R v Millard
[2019] ACTSC 221
•24 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Millard |
Citation: | [2019] ACTSC 221 |
Hearing Date: | 16 April 2019 |
DecisionDate: | 24 May 2019 |
Before: | Burns J |
Decision: | See [36]-[39] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – causing grievous bodily harm – pleas of guilty – substantial criminal history – need for particular emphasis on personal deterrence and protection of the community – long history of polysubstance use |
Legislation Cited: | Criminal Code 2002 (ACT) s 308 Crimes Act 1900 (ACT) s 25 |
Parties: | The Queen (Crown) Matthew John Millard (Offender) |
Representation: | Counsel T Hickey (Crown) H Jorgensen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 241 of 2018; SCC 242 of 2018 |
BURNS J:
Matthew Millard on 18 July 2018 you pleaded guilty to an offence of theft. However, you pleaded not guilty to charges relating to the infliction of grievous bodily harm on a police officer, DE.
On 12 September 2018, you were committed for trial to this Court. On 31 October 2018, the Crown filed an indictment which included a charge of recklessly inflicting grievous bodily harm. You maintained your plea of not guilty to that charge. The matter was listed for callover in February 2019 to set a trial date and it was also listed for case conference. On 7 February 2019 at the case conference, following negotiations, you indicated that you would plead guilty to the statutory alternative charge of causing grievous bodily harm. This was accepted by the Crown.
On 20 February 2019 you were arraigned and pleaded guilty to that statutory alternative charge and also to the charge of theft. The maximum penalty for the offence of theft, contrary to s 308 of the Criminal Code 2002 (ACT) is 10 years' imprisonment and/or a $150,000 fine. The maximum penalty for the offence of causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT), is five years' imprisonment.
On the morning of 27 June 2018 you stole a mobility scooter from the shopping centre at Cooleman Court, Weston. The owner of the scooter was a disabled woman who had parked it outside a pharmacy and removed the keys from the ignition before meeting with her carer for a coffee. You had driven your own mobility scooter to Cooleman Court that morning and, seeing the other mobility scooter unattended, you used the key from your scooter to drive the stolen mobility scooter back to your house at Rivett. You then returned to Cooleman Court and drove your own scooter back to your house.
Through information provided to police and by reference to closed circuit television footage, you were quickly identified as the thief. The scooter was valued at $2,795 and its owner was unable to travel without it because of her disability. At about 9.40 am on 1 July 2018 three uniformed police officers, including DE, went to your unit in Rivett. One of the police officers recorded what then occurred on a digital tape recorder.
You opened the front door of your unit but left the screen door locked. Police saw a tan coloured pit bull terrier called ‘Buddy’ behind the screen door. The dog was behaving aggressively and you said, “[s]tay Buddy, stay.” You assured police that the dog would not attack them. They asked you to hold onto the dog. You told the dog to get back. You told police that you had to get the keys to the screen door and you walked back into your unit before returning about one minute later. You told the dog to get back and to stay. You then unlocked the door and opened it. The dog ran out the front door and attacked police.
What occurred at this time was a matter of contention. The prosecution alleged that you urged the dog to attack police by saying to it, “[g]o, go, go, go.” Your counsel submitted that what you said was, “[n]o, no, no, no.” I have listened very carefully to the recording of these events using headphones and amplifying the recording to allow me to hear more clearly what you said.
Based upon the recording only, I would only be satisfied that it is more probable than not that you said, “[g]o,” as opposed to “[n]o.” This would not be sufficient for me to sentence you on the basis that you had deliberately set your dog onto the police.
There is, however, other evidence which must be brought to account. First, on 28 July 2018 you rang your then girlfriend from the AMC. Your conversation was lawfully recorded. I am satisfied in that conversation you told your former girlfriend that during this incident you had said words to the effect of, “[g]o Buddy. Go Buddy. Good doggy.”
In addition, the Agreed Statement of Facts records that after the dog ran out of the unit and began to attack police, you took no steps to try to gain control of it. This strongly suggests that the dog’s escape from the open front door was not accidental or unexpected.
Having listened closely to the recording of this incident, your voice appears to show no concern or urgency until police deployed a taser and subsequently attempted to shoot the dog. At that time your expression of concern and urgency related to the wellbeing of the dog. You called on police not to hurt the dog. In addition, there can be no doubt that you were aware that your dog was an aggressive, if not savage, animal which had attacked people in the past.
You took no steps to secure the dog before opening the screen door, despite being asked to do so by police, and despite the aggression which the dog had shown the police through the screen door. Indeed, the attack did not end until one of your neighbours came and pulled the dog off DE. You later told police in a recorded interview that your dog did not like police.
In addition, you had a motive for setting your dog on the police. You knew that the stolen mobility scooter was in your unit and that a distraction may provide you with an opportunity to move the scooter. Dealing with the aggressive dog and any injury that it may inflict would likely be the first priority for the police. They may not have been able to continue their investigation into the theft of the scooter that day, which would have given you an opportunity to move it. I am ultimately satisfied beyond reasonable doubt that in opening the front screen door as you did, you intended that your dog would attack police.
As the recording of these events demonstrates, what followed was a horrific attack on DE. Attempts to make the dog desist by deploying OC spray and a taser were unsuccessful. Police unsuccessfully attempted to shoot the dog. Very significant injuries were occasioned to DE from which she has not fully recovered. The Victim Impact Statement prepared by DE speaks of the extreme fear and pain she experienced in his attack. It also speaks of the physical and emotional effects on her of the attack and her subsequent treatment.
DE underwent surgery for nearly four hours in which somewhere between 80 and 90 stitches were placed in her leg. Approximately 30 further stitches were required for her hand. Further such surgery was required. DE has prominent scarring and continuing significant disability. It is probable that these issues will continue to afflict her for the foreseeable future. In addition, she sees a psychologist for trauma therapy once a week. Her mental and emotional health have also been detrimentally affected.
I watched you closely while DE read her Victim Impact Statement. You did not display any emotion. You appeared, if anything, uninterested. I also watched you during the playing of the confronting recording of these events and you again did not display any indication of emotional remorse.
With regard to the offence of theft, I take into account that the monetary value of the items stolen was reasonably significant. The value of the scooter to the owner as a means of coping with her disability should also not be ignored. The theft was not premeditated, but you clearly had plenty of opportunity to think about what you were doing while you drive the scooter back to your house. It must have been obvious to you that the scooter would be owned and used by someone with a disability.
Your motive for taking the scooter was greed. You planned to sell it and keep the money. It is a matter of aggravation that the object of the theft was a device which assisted the mobility of a disabled person. I do note, however, that the property was recovered and returned to the owner. I would place this offence in the mid-range of such offences.
With regard to the offence of causing grievous bodily harm, you are not to be sentenced on the basis that you intentionally caused grievous bodily harm to DE. I am satisfied, however, that you intentionally did the act which resulted in grievous bodily harm being occasioned to her. The extent of the harm occasioned and the circumstances in which it was occasioned make this a very serious example of this type of offending. It is a seriously aggravating feature that the victim was a police officer acting in the execution of her duty. Your acts also necessitated the discharge of both a taser and a firearm in a public place. In my opinion, this offence falls into the upper-range of such offences.
You have a very substantial criminal history in which you are heavily recorded for offences of dishonesty. You have served numerous terms of imprisonment in the past for offences of dishonesty. You are not heavily recorded for offences of violence, having only two previous convictions for offences of assault occasioning bodily harm whilst armed or in company in Queensland in 2009.
I observe that at the time of the present offences you were subject to a Recognisance Release Order imposed by Elkaim J in this Court on 26 October 2016 as part of a suspended sentence of imprisonment with respect to Commonwealth matters. Not only are you not entitled to any leniency in sentencing for the present offences based on your criminal history, that history also reveals a continuing attitude of disobedience to the law which calls for particular emphasis on personal deterrence and protection of the community in sentencing.
Subjective features
You are currently 36 years old. You have been known to ACT Corrective Services since 2002. A Pre-Sentence Report notes that you have been incarcerated for the majority of your adult life. It also notes that you have usually reoffended within months, and sometimes days, of being released from custody. Your compliance with community based orders is described as poor. You have continued to engage in illicit drug use even when on parole in the past. During your present period in custody, you have been subject to disciplinary action on five occasions.
You told the author of the Report that you were raised by your mother in a stable environment. You said that you enjoyed a positive relationship with her until her death in 2014. You reported having positive relations with your three siblings. You were residing in a property managed by EveryMan Australia at the time of this offence. I understand that these premises are no longer available to you.
You told the author of the Report that you completed Year 10, but your brother disagreed with this claim stating that you had ceased your education after completing Year Eight or Year Nine. This, in my opinion, is not a particularly significant matter. You claimed various periods of employment as a tyre fitter between 2001 and 2010, but the author of the Report doubted the accuracy of that information because you were in custody for much of the relevant periods. Your brother confirmed that you were employed at some stage as an exhaust fitter and that you were a good employee at that time.
In 2011, you suffered a stroke after overdosing on illicit substances, which resulted in physical limitations which have subsequently affected your ability to gain employment. You receive the Disability Pension when in the community. You have a long history of polysubstance use, including heroin, cannabis and methamphetamine. You told the author of the Report that you no longer used methamphetamine, but it is difficult to place much weight on that assertion.
Corrective Services records indicate that you have attempted, on several occasions, to address substance dependency issues through alcohol and drug counselling, and residential rehabilitation centres. Those attempts have been unsuccessful. In April 2016, you commenced the Solaris Therapeutic Community Program in the AMC, but you were exited from the program on 18 July 2016 following evidence that you were diverting your medication.
The Report notes that a letter from ACT Health dated 12 March 2019 states that you have multiple physical and mental health issues. These include diagnoses of opiate dependence, alcohol abuse, cannabis abuse, amphetamine abuse disorders, hypoxic brain injury, a mixed personality disorder with antisocial and borderline features, and pseudohallucinations.
The letter further noted that you were known to be non-compliant with pharmacotheraphy treatment in the community. You are currently subject to pharmacotheraphy treatment for substance dependence in the AMC and you are prescribed medication to manage insomnia, mood and dental pain.
There is no evidence that any physical or mental illness or disability on your part played any part in these offences. You suggested to the author of the Pre-Sentence Report that you are unable to restrain your dog because of your disability caused by your stroke. I am not prepared to accept that statement. You lied to the author of the Report with regard to the theft offence by stating that you had purchased the scooter from a friend.
You also lied with respect to the offence of causing grievous bodily harm by telling the author of the Report that DE had opened the screen door of your unit allowing the dog to escape. You also lied to the police in a recorded interview about the theft offence. In addition, your criminal history reveals that you are a thoroughly dishonest person.
You could quite easily, I am satisfied, have restrained the dog before opening the screen door. The fact that you did not do so is another factor which convinces me that you intended that the dog would attack police when you opened the door. There is no evidence that any mental disability from which you may suffer in any way diminishes your moral responsibility for these offences or is in any other way relevant to sentencing. There was some suggestion in the Report that you had made derogatory remarks about the victim, DE. After hearing evidence by the author of the Report on 16 April 2019, I am not satisfied that these remarks related to DE.
On your behalf, a letter directed towards DE was tendered. It was apparently intended to be an apology. It is, in fact, nothing more than an attempt by you to minimise your responsibility. In it you make allegations against the police concerning their conduct at your house on 1 July 2018 which are inconsistent with the Agreed Statement of Facts and not borne out by the recording of the events. This is yet another instance of your dishonesty. I am not satisfied that this letter demonstrates any remorse on your part.
On all of the material before me I am satisfied that your prospects for rehabilitation are poor. You entered an early plea of guilty to the charge of theft, but the evidence against you on that charge was very strong. Your plea nevertheless had utilitarian value and I will reduced by approximately 20 per cent the otherwise appropriate sentence with regard to that charge.
Your plea with regard to the charge of causing grievous bodily harm was not early but nevertheless had utilitarian value. I will reduce by approximately 10 per cent the otherwise appropriate sentence with respect to that charge in the light of your plea of guilty.
Your counsel submitted that I should consider an Intensive Correction Order with regard to these offences. In my opinion, such a sentence would not reflect the objective seriousness of the offences and would also not be adequate to deter you from committing further offences. In my opinion, nothing less than substantial periods of imprisonment are appropriate for these offences.
You were arrested on 1 July 2018 and you have been in custody since that time so that it is appropriate that the sentences that I impose commence from that date. But for your plea of guilty, I would have imposed a sentence of four years' imprisonment for the offence of causing grievous bodily harm. I will reduce that by five months because of your plea of guilty. You will be convicted of that offence and sentenced to three years and seven months' imprisonment, commencing on 1 July 2018 and expiring on 31 January 2022.
But for your plea of guilty, I would have imposed a sentence of three years' imprisonment for the offence of theft. I will reduce that by seven months because of your plea of guilty. It is also necessary to accumulate part of this sentence to the sentence for the offence of causing grievous bodily harm. You will be convicted of the offence of theft and sentenced to two years and five months' imprisonment, commencing on 1 November 2020 and expiring on 31 March 2023.
The aggregate sentence which I have imposed is four years and nine months' imprisonment, commencing 1 July 2018 and expiring on 31 March 2023.
I set a non-parole period of three years and eight months, commencing on 1 July 2018 and expiring on 28 February 2022.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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