Mills v R

Case [2017] NSWCCA 87


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mills v R [2017] NSWCCA 87
Hearing dates: 3 April 2017
Decision date: 05 May 2017
Before: Leeming JA at [1];
R A Hulme J at [5];
Beech-Jones J at [81]
Decision:

1. Leave to appeal allowed and the appeal against sentence upheld.
2. Quash the sentence imposed in the District Court on 11 December 2015 and lieu, sentence the applicant to imprisonment comprising a non-parole period of 10 years with a balance of term of 3 years 6 months. The sentence will date from 4 December 2014 and the applicant will become eligible for release on parole upon the expiration of the non-parole period on 3 December 2024.

Catchwords: CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether the sentencing judge erred in assessing objective seriousness as high range – where only aggravating circumstances under s 61J(2) were (d) age and (e) under authority – where four particularised offences were representative in nature of multiple sexual assaults – identifying absent aggravating factors does not mitigate seriousness – finding of high range open to the sentencing judge
CRIMINAL LAW – sentence appeal – persistent sexual abuse of a child contrary to s 66EA Crimes Act 1900 (NSW) – whether sentence manifestly excessive – where sentencing judge’s starting point close to maximum penalty – present case not worst category – sentence unreasonable – appeal allowed and applicant re-sentenced
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Crimes Act 1900 (NSW) ss 61J, 61JA, 66A(2), 66EA(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3), 44
Cases Cited: Baines v R [2016] NSWCCA 132
Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
Hitchen v R [2010] NSWCCA 77
House v The King [1936] HCA 40; 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mammone v R [2013] NSWCCA 95
Mulato v R [2006] NSWCCA 282
R v JCW [2000] NSWCCA 209; 112 A Crim R 466
Saddler v R [2009] NSWCCA 83; 194 A Crim R 452
The Queen v Kilic [2016] HCA 48
Category:Principal judgment
Parties: Mills (a pseudonym) (Applicant)
Regina (Crown)
Representation:

Counsel:
Mr S Fraser (Applicant)
Ms M Cinque SC (Crown)

  Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions
File Number(s): 2014/357915
 Decision under appeal 
Court or tribunal:
District Court
Date of Decision:
11 December 2015
Before:
Syme DCJ
File Number(s):
2014/357915

Judgment

  1. LEEMING JA: This application for leave to appeal against the sentence of 16½ years imprisonment…

Continue reading Mills v R

Sign in free to access the full text

Details
AGLC
Mills v R [2017] NSWCCA 87
Case
[2017] NSWCCA 87
Decision Date

CaseChat Overview and Summary

Mills was convicted of persistent sexual abuse of a child, and he appealed against the sentence. The Court of Criminal Appeal considered whether the sentencing judge erred in assessing the objective seriousness of the crime as being in the high range. The only aggravating circumstances identified by the sentencing judge were the victim's age and the abuse occurring under a position of authority. The appellant argued that absent aggravating factors should mitigate the seriousness of the crime.

The court considered whether the sentence was manifestly excessive, noting that the sentencing judge's starting point was close to the maximum penalty, and the present case was not the worst category of such offences. The court concluded that the finding of high range seriousness was open to the sentencing judge, given that the four particularised offences were representative of multiple sexual assaults. The court found that the absence of other aggravating factors did not mitigate the seriousness of the crime. Ultimately, the court determined that the sentence was unreasonable and allowed the appeal, re-sentencing the appellant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.