MILETIC v R [2009] NSWCCA 311

MILETIC v R [2009] NSWCCA 311

The sentence for aggravated break and enter was manifestly excessive because the applicant's prior productive and substantially law-abiding life, short-lived emotionally charged premeditation, significant rehabilitation, low risk of reoffending, reduced need for specific deterrence and community protection, and serious likely economic consequences of imprisonment together required a lesser sentence. The assault sentence was also erroneous because the sentencing judge reduced a two-year starting point to 18 months for the plea and then imposed that whole period as a fixed term, although in the ordinary course that period would include both a non-parole period and balance of term.

Jurisdiction
Australia
Judgment Date
22 December 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal / Court of Criminal Appeal Appeal From Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced and directed to be released to parole on 20 February 2010.
Legal Topics
['manifest Excess' 'general Deterrence' 'subjective Circumstances' 'rehabilitation' 'economic Consequences of Imprisonment' 'non Parole Period' 'fixed Term Imprisonment']
['criminal Law' 'sentencing'] ['manifest Excess' 'general Deterrence' 'subjective Circumstances' 'rehabilitation' 'economic Consequences of Imprisonment' 'non Parole Period' 'fixed Term Imprisonment']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal / Court of Criminal Appeal Appeal From Sentences Imposed in the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge gave excessive weight to general deterrence and insufficient weight to the applicant's personal circumstances, resulting in sentences outside the permissible range." 'Whether the sentence for aggravated break and enter was manifestly excessive.' 'Whether the fixed term imposed for assault occasioning actual bodily harm was affected by error.']

Ratio Decidendi

The sentence for aggravated break and enter was manifestly excessive because the applicant's prior productive and substantially law-abiding life, short-lived emotionally charged premeditation, significant rehabilitation, low risk of reoffending, reduced need for specific deterrence and community protection, and serious likely economic consequences of imprisonment together required a lesser sentence. The assault sentence was also erroneous because the sentencing judge reduced a two-year starting point to 18 months for the plea and then imposed that whole period as a fixed term, although in the ordinary course that period would include both a non-parole period and balance of term.

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced and directed to be released to parole on 20 February 2010.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Quash the sentences imposed on the Applicant by English DCJ on 20 February 2009.' '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...