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 |
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:
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.
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.
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
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.
As can be…
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- AGLC
- Millard v The Queen (No 2) [2016] ACTCA 41
- Case
- [2016] ACTCA 41
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the head sentence imposed was manifestly excessive, and whether the Supreme Court had erred in its calculation of the notional commencement date for the sentence, necessitating correction under the slip rule.
The Court of Appeal found that the head sentence was not manifestly excessive. However, it determined that there had been a miscalculation in the recording of the sentence, specifically concerning the commencement date. The Court applied the slip rule to correct this error, amending the order to reflect a shorter head sentence and a later commencement date, thereby adjusting the period of pre-sentence custody.
The Court ordered that the reference in order 2 of the Supreme Court's order of 5 September 2014 be amended by omitting “4 years” and substituting “3 years and 9 months”, and by omitting “6 December 2013” and substituting “6 March 2014”.
Orders
Orders of the court
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”.
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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