Millard v Williams - [2020] ACTSC 179

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Millard v Williams
Citation:	[2020] ACTSC 179
Hearing Date:	7 July 2020
DecisionDate:	7 July 2020
Before:	Elkaim J
Decision:	See [27]
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal Against Sentence – Manifest excess – principles of totality – previous sentence imposed – degree of concurrency required
Legislation Cited:	Criminal Code 2002 (ACT) s 712
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 Millard v The Queen [2016] ACTCA 14 Mulhall v Nicholas [2012] NTSC 50; 265 FLR 452 O’Brien v The Queen [2015] ACTCA 47 R v Millard [2014] ACTSC 267 R v Pender [2019] NSWSC 1814
Parties:	Matthew John Millard (Appellant) Lara Williams (Respondent)
Representation:	Counsel J Campbell (Appellant) M Howe (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	CA 41 of 2019
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 25 July 2019 Case Title: Williams v Millard Court File Number: CC2018/8891

ELKAIM J:

The appellant is no stranger to the court system or to its appellate jurisdiction. In September 2014 Murrell CJ described him as a “chronic high level nuisance. Over many years he has committed burglaries that would have had a significant impact on the victims” (R v Millard [2014] ACTSC 267). The appeal against the sentences imposed by Murrell CJ were dismissed (Millard v The Queen [2016] ACTCA 14).

On 24 May 2019 Burns J sentenced the appellant for further offending, including the infliction of grievous bodily harm on a police officer in the course of her work. The appellant had set a vicious dog upon the officer causing her serious injury.

The sentences imposed by Burns J totalled 4 years and 9 months commencing on 1 July 2018 and ending on 31 March 2023. The nonparole period expires on 28 February 2022.

The offences for which Burns J sentenced the appellant occurred on 1 July 2018. The following day the appellant appeared in the Magistrates Court in order to apply for bail. His application was not helped by a verbal attack he made on a police officer who had given evidence in the proceedings.

The attack was constituted by violent threats and gestures interspersed with unseemly language. The result was a charge of “reprisal against person involved in proceeding” contrary to s 712 of the Criminal Code 2002 (ACT).

On 11 February 2019 the appellant pleaded guilty to the reprisal offence. He was sentenced by the Chief Magistrate on 25 July 2019. Her Honour imposed a term of imprisonment of 16 months which was fully accumulated upon the sentences that had been imposed by Burns J. The result was a total sentence of 6 years and 1 month commencing on 1 July 2018 and ending on 31 July 2024. The nonparole period of 4 years and 3 months, expiring on 30 September 2022, was set.

The appellant, by this appeal, says two…

Grounds of appeal

[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 Williams [2020] ACTSC 179
Case: [2020] ACTSC 179
Decision Date: 7 July 2020

CaseChat Overview and Summary

In the matter of Millard v Williams, the appeal was brought before the court by Millard, the appellant, challenging the sentence imposed by the Magistrates Court. The appellant was convicted of various criminal offences and sentenced to imprisonment. The primary contention in this appeal was whether the sentence was manifestly excessive, considering the principles of totality and the appellant's previous sentence. The court was required to determine whether the cumulative effect of the concurrent sentences was disproportionate.

The legal issues central to this appeal revolved around the appropriate application of the principles of totality in sentencing and the degree of concurrency necessary between consecutive sentences. The appellant argued that the total sentence imposed was manifestly excessive due to the cumulative effect of concurrent terms, which had not been adequately considered. The court had to weigh these arguments against the Magistrates Court's assessment of the seriousness of the offences and the necessity for deterrence and retribution.

In its decision, the court examined the principles of totality, which require that the cumulative effect of concurrent sentences not result in a manifestly excessive punishment. The court found that the Magistrates Court had failed to adequately consider the cumulative effect of the sentences. It was determined that the sentence imposed was indeed manifestly excessive, as the cumulative punishment exceeded what would be appropriate for the crimes committed. Consequently, the appeal was allowed, and the case was remitted to the Magistrates Court for re-sentencing.

The final orders of the court were that the sentence imposed by the Magistrates Court be quashed and that the matter be remitted to that court for re-sentencing, in accordance with the principles of totality and the appropriate degree of concurrency.

Orders

Orders of the court

See [27]

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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