McMillan v The King - [2024] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McMillan v R [2024] NSWCCA 83
Hearing dates: 23 February 2024
Date of orders: 31 May 2024
Decision date: 31 May 2024
Before: Garling J at [1];
McNaughton J at [2];
Weinstein J at [133]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Set aside the sentence imposed by Wilson SC DCJ on 9 December 2022.
(4) In place thereof impose a non-parole period of 2 years 9 months and an additional term of 1 year 9 months. The sentence is directed to commence on 23 December 2021. The non-parole period expires on 22 September 2024, and the sentence expires on 22 June 2026.

Catchwords:
CRIME – appeals – appeal against sentence – whether time in custody partly referable to other offending – whether failure to properly consider all pre-sentence custody – resentence
CRIME – sentencing – pre-sentence custody – effect of s 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – where Pt 2 Div 3 non-custodial penalty imposed – whether s 24 applies to non-custodial penalties

Legislation Cited:
Crimes Act 1900 (NSW), s 97
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4, 5, 8, 9, 10, 10A, 11, 21A, 24, 47, 85, 86
Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed), ss 32, 33

Cases Cited:
Hunt v R [2021] NSWCCA 192
Huynh v R [2024] NSWCCA 61
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kljaic v R [2023] NSWCCA 225
Mandranis v R [2021] NSWCCA 97
Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
R v Eckersley [2021] NSWSC 562
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Wasson [2014] NSWCCA 95

Texts Cited:
Nil

Category: Principal judgment
Parties: Alan McMillan (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Fernando (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/87936
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 December 2022 (Sentence)

Before:

Wilson SC DCJ

File Number(s):

2021/87936

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Alan McMillan, the applicant, was sentenced in the District Court for a single charge of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW) (“subject offence”).

In March 2021, the applicant and a co-offender, Mr Andrew Nath, entered a suburban liquor store. The victim, working alone, exited the office and encountered the applicant (wearing a folded bandana around his face) and Mr Nath (wearing a balaclava and wielding a Samurai sword). Mr Nath threatened the victim with the sword and stole approximately $460 cash from the register. The applicant stole five bottles of rum.

The applicant spent three distinct periods in custody referable to the subject offence as well as other unrelated offences:

Period 1: From 29 March to 11…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMillan v The King

Details

AGLC: McMillan v The King [2024] NSWCCA 83
Case: [2024] NSWCCA 83
Decision Date: 31 May 2024

CaseChat Overview and Summary

In the case of McMillan v The King, the appellant sought to appeal his sentence imposed by the Supreme Court of New South Wales. The appellant was convicted of various criminal offences and was sentenced to a term of imprisonment. The appeal specifically focused on the length of the sentence, questioning whether the time the appellant had already spent in custody should be considered in relation to other criminal activities and whether the court had adequately accounted for the pre-sentence custody when determining the sentence.

The primary legal issues revolved around the interpretation and application of section 24(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Specifically, the court needed to determine whether this section, which addresses the consideration of time spent in pre-sentence custody, applied to cases where a non-custodial penalty was imposed. The appellant argued that the trial judge had not properly considered the full extent of his pre-sentence custody, which should have been taken into account when determining the overall sentence.

The court examined the statutory provisions and found that section 24(a) indeed applied to non-custodial penalties, as it aimed to ensure that any pre-sentence custody was appropriately considered. The court concluded that the trial judge had failed to properly account for the full extent of the appellant's pre-sentence custody, leading to an overestimation of the appropriate sentence. Consequently, the court determined that a resentencing was necessary to rectify this error.

Orders