The King v Millen

[2025] QCA 135

[2025] QCA 135

COURT OF APPEAL

MULLINS P
BRADLEY JA
DOYLE JA

CA No 57 of 2025
DC No 1901 of 2024

THE KING

v

MILLEN, Robert Bruce  Applicant

BRISBANE

TUESDAY, 29 JULY 2025

JUDGMENT

1. MULLINS P:  Mr Millen pleaded guilty on 5 March 2025 to one count of arson of a motor vehicle committed on 18 January 2024.  He was sentenced to imprisonment for two years with a fixed parole release date of 5 September 2025 (after he had served six months in custody).  Although Mr Millen was represented at the sentencing hearing, he appears for himself on this application for leave to appeal against sentence.  The sole ground on which he relies is that the sentence is manifestly excessive.

   Mr Millen’s antecedents

2. Mr Millen was 58 years old when he offended.  He has an extensive criminal history commencing from when he was 18 years old involving dishonesty offences, failure to comply with court orders, a break and enter, stealing, drug offences and a variety of street offending.  On 17 June 2019, Mr Millen was sentenced to 10 months’ imprisonment for assault occasioning bodily harm committed on 27 April 2019 in addition to being sentenced for time already served for three breaches of bail and a contravene direction or requirement.  Mr Millen pleaded guilty in the District Court on 20 March 2020 to threatening violence – discharge firearms or other act at night for which he was sentenced to imprisonment for two years and given an immediate parole release date.  The offending involved Mr Millen threatening to kill his neighbours and throwing a Molotov cocktail in their direction when they were in their front yard.  The Molotov cocktail landed on the street outside their property.  On 13 November 2020, he was convicted and fined for contravention of domestic violence order (aggravated offence) committed on 16 July 2020.  He committed a Commonwealth offence of using a carriage service to menace, harass or cause offence between 26 January and 11 February 2023 for which he was placed on a recognisance release order on 25 October 2023 in the sum of $3,000 to be of good behaviour for three years.  He had two breaches of bail for the subject offence for which he was fined on 26 June 2024.

3. Mr Millen’s criminal history reflects his long history of alcohol and polysubstance use since his late teenage years.  He fell from the 14^th floor of a hotel in 2010 and suffered serious physical injuries to his head, back, legs and arms and from that time relied on morphine and other medications for pain relief and to manage mental health conditions.  He was on a disability pension from 2011. 

4. On the sentencing, the discharge summary dated 7 May 2024 after Mr Millen was admitted to Townsville University Hospital for acute confusion was tendered and showed that he was diagnosed with delirium due to opioid withdrawal from previous medications with opioid additions.  A medical certificate dated 20 December 2024 from his treating mental health, chronic pain and addictions specialist nurse practitioner was also tendered that stated that after the fall in 2010 Mr Millen developed post-traumatic stress disorder and suffered chronic back pain and generalised body pain.  The pain was managed with long term opioid analgesic treatment. His PTSD with intermittent episodes of depression and anxiety was managed with Venlafaxine. 

5. For the purpose of the sentencing, Mr Millen was assessed by forensic psychologist, Dr Palk, for the purpose of giving an opinion on Mr Millen’s psychological state leading up to this subject offence and whether he was suffering a mental health condition to the extent that his moral culpability may be reduced having regard to the principles in R v Verdins (2007) 16 VR 269 at [32]. According to Mr Millen’s report to Dr Palk, Mr Millen was annoyed with the complainant about his vehicle being left on the nature strip outside Mr Millen’s unit complex. Dr Palk noted there was evidence that Mr Millen suffers from moderate cognitive impairment and mild memory problems associated with a history of substance misuse aggravated by a traumatic/acquired brain injury in 2010. He also suffers PTSD with a history of suicidal behaviour and long-term physical pain. Dr Palk was of the opinion that Mr Millen’s long-term moderate cognitive impairment impacted on his ability to exercise appropriate judgment and reduced his moral culpability for the offending. Dr Palk considered that Mr Millen was aware of what he was doing and that his offending was wrong but, to some extent, the ability to control his actions was at least partially obscured by his acquired brain injury, substance misuse and associated cognitive defects. Mr Millen would be vulnerable in the prison environment due to his physical and mental health problems.

   Circumstances of the offence

6. The owner of the subject vehicle drove it to the unit complex where Mr Millen resided because Mr Millen had offered to help with repairs to the vehicle’s engine.  The vehicle was left on the grass verge outside the unit complex and the key was left with Mr Millen.  The owner had purchased the vehicle about seven years prior for $1,650.  The owner and his partner and Mr Millen attended a bowls club on 18 January 2024.  Mr Millen became argumentative and was asked to leave the club.  The owner and his partner also left.  Later that evening, the owner received a phone call from Mr Millen asking him to remove his vehicle off the grass and Mr Millen threatened to burn it.  He repeated the threat in subsequent text messages and eventually sent one saying he had burnt it.  When a neighbour from within the unit complex had called emergency services, Mr Millen left his unit and used a garden hose to attempt to put out the fire, denying any knowledge to his neighbour as to the ownership of the vehicle.  Fire and rescue service employees attended and extinguished the fire.  Mr Millen was arrested for the offence on 7 February 2024 and released on bail.

   Sentencing remarks

7. After reciting the circumstances of the offending and Mr Millen’s antecedents, the sentencing judge noted that the Commonwealth offence for which Mr Millen had been convicted on 25 October 2023 was another example of threatening behaviour to those with whom Mr Millen came in contact.  The sentencing judge accepted Dr Palk’s opinion that Mr Millen’s cognitive deficits had impacted on his ability to exercise calm and rational choices and to control his anger and, to that extent, that did go towards reducing his moral culpability for the subject offence but those same factors indicated that personal deterrence and protection of the community remained relevant in the sentencing.  The sentencing judge treated those cognitive deficits as having a “moderately mitigating effect” which together with the harder time that Mr Millen would have in custody than for someone without those impairments were then reflected in fixing the date for release on parole earlier than after one-third of the head sentence.  Mr Millen’s criminal history and continued offending also made personal deterrence and protection of the community significant sentencing considerations.

   Was the sentence manifestly excessive?

8. Mr Millen does not challenge the head sentence of two years’ imprisonment.  The aspects of the offence of arson which affect the fixing of an appropriate sentence include the extent of the property damaged, whether there was fraud involved, and whether there was a risk to the safety of others: R v Cramond [1999] QCA 11 at p 3 and R v Johnson (2007) 173 A Crim R 94 at [8]. Mr Millen’s offending involved only the destruction of the complainant’s very modest vehicle. When coupled, however, with Mr Millen’s criminal history, Mr Millen has no cause to complain about the head sentence.

9. Mr Millen complains in his written submissions that his prescribed medications have not been continued whilst in custody.  He wishes to have immediate parole to return to the medical treatment and pain relief he received prior to being sentenced.  Those matters concern his experience in custody which post-dates his sentence.  In the circumstances, they are not relevant to his ground of appeal that the sentence was manifestly excessive.  The sentencing judge took into account Mr Millen’s mental health issues in fixing the parole release date after Mr Millen served six months in custody.  When the subject offence was committed within four months after he had been sentenced for the Commonwealth offence, the requirement for Mr Millen to serve one-quarter of the sentence imposed for the subject offence in actual custody was neither plainly unreasonable nor unjust.

   Order

10. The application for leave to appeal against sentence should be refused.

11. BRADLEY JA:  I agree.

12. DOYLE JA:  I agree.

13. MULLINS P:  The order of the Court is the application for leave to appeal against sentence is refused.