R v Millard
[2014] ACTSC 267
•5 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Millard |
Citation: | [2014] ACTSC 267 |
Hearing Date(s): | 5 September 2014 |
DecisionDate: | 5 September 2014 |
Before: | Murrell CJ |
Decision: | See [30]-[33] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – guilty plea – offences of being unlawfully at large, burglary, theft, attempted burglary – poor criminal history – on parole – mental health and intellectual disability |
Legislation Cited: | Crimes Act 1900 (ACT) s 162 Crimes (Sentencing) Act 2005 (ACT) s 35, 66, 72 |
Cases Cited: | R v Ponfield (1999) 48 NSWLR 327 |
Parties: | The Queen (Crown) Matthew John Millard (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Mr R Davies (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 28 of 2014; SCC 189 of 2014 |
Murrell CJ:
Background
Today the offender was arraigned and pleaded guilty to the offence that between 23 and 29 April 2014 he was unlawfully at large, contrary to s 162 of the Crimes Act 1900 (ACT). The maximum available penalty for that offence is five years' imprisonment. I note the provisions of s 72 of the Crimes Sentencing Act 2005 (ACT) (Sentencing Act).
The offender adheres to pleas of guilty first entered on 25 June 2014 to three further matters. The pleas related to one offence each of burglary, theft and attempted burglary committed on 2 December 2013. In relation to the burglary and attempted burglary matters, the maximum available penalty is 14 years' imprisonment, and in relation to the theft matter the maximum available penalty is 10 years' imprisonment.
The offences committed on 2 December 2013 were initially the subject of pleas of not guilty and were listed for trial on 30 June 2014. The guilty pleas were entered on 25 June 2014 in the face of an overwhelming prosecution case. The offender is entitled to a discount under s 35 of the Sentencing Act to reflect the significant utilitarian value of the pleas, but the discount must not overlook the fact that the pleas were entered late, albeit not at the last minute, and they were entered in the face of an overwhelming prosecution case. To my mind, the appropriate discount is a little over 10 per cent. But in relation to the offence of unlawfully being at large, he is entitled to what is generally considered to be the full discount of 25 per cent.
Offences of 2 December 2013
The facts of the offences are contained in Exhibit 1. On 2 December 2013 the offender was on parole for similar matters. At about 3 pm on the afternoon of 2 December 2013 he went to a residence at Curtin (the first residence), where he attempted to gain entry by breaking a glass panel on the top half of a timber‑framed sliding door. The timber frame was left with tooling marks and a blood trail that led from the rear of the yard into the adjacent residence.
The offender then entered the adjacent residence (the second residence). A flyscreen was removed from the ground floor living room window, and that window was smashed. The rear sliding door and fly screen door leading from the living room to the backyard were left open. At about 3 pm on 2 December 2013, the residents of the second residence, a couple and their young son, returned home following a short vacation. Mr Spencer noticed that the living room had been smashed, and he then observed the offender only about three metres away from him walking across the backyard. The offender informed Mr Spencer that he had pursued the burglar. Mr Spencer noticed that the offender was sweating.
Police were called and arrived quickly. They found the offender about 200 metres away. He had cuts on his hand and his legs that were bleeding. He provided police with a false name. As the offender’s correct name was tattooed on his right forearm, the falsity was apparent to the officers, who proceeded to arrest him.
When interviewed by police, the offender repeated the story that he had given to Mr Spencer to the effect that he had been passing by the premises when he observed the burglary occurring, and he had chased the burglar but, because of his disability, he had been unable to apprehend the burglar. He sought to explain his injuries on the basis that he had fallen and cut himself during the pursuit.
Forensic testing (both DNA and fingerprint evidence) linked the offender to the offences to both residences. The property that had been stolen from the second residence was located in a black bag near the rear fence of that property. The total value of property taken was estimated to be $590. The backpack in which the stolen items were located, and which was itself stolen, contained two screwdrivers that did not belong to the occupants of the premises. Inferentially, those items were carried and/or used for house breaking purposes. At the time of the attempted burglary at the first residence, the occupant was absent.
Offence of being unlawfully at large
The facts relating to the offence of unlawfully being at large were that the offender was in custody, bail refused, in relation to the offences that had occurred on 2 December 2013. On 22 April 2014 he was granted conditional bail to attend his mother's funeral. He was to return to the Alexander Maconochie Centre no later than 3.30 pm on 24 April 2014.
Regrettably he did not return to the Alexander Maconochie Centre at the required time, nor did he remain in the custody of the person who was responsible for supervising him at the funeral. Rather, the offender sought to obtain crisis support payments from Centrelink. On 28 April 2014, police were called to the Centrelink shopfront in Belconnen. The offender showed the police a document, a copy of which is in Exhibit A. The document purported to come from the Supreme Court (spelt “Supream Court”), and stated that the offender was on bail for the purpose of travelling to “Auscare in Cairns buy (sic) 29 April”.
Objective seriousness of offences
The offence of being unlawfully at large is of some seriousness. Not only was the offender on bail, but he was also on parole. The Court had granted the offender the indulgence of allowing him to attend his mother's funeral, and the failure to adhere to the Court's requirements was a gross breach of the Court's trust. The offender behaved deviously when he produced the false document to police. On the other hand, he was at large for only a brief period, and as far as the Court is aware, he committed no offences during that time.
The burglary offence committed at the second residence in Curtin is of some objective seriousness, although not a high level of objective seriousness. The offence occurred during daylight hours. It was, on the other hand, at residential premises. Limited damage was occasioned at the entry point, but little was taken. Nothing of a sentimental nature and nothing of great value was taken, and all the property was recovered within minutes of the burglary. The offence is rendered more serious because the occupants encountered the offender at the scene, albeit after he had left the house. Those observations also apply generally to the theft offence. In relation to the attempt burglary offence, damage was occasioned to the premises at the entry point, but nothing further. No one was at home. It was daylight. On the other hand, the premises were residential premises.
The offender was on parole for matters of a like nature at the time of the offences, and that is a very important consideration.
Matters that may affect the objective seriousness of burglary offences were considered in the New South Wales guideline judgment of R v Ponfield (1999) 48 NSWLR 327. Although it is not a guideline in the Territory, it does assist in relation to matters that may affect an assessment of the appropriate sentence for a burglary matter.
Criminal History
The offender's criminal history is complex. He is now 31 years of age. He commenced antisocial behaviour when he was approximately 14 years of age. By 2003 (when he was 20 years of age), he had a record of minor matters of dishonesty and driving matters.
In 2003 the offender came before the ACT Supreme Court for four offences of burglary, and other matters. The Court imposed a total effective sentence of four years' imprisonment, but the whole sentence was suspended upon the offender entering into a four‑year good behaviour order. The terms of the order required that he undergo residential rehabilitation treatment and other drug treatment. He breached that order in numerous ways.
In 2004 he was sentenced for offences of burglary and attempting to pervert the course of justice, and for breaching the 2003 good behaviour orders, receiving a total effective sentence of four years and six months’ imprisonment, with a nonparole period of 18 months to date from 27 June 2004. This would have seen him released, probably in either late 2005 or early 2006. He was back in custody for breaches for a short period in 2006, and then for a more protracted period of 12 months from August 2006 to August 2007.
In 2010 the Court sentenced him for burglaries committed in 2006, and the resulting sentence saw him imprisoned for three years with an 18 month nonparole period from 11 September 2009. He was out of custody for a significant period of time during 2011 and 2012.
In March 2012 he received sentences for charges of theft, burglary, dangerous driving and taking a motor vehicle without consent that dated from 30 December 2012. The total sentence for those offences was 25 months’ imprisonment. Relevantly, he was released on parole on 23 July 2013, and it is that parole that he breached when he committed the offences before me. On 3 June 2014 his parole was cancelled. Currently, he is serving a sentence from 3 June 2014 to 8 December 2015, being the outstanding portion of the sentence originally imposed by the Magistrates Court in March 2012.
In addition to the ACT criminal history to which I have referred, the offender has a significant criminal history in Queensland, and he served a substantial period of time, possibly 12 months, from about late 2008 to late 2009 in a Queensland correctional centre. As far as one can gather, in the latter part of 2009 he was extradited to the ACT, resulting in the commencement of ACT sentences, being a three year effective sentence with an 18 month nonparole period from 11 September 2009.
It is a very complex sentencing picture and the details are not entirely clear, but it is plain that since June 2004 the offender has spent a great deal of time in custody, and that most of that period has related to offences of the type for which he is now before the Court. It is also clear that, on a considerable number of occasions, the offender has been released into the community but he has been unable to comply with the requirements of release, and he has either committed further offences, parole has been revoked for other reasons, or good behaviour orders have been breached and revoked.
Subjective Circumstances
The offender's subjective circumstances are almost as complex as his criminal history. He has a longstanding history of polysubstance abuse. He has abused amphetamines, cannabis, heroin, morphine and prescription drugs. He has made at least five attempts to recover in residential rehabilitation, but without completing any of those programs. However, his attempts have been more than perfunctory. For example, he remained at Karralika for five months in 2013. Generally, he has been assessed as unsuitable for pharmacological intervention, including methadone, because of a history of overdosing and abusing any drug that might be provided to him, including prescription drugs.
The offender has a complex history of psychological problems, and problems associated with brain function. As far as I can ascertain, he has an underlying intellectual disability. He has a history of childhood developmental delay and childhood behavioural problems. These factors are consistent with an underlying low intellectual functioning. In 2012 his functioning was assessed as in the “bordeline range” with a general ability of 73. That puts him in the bottom 5 per cent of the population. Associated with that finding is a finding of an extremely compromised ability to learn.
Overlaying those problems, in 2012 the offender suffered a hypoxic brain injury secondary to a cardiac arrest after a drug overdose, and also possibly related to previous opiate overdoses which had neurological sequelae. In other words, he suffered a brain injury. Further, in 2011 he suffered a neuropraxic injury to his left arm due to compartment syndrome. As a result, the offender's left arm is effectively paralysed and his left hand is perpetually held in a tense grip.
There is chronic pain associated with the left arm such that the offender has repeatedly requested that it be amputated. It has been determined that, because of his intellectual difficulties, he lacks the insight to inform a well considered decision as to whether to proceed with such an operation. One result an operation may be phantom pain associated with loss of the left arm. Consequently, it is very unlikely that the left arm will be amputated. However, the offender may benefit from surgery to release the tendons in the left hand. It is not suggested that this will overcome the problem of chronic pain. The chronic pain problem is itself associated with the abuse of legal and illegal drugs.
Furthermore, he has in the past been diagnosed with depression and bipolar disorder, although it is unclear whether these diagnoses have been confirmed. He has a very significant history of self‑harm, consistent with diagnoses of depression.
The offender is therefore in a very unfortunate situation. He has an underlying significant intellectual dysfunction. There is an overlay of a brain injury, and he has very significant and associated pain in relation to the left arm, and other parts of the left side of his body. The net result is that the offender acts impulsively, resorts to drugs to alleviate pain, is unable to form proper judgments, and has great difficulty learning new behaviour. Unfortunately, most of those problems are likely to be permanent.
The offender’s intellectual and psychological problems, and the longstanding polysubstance abuse are very closely related to his criminal history, and to the current offences. The offender's intellectual and psychological situation reflects on his moral culpability for the offences. He is not as morally culpable as someone who has the normal resources. His intellectual and psychological problems mean that he is of limited use as a vehicle for general deterrence (assuming that general deterrence is a relevant concept in relation to drug addicts who commit impulsive burglaries to support their addiction).
On the other hand, the offender’s criminal history shows that he a chronic high level nuisance. Over many years he has committed burglaries that would have had a significant impact on the victims.
Sentence
The exercise before the Court is a very difficult one. The fundamental yardstick in relation to all the sentencing is the maximum available penalty. I have endeavoured to take into account the objective seriousness of the matters and the offender's very strong subjective circumstances, as well as his appalling criminal history, and the fact that the offences were committed while he was on parole for burglary matters.
I record a conviction in each matter. In relation to the offence of being unlawfully at large, I start from a sentence of 4 months' imprisonment and discount this by 25 per cent to a sentence of 3 months' imprisonment. The sentence will run from 6 March 2014 to 5 June 2014.
In relation to the burglary offence committed at second residence in Curtin, the starting point for the sentence is four years' imprisonment. I discount that sentence by six months to arrive at a sentence of three years and six months' imprisonment. That sentence will run from 6 June 2014 to 5 December 2017. In relation to the associated offence of theft, the starting point for the sentence is 14 months' imprisonment. That is discounted to 12 months' imprisonment, and the sentence will run concurrently from 6 June 2014 to 5 June 2015. In relation to the offence of attempted burglary, I discount that sentence from 18 months' imprisonment, to 15 months' imprisonment, and the sentence will run from 6 June 2014 to 5 September 2015.
The offender has been in custody since 2 December 2013, but was out of custody for a period of four days. I take a starting point of 6 December 2013 and treat that as the notional commencement date for the effective sentence. The expiry date of the effective sentence is 5 December 2017. That is a period of four years of imprisonment. I have decided that the appropriate date to fix for the nonparole period is 5 September 2016, being a period of two years and nine months from 6 December 2013. Pursuant to s 66 of the Sentencing Act I fix a nonparole period from 6 December 2013 to 5 September 2016.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 14 October 2014 |
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