumstances was sought in his case, with only limited accumulation on the two offences. 23. That was not accepted by the Crown, given the serious nature of Mr Miller's offending, which, it was submitted, involved home invasions and gratuitous cruelty in the wounding of Mr Whitfield. Mr Miller was then inside, armed with a knife, although it was not apparent that it was he who used the knife to cut Mr Whitfield. In the result, some accumulation was urged. 24. His Honour accepted the case which the Crown advanced, imposing identical sentences on all three offenders, taking the view, however, that while serious, they did not attract the standard non-parole period. 25. While in Mr Miller's case, he had a record as a juvenile, with no prior custodial sentence, nevertheless, his Honour concluded that rehabilitation also had to take a lesser role in his sentence. He also considered that specific deterrence, retribution and protection of the community, also had to be emphasised in his case in the same way as in the case of the two co-offenders. 26. These conclusions were reached in circumstances where, in Mr Mallon's case his Honour noted an abusive childhood, time spent in care as a child, leaving school in Year 7, but later lengthy periods of employment. He had a lengthy history of drug abuse, having had a heroin addiction for the past 3 years, although the reports indicated some scepticism about that claim. He was reported to be entrenched in drug society, with a long term history of drug use and a misconception of appropriate behaviour, given his claims that they were only breaking into dealers' houses. 27. Despite this record, his Honour concluded that Mr Mallon had guarded prospects of rehabilitation, given his record of past employment, family responsibilities, which might give him motivation to change and give up drug use. 28. In Mr Ford's case, his Honour noted that reports in evidence revealed a long history of drug abuse and failed attempts in the past at drug rehabilitation. His Honour rejected a submission that he had reached an age and stage in life when he had decided he must change. 29. Psychiatric reports noted that Mr Ford had schizotypal personality traits, whether the result of long term drug use, or an underlying mental condition. He had a personality disorder with antisocial and borderline traits. He was unwilling to undertake serious drug rehabilitation involving long term abstinence and there was no evidence of any treatment while in custody. His Honour found that he had limited prospects of rehabilitation. 30. It is apparent from his Honour's remarks that the result of the approach adopted was not the individualised justice discussed in Bugmy. The same sentence as that imposed on the co-offenders was not warranted in Mr Miller's case, given his age, differing circumstances and prospects of rehabilitation, which could not on the evidence be concluded to be as limited as those of his co-offenders, given their respective ages, backgrounds and adult offending. 31. The ongoing effects of Mr Miller's more recent, deprived background had to be given proper weight. It had certainly not had time to diminish, given his age, even were that possible, given the nature of that deprivation. Given that background and Mr Miller's youth, rehabilitation had to play a greater role in the sentence imposed upon him, than was available in the cases of his co-offenders, even though all three offenders were involved in the same serious offending. 32. In the result, I consider that this appeal must be upheld and Mr Miller resentenced. In that exercise, deterrence, both general and specific still have a role to play, as does punishment for Mr Miller's serious offences. 33. Mr Miller must, however, have a finding of special circumstances, requiring as he does a longer period of supervision, once released on parole, than the usual ratio would provide, given his desire to remain drug and alcohol free and to gain control over his anger management problems, with which he requires ongoing assistance. Resentence 1. In the result I would resentence Mr Miller to an aggregate sentence of 7 years imprisonment, with a non-parole period of 4 years 9 months, commencing on 2 September 2013, that reflecting, after discount, partially accumulated indicative individual sentences of imprisonment of 5 years, with a non-parole period of 3 years for count 1 and imprisonment for 6 years, with a non-parole period of 3 years and 10 months for count 2. Orders 1. The orders I would propose are: 1. Leave to appeal is refused in relation to grounds 1 and 3. 2. Leave to appeal is granted in relation to grounds 2 and 4. 3. The appeal is upheld. 4. The sentences are set aside. 5. Mr Miller is resentenced to an aggregate sentence of 7 years imprisonment, commencing on 2 September 2013, and expiring on 1 September 2020, with a non-parole period of 4 years 9 months, expiring on 1 June 2018. ********** Amendments 07 May 2015 - Amendment made to the representation field on coversheet 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. Decision last updated: 07 May 2015