R v Miller
[2015] QCA 94
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Miller[2015] QCA 94
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R v Miller[2015] QCA 94
R v Miller[2015] QCA 94
SUPREME COURT OF QUEENSLAND
CITATION: | R v Miller [2015] QCA 94 |
PARTIES: | R |
FILE NO/S: | CA No 8 of 2015 DC No 304 of 2013 DC No 19 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Extension (Sentence) |
ORIGINATING COURT: | District Court at Townsville – Unreported, 31 January 2014 |
DELIVERED ON: | 29 May 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 May 2015 |
JUDGES: | Holmes and Gotterson JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
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CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the sentencing judge sentenced the applicant to concurrent sentences of five years and six months imprisonment for the offences of burglary with a circumstance of aggravation, and robbery in company with personal violence – where the sentencing judge sentenced the applicant to a concurrent sentence of four years imprisonment for the offence of deprivation of liberty – where, allowing for the imposition of cumulative sentences of imprisonment for the breach of bail, the sentencing Judge imposed an effective head sentence of five years and six months imprisonment for the indictable offences – whether the sentencing judge had discretion to impose such sentences – where the applicant submitted such sentence was manifestly excessive – whether the sentence was crushing – whether the sentence was manifestly excessive CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – where the applicant was convicted by his own pleas of guilty of three indictable offences – where the three indictable offences were burglary with a circumstances of aggravation, deprivation of liberty and robbery in company with personal violence – where the applicant was also convicted by his own pleas of guilty of a number of summary offences – where the applicant was affected by drugs or alcohol, or a combination of both, when he committed the indictable offences – where the applicant was sentenced to concurrent sentences of five years and six months imprisonment for the offences of burglary with a circumstance of aggravation, and robbery in company with personal violence – where the applicant was sentenced to a concurrent sentence of four years imprisonment for the offence of deprivation of liberty – where, allowing for the imposition of cumulative sentences of imprisonment for the breach of bail, the sentencing Judge imposed an effective head sentence of five years and six months imprisonment for the indictable offences – where the applicant submitted such sentence was manifestly excessive – whether the sentence was manifestly excessive Criminal Code (Qld), s 355, 651 R v Amato [2013] QCA 158, cited R v Mullins & Kluck [2000] QCA 150, cited |
COUNSEL: | The applicant appeared on his own behalf B J Power for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
[1] HOLMES JA: I agree with the reasons of Boddice J and the orders he proposes.
[2] GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
[3] BODDICE J: The applicant seeks an extension of time within which to appeal sentences of imprisonment, imposed on 31 January 2014, in the District Court of Queensland at Townsville. On that date, the applicant was convicted, by his own pleas of guilty, of three indictable offences and a number of summary offences, which were before the Court pursuant to s 651 of the Criminal Code 1899 (Qld) (“Code”).
Background
[4] The applicant was born on 7 May 1973. He has a significant past criminal history, both in Queensland and New South Wales. He has received fines, community based orders (which he did not complete) and imprisonment in the past.
Offences
[5] The indictable offences were burglary with a circumstances of aggravation, deprivation of liberty and robbery in company with personal violence. The victim, a 39 year old male, was punched in the face by the applicant as he opened his front door. The applicant proceeded to punch the victim several more times before tying his hands and feet with cable ties. The victim was then gagged and blindfolded before being punched again in the face and back. The applicant took various items from the property before leaving the residence.
[6] In respect of the offences of burglary with a circumstance of aggravation, and robbery in company with personal violence, the applicant was sentenced to concurrent sentences of five years and six months imprisonment. In respect of the offence of deprivation of liberty, the applicant was sentenced to a concurrent sentence of four years imprisonment.
[7] The summary offences involved multiple driving and property offences, committed between 2003 and 2006, bail offences, committed in 2011, and an offence of obstructing a correctional officer, committed in 2013. In respect of all but one of the summary offences, the applicant was sentenced to lesser but concurrent sentences of imprisonment or ordered to be convicted but not further punished. On the remaining summary offence, that of failing to appear in answer to his bail, the applicant was sentenced to six months imprisonment, cumulative upon the sentences of imprisonment imposed for the indictable offences.
Sentencing remarks
[8] The sentencing Judge noted the applicant was significantly affected by drugs and alcohol, or a combination of both, at the time of the commission of the indictable offences. The sentencing Judge also noted that many of the summary offences were old. However, the failure to appear in respect of the bail undertaking was considered to be significant, as it occurred shortly after the applicant’s arrest for the indictable offences. That factor was considered sufficient to justify the imposition of a cumulative sentence of imprisonment.
[9] In imposing the sentences of imprisonment, the sentencing Judge also noted the applicant had had a difficult upbringing, and an appalling criminal history. It was also noted the applicant had already served a significant period in custody, only some of which would be declared as time served under the sentences.
[10] After considering all of those factors, and the seriousness of the applicant’s offending, the sentencing Judge considered an overall head sentence of six years would be appropriate. Allowing for the imposition of cumulative sentences of imprisonment for the breach of bail, the sentencing Judge imposed the effective head sentence of five years and six months imprisonment for the indictable offences, after declaring some 455 days in custody as time served. The sentencing Judge set the applicant’s parole eligibility date at 31 July 2014.
Submissions
[11] The applicant contends an overall effective head sentence of six years imprisonment, with a parole eligibility date of 31 July 2014, was manifestly excessive in the circumstances as his failure to appear occurred at a time when he was in custody in New South Wales. The applicant requests the Court reduce the overall head sentence and give consideration to a suspended sentence. The applicant also submits the sentencing Judge incorrectly referred to his offending as a home invasion, when he was not charged with home invasion.
[12] The respondent submits a head sentence of five years and six months imprisonment for the indictable offences was not manifestly excessive, having regard to the serious nature of the offending and comparable sentences. A cumulative sentence of imprisonment of six months for the last offence was also within the sentencing judge’s discretion.
Discussion
[13] The indictable offences involved serious criminal conduct. The victim was detained against his will in his own house, tied up, blindfolded and beaten. He sustained significant injuries. A substantial quantity of property was stolen from the dwelling house. The offending occurred in company, and in the night time. Such serious offending required the imposition of a substantial sentence of imprisonment. A perusal of the sentencing remarks reveals the expression “home invasion” was a concise, and accurate, summary of the applicant’s offending.
[14] Having regard to the serious nature of the applicant’s offending, an effective head sentence of five years and six months imprisonment was not manifestly excessive. A consideration of the circumstances in Mullins and Amato[1] reveals sentences of imprisonment of seven years are within the proper sentencing discretion for a robbery committed in the home, particularly where significant violence was occasioned to the victim. The applicant’s offending involved the infliction of significant violence on a victim in his own home, with limited remorse. Further, the applicant had a significant past criminal history. No error has been demonstrated in relation to the overall head sentence imposed for these indictable offences.
[15] The failure to appear was a significant breach of bail. It occurred after earlier breaches for failing to report as required by the terms of his bail order. A perusal of the applicant’s criminal history in New South Wales reveals there is no substance to his assertion he was in custody at the time of the relevant breach. A sentence of six months imprisonment, to be served cumulatively, was within the proper sentencing discretion.
[16] The imposition of a cumulative sentence of six months imprisonment on a significant head sentence did not result in the sentence overall being a crushing sentence. The sentencing Judge considered the totality of the offending justified an effective head sentence of six years imprisonment. Allowing for the fact that he proposed to impose a six month cumulative sentence for the failure to appear, the head sentence for the indictable offences was reduced to an effective sentence of five years and six months imprisonment. Such a course was well within the sentencing discretion of the sentencing Judge. No error has been demonstrated by the applicant.
[17] There is no basis to conclude the sentences imposed in respect of the indictable offences or in respect of the summary offence of failing to appear in accordance with the bail undertaking were manifestly excessive. That conclusion, together with the fact the applicant does not provide any satisfactory explanation for the failure to lodge an application for leave to appeal his sentence in time, or for having failed to lodge his application for an extension of time earlier than some 11 months out of time, support a refusal of the application for an extension of time.
[18] However, the respondent concedes the concurrent sentence of four years imprisonment for the offence of deprivation of liberty exceeded the maximum penalty for that offence under s 355 of the Code, which is three years imprisonment. That being so, the applicant needs to be resentenced in respect of that term of imprisonment. It is therefore appropriate to grant the application for an extension of time within which to appeal in respect of that sentence only.
[19] In respect of the sentence for the offence of deprivation of liberty, I would grant the applicant leave to appeal that sentence, allow that appeal, set aside the sentence imposed for the offence of deprivation of liberty and impose a sentence of two and a half years imprisonment for that offence, to be served concurrently with the sentences of imprisonment imposed on the other indictable offences. I would otherwise refuse the application for an extension of time within which to appeal.
Orders
[20] I would order:
- The application for an extension of time within which to appeal the sentence for the offence of deprivation of liberty is granted.
- The appeal against the sentence for the offence of deprivation of liberty is allowed.
- The sentence of four years imprisonment for the offence of deprivation of liberty is set aside.
- A sentence of two years six months imprisonment is imposed for the offence of deprivation of liberty, to be served concurrently with the sentences of imprisonment imposed for the other indictable offences on 31 January 2014.
- The application for an extension of time for leave to appeal is otherwise refused.
Footnotes
[1] See R v Mullins & Kluck [2000] QCA 150; R v Amato [2013] QCA 158.