Miller v McCullogh - [2024] TASSC 58

[2024] TASSC 58

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Miller v McCullogh [2024] TASSC 58
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 58
Number of paragraphs:	34

Serial No 58/2024 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 Harnett 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 58
Case: [2024] TASSC 58
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the case of Miller v McCullogh, the appellant, Miller, appealed against his sentence on the grounds that it was manifestly excessive. Miller had been convicted of two counts of assault and one count of emotional abuse or intimidation. The sentencing court had imposed a term of imprisonment of 12 months with three months suspended, subject to Miller complying with a community correction order. The respondent, McCullogh, contested the appeal, arguing that the sentence was appropriate given the nature and circumstances of the offending. The court was required to determine whether the sentence imposed was manifestly excessive or inadequate, considering the principles of sentencing and the relevant case law.

The court examined the principles of sentencing, focusing on the need for the sentence to be proportionate to the seriousness of the offending and to serve the purposes of punishment, deterrence, and rehabilitation. The court noted the severity of the offences, which involved physical and emotional abuse over a prolonged period. It considered Miller's prior criminal history, his alcohol dependency, and his mental health issues, as well as the impact of the offending on the victim. The court also took into account Miller's voluntary engagement with counselling after being charged, which demonstrated his willingness to address the underlying issues contributing to his offending behaviour. Ultimately, the court found that the sentence imposed was not manifestly excessive, as it reflected the seriousness of the offences and served the purposes of sentencing.

Having carefully considered the circumstances of the case, the court upheld the original sentence imposed by the sentencing court. The court held that the sentence of 12 months' imprisonment, with three months suspended, was appropriate and proportionate to the offending. The court noted that the sentence provided an opportunity for Miller to address his underlying issues and to rehabilitate, while also serving the purposes of punishment and deterrence. The appeal was dismissed, and the original sentence was affirmed.

The court made no further orders, and the original sentence of 12 months' imprisonment with three months suspended, subject to compliance with the conditions of the community correction order, was upheld.

Orders