• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

McWilliam AJ

1. On 7 July 2022, the appellant, Matthew Millard, was found guilty in the Magistrates Court of the charge of using a postal service to menace (CC2021/6542), which is a Federal offence under s 471.12 of the Criminal Code Act 1995 (Cth). He was sentenced on 12 August 2022 to four months’ imprisonment, commencing on 12 August 2022 and ending on 11 December 2022.

2. The substance of the offence was that the appellant was found by the magistrate to have sent a one-page, handwritten letter to the victim’s home address. The victim was known to the appellant through the appellant’s late brother, who had previously committed suicide some years ago. At the time of his death, the appellant’s brother had been in a relationship with the victim and they had a daughter together. The contents of the letter included the following statements (with grammar corrected): (a) I dream about how I’m going to get my revenge on the woman who killed my big brother; (b) If it wasn’t for my little niece, you would be sleeping beside him; (c) You have no idea what kind of person I am and how well connected I am; (d) Because of you I couldn’t come to my own brother’s funeral; (e) I’m giving you this one chance, and one only, to do the right thing by my brother and my niece to know me; (f) If not, I’ll be out in 9 months and hell is going to rain down upon you.

3. The victim gave evidence in the court below and her evidence was accepted by the magistrate. She said she received the letter at her home on 21 May 2021. She knew it was a letter from the appellant as she recognised his handwriting immediately and saw the words “M Millard” and “AMC Executive Support” on the back of the envelope. The victim interpreted the letter as blaming her for her late partner’s suicide, and that the appellant would kill her when he was released from prison.

Grounds of Appeal

4. The appellant has appealed the sentence that was imposed on two grounds: (a) The sentence imposed by the court below was manifestly excessive; and (b) The sentencing magistrate erred in failing to clearly articulate the discount on sentence afforded to the defendant by virtue of his mental illness or impairment.

The Court’s power on appeal

5. The Court’s jurisdiction in relation to appeals in criminal matters is exercised pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which includes appeals against sentences imposed by it, regulated by Div 3.10.2 (in particular, ss 207 and 208) of that statute.

6. The nature of such an appeal is by way of rehearing on the evidence before the magistrate and any other evidence that the appellate court permits to be adduced: Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; Peverill v Crampton [2010] ACTSC 79 at [24].

7. The starting point is restraint. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. There is a strong resistance against appellate ‘tinkering’ with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62].

8. From that starting point, the question is whether error has been established. The Court will exercise its powers to intervene only where, having regard to all the evidence before it, including any further evidence admitted on the appeal, it is established that the order appealed from is the result of a legal, factual or discretionary error. That might be through a specific error, such as the failure to consider a relevant consideration or misapplication of principle (see House v The King (1936) 55 CLR 499 at 505). Alternatively, the error, though not identifiable, might be inferred from the sentence being manifestly excessive/inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Dinsdale at [6] per Gleeson CJ and Hayne J.

9. In working out whether error has been established, the task for a court of appeal is to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Where the facts are not in dispute an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts: see Lee v Lee [2019] HCA 28; 266 CLR 129 at [55] and the cases there-cited.

10. If specific error is found, it becomes the duty of the appellate court to re-sentence, unless in its exercise of the discretion the Court determines that no different sentence should be passed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35].

11. In the ACT, summaries that are consistent with (and broadly apply) those above principles may be found in cases such as Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 at [8]-[12]; and Keen v Tither [2010] ACTSC 130 at [44] per Penfold J.

Further evidence on appeal

12. The appellant sought to rely upon a number of documents that demonstrate the efforts he has made during his incarceration to rehabilitate himself. Further, the appellant has been assessed as suitable for admission to the Wayback Drug & Alcohol Rehabilitation service and it appears that there is a place available for him, subject to the outcome of this appeal and his extant application for parole, which is listed for hearing next Tuesday, on 22 November 2022.

13. Section 214(2) of the Magistrates Court Act provides that in an appeal to which the section applies (which was not in dispute here), the Supreme Court must have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact.

14. Section 214(4) then provides: (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

15. The evidence here was not available in the proceeding in the court below because it relates to the various efforts and achievements of the appellant subsequent to him being sentenced. It falls into sub-category (b) of the above section.

16. In Betts v The Queen [2016] HCA 25; 258 CLR 420 it was stated at [2] (emphasis added): As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry.

17. The respondent submitted that the additional evidence sought to be relied upon by the appellant fell into the category described by the words emphasised above. However, it was argued that such evidence was only able to be received under s 214 of the Magistrates Court Act once error was established and for the limited purpose of any resentence.

18. That was implied from the fact that an appellate court will only come to assess whether some other sentence is warranted in law once error was shown. The respondent submitted that support for that position is found in the reference to the “limited basis” on which such evidence may be received in Betts at [11] (references omitted): It is accepted, however, that the appellate court may receive evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. Evidence of this description is routinely received by the Court of Criminal Appeal on the limited basis that it may be taken into account in the event the Court comes to re-sentence. It is evident that the Court of Criminal Appeal treated the material tendered on the appellant's behalf as having been admitted on this limited basis.

19. While of general assistance by way of guiding principle, the terms of the statute under consideration in Betts were different from s 214 of the Magistrates Court Act. Previously, there has been some uncertainty about the proper exercise of the Court’s discretion in relation to evidence admitted under s 214 and the consequences of admitting the evidence. However, the issue was comprehensively addressed by Mossop J in SBT v Wright [2021] ACTSC 322 at [43]-[67]. His Honour ultimately concluded that in a case alleging manifest excess, the words of s 214(4), and in particular the requirement to consider whether the evidence “would not afford any ground for allowing the appeal”, involved asking whether, in light of the additional evidence, manifest excess was established. I have taken the same approach here. Effectively, the material is provisionally admitted for the purpose of determining whether it would afford a ground for allowing the appeal.

20. It is important, though, to explain (to the appellant) the limit on the use the court may make of the material when considering whether it provides a basis for allowing the appeal. I am prepared to find that the commendable efforts of the appellant to undertake steps to rehabilitate, and to demonstrate that specific deterrence may now be less of a concern, would have led to a reduced sentence if the appellant was being sentenced today. But that does not mean that the sentence that was passed three months ago was excessive and therefore in error.

21. Ultimately, because I am satisfied the evidence does not afford a ground for allowing the appeal, the material is not admitted under s 214 of the Magistrates Court Act.

Ground 1 – was the sentence imposed manifestly excessive?

22. The principles applying to a complaint of manifest excess are well-known and have been set out in various ways in cases such as Kelly v The Queen [2021] ACTCA 15 at [42]; and NC v The Queen [2017] ACTCA 31 where the Court of Appeal extracted at [51] the principles set out in Dalton v Queen [2015] ACTCA 48 at [18] as follows; • Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 2002 CLR 321 (Dinsdale). • The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen[2014] HCA 2; (2014) 305 ALR 323 at [61]. • In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85]. • It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [28]; R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

23. In Tracey v The Queen [2020] ACTCA 51, the Court of Appeal stated at [38]: To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

24. The recognition that a sentence may warrant appellate intervention if it is manifestly excessive is tied to the notion that the sentence imposed should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: see Thorn v Laidlaw [2005] ACTCA 49 at [30].

25. However, when considering whether the sentence that was imposed was effectively too long or onerous, there is no bright line for what the ‘minimum’ is. That is what is meant by the words, “there is no single correct sentence”. The sentencing process includes analysing and assimilating various factual considerations with the aim of giving effect to statutory sentencing objectives that often pull in different directions. In short, judicial officers aim to follow the same recipe, but they do not expect to turn out the same result.

26. The relevant considerations have been set out in the helpful submissions of Ms Roff, who appeared for the respondent on the appeal. It will be apparent from the reasons that follow that I have largely accepted those submissions.

Reasons of the sentencing magistrate

27. How to proceed with sentencing a person suffering from a mental illness: The appellant had suffered a brain injury as a result of an overdose of heroin that led to him having a cardiac arrest. He was successfully resuscitated, but as a result now has a persistent neurocognitive disorder. The sentencing magistrate considered whether to dispose of the matter under s 20BQ of the Crimes Act 1914 (Cth) (Crimes Act) which deals with the circumstances where the offender is suffering from a mental illness or an intellectual disability. Her Honour was not persuaded that it was appropriate to deal with matter under the regime provided for in that section.

28. The sentencing magistrate then referred to the evidence before the court below and to s 16A of the Crimes Act, which sets out the matters to which the court must have regard when passing sentence.

29. Maximum penalty: By consent of the parties, the offence was to be dealt with by way of summary jurisdiction, which meant that there was a jurisdictional limit in the penalty that could be imposed by the court below of 12 months’ imprisonment, 60 penalty units or both: s 4J(3)(a) of the Crimes Act. However, the maximum penalty for using a postal service to menace was two years’ imprisonment and this remains relevant to an assessment of the objective seriousness: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [311].

30. Objective seriousness: When viewed on the spectrum of conduct which may constitute the offence, the content of the single letter sent by the appellant is not in the worst category, but nor can it be said that it was de minimis, given that it contained a threat to kill and a suggestion that this could be avoided if the victim facilitated the appellant getting to know his niece. The sentencing magistrate described the offence as being at the lower end of the mid-range of objective seriousness. The assessment of the objective seriousness of an offence is quintessentially a matter for the sentencing judge. A court on appeal will be slow to substitute its own view for that of the first instance judge: Mulato v R [2006] NSWCCA 282 at [46]- [48]; Vickers v R [2020] NSWCCA 297 at [66]. Applying that principle here, that discretionary finding was open.

31. Criminal history: The sentencing magistrate had regard to subjective factors and noted that the offending was committed while the appellant was serving a sentence of imprisonment, which would have had statutory consequences if the crime were an ACT offence (under s 72 of the Crimes (Sentencing) Act 2005 (ACT), the sentence must be served consecutively unless a direction is made), but the court below emphasised the different statutory regime applying for the Commonwealth offence.

32. The sentencing magistrate also took into account that the appellant’s criminal history was extensive, and in particular that the offence for which the appellant was to be sentenced was similar in nature to the offence for which he was already serving a term of imprisonment. By way of elucidating the sentencing magistrate’s observation, the offence to which her Honour referred constituted a reprisal against a person involved in a proceeding, in that the defendant had made threats to a police officer in open court, to the effect (sanitising the language) that when he was released from prison he intended to kill the police officer.

33. Appellant’s mental disability: Considerations of the appellant’s mental illness, and the impact that had in terms of the supports required, were discussed in detail. I will return to that aspect of the sentence in relation to the second appeal ground.

34. Victim impact: There was no victim impact statement, but the sentencing magistrate inferred that the contents of the letter would have been significant and had an effect.

35. Lack of Remorse: The magistrate referred to the fact that the lack of any contrition or remorse meant that there was limited opportunity for that to be taken into account as a mitigating factor.

36. Lack of plea of guilty: The sentencing magistrate similarly noted that this was indicative of a lack of contrition or remorse.

37. Imprisonment the only appropriate sentence: The magistrate referred to general deterrence as being of very limited importance in light of the extent of the appellant’s brain injury, but considered that specific deterrence did have a role to play. Ultimately, her Honour determined that the threshold under s 17A of the Crimes Act was crossed, in that nothing other than a sentence of imprisonment was warranted.

38. Totality considerations: The court below imposed the sentence to be entirely concurrent with the existing sentence for which the appellant had already been incarcerated, which expires on 30 November 2023. However, the effect of the sentence was effectively to extend the non-parole period which had expired on 27 March 2022.

Determination – no error established

39. As I have endeavoured to demonstrate by referring to the sentencing magistrate’s reasons in detail, there was careful consideration given to the sentencing objectives and how they applied to the particular offender. The sentence imposed was not of itself outside any established range and the structure of the sentence was wholly concurrent, which demonstrated a degree of leniency in circumstances where the offence was entirely separate from the offence for which the appellant had already been sentenced. It is well appreciated that a different judicial officer may have imposed a lesser period of imprisonment, and that is why I have referred in some detail to the legal test and the constraints on a judge sitting in the appellate jurisdiction. Ultimately, I do not consider that there was no period of imprisonment warranted and once that threshold is crossed, to debate whether the term should have been two months or four months, in my view, would be to engage in impermissible tinkering. While imposing a term of imprisonment for the sending of a letter might, without more, seem disproportionate, when the contents of the letter and its import are properly appreciated, combined with the appellant’s criminal antecedents and the reasons below concerning the appellant’s mental disability, I am not persuaded the sentence was manifestly excessive.

Ground 2 – was there error in failing to clearly articulate the discount on sentence afforded by virtue of the appellant’s mental illness or impairment?

40. The sentencing magistrate summarised the medical reports and the appellant’s mental and physical disabilities. Her Honour accepted that the appellant had a significant disability, including a significant cognitive disability, before stating: So, it is important to know that despite the fact that he has those cognitive disabilities, the letter itself was logical and coherent and it would seem to me that he – his cognitive impairment may have had some nexus, but it didn’t have completely the whole nexus to in fact, the writing [of] the letter. … So it seems to me that his cognitive ability, he has – he just basically acts before he thinks and that is one of his problems. He has – it would appear – borderline personality traits disorder as well [as] deficits in relation to interpersonal relationships, emotions and perceptions.

41. The sentencing magistrate then expressly referred to the medical evidence of Dr Furst as follows: People with borderline personality disorders typically have [patterns] of black and white thinking, projective with identification and splitting; seeing the world and people within the world as either all good or all bad, which leads to demonisation of some people who are thought to be at fault for either real and/or perceived wrongs against them or others close to them and this would be the case in relation to [the victim].

42. Her Honour then said: He has poor judgment and it seems to me that is as a result of cognitive impairment as well. So there is definitely a link between his cognitive impairment, which is his mental illness or mental impairment, …and the offending. But nevertheless, it is something that he needs to – that he can with therapy … it would appear – gain some insight into his behaviour.

43. Her Honour also set out the supports that the appellant would require while serving a custodial sentence, including one-handed kitchen equipment and aids to feed himself.

44. The starting point for this issue on appeal is that the appellant’s mental condition was a mandatory consideration under s 16A(2)(m) of the Crimes Act. The key focus in the court below was the impact of the appellant’s mental condition on the crime. It should be noted that the extracts of the reasons above were all in the context of the sentencing magistrate considering whether to deal with the offence under s 20BQ of the Crimes Act. However, that does not mean that the magistrate forgot those considerations, and indeed, her Honour returned to the “very, very helpful information in respect of his mental impairment” at the conclusion of the sentence, which must properly be seen as a reference to the detailed evidence that had been considered earlier in the context of s 20BQ.

45. There are also express references to the appellant’s cognitive impairment in the latter part of the magistrate’s reasons directed to the different factors on sentence. For example, the sentencing magistrate referred to general deterrence as being “very, very limited” given the cognitive impairment. It was also taken into account when dealing with prospects of rehabilitation. The magistrate considered that because of the appellant’s mental impairment, rehabilitation may be more difficult for him.

46. It appears that the heart of the complaint is that the court below did not state a discretionary discount or did not expressly state that the appellant’s cognitive impairment reduced his moral culpability, or in some way translated to a mitigating factor on sentence. As the respondent submitted, there was no requirement, either under the Crimes Act or at common law, to explain or specify any particular discount by virtue of the appellant’s mental illness.

47. As the appellant was self-represented, the respondent gave careful scrutiny to whether the real complaint raised by the appellant was whether there was a failure to give full effect to the Verdins principles, derived from R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins), and provided submissions on that question, for completeness.

48. In Ngata v The Queen [2020] ACTCA 18 at [18]-[20], the Court of Appeal stated: 18. There is no dispute that the principles enunciated in Verdins are applicable to sentencing proceedings in the ACT (see Monfries v The Queen [2014] ACTCA 46; 68 MVR 385; R v So [2014] ACTSC 316). Verdins recognised that a person suffering a mental impairment is entitled to have that taken into account as a relevant sentencing consideration, even though it falls short of amounting to a defence or allowing access to specific sentencing orders relying on the presence of a mental impairment. The non-exhaustive list of principles expressed in Verdins, at [32], state that a finding of mental impairment, whether a diagnosable mental illness or not, may be relevant in the following ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment. (Citations omitted). 19. This summary of the Verdins principles was cited with approval in the recent decision of R v Guode [2020] HCA 8. 20. These considerations will be weighed along with other applicable sentencing considerations; at times they will pull in opposite directions. For example an offender’s mental impairment may make an offender an inappropriate vehicle for general deterrence, yet the offending may be so heinous that the need for general deterrence cannot be entirely disregarded (Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465). Weighing these factors in the balance is part of the process of instinctive synthesis (Markarian v The Queen [2005] HCA 25; 228 CLR 357). It is neither possible nor desirable to attempt to strictly quantify the weight attached to the various factors.

49. As can be seen from the parts of the sentencing magistrate’s reasons extracted above, the mental disability of the appellant was considered in the various ways envisaged in Verdins, even if her Honour did not use the Verdins taxonomy. The sentencing magistrate accepted that general deterrence should be moderated and that there was a causal nexus between the disability and the offence. Her Honour also expressly considered what extra supports would be required for the appellant while in prison, indicating that she turned her mind to the impact of the sentence on the appellant, given his disability. No error is demonstrated in that regard: see Higgins v The Queen [2022] ACTCA 26 at [48].

Conclusion

50. As neither of the appeal grounds has been made out, the appeal will be dismissed and the sentence in the court below confirmed.

51. There is one complicating factor in that the appellant has remained in custody while his appeal has been heard (noting that there was a bail application which was adjourned by consent and ultimately withdrawn following the expedited hearing of the appeal). As the enforcement of the sentence has been stayed pursuant to the operation of s 216 of the Magistrates Court Act, if the dates referred to in the original orders were to take into account the period for which the sentence had technically been stayed, that would have the result of extending the appellant’s sentence, which would be an unjust outcome of the appeal.

52. Among the options available to the Supreme Court under s 218 of the Magistrates Court Act, this Court is empowered to “make the order, that, in all the circumstances, it considers appropriate”. Although I will formally dismiss the appeal, I consider there is sufficient statutory power, or alternatively ancillary power necessary to give effect to the confirmation of the sentence, to order that the original dates of the sentence also be confirmed.

53. Finally, and for an abundance of caution, I note that nothing in this judgment is to be taken as in any way fettering the discretion of the Sentence Administration Board in the upcoming hearing, including, if it considers it appropriate to do so, the discretion to grant parole subject to a release date on or after 11 December 2022.

Orders

54. The Orders of the court are as follows: 1. The appeal is dismissed. 2. The sentence of the Court below is confirmed as follows: (a) In relation to the offence of using a postal service to menace contrary to s 471.12 of the Criminal Code Act 1995 (Cth) (CC2021/6542), the appellant is sentenced to four months’ imprisonment, commencing on 12 August 2022 and ending on 11 December 2022.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Date: 18 November 2022