Millard v The Queen

Case [2016] ACTCA 14


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Millard v The Queen

Citation:

[2016] ACTCA 14

Hearing Date:

7 August 2015

DecisionDate:

13 May 2016

Before:

Refshauge, Penfold and North JJ

Decision:

1.      Subject to order 2 the appeal is dismissed.

2.      The nonparole period is reset to begin on 6 March 2014 for a period of 2 years and 6 months and end on 5 September 2016.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sentence manifestly excessive – consideration of subjective circumstances – health – disability – mental impairment – psychological problems – brain injury – self harm – role of deterrence in cases of mental impairment – physical health problems – neuropraxic injury – long term drug abuse – extensive criminal history – reform unlikely – sentence not ‘warehousing’

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – nonparole period manifestly excessive – importance of giving reasons when setting nonparole period – backdating – pre-sentence custody – serving existing sentence – technical anomaly in setting nonparole period – nonparole period reset

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – burglary – theft – attempted burglar – unlawfully at large

Legislation Cited:

Crimes Act 1900 (ACT), s 162

Crimes (Sentencing) Act 2005 (ACT), s 7
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), Pt 8

Criminal Code 2002 (ACT), ss 44, 308, 311

Cases Cited:

Allred v The Queen (2015) 10 ACTLR 325

Channon v The Queen (1978) 33 FLR 433
Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185
Fusamalohi v The Queen [2012] ACTCA 49
Hili v The Queen (2010) 242 CLR 520
Inge v The Queen (1999) 199 CLR 295
Johnson v The Queen (2004) 205 ALR 346
Muldrock v The Queen (2011) 244 CLR 120
Murrell v The Queen [2014] VSCA 337
Ngo v Fairfield City Council (2009) 169 LGERA 56
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Bernath [1997] 1 VR 271
R v Collins [2004] ACTSC 73
R v Flowers [2014] ACTCA 13
R v Harrington [2016] ACTCA 10
R v J M [2014] ACTSC 380
R v McMahon [2014] ACTSC 280
R v McNaughton (2006) 66 NSWLR 566
R v Millard [2014] ACTSC 267
R v Mooney (Court of Criminal Appeal (Vic):  21 June 1978, unreported)
R v Shresthra (1991) 173 CLR 48
R v TW (2011) 6 ACTLR 18
R v Verdins (2007) 16 VR 269
Taylor v The Queen [2014] ACTCA 9
Veen v The Queen (No 2) (1988) 164 CLR 465
Weininger v The Queen (2003) 212 CLR 629

Parties:

Matthew John Millard (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr K Archer (Appellant)

Mr J White SC (Respondent)

Solicitors

Legal Aid (ACT) (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 44 of 2014

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Murrell CJ

Date of Decision:…

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AGLC
Millard v The Queen [2016] ACTCA 14
Case
[2016] ACTCA 14
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the respondent, Millard, by the Supreme Court of the Australian Capital Territory. Millard had been convicted of burglary, theft, and attempted burglary, and was sentenced to a term of imprisonment. The appeal was brought by Millard against the severity of that sentence.

The primary legal issues before the Court of Appeal were whether the sentence imposed was manifestly excessive, particularly in light of the respondent's significant subjective circumstances, including his physical and mental health issues, brain injury, history of drug abuse, and likelihood of reform. A further issue concerned the non-parole period, specifically whether it was manifestly excessive and whether the sentencing judge had adequately provided reasons for its imposition, considering a technical anomaly relating to pre-sentence custody.

The Court of Appeal acknowledged the respondent's extensive criminal history and the seriousness of the offences. However, it also gave considerable weight to his profound health issues, including a brain injury, mental impairment, and physical disabilities, which significantly impacted his capacity for rehabilitation and the application of general deterrence. While the court found that the overall sentence was not manifestly excessive, it determined that the non-parole period was. The court noted a technical anomaly in the calculation of the non-parole period due to the respondent serving an existing sentence, which required it to be reset.

Consequently, the appeal was dismissed in part, with the court ordering that the non-parole period be reset to commence on 6 March 2014 for a duration of 2 years and 6 months, thus ending on 5 September 2016.

Orders

Orders of the court

1. Subject to order 2 the appeal is dismissed.

2. The nonparole period is reset to begin on 6 March 2014 for a period of 2 years and 6 months and end on 5 September 2016.

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

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