R v Milne

The appeal concerned the sentencing of the defendant, Milne, by a District Court Judge in South Australia. Milne had pleaded guilty to several offences, including aggravated causing harm, driving whilst disqualified, unlawfully on premises, and illegal use. His sentencing was complicated by breaches of two previous good behaviour bonds. The sentencing Judge imposed a cumulative term of imprisonment of 19 months for the current offences, revoked a previously suspended 12-month sentence for aggravated serious criminal trespass, and imposed a 38-month sentence for offences committed between 2006 and 2008, which had been subject to a good behaviour bond. The total head sentence was five years and nine months, with a non-parole period of two years and nine months, backdated to commence on 14 October 2010. The appeal was brought on the basis that the sentencing Judge had proceeded under a misapprehension of fact, having not been informed that the defendant had already spent 15 months in custody by 4 March 2009. Both parties accepted that the sentences should be set aside and the defendant resentenced.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing Judge had erred in his assessment of the total period of imprisonment to be served, particularly in light of the defendant's pre-sentence custody. The court was required to determine the appropriate sentence, considering the defendant's offending, the breaches of good behaviour bonds, and the time already spent in custody. A further issue was the application of section 32 of the Criminal Law (Sentencing) Act 1988 (SA), which generally requires a single non-parole period to be imposed in respect of total sentences.

Gray and Sulan JJ allowed the appeal, reasoning that the defendant had already spent a significant period in custody, totalling almost two years and four months without parole. They considered this period to be a sufficient custodial punishment for all the offending, including the revoked suspended sentence. Consequently, they set aside the sentences of 19 months and 38 months imprisonment, revoked the suspended sentence, and treated the time already spent in custody as discharging the defendant's obligation to serve those sentences. The defendant was released upon entering into a supervised three-year good behaviour bond. Blue J, in dissent, would have imposed a nine-month sentence for the 2010 offences, left the other sentences undisturbed, fixed a non-parole period of 25 months, and backdated the sentences to 14 July 2009.