Millard v The Queen (No 2)

[2016] ACTCA 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Millard v The Queen (No 2)

Citation:

[2016] ACTCA 41

Hearing Date:

7 August 2015

DecisionDate:

22 August 2016

Before:

Refshauge, Penfold and North JJ

Decision:

That the reference in order 2 of the order of the Supreme Court made on 5 September 2014  be amended by omitting “4 years” and substituting “3 years and 9 months” and omitting “6 December 2013” and substituting “6 March 2014”.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sentence manifestly excessive – recording of sentence – backdating – pre-sentence custody – notional commencement date – miscalculation of head sentence – correction under slip rule

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 61(1)(a), 61(1)(b), 63

Supreme Court Act 1933 (ACT), s 3(2)

Court Procedures Rules 2006 (ACT), r 6906

Cases Cited:

Deakin v The Queen (1984) 55 ALJR 367

Fallshaw Bros v Ryan (1902) 28 VLR 279
Jovanovic v The Queen (1999) 92 FCR 580
Millard v The Queen [2016] ACTCA 14
R v Gorman [2009] ACTSC 7
R v Millard [2014] ACTSC 267

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:         5 September 2014

Case Title:  R v Millard

Citation: [2014] ACTSC 267

THE COURT:

1. On 13 May 2016, the Court dismissed an appeal by Matthew Millard, the appellant, against the sentence imposed on him for four offences committed on 2 December 2013 and in April 2014.  See Millard v The Queen [2016] ACTCA 14.

1. In doing so, however, the Court re-set the non parole period because of what appeared to be “a technical oddity” in the non parole period set by the primary judge.  The order of the Court in doing so made the non parole period consistent with the sentences with which the Court had declined to interfere but did not alter the period that Mr Millard would actually spend in custody under the non parole period.

1. After the decision of the Court was entered, a further problem with the original sentence emerged, as a result of a query from the Sentence Administration Section of ACT Corrective Services which was drawn to the attention of the Court Registry.

The sentence

1. The sentence is set out in Millard v The Queen at [4]. In summary, there were four offences for which Mr Millard was sentenced as follows:

·     Being unlawfully at large – 3 months imprisonment from 6 March 2014 to 5 June 2014;

·     Burglary – 3 years 6 months imprisonment from 6 June 2014 to 5 December 2017;

·     Theft – 12 months imprisonment from 6 June 2014 to 5 June 2015;

·     Attempted burglary – 15 months imprisonment from 6 June 2014 to 5 September 2018.

1. As can be…