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
[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.
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Details
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.