R v Milne (No 2)

[2014] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation:

R v Milne (No 2) [2014] NSWSC 113

Hearing dates:

20/02/2014

Decision date:

20 February 2014

Before:

Fullerton J

Decision:

The sentence imposed on 14 December 2012 is varied as follows:

2 years to date from 17 June 2013 expiring 16 June 2015.

A recognizance release order is to issue pursuant to s 19AC(2) of the Crimes Act to be of good behaviour self in the sum of $500 without security for Mr Milne's immediate release.

The term of the recognizance release order is to expire on 16 June 2015.

Catchwords:

CRIMINAL LAW - adjustment of sentence after High Court decision

Legislation Cited:

Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code (Cth)

Cases Cited:

R v Milne (No 6) [2010] NSWSC 1467
R v Milne [2012] NSWSC 1538

Category:

Sentence

Parties:

The Crown (Cth)
Michael John Milne (Offender)

Representation:

Counsel:
D Jordan SC (Crown)
H Dhanji SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Michael Bowe (Offender)

File Number(s):

2008/37875

Judgment

SENTENCE

1. HER HONOUR: The offender was originally sentenced by his Honour Johnson J on 17 December 2010 after trial (R v Milne (No 6) [2010] NSWSC 1467) on an indictment containing two counts. The first count was laid contrary to s 400(3)(1) of the Criminal Code and alleged an offence, which I will hereinafter refer to as the money laundering count. The second count was laid contrary to s 135(1) of the Criminal Code alleging that the offender dishonestly obtained a gain from the Commonwealth.

1. His Honour imposed an effective sentence, after partial accumulation, of 8 years and 6 months expiring on 16 June 2019 with a single non-parole period imposed of 4 years and 9 months expiring on 16 September 2015.

1. I sentenced the offender in respect of an offence on a separate indictment on 14 December 2012 (R v Milne [2012] NSWSC 1538). That offence was laid contrary to s 135(1) of the Criminal Code.

1. I imposed a term of imprisonment of 2 years to date from 17 June 2018 and to expire on 16 June 2020. Having regard to the currency of the sentence imposed by Johnson J, I imposed a new effective sentence of 9 years and 6 months expiring on 16 June 2020, with a single non-parole period of 5 years to date from 17 December 2012 and expiring on 16 December 2015.

1. On 14 February 2014 the High Court quashed the conviction in relation to the money laundering count and ordered that the commencement of the sentence with respect to the remaining count imposed by Johnson J be amended to commence on 17 December 2010 and to expire on 16 June 2014. No adjustments were made with respect to the sentence I imposed in December 2012. In the result, the sentence I imposed now commences after the expiry of the remaining sentence imposed by Johnson J. That is a result which is contrary to law (see s 16E(1) of the Crimes Act 1914 (Cth), s 47(2)(b) and 47(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

1. In these circumstances it is appropriate that, on the joint application of both parties, the sentence proceedings should be reopened pursuant to s 43(1)(a) of the Crimes (Sentencing Procedure) Act.

1. The agreed position of the parties is that there is no warrant to interfere with the length of the term of imprisonment I imposed on 14 December 2012. I accept that submission.

1. The parties are also in agreement that there should be some degree of concurrency between the sentences and I accept that submission. The degree of concurrency will be ordered consistent with the reasoning expressed by me in [53] of the sentencing judgment of 14 December 2012.

1. Since the approach to re-sentence will result in unserved portions of the sentences imposed not exceeding three years, the appropriate order in all the circumstances is for a recognisance release order to issue pursuant to s 19AC(2) of the Crimes Act.

1. On re-sentence, in respect of the charge laid contrary to s 151(1) of the Criminal Code, the subject of the earlier sentencing proceeding, I impose a sentence of 2 years to date from 17 June 2013 and to expire on 16 June 2015 which, having regard to the sentence imposed by Johnson J, results in an aggregate sentence of 4 years and 6 months.

1. I direct the issue of a recognizance release order for Mr Milne's immediate release, which in the result would represent a pre-release period of three years, two months and four days.

1. The term of the recognizance is to be equal to the aggregate sentence imposed. The recognizance to be entered self without security in the sum of $500.

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