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 Criminal Code 2002 (ACT), ss 44, 45A, 312, 404(1), 706(1)(b) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Millington (No 2)

Details

AGLC: R v Millington (No 2) [2022] ACTSC 9
Case: [2022] ACTSC 9
Decision Date

CaseChat Overview and Summary

The offender, Christopher Millington, was convicted of four serious criminal charges: aggravated burglary, arson with intent to endanger life, discharging a loaded arm to cause apprehension for safety, and attempting to destroy or conceal evidence. The charges stemmed from a home invasion on 21 November 2019, where Millington and his co-accused, Aofangatukau Langi, targeted a residence in retaliation for a prior dispute. The court heard evidence of Millington's association with the Comanchero outlaw motorcycle gang and his role in planning the attack. Millington pleaded guilty to three of the charges and was found guilty by a jury of the remaining charge. The legal issues before the court included determining the objective seriousness of the offences, the subjective circumstances of the offender, and the appropriate sentences to be imposed.

The court found the offences to be at varying levels of objective seriousness, with the aggravated burglary and arson with intent to endanger life being particularly severe. The subjective circumstances of Millington, including his background, family support, employment prospects, and health issues, were considered. The court found that while Millington had a history of problematic alcohol and drug use, he had taken steps to address these issues and had the potential for rehabilitation. The court also considered Millington's early guilty plea and assistance in the administration of justice, which warranted a discount in his sentences. The court rejected an application for a reparation order, finding that the victims' insurer did not suffer loss "as a direct result of the offence."

After considering the various sentencing factors, the court imposed the following sentences: five years for the arson with intent to endanger life, three years and seven months for the aggravated burglary, 20 months for the discharging a loaded arm, and 18 months for the attempted destruction of evidence. The sentences were to be served concurrently, with a non-parole period of four years and two months. The sentences were backdated to take into account the time Millington had already spent in custody.

Orders