Milne v The King

Michael Milne and Anthony Harris appealed against their sentences for their involvement in a cannabis supply operation discovered on Mr Milne's property. The primary grounds of appeal were that the sentencing was affected by a factual error regarding the total number of cannabis plants and their potential yield, the starting point adopted by the sentencing judge was too high, and additional credit should have been provided for personal mitigating factors, including a five-year delay between charge and trial. The appeals were heard by Thomas, Brewer, and Isac JJ. The Court found that the factual error regarding the number of plants was not material to the sentencing process. The Court also found that the starting points adopted by the sentencing judge were appropriate given the nature of the offending. However, the Court concluded that insufficient credit was provided for personal mitigating factors, particularly the ages of the appellants, and allowed the appeals accordingly.

The Court reduced Mr Milne's sentence from six years to five years and four months and Mr Harris' sentence from five years to four years and four months. The Court considered the ages of the appellants, their good character, and the impact of lengthy sentences on their health and families when determining the appropriate level of discount. The Court noted that older offenders are more likely to experience a decline in their mental health while imprisoned and that age and ill-health are mandatory considerations under the Sentencing Act 2002. The Court also considered the good character discount, which reflects the purposes of leniency and rehabilitation. However, the Court noted that the extent to which good character operates as a mitigating factor is constrained by the long period of offending and the focus on deterrence in cases involving serious offending. The Court found that a further discrete reduction of 10 per cent was appropriate for both appellants to adequately reflect the combination of personal mitigating factors.