R v Millington (No 2)
[2022] ACTSC 9
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Millington (No 2) |
Citation: | [2022] ACTSC 9 |
Hearing Date: | 1 February 2022 |
DecisionDate: | 1 February 2022 |
Before: | Mossop J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – arson with intent to endanger life – discharging a loaded arm so as to cause reasonable apprehension for safety – attempting to destroy or conceal evidence – found guilty at jury trial – where association with an outlaw motorcycle gang was a motivating factor for the offending – where offender assisted in the administration of justice – guarded prospects of rehabilitation – family support and positive employment prospects – application for a reparation order refused – sentences of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 27(3)(d), 117(1) Crimes (Sentencing) Act 2005 (ACT), ss 19, 35A Corrections Management Act 2007 (ACT), s 53 |
Cases Cited: | R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 R v Langi (No 2) [2021] ACTSC 239 |
Parties: | The Queen ( Crown) Christopher Millington ( Offender) |
Representation: | Counsel A Williamson ( Crown) B Morrisroe ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 140 of 2020 |
MOSSOP J:
Introduction
On 12 April 2021, at the commencement of a 9-day jury trial, the offender, Christopher Millington, pleaded guilty to the following counts:
(a)count 1: aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (CC202/2542);
(b)count 3: arson with intent to damage property contrary to s 404(1) of the Criminal Code (CC2020/2545); and
(c)count 4: discharging a loaded arm so as to cause another person reasonable apprehension for their safety contrary to s 27(3)(d) of the Crimes Act 1900 (ACT) (CC2020/2547).
On 22 April 2021, at the conclusion of the trial, a jury found the offender guilty of the two remaining counts on the indictment, being:
(a)count 2: arson with intent to endanger life, contrary to s 117(1) of the Crimes Act (CC2020/2544); and
(b)count 5: destroying or concealing evidence contrary to s 706(1)(b) of the Criminal Code (CC2020/2551).
Counts 1, 2, 3 and 4 were offences of joint commission with unnamed “others”, by virtue of s 45A of the Criminal Code. Count 5 was a charge of attempt, pursuant to s 44 of the Criminal Code.
Count 3 was a charge in the alternative to count 2. Therefore, as a result of the jury’s verdict on count 2, there is no need to sentence the offender in relation to count 3. He must therefore be sentenced on counts 1, 2, 4 and 5.
The maximum penalty for aggravated burglary is a fine of $320,000, 20 years’ imprisonment or both. The maximum penalty for arson with intent to endanger life imprisonment for 25 years. The maximum penalty for discharging a loaded arm is imprisonment for 10 years. The maximum penalty for destroying or concealing evidence is a fine of $112,000, seven years’ imprisonment or both.
On the same day, the jury found the offender’s co-accused, Aofangatukau Langi, guilty of joint commission charges of aggravated burglary and arson with intent to endanger life.
Facts
On 21 November 2019 at approximately 10:45pm, three or four intruders approached the residential premises of BN at [redacted]. Both BN and his partner, OS, were at home at the time and the front door was locked. While BN was getting changed, there were several loud bangs. BN went into the kitchen where OS was. On a monitor near the kitchen which displayed live CCTV footage from outside the house there were visible intruders wearing balaclavas kicking the front door. At least one of the intruders was holding a handgun.
BN and OS went into the bathroom where BN closed the door and OS lay down in the bathtub. As BN and OS hid in the bathroom, the front door was broken down. The intruders entered the house (count 1 – aggravated burglary).
An audio recording during the home invasion from a covert listening device inside the house records one of the intruders saying “come out cunt”, followed shortly after by “fuck it, discharge at him” before a gun was fired. The gun was discharged in the direction of the bathroom and a 0.32 calibre bullet was recovered by AFP forensic officers in the doorframe between the bathroom and laundry, at the entrance to the hallway (count 4 – discharging a loaded arm).
The intruders then poured petrol around the lounge room near the entertainment unit and in the dining room. The audio records someone saying “light it up”, before the petrol was lit and the intruders left the house (count 2 – arson with intent to endanger life). BN and OS fled into the backyard through a bedroom and called the ACT Fire Brigade.
By virtue of both Mr Millington’s pleas and the jury’s verdict, it is established that Mr Millington and Mr Langi were two of the intruders on 21 November 2019. The jury’s verdict in relation to count 2 also establishes that in forming the agreement to destroy or damage property by fire, the relevant intention of Mr Millington and the other party to the agreement was to endanger the life of another person by that destruction or damage.
On 19 February 2020, Mr Langi was arrested in relation to the November 2019 home invasion and a press release publicising that arrest was posted on ACT Police social media. Later that day, police intercepted a phone call made by Mr Millington to a scrap metal business. During the phone call, he arranged for his Mazda 6 to be towed and scrapped. Mr Millington admitted that the Mazda 6 was the car in which he and others travelled to [redacted] on 21 November 2019. In finding him guilty of this offence, the jury determined that the offender’s conduct was an attempt to destroy or conceal evidence, and that by doing so he intended to influence the outcome of a legal proceeding (count 5 – attempted destroy or conceal evidence).
This offending occurred in the context of a long-running dispute between BN and members of the Comanchero outlaw motorcycle gang and, specifically, a personal dispute between Mr Millington and BN. In mid-2017, BN joined the Comancheros as a patched member. In the course of his membership BN met and spent time with Mr Millington and Mr Langi. BN saw the co-offenders at club events, socialised with them and texted them often. At the time, Mr Millington regularly socialised with members of the gang although he was not on a trajectory towards membership. Mr Langi was a senior member of the Comancheros outlaw motorcycle gang and shortly after the offending is proved to have been the “sergeant-at-arms”.
In April 2019, BN was effectively kicked out of the Comancheros for “not showing loyalty” when he falsely stated in a bail application that he was no longer a Comanchero. He instead became a patched member of the Nomads outlaw motorcycle gang. After several months, he became the sergeant-at-arms of the Nomads’ ACT Chapter. As a result of both his bail application and patching over to a rival gang, BN was subject to retaliation by Comancheros for having left in “bad standing”.
On 3 September 2019, BN saw some messages that Mr Millington had sent to a friend of BN which referred to BN as a “gronk” and a “dog”. In response, BN decided to blow up Mr Millington’s Mercedes-Benz. He drove to Mr Millington’s house and poured fuel over the car, lit it and drove away. BN then texted Mr Millington photographs of his car on fire. There was some exchange about the two men meeting at Kambah Pool, although this never eventuated. There was some further back and forth between BN and Mr Millington over text messages throughout September and into October 2019.
A covert listening device placed in Mr Millington’s Mazda 6 prior to the November 2019 home invasion recorded Mr Millington and Mr Langi discussing BN and potential plans to attack him. These plans involved an attack on BN’s home, including kicking the door in, the use of a weapon, setting the property on fire and doing so when BN was at home. The recordings demonstrate the level of animosity directed at BN. A recording from 6 November 2019 records Mr Millington stating “I want to fuck him up so he has to live with it man … cut his fucking fingers off man, cut do [sic] his two fingers off. He’s not goin to pull a gun like this cunt.”
This background makes up the context in which the offending occurred.
Objective seriousness
For the reasons given in R v Langi (No 2) [2021] ACTSC 239 at [18]-[19], the aggravated burglary was at the upper end of the mid-range of objective seriousness and the arson in the mid-range of objective seriousness. The discharge of loaded arms occurred inside a residence, at close quarters, with an intent to exact both personal revenge and for the purposes of inter-gang rivalry. It is above the mid-range of objective seriousness. The attempted destruction of evidence was an unsophisticated attempt to influence the investigation into Mr Millington’s offending. It is at the lower end of the mid‑range of objective seriousness for this offence.
Subjective circumstances
The subjective circumstances of the offender are set out in a pre‑sentence report dated 1 September 2021 and an update to that report dated 24 January 2022.
The offender is 33 years old. He was 30 at the time of the offending. The offender was born and raised in the Australian Capital Territory (ACT). He reported a positive childhood with his parents and one older sister. When he was four years old, the offender was diagnosed with leukemia. Following this, his upbringing was characterised by ongoing intensive health care. The offender reported that his relationship with his family remains close and they have supported him while he has been in custody. The offender is currently single with no biological children.
The offender lived with his parents in the ACT before being remanded in custody. He has expressed an intention to continue to live at his parents’ house if he is given a community-based sentence. When interviewed for the purposes of preparing the pre‑sentence report, the offender’s mother expressed that she has a close relationship with him and confirmed her support for him returning to live with her. Both of the offender’s parents gave consent to the offender residing with them if he was given an intensive correction order (ICO).
The offender completed schooling to Year 12 and then gained vocational qualifications in scaffolding. His employment up until being remanded in custody was primarily in the scaffolding industry. The offender’s former employer has indicated that work would be available to him should he be released into the community. In assessing his financial situation, the offender identified significant debt in the order of $60,000 and expressed his intention to file for bankruptcy.
The offender identified that he had a history of problematic alcohol consumption but expressed the view that this has no longer been the case more recently. The offender has a history of illicit substance use from the age of 25, most recently involving cocaine in the months prior to his arrest. The offender described his drug use as recreational rather than out of dependency. The offender was not involved in any organised community recreational activities but reported spending his free time at the gym, socialising, going shopping and swimming.
The offender reported a significant medical history, dominated by his childhood diagnosis of leukemia. Following his diagnosis at four years old, the offender suffered three relapses during his remission period from age six to age 16. The offender is under a lifelong treatment plan and disclosed his concerns to not be able to adequately adhere to this plan in custody. The offender disclosed poor mental health since his transfer to Goulburn Correctional Centre in New South Wales (NSW). He reported feelings of anxiety, depression and anger. He has taken no further action in relation to his mental health because he does not want to be medicated.
Regarding his attitude to the offences, the offender agreed in part with the Crown case statement while disagreeing in some respects. He expressed acknowledgement that his actions were unlawful but sought to minimise and justify his involvement. The offender stated that he had “no intention to take or endanger a life” but that his actions were impulsive and out of anger, retaliation, fear and a desire to protect his family. The offender expressed regret for his actions but could not identify how these actions may have impacted upon the victims. The offender denied that his co‑offender was involved in the offences. He further denied that he is or has ever been a member of an outlaw motorcycle gang. The pre-sentence report recorded that ACT Police confirmed that the offender was recorded as an outlaw motorcycle gang associate at the time of the offence and as of 1 September 2021 was recorded as a nominee of the Canberra Chapter of the Comancheros. However, in relation to that latter issue I am not satisfied of that fact beyond reasonable doubt.
The author of the pre-sentence report expressed the opinion that the offender has a medium to low general risk of re-offending. The author identified that the offender has had a varying degree of success with past community service orders, having completed them but engaging in re-offending and breaching conditions.
The offender was assessed as suitable for a good behaviour order with a medium to low level of intervention by ACT Corrective Services, suitable for a community service work condition and suitable for an ICO.
References from his sister, brother-in-law, uncle and a close family friend describe in detail his experience of childhood cancer, his solid work history and the ongoing existence of family support. There was also a letter from a former employer offering employment upon release.
Counsel for the offender submitted that the evidence did not disclose that he was anything other than an associate of a number of members of the Comancheros. The Crown accepted that he was not on a trajectory towards membership of the gang in the same way as a “hang around” or a “nominee”. However, the Crown submitted that he was sufficiently closely associated with members of the gang to socialise with them and attend the clubhouse, indicating that he had a similar mindset. I will sentence offender on the basis that he was an associate of members of the gang but had not committed himself to the gang or to the rules and culture of the gang.
Consistent with this, counsel for the offender submitted that the motivation for the offending was anger, a desire for retaliation and fear for his family. The evidence is not, in my view, sufficient to establish that the motivation was a defensive one. Rather the principal motivation was to retaliate against BN. Because of his association with members of the Comancheros, inter-gang rivalry may have encouraged the offender to act as he did but it was not his principal motivation.
Counsel for the offender submitted that the evidence disclosed that he continues to have support from his family, the potential for stable and secure accommodation and employment, as well as a realistic plan for the future. I accept that these are factors tending to support his prospects of rehabilitation in the community.
Finally, counsel for the offender pointed to his history of childhood cancer and the need for ongoing monitoring of his condition. She also pointed to the hearsay evidence that the offender remains concerned about the adequacy of the monitoring that he will receive for so long as he remains detained at a prison in NSW rather than in the ACT. The obligation in s 53 of the Corrections Management Act 2007 (ACT) places a duty on the Director-General to provide medical care equivalent to that which would be received by a person in the community. In circumstances where the offender has long-term doctors monitoring his condition, the standard of care required is relatively easily established. The obligation in s 53 makes no distinction between detainees who are accommodated within the ACT and detainees who are accommodated in the NSW prison system. In each case, the obligation on the Director-General is the same. The evidence tendered by the offender is not sufficient to establish any failure to comply with the obligation under s 53. However, I accept that for so long as he remains detained in the NSW prison system, his need for ongoing monitoring is a matter which will be cause for concern to him and in that sense make the imprisonment somewhat more burdensome than for a person without his long-term conditions.
Criminal history
The offender has a criminal history in the ACT and NSW dating back to 2006. This history consists of property, driving and violent offences. None of the offences are as serious as the current offending. While the offender had been subject to suspended sentences of imprisonment, he has not previously been required to serve full-time detention prior to this offending. At the time of the offending, he was the subject of a good behaviour order associated with a suspended sentence arising out of a conviction for common assault.
Plea of guilty/assistance to administration of justice
A criminal case conference was conducted approximately three weeks prior to the commencement of the trial. Immediately following that conference, the offender’s solicitor indicated that he would plead guilty to counts 1, 3 and 4 on the indictment. The offender did in fact plead guilty to counts 1, 3 and 4 at the commencement of the jury trial. At the trial, he also made admissions (which were contained in Exhibit 22) relevant to his involvement in the aggravated burglary, the discharge of a firearm and arson. Counsel only asked questions of witness to the extent that they were relevant to the limited issues remaining in dispute in his case. Further, some months prior to the commencement of the trial the offender had filed an election for trial by judge alone. The trial proceeded as a jury trial because his co-offender, Mr Langi, did not file such an election.
The parties agreed that had there been no co-offender, then because of the pleas entered, the issues would have been so narrowed that the trial would have only taken one to two days. It was because of the approach taken by Mr Langi at trial that it took as long as it did. The parties agreed that the offender should receive, under s 35A of the Crimes (Sentencing) Act 2005 (ACT), the benefit of his approach notwithstanding that it was frustrated by the approach taken by his co-offender.
In relation to counts 1 and 4, given that the pleas of guilty were indicated immediately following the criminal case conference, a discount of 15 percent is appropriate in relation to those sentences. The fact that the criminal case conference was held at a relatively late stage was a result of pre-trial applications made by his co-offender and does not reduce the extent of the discount which is appropriate.
By reason of the approach taken to the issues in the trial, the offender assisted in the administration of justice. He is entitled to a reduction in sentence pursuant to s 35A of the Crimes (Sentencing) Act.
Time in custody
The offender has been in custody since 20 February 2020. The sentences will be backdated to take this period of custody into account.
Reparation order
The Director of Public Prosecutions sought a reparation order pursuant to s 19 of the Crimes (Sentencing) Act. Section 19 permits the making of a reparation order where a person “suffers loss or incurs expense (including any out-of-pocket expense) as a direct result of the commission of the offence”.
The application was based upon the same material as relied upon in relation to Mr Langi and was for an order in the sum identified in R v Langi(No 2) at [46] for the reasons given in that case. The order in that case was for reparation in the sum of $25,834.18 which was one quarter of $103,336.73.
The order was opposed by the offender. In contrast to Mr Langi’s case, the offender relied upon the decision in R v CA (No 2) [2016] ACTSC 371; 316 FLR 49. In that case, which involved a claim for a reparation order in favour of an insurer of the victim of the crime, the Chief Justice held (at [24]) that
The insurer did not suffer loss “as a direct result of the offence” because there was an “intervening agency” in the sense that the salon proprietor made an insurance claim and the insurer accepted the claim; the insurer suffered indirect loss by way of a “ripple effect”.
Counsel for the Crown submitted that this involved merely a finding of fact as to whether in that case it was open to make an order and hence did not involve a precedent as to the meaning of the section. I do not accept that submission. In my view, the decision of the Chief Justice involved a conclusion as to the legal meaning of “as a direct result of … the offence” in s 19(1)(b) of the Crimes (Sentencing) Act. Her Honour interpreted it as not extending to a circumstance where the loss arises to an insurance company by the existence of an insurance policy and the making of the claim upon that policy subsequent to the incurring of loss by the insured as a result of the offending. Applying that principle in the present case inevitably means that the application must be refused. The approach taken by the Chief Justice is not clearly wrong and notwithstanding that it is not binding upon another single judge, I consider that I should, as a matter of comity, follow it.
That means it is unnecessary to determine whether, had an order been available, it should be declined on the basis of it lacking utility having regard to the evidence that the offender has debts of approximately $60,000 and had expressed an intention to declare bankruptcy.
Consideration
The offending was very serious. It was motivated by a desire for retaliation by the offender arising from a personal dispute and to a lesser extent because of his association with members of a rival outlaw motorcycle gang.
The offender is no longer a young man. He has a criminal history which, although not reflecting a pattern of offending of this gravity, does limit the extent of leniency available. He was the subject of a good behaviour order associated with a suspended sentence at the time of the offending.
The subjective material indicates that the prospects of rehabilitation are guarded. However, the fact that he retains the support of his family, would be able to return to employment and has realistic plans for the future are all positive indications.
I have had regard to sentences outlined in the schedule annexed to the Crown’s written submissions. Most obviously relevant in this case is the sentence imposed upon Mr Langi, one of his co-offenders. Mr Langi received a sentence of four years and nine months’ imprisonment on the aggravated burglary charge and five years and nine months’ imprisonment on the arson with intent to endanger life charge. The aggregate sentence was seven years and three months’ imprisonment with a non-parole period of four years and two months. A significant distinguishing feature between Mr Langi’s case and the offender’s case is that the offender is not proven to have been a member of the Comancheros or on a trajectory towards membership. While specific and general deterrence remain very significant sentencing considerations, those considerations are not as acute as they would have been if it was proved that he had a closer association with the gang or was subject to the cultural constraints of the gang associated with membership.
The sentences that will be imposed are as follows.
On the count 2, arson with intent to endanger life, the sentence will be a sentence of five years’ imprisonment.
On count 1, aggravated burglary, the starting point is four years and three months’ imprisonment reduced by approximately 15 percent to three years and seven months on account of the plea of guilty. This will be cumulative as to 12 months on the previous charge.
On count 4, discharging a loaded arm, the starting point is 24 months’ imprisonment reduced to 20 months on account of the plea of guilty which will be cumulative as to 10 months upon the previous sentence.
On count 5, destroying or concealing evidence, the sentence will be 18 months’ imprisonment, nine months of which will be cumulative upon the previous sentence.
This will give an aggregate sentence of seven years and seven months’ imprisonment.
The non-parole period would have been 55 months (approximately 60 percent of the head sentence) but is reduced to 50 months (four years and two months) pursuant s 35A of the Crimes (Sentencing) Act because of the assistance the administration of justice referred to earlier.
Orders
The orders of the Court are:
1. On count 2, arson with intent to endanger life (CC2020/2544), the offender is sentenced to imprisonment for five years commencing on 20 February 2020 and ending on 19 February 2025.
2. On count 1, aggravated burglary (CC2020/2542), the offender is sentenced to three years and seven months’ imprisonment commencing on 20 July 2022 and ending on 19 February 2026.
3. On count 4, discharging a loaded arm (CC2020/2547), the offender is sentenced to imprisonment for 20 months commencing on 20 April 2025 and ending on 19 December 2026.
4. On count 5, destroying or concealing evidence (CC2020/2551), the offender is sentenced to imprisonment for 18 months commencing on 20 March 2026 and ending on 19 September 2027.
5. The non-parole period of four years and two months commences on 20 February 2020 and ends on 19 April 2024.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 17 March 2022 |
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