Millard v Williams
[2020] ACTSC 179
•7 July 2020
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 |
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 things:
(a)The sentence of 16 months was manifestly excessive.
(b)The principles of totality had not been applied. There should have been at least some degree of concurrency with the sentences that had been imposed by Burns J.
The Crown opposed the appeal, submitting that the sentence was appropriate and the total accumulation was an option open to the Chief Magistrate.
Her Honour described the facts of the offence in this way:
Towards the end of the charges which were being mentioned you turned towards police who were present in the courtroom, sitting behind the front row, behind the bar table, on the prosecution side of the court. You then formed the shape of a gun with your hand, and pointed it in the direction of the detective senior constable and said the following words, “Cunt. Yeah, you. I’m gonna kill you, you mole”, and proceeded to sound the shooting noises, to the effect of, “Phew, phew, phew”, whilst maintaining eye contact with the detective senior constable and imitating the firing of a gun, which you had formed with your hand.
You then looked away for a short time before you returned your glance towards all police witnesses present, forming a gun shape with both hands and saying, “In two months I’ll be out, so eat a fucking dick you fucking mole, I’m going to kill you, ya maggots”. You were then removed from the courtroom and on your way out continued imitating firing with your hand into the air, in the direction of the police, saying loudly, “Phew, phew, phew”. As a result of your conduct the proceedings were adjourned.
Her Honour assessed the matter as being “a very serious example of the offence” and after noting the appellant’s “terrible criminal history”, imposed the sentence of 16 months.
The appellant says that the sentence is manifestly excessive. The often-repeated principles were concisely summarised in Barrett v The Queen [2016] ACTCA 38, at [34]:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
The appellant has pointed out that there are few comparable cases. The cases referred to from New South Wales (R v Pender [2019] NSWSC 1814) and the Northern Territory (Mulhall v Nicholas [2012] NTSC 50; 265 FLR 452) would suggest the Chief Magistrate’s sentence is somewhat high. In addition, it was submitted that the appellant was in a wheelchair, he was going to be in prison for a long time and, as recognised by the Chief Magistrate, there was “little realistic prospect” of him carrying out the threats.
I note here that the appellant suffers from significant disabilities. In the 2014 decision Murrell CJ described him in this way, at [27]:
The offender is therefore in a very unfortunate situation. He has an underlying significant intellectual dysfunction. There is an overlay of a brain injury, and he has very significant and associated pain in relation to the left arm, and other parts of the left side of his body. The net result is that the offender acts impulsively, resorts to drugs to alleviate pain, is unable to form proper judgments, and has great difficulty learning new behaviour. Unfortunately, most of those problems are likely to be permanent.
Consistent with Murrell CJ’s observations the appellant said that he had acted impulsively and further that the police officer was unlikely to have been alarmed. This was because she knew of his criminal record, she knew he was going to be in custody, and she knew that his capacity to follow through with the threats was non-existent.
I accept that the appellant probably acted impulsively. However, I do not accept that the police officer would have been less alarmed. At the time of the offence, the appellant had not yet been sentenced by Burns J and he did not know the length of sentence he was facing. In fact, it might have been a lesser sentence if his challenge to some basic facts about the dog attack on a police officer had succeeded.
The maximum penalty for the offence of reprisal is 5 years’ imprisonment. This option was not available to the Chief Magistrate whose jurisdiction was limited to 2 years’ imprisonment. Nevertheless the 16 months imposed, reduced from 18 months because of the plea of guilty, is to be compared to the maximum of 5 years’ imprisonment.
I think the 16 months’ imprisonment is stern but not overtly unjust. The threats were serious and were made a day after the appellant had, through his actions, caused very serious injury to a police officer. The threats were made in open court. The use of a gun, as intimated by the appellant’s actions, does not require any specific physical ability and would have been well within the capacity of the appellant, had he been at large, and in possession of such a weapon.
Accordingly, I reject the submission that the sentence was manifestly excessive.
I do however agree that principles of totality have not been applied. The Chief Magistrate, in her sentencing remarks, says nothing at all about totality. There is however some discussion with the appellant’s legal representative during the hearing in which, ultimately, her Honour gives a fair summary of the applicable principles. The problem is that in the final act of sentencing these principles do not seem to have been applied.
As observed by the Crown, the principles to be applied are those to be found in
O’Brien v The Queen[2015] ACTCA 47 at [26].
The Crown submitted that the offences were discrete and are separate from those dealt with by Burns J, so that the Chief Magistrate had an option stretching from some accumulation to complete accumulation. The appellant conceded the offences were separate but said there still ought to have been a degree of accumulation.
The offences are separate, although do have a connection; in that the bail application arose from the appellant’s arrest for the crimes he had committed the previous day. The appellant pointed out that but for an election for summary disposal, the reprisal offence would have been dealt with by Burns J together with the other offences. Although it would be speculative to guess what attitude Burns J might have taken, all of the offences would have been dealt with together and no doubt principles of totality would have been applied.
In my view there should have been some concurrency with the sentences imposed by Burns J, but yet still achieving a recognition that the reprisal offence was separate and deserving of its own punishment. Although it is not an error of itself for the Chief Magistrate not to have mentioned totality in her sentencing remarks, the absence of any reference to totality enforces my view that the appropriate principles were not applied.
I am therefore satisfied that error on the part of the Chief Magistrate has been demonstrated and that her decision should be set aside and the appellant re-sentenced.
Doing my best to maintain the recognition of the severity of the offence and the perception that it deserves a separate and discrete punishment I think the 16 months of imprisonment should commence 8 months before the end of the sentences imposed by Burns J.
As to the nonparole period I think the same ratio as previously existed should be maintained. The Crown submitted that if I thought there ought to be some concurrency, that the nonparole period should remain the same. To do so however would result in a nonparole period that is significantly higher than 70%. While a nonparole period should not be set according to any particular percentage, I do recognise that maintaining the current nonparole period would inhibit the appellant’s chances of rehabilitation.
The orders of the Court are:
(a)The appeal is allowed.
(b)The sentence and nonparole period imposed by Chief Magistrate Walker on 25 July 2019 are set aside.
(c)The appellant is sentenced in respect of CC2018/8891 to a term of imprisonment of 16 months to commence on 1 August 2022 and end on 30 November 2023.
(d)The nonparole period is reset to commence on 1 July 2018 and expire on 27 March 2022.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 7 July 2020 |
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