Mills, Paul Austin v The Queen

[1995] FCA 863

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )    ACTG 32 of 1995
GENERAL DIVISION                 )

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PAUL AUSTIN MILLS

Appellant

AND:     THE QUEEN

Respondent

CORAM: Burchett, Lee and Tamberlin JJ.
PLACE: Canberra
DATE : 25 October 1995

REASONS FOR JUDGMENT

THE COURT:

In this matter the appellant appeals against the excessiveness of sentences imposed upon him, including the non-parole period fixed.  In such a case the court does not set aside sentences merely on the ground that it takes the view that they are too long, but only where either there is such a disproportion between the sentence imposed and that which ought to have been imposed that the well known principles governing appellate interference with sentences come into operation, or alternatively - and this is an important alternative - where some specific error is shown to have occurred during the sentencing process.

In the latter case, the court is compelled to re-examine the propriety of the sentences; and it must exercise its own
discretion as to what is a proper sentence because the sentencing process has been vitiated by the specific error which has been shown.  In this appeal, no attack is made on the individual sentences, but the principle of totality is called in aid, a principle which is quite well known and was recently re-examined by this court in the case of McDonald (1994) 71 ACR 370. It is unnecessary, in this matter, to consider whether there is sufficient disproportion to enable the appeal to be allowed on that basis alone, because we think that a specific error has been shown.

That error arises out of a concern expressed by his Honour about the appellant's role, as the dominant figure in a criminal partnership together with a young person who was his co-accused.  This role had its origin in the appellant's position as step-father of his co-offender, who was under the age of 18 at the times of all of the offences in question.  It was a serious aggravating factor that the appellant failed to give proper guidance to his step-son, and on the contrary did exert a malign influence upon him as a young person.  But his Honour went further than this, and said:

"What is of particular concern also is that one is left with the strong feeling that he played the dominant role in the commission of the offences with his co-offender, who happened to be his step-son, and coerced him into the crimes committed jointly."

It is the last part of this statement to which we draw attention.  There was no evidence whatever relied upon in argument by the Director of Public Prosecutions, nor could we ourselves find any in the appeal book, which could have permitted of a conclusion that the appellant coerced his step-son into the crimes.  His Honour described this aspect of the matter in the statement we have quoted as being "of particular concern", and it must have influenced him.  Doubtless, the statement about coercion resulted from a mere misapprehension, but it has the effect that the sentencing process miscarried.

The appellant was entitled to be dealt with on a basis that did not include any suggestion that he had coerced his fellow accused.  We must therefore exercise our discretion.  In doing so, we state at the outset that the individual sentences were appropriate, but applying the totality principle as expounded in McDonald, we think that, if the element of coercion is omitted, an appropriate total period of incarceration for these offences is six years.  The appropriate non-parole period, on the same basis, is three years.

We have had regard to evidence which was not in dispute, suggesting the appellant is not yet beyond redemption.   He has been accepted as having a genuine attachment to his two young children, of whom he has had custody.   In prison, he has been described as a model prisoner, who has given real assistance to other prisoners in certain education programmes. It is apparent that the appellant suffers from a long standing psychological disability, which has gravely disturbed his
ability to function in society, and has led to his course of criminal conduct.  He desperately needs some discipline to ensure that he perseveres with treatment for this problem.   Unfortunately, in the past his perseverance has more than once been short lived.  The other relevant features of the case have been thoroughly set out in the sentencing remarks of the learned judge.   We do not think it is necessary for us to engage in repetition.  

Accordingly, the orders of the court are that the appeal be allowed and that the sentences and orders be varied to provide as follows:  Sentences for individual offences are to be as specified by his Honour.   All sentences, except those in respect of counts 8 and 10 of the second indictment, are to be cumulative and are to date from the dates specified by his Honour.   But the sentences in respect of counts 8 and 10 are to be served concurrently with each other and with the sentence imposed under count six.  There is to be fixed a non-parole period of three years from the same date as before in relation to the aggregate for the sentences.  

The court orders that the attention of the parole authorities be drawn to this court's view that it ought to be a strict condition of any parole that the appellant submit to and comply with conditions as to psychiatric or psychological treatment and counselling.  

The remarks that we have made may well lead to rather more attention being paid to the matter by the authorities than may have been the appellant's experience in the past.  And the Court trusts he will not overlook that.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 30 October 1995

The appellant appeared in person.

Counsel for the Respondent:      Mr T. Buddin

Solicitor for the Respondent:        The Director of Public Prosecutions

Date of hearing:                 25 October 1995