Miller v McCullogh - [2024] TASSC 61

[2024] TASSC 61

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Miller v McCullogh [2024] TASSC 61
PARTIES:	MILLER, Samuel John
v
McCULLOGH, Julie (Constable)
FILE NO:	2085/2024
DELIVERED ON:	11 November 2024
DELIVERED AT:	Hobart
HEARING DATE:	6 November 2024
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Domestic violence and abuse – Two counts of assault – One assault involved pressure to the throat and neck – One count of emotional abuse or intimidation – Verbal abuse, demeaning and undermining conduct over a 12 month period – Harm to victim – Offender with relevant prior convictions – Offender with alcohol problem and mental health issues not contributing to offending – Where offender voluntarily sought assistance after charged and engaged with counselling– Sentence of 12 months' imprisonment with three months suspended on conditions including compliance with community correction order – Sentence not manifestly excessive.

Palmer v Tasmania [2024] TASCCA 6, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Applicant: A Hilly
Respondent: I Beecroft

Solicitors:

Applicant: Adrian Hilly
Respondent: Director of Public Prosecutions

Judgment Number:	[2024] TASSC 61
Number of paragraphs:	34

Serial No 61/2024 File No 2085/2024

SAMUEL JOHN MILLER v CONSTABLE JULIE McCULLOGH

REASONS FOR JUDGMENT	PORTER AJ 11 November 2024
Introduction

1 This is a motion to review sentencing orders of Magistrate Hartnett imposed on 21 June 2024. The applicant had pleaded guilty to two charges of assault contrary to s 35(1) of the Police Offences Act 1935, one charge of emotional abuse or intimidation contrary to s 9 of the Family Violence Act 2004, and one charge of breaching bail. After pleas were entered, the facts stated and submissions made on 22 April 2024, he was remanded in custody. By way of a global sentence in respect of all complaints, he was sentenced to 12 months' imprisonment to commence on 20 April 2024, the execution of three months of which was suspended on condition that he commit no offence punishable by imprisonment for three years and comply with a community correction order.
2 That order was made for a period of 18 months to commence upon release with special conditions that he undergo assessment and treatment for alcohol dependency and submit to testing for alcohol use as directed, that he submit to medical, psychological or psychiatric assessment and treatment as directed, and if assessed as suitable, attend, participate in and complete the EQUIPS domestic abuse program, the EQUIPS aggression program, the EQUIPS addiction program and the family violence offender intervention program.
3 The sole ground of appeal in the notice to review is that the sentence imposed was manifestly excessive in all the circumstances. On 6 November 2024, I dismissed the motion and said I would later publish reasons. These are those reasons.

The facts of the offending

4 The magistrate was told that the applicant and the…

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.

Continue reading Miller v McCullogh

Details

AGLC: Miller v McCullogh [2024] TASSC 61
Case: [2024] TASSC 61
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the matter of Miller v McCullogh, the defendant appealed against his sentence for two counts of assault and one count of emotional abuse or intimidation. The case was heard in the County Court of Victoria. The defendant was sentenced to 12 months' imprisonment, with three months suspended on conditions, including compliance with a community correction order. The appeal focused on whether the sentence was manifestly excessive.

The central legal issue was whether the sentence imposed was manifestly excessive or inadequate, considering the nature of the offences, the harm caused to the victim, and the defendant's personal circumstances. The court had to weigh the seriousness of the assaults, the ongoing emotional abuse, and the harm inflicted on the victim against the mitigating factors presented by the defendant. These included his voluntary engagement with counselling after being charged, his alcohol problem, and mental health issues that did not contribute to the offending, as well as his relevant prior convictions.

The court determined that the sentence was not manifestly excessive. It found that the sentence appropriately reflected the gravity of the offences, the harm caused, and the defendant's culpability. The court acknowledged the defendant's voluntary engagement with counselling and his efforts to address his alcohol and mental health issues post-charge. However, it also considered the severity of the assaults, particularly the one involving pressure to the throat and neck, and the sustained emotional abuse over a 12-month period. The court concluded that the sentence, while firm, was proportionate to the crimes committed and the harm caused.

The final orders of the court were to dismiss the defendant's appeal against sentence, affirming that the original sentence of 12 months' imprisonment, with three months suspended on the specified conditions, was appropriate and not manifestly excessive.

Orders