Millard v The Queen (No 2)
[2016] ACTCA 41
•22 August 2016
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 seen, the total period of imprisonment, from 6 March 2014 to 5 December 2017 was 3 years 9 months.
A non parole period of 2 years and 9 months was set from 6 December 2013 to 5 September 2016. This was adjusted by this Court on the appeal to commence on 6 March 2014 for 2 years and 6 months to 5 September 2016: Millard v The Queen at [86].
The sentence orders were pronounced within the remarks on sentence, R v Millard [2014] ACTSC 267 at [31]-[33], where the primary Judge said:
31. I record a conviction in each matter. In relation to the offence of being unlawfully at large, I start from a sentence of 4 months' imprisonment and discount this by 25 per cent to a sentence of 3 months' imprisonment. The sentence will run from 6 March 2014 to 5 June 2014.
32. In relation to the burglary offence committed at second residence in Curtin, the starting point for the sentence is four years' imprisonment. I discount that sentence by six months to arrive at a sentence of three years and six months' imprisonment. That sentence will run from 6 June 2014 to 5 December 2017. In relation to the associated offence of theft, the starting point for the sentence is 14 months' imprisonment. That is discounted to 12 months' imprisonment, and the sentence will run concurrently from 6 June 2014 to 5 June 2015. In relation to the offence of attempted burglary, I discount that sentence from 18 months' imprisonment, to 15 months' imprisonment, and the sentence will run from 6 June 2014 to 5 September 2015.
33. The offender has been in custody since 2 December 2013, but was out of custody for a period of four days. I take a starting point of 6 December 2013 and treat that as the notional commencement date for the effective sentence. The expiry date of the effective sentence is 5 December 2017. That is a period of four years of imprisonment. I have decided that the appropriate date to fix for the nonparole period is 5 September 2016, being a period of two years and nine months from 6 December 2013. Pursuant to s 66 of the Sentencing Act I fix a nonparole period from 6 December 2013 to 5 September 2016.
As can be seen, the orders constituting the sentences are interspersed in these reasons with comment, or a summary of what is being done, none of which is an order of the court. There was, however, no formal articulation of the actual orders made other than as is to be discerned from these reasons.
The recording of the sentence
The Supreme Court is a superior court of record: s 3(2) of the Supreme Court Act 1933 (ACT). It is, thus, required to keep formal records of its proceedings: Fallshaw Bros v Ryan (1902) 28 VLR 279 at 284.
10. Given that the orders were expressed within the remarks on sentence, it is, therefore, perhaps unsurprising that when it came to record the sentence formally in the Registry, some of the commentary was included. Thus, the order, as formally recorded, was as follows:
The Court orders that:
1.Matthew John Millard (the offender), is convicted and sentenced as follows:
a.In relation to the offence of burglary (CC13/11098), the offender is sentenced to 3 years and 6 months imprisonment to commence on 6 June 2014 and end on 5 December 2017;
b.In relation to the offence of theft (CC13/11099), the offender is sentenced to 12 months imprisonment to commence on 6 June 2014 and end on 5 June 2015;
c.In relation to the offence of attempted burglary (CC14/705), the offender is sentenced to 15 months imprisonment to commence on 6 June 2014 and end on 5 September 2015;
d.In relation to the offence of being unlawfully at large (CC14/8089), the offender is sentenced to 3 months imprisonment to commence on 6 March 2014 and end on 5 June 2014.
2.Total head sentence of 4 years imprisonment to commence on 6 December 2013 and end on 5 December 2017.
3.Non Parole period of 2 years and 9 months from 6 December 2013 to 5 September 2016.
11. Order 2 was not an operative order; indeed, it was not, in reality, an order at all. It certainly did not record what was done which, from order 1, can be seen to be to sentence Mr Millard to a total period of imprisonment for 3 years and 9 months starting from 6 March 2014. There is no sentence of 4 years imprisonment, though, as the primary judge commented, that may be the effective period that, having regard to earlier sentences, Mr Millard may have to spend in prison.
12. This Court, when dismissing the appeal, effectively amended order 3 so as to specify the non parole period accurately, reducing it to 2 years and 6 months to run from the commencement of the sentence, namely 6 March 2013, to 5 September 2016, the date actually selected by the primary Judge.
13. Although we adjusted that period to ensure that the non parole period as ordered, correctly represented the period of the sentence actually imposed that “a judge determines justice requires that he must serve” (Deakin v The Queen (1984) 55 ALJR 367), this Court did not correct the inaccurate reference to the head sentence being one of four years, because that did not seem to be an order as such (as distinct from a mere summary of the effect of the specific sentencing orders).
14. In the course of considering what, if anything, should be done about the order that had been entered specifying imprisonment for 4 years, we have became aware that the extra three months imprisonment referred to in her Honour’s order seems to have been the first three months Mr Millard spent in custody after he was first arrested in respect of the offences for which the primary judge was sentencing him.
15. That period, it seems, was not taken into account in any way in her Honour’s sentencing. Nor was it set against the earlier sentence in relation to which his parole was cancelled in June 2014. The outstanding term of that earlier sentence was all to be served after the cancellation.
16. That is, despite the primary judge purporting to backdate Mr Millard’s sentence to take account of his time in pre-sentence custody, it seems that three months of that period was disregarded in applying the provisions of s 63 of the Crimes (Sentencing) Act 2005 (ACT).
17. The source of this oversight may perhaps be found in the material put before the primary judge in the sentencing proceedings. The Statement of Facts tendered by the Crown contains information about Mr Millard’s periods in pre-sentence custody. It identifies as pre-sentence custody only the period in custody between his initial arrest in December 2013 and the cancellation of his parole in June 2014, a total of 180 days. It then provides a backdating date that is, in effect, 6 months before the date of sentence in September 2014.
18. It is true that, after his parole was cancelled, Mr Millard was a sentenced prisoner and was not in custody only because of his arrest on the later offences. At this stage, given we have heard no submissions on this matter, we express no view about the effect of s 63 on periods of pre-sentence custody during which a offender is also serving a sentence (for instance, as in this case, because parole has been cancelled after his or her arrest on new offences).
19. The primary judge, in referring to the date at the beginning of the total period of pre-sentence custody as “the notional commencement date for the effective sentence”, appears to have recognised that Mr Millard had spent three months in custody in addition to the period for which the sentences had been backdated. She did not, however, explain why his sentences had not been backdated by the full period between arrest and sentence.
20. The primary judge’s failure to backdate Mr Millard’s sentence to the date of his pre-sentence arrest was not raised as a ground of appeal, and it is not appropriate for us to consider it as such at this stage.
21. Furthermore, her Honour’s orders specifying the dates for the individual sentences such that three months of pre-sentence custody were not set against the sentences imposed were not “sentence-related orders” that were “contrary to law” (s 61(1)(a) of the Crimes (Sentencing) Act 2005), nor was the failure to backdate the sentence a failure “to make a sentence-related order that [was] required to be made by law” (s 61(1)(b) of the Crimes (Sentencing) Act 2005). That is, they are not able to be corrected under the Crimes (Sentencing) Act 2005.
22. However, we cannot see that it is appropriate, or indeed available, to treat pre-sentence custody as providing a “notional starting date”, or as forming part of an “effective sentence”, when that period does not reflect any actual sentence imposed by a court. This is not an alternative to explaining why, in applying s 63, the primary judge had decided not to backdate Mr Millard’s sentence to the date of his pre-sentence arrest.
23. For this reason, we do consider that the primary judge’s comment that the beginning of the pre-sentence custody period was the “notional commencement date for the effective sentence” of four years imprisonment (if it was an order), was a “sentence-related order that was contrary to law”. It should accordingly be corrected, either:
(a)by removing it from the sentence orders altogether; or
(b)at least, by correcting the dates set out in the order that was subsequently entered to specify the actual total sentence of three years and 9 months from 6 March 2014.
24. Alternatively, if the primary judge’s comment was not an order, then it should not have been entered as such and should be removed from the sentence orders.
25. The common law grants to a court such as this Court the power to correct sentencing slips so long as it is not the case of the Court varying an order intended to be made simply because of a change of mind: Jovanovic v The Queen (1999) 92 FCR 580 at 591; [50].
26. In any event, the “slip rule”, r 6906 of the Court Procedures Rules 2006 (ACT), is also an adequate source of power to correct an omission by the Court of Appeal to correct the wrong specification of the commencement of the sentence and, hence, its length. This rule does apply to criminal proceedings: R v Gorman [2009] ACTSC 7.
27. Accordingly, although the preference of the Court would be to omit Order 2 altogether, the Court will amend Order 2 in the order imposing the sentence on Mr Millard by omitting in the Order “Four years” and “6 December 2013” and substituting “3 years and 9 months” and “6 March 2014” respectively.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 19 August 2016 |
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