Millwood v The King

[2024] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

MILLWOOD v THE KING

[2024] SASCA 84

Judgment of the Court of Appeal  

(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)

28 June 2024

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

This is an application for permission to appeal against sentence pursuant to s 157(1) of the Criminal Procedure Act 1921 (SA). The appellant pleaded guilty to two counts of aggravated assault contrary to s 20(3) of the Criminal Law Consolidated Act 1935 (SA).

The offending was aggravated because it was directed to the appellant’s former domestic partner.  The first count involved swinging a baseball bat into the bedhead, causing the victim to be fearful.  The second count involved pushing the victim then grabbing her by the throat, causing bruising. The appellant was sentenced on the basis that the offending was isolated. He was 52 years when sentenced. 

The sentencing judge imposed a sentence of 10 months and five days. The prosecution did not oppose suspension. The sentencing judge ordered partial suspension, directing the appellant to serve six months in custody.

HELD (the Court) granting permission to appeal, allowing the appeal and, on re-sentence, ordering that the appellant’s sentence be suspended:

1.Whilst the appellant’s offending was serious, it was fuelled by alcohol. The sentencing judge sentenced the appellant on the basis that he would likely remain abstinent from alcohol and that this was a “protective factor”. The appellant has remained abstinent from alcohol for well over two years. 

2.This represented some insight into his offending. Not all offenders are articulate. Some may be articulate by their conduct rather than their words. It was an error to sentence on the basis that the appellant had shown no insight.

3.Secondly, on the basis the appellant had expressed no insight, the sentencing judge made the further finding that she was unable to conclude that the appellant posed no risk of re offending against future partners. Given that the appellant had never previously been involved in domestic violence and his decision to remain abstinent from alcohol was a “protective factor”, it was necessary to evaluate the risk of re-offending against the insight he had manifested.  That was not done.

4.Thirdly, the sentencing judge sentenced the appellant on the basis that the second aggravated assault caused harm, consistently with s 20(4) though he had only pleaded to an offence under s 20(3) of the CLCA.

5.These errors were material. It is necessary to set aside the sentence and re-sentence. On re‑sentence, the same sentence is imposed. Whilst it is conceivable that the offending may not have been viewed as seriously in other contexts, the offending in this case occurred in a family or domestic setting and was deserving of sentences of imprisonment. There is good reason to wholly suspend the sentence on entry into…