Millard v Pomeroy

Case [2022] ACTSC 319


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Millard v Pomeroy

Citation:

[2022] ACTSC 319

Hearing Date:

2 & 12 September, 15 November 2022

DecisionDate:

18 November 2022

Before:

McWilliam AJ

Decision:

1.       The appeal is dismissed.

2.       The sentence of the Court below is confirmed as follows:

(a) In relation to the offence of using a postal service to menace contrary to s 471.12 of the Criminal Code Act 1995 (Cth) (CC2021/6542), the appellant is sentenced to four months’ imprisonment, commencing on 12 August 2022 and ending on 11 December 2022.

Catchwords:

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – whether sentence was manifestly excessive –where appellant had a mental impairment or illness – whether sentencing magistrate required to articulate discount or reduce sentence by virtue of mental disability – where sentence within the range and sentencing magistrate considered mental impairment of appellant – no error established

Legislation Cited:

Crimes Act 1914 (Cth) ss 4J, 16A, 17A, 20BQ

Crimes (Sentencing) Act 2005 (ACT) s 72
Criminal Code Act 1995 (Cth) s 471.12

Magistrates Court Act 1930 (ACT) Pt 3.10, Div 3.10.2, ss 214, 216, 218

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Betts v The Queen [2016] HCA 25; 258 CLR 420
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Dalton v Queen [2015] ACTCA 48
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Higgins v The Queen [2022] ACTCA 26
House v The King (1936) 55 CLR 499
Keen v Tither [2010] ACTSC 130
Kelly v The Queen [2021] ACTCA 15
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lee v Lee [2019] HCA 28; 266 CLR 129
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
NC v The Queen [2017] ACTCA 31
Ngata v The Queen [2020] ACTCA 18
Peverill v Crampton [2010] ACTSC 79
Preston v Carnall [2015] ACTSC 325; 300 FLR 302
R v Verdins [2007] VSCA 102; 16 VR 240
SBT v Wright [2021] ACTSC 322
Thorn v Laidlaw [2005] ACTCA 49
Tracey v The Queen [2020] ACTCA 51

Vickers v R[2020] NSWCCA 297

Parties:

Matthew John Millard (Appellant)

Katelyn Pomeroy (Respondent)

Representation:

Counsel

Self-represented (Appellant)

E Roff (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 32 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Hunter

Date of Decision:          12 August 2022

Case Title:  Pomeroy v Matthew Millard

Court File Number(s):   CC 6542/2021

McWilliam AJ

  1. On 7 July 2022, the appellant, Matthew Millard, was found guilty in the Magistrates Court of the charge of using a postal service to menace (CC2021/6542), which is a Federal offence under s 471.12 of the Criminal Code Act 1995 (Cth). He was sentenced on 12 August 2022 to four months’ imprisonment, commencing…

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AGLC
Millard v Pomeroy [2022] ACTSC 319
Case
[2022] ACTSC 319
Decision Date

CaseChat Overview and Summary

The appeal was brought by Millard against the sentence imposed by Pomeroy, a magistrate, in the Magistrates' Court of Victoria. The appellant, Millard, was sentenced for using a postal service to menace, contrary to s 471.12 of the Criminal Code Act 1995 (Cth). Millard appealed the sentence on the grounds that it was manifestly excessive, particularly considering his mental impairment or illness. The appeal also questioned whether the sentencing magistrate was required to articulate a discount or reduce the sentence by virtue of Millard's mental disability.

The court examined whether the sentence imposed was manifestly excessive, particularly in light of the appellant's mental condition, which was a mandatory consideration under s 16A(2)(m) of the Crimes Act. The court noted that the sentencing magistrate had carefully considered the appellant's mental and physical disabilities, including a significant cognitive disability, and the impact of these disabilities on the crime. The magistrate also took into account the appellant's criminal antecedents and the specific nature of the offence. The court concluded that the sentence imposed was not outside any established range and demonstrated a degree of leniency given the separate nature of the offence from the one for which the appellant had already been sentenced. The court also found that the magistrate had properly considered the appellant's mental condition as required by law.

The appeal was dismissed, and the sentence of the Magistrates' Court was confirmed. The sentence for the offence of using a postal service to menace was four months’ imprisonment, commencing on 12 August 2022 and ending on 11 December 2022. The court held that no error was established in the magistrate's consideration of the appellant's mental impairment or in the overall sentence imposed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The sentence of the Court below is confirmed as follows:

(a) In relation to the offence of using a postal service to menace contrary to s 471.12 of the Criminal Code Act 1995 (Cth) (CC2021/6542), the appellant is sentenced to four months’ imprisonment, commencing on 12 August 2022 and ending on 11 December 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Totality considerations: The court below imposed the sentence to be entirely concurrent with the existing sentence for which the appellant had already been incarcerated, which expires on 30 November 2023. However, the effect of the sentence was effectively to extend the non-parole period which had expired on 27 March 2022. As I have endeavoured to demonstrate by referring to the sentencing magistrate’s reasons in detail, there was careful consideration given to the sentencing objectives and how they applied to the particular offender. The sentence imposed was not of itself outside any established range and the structure of the sentence was wholly concurrent, which demonstrated a degree of leniency in circumstances where the offence was entirely separate from the offence for which the appellant had already been sentenced. It is well appreciated that a different judicial officer may have imposed a lesser period of imprisonment, and that is why I have referred in some detail to the legal test and the constraints on a judge sitting in the appellate jurisdiction. Ultimately, I do not consider that there was no period of imprisonment warranted and once that threshold is crossed, to debate whether the term should have been two months or four months, in my view, would be to engage in impermissible tinkering. While imposing a term of imprisonment for the sending of a letter might, without more, seem disproportionate, when the contents of the letter and its import are properly appreciated, combined with the appellant’s criminal antecedents and the reasons below concerning the appellant’s mental disability, I am not persuaded the sentence was manifestly excessive. The sentencing magistrate summarised the medical reports and the appellant’s mental and physical disabilities. Her Honour accepted that the appellant had a significant disability, including a significant cognitive disability, before stating: The sentencing magistrate then expressly referred to the medical evidence of Dr Furst as follows: Her Honour then said: Her Honour also set out the supports that the appellant would require while serving a custodial sentence, including one-handed kitchen equipment and aids to feed himself. The starting point for this issue on appeal is that the appellant’s mental condition was a mandatory consideration under s 16A(2)(m) of the Crimes Act. The key focus in the court below was the impact of the appellant’s mental condition on the crime. It should be noted that the extracts of the reasons above were all in the context of the sentencing magistrate considering whether to deal with the offence under s 20BQ of the Crimes Act. However, that does not mean that the magistrate forgot those considerations, and indeed, her Honour returned to the “very, very helpful information in respect of his mental impairment” at the conclusion of the sentence, which must properly be seen as a reference to the detailed evidence that had been considered earlier in the context of s 20BQ.