Millard v The Queen [2016] ACTCA 14

Authorised report: 19 ACTLR 270

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Millard v The Queen

Citation: [2016] ACTCA 14

Hearing Date: 7 August 2015

Decision Date: 13 May 2016

Before: Refshauge, Penfold and North JJ

Decision: 1. Subject to order 2 the appeal is dismissed. 2. The nonparole period is reset to begin on 6 March 2014 for a period of 2 years and 6 months and end on 5 September 2016. APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Catchwords: Appeal against sentence – sentence manifestly excessive – consideration of subjective circumstances – health – disability – mental impairment – psychological problems – brain injury – self harm – role of deterrence in cases of mental impairment – physical health problems – neuropraxic injury – long term drug abuse – extensive criminal history – reform unlikely – sentence not ‘warehousing’

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – nonparole period manifestly excessive – importance of giving reasons when setting nonparole period – backdating – pre-sentence custody – serving existing sentence – technical anomaly in setting nonparole period – nonparole period reset

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – burglary – theft – attempted burglar – unlawfully at large

Legislation Cited: Crimes Act 1900 (ACT), s 162 Crimes (Sentencing) Act 2005 (ACT), s 7 Magistrates Court Act 1930 (ACT), s 90B Supreme Court Act 1933 (ACT), Pt 8

Criminal Code 2002 (ACT), ss 44, 308, 311

Cases Cited: Allred v The Queen (2015) 10 ACTLR 325 Channon v The Queen (1978) 33 FLR 433 Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 Fusamalohi v The Queen [2012] ACTCA 49 Hili v The Queen (2010) 242 CLR 520 Inge v The Queen (1999) 199 CLR 295 Johnson v The Queen (2004) 205 ALR 346 Muldrock v The Queen (2011) 244 CLR 120 Murrell v The Queen [2014] VSCA 337 Ngo v Fairfield City Council (2009) 169 LGERA 56 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 R v Bernath [1997] 1 VR 271 R v Collins [2004] ACTSC 73 R v Flowers [2014] ACTCA 13 R v Harrington [2016] ACTCA 10 R v J M [2014] ACTSC 380 R v McMahon [2014] ACTSC 280 R v McNaughton (2006) 66 NSWLR 566 R v Millard [2014] ACTSC 267 R v Mooney (Court of Criminal Appeal (Vic): 21 June 1978, unreported) R v Shresthra (1991) 173 CLR 48 R v TW (2011) 6 ACTLR 18 R v Verdins (2007) 16 VR 269 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629

Parties: Matthew John Millard (Appellant) The Queen (Respondent)

Representation: Counsel Mr K Archer (Appellant) Mr J White SC (Respondent)

Solicitors Legal Aid (ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 44 of 2014

Decision under appeal: Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 5 September 2014 Case Title: R v Millard Citation: [2014] ACTSC 267

THE COURT:

1. Some time before 3.00 pm on 2 December 2013, Matthew John Millard tried to enter a residential property at Curtin in the ACT as a trespasser, intending to steal property from it, but there was no evidence to show that he gained entry.

2. Shortly afterwards, he entered the adjacent residential property, also as a trespasser, intending to steal property from it. He then stole property worth about $590.

3. He was arrested later that day and charged with burglary, theft and attempted burglary. He was granted bail but that bail was subsequently revoked. He was then granted further bail but for one day. He did not return to custody, however, but was later arrested and charged with being unlawfully at large.

4. He was committed for trial to the Supreme Court on 25 June 2014 and pleaded guilty to all four offences before the trial. He was sentenced for these charges on 5 September 2014, as follows:

Charge Offence and Max Penalty Sentence

Unlawfully at large s 162 of the Crimes Act 1900 3 months imprisonment 6/3/14- (ACT) 5/6/14 (CC 14/8089) 100 penalty units ($15,000) and 5 years imprisonment

Burglary s 311 of the Criminal Code 3 years 6 months 2002 (ACT) imprisonment (CC 13/11098) 1,400 penalty units ($106,000) 6/6/14-5/12/17 and 14 years imprisonment

Theft s 308 of the Criminal Code 12 months imprisonment

(CC 13/11099) 1,000 penalty units ($140,000) 6/6/14 – 5/6/15 and 10 years imprisonment

Attempted Burglary ss 44 and 311 of the Criminal 15 months imprisonment Code (CC 14/8089) 6/6/14-5/9/15 1,400 penalty units ($196,000) and 14 years imprisonment

A nonparole period of 2 years and 9 months was set to run from 6/12/13 to 5/9/16.

5. Mr Millard has now appealed against the sentences imposed.

The Notice of Appeal

6. Mr Millard challenges the sentence for the offence of burglary on the ground that it was manifestly excessive. As a separate appeal ground, he also complains that the nonparole period was manifestly excessive.

7. His third ground of appeal was that the primary Judge had failed to give sufficient weight to his subjective circumstances, specifically his physical and intellectual difficulties and the psychiatric condition from which he suffers.

8. It was conceded that the third ground was not a specific error of the kind that would justify appellant intervention. See Allred v The Queen (2015) 10 ACTLR 325 at 328; [7]. The facts

9. The facts were set out succinctly in the remarks on sentence of the primary Judge, R v Millard [2014] ACTSC 267 at [4]-[10], as follows:

Offences of 2 December 2013 4. ... At about 3 pm on the afternoon of 2 December 2013 he went to a residence at Curtin (the first residence), where he attempted to gain entry by breaking a glass panel on the top half of a timber-framed sliding door. The timber frame was left with tooling marks and a blood trail that led from the rear of the yard into the adjacent residence. 5. The offender then entered the adjacent residence (the second residence). A flyscreen was removed from the ground floor living room window, and that window was smashed. The rear sliding door and fly screen door leading from the living room to the backyard were left open. At about 3 pm on 2 December 2013, the residents of the second residence, a couple and their young son, returned home following a short vacation. Mr Spencer noticed that the living room had been smashed, and he then observed the offender only about three metres away from him walking across the backyard. The offender informed Mr Spencer that he had pursued the burglar. Mr Spencer noticed that the offender was sweating. 6. Police were called and arrived quickly. They found the offender about 200 metres away. He had cuts on his hand and his legs that were bleeding. He provided police with a false name. As the offender’s correct name was tattooed on his right forearm, the falsity was apparent to the officers, who proceeded to arrest him. 7. When interviewed by police, the offender repeated the story that he had given to Mr Spencer to the effect that he had been passing by the premises when he observed the burglary occurring, and he had chased the burglar but, because of his disability, he had been unable to apprehend the burglar. He sought to explain his injuries on the basis that he had fallen and cut himself during the pursuit. 8. Forensic testing (both DNA and fingerprint evidence) linked the offender to the offences to both residences. The property that had been stolen from the second residence was located in a black bag near the rear fence of that property. The total value of property taken was estimated to be $590. The backpack in which the stolen items were located, and which was itself stolen, contained two screwdrivers that did not belong to the occupants of the premises. Inferentially, those items were carried and/or used for house breaking purposes. At the time of the attempted burglary at the first residence, the occupant was absent. Offence of being unlawfully at large 9. The facts relating to the offence of unlawfully being at large were that the offender was in custody, bail refused, in relation to the offences that had occurred on 2 December 2013. On 22 April 2014 he was granted conditional bail to attend his mother's funeral. He was to return to the Alexander Maconochie Centre no later than 3.30 pm on 24 April 2014. 10. Regrettably he did not return to the Alexander Maconochie Centre at the required time, nor did he remain in the custody of the person who was responsible for supervising him at the funeral. Rather, the offender sought to obtain crisis support payments from Centrelink. On 28 April 2014, police were called to the Centrelink shopfront in Belconnen. The offender showed the police a document, a copy of which is in Exhibit A. The document purported to come from the Supreme Court (spelt “Supream Court”), and stated that the offender was on bail for the purpose of travelling to “Auscare in Cairns buy (sic) 29 April”. The proceedings

10. On 15 March 2012, Mr Millard had been sentenced to imprisonment for two years and one month from 30 December 2012, apparently to take effect from the end of an earlier term of imprisonment for which he had been granted parole, but which parole had been revoked. The offences for which he was then sentenced were possession of a drug of dependence, theft, burglary, dangerous driving and dishonestly taking someone else’s vehicle without their consent. A nonparole period of 7 months was set to end on 14 October 2012.

11. Mr Millard appealed against these sentences but, on 10 July 2012, the appeal was dismissed.

12. He was granted parole on 23 July 2013 and, at the time of the offending the subject of this appeal, he was on parole.

13. He was arrested for three of the current offences, namely burglary, theft and attempted burglary, on 2 December 2013 and bail was refused. On 18 December 2013, he pleaded not guilty to these offences.

14. On 20 February 2014, he was committed to the Supreme Court for trial. The trial was listed to commence on 30 June 2014, but, on 25 June 2014, he entered pleas of guilty to all three charges.

15. On 15 August 2014, he was charged in the Magistrates Court with the fourth offence, being unlawfully at large, and entered a plea of guilty. The charge was referred to the Supreme Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT) in conjunction with the three earlier charges.

16. Mr Millard was sentenced for all four offences on 5 September 2014. The sentences imposed are set out above at [4]. It is these sentences that are the subject of this appeal.

Subjective circumstances

17. Mr Millard was 31 at the time of sentence. The details of his family circumstances were very limited, namely that his mother recently died and this affected him greatly. The details of his education and any employment were non-existent in the material presented to the primary Judge. No complaint of this is made on the appeal.

18. The relevant issues in the sentencing hearing related to his criminal history, mental health, physical health and drug abuse history.

19. Mr Millard has abused amphetamines, cannabis, heroin, morphine and prescription drugs. He commenced using illicit drugs at about age 16 and specifically opioids at about 19. He is a heavy user of drugs, with daily use of some drugs. He smokes 20 to 30 cigarettes a day. He does not generally drink alcohol.

20. He has had at least five attempts at residential drug rehabilitation. Although he was unsuccessful in completing any programs, the primary Judge commented in R v Millard at [22] that “his attempts have been more than mere [sic] perfunctory”. He has, however, been assessed as unsuitable for pharmacological intervention.

21. At the time of the offending, he had injected himself with oxycontin, as well as using heroin.

22. He has a complex history of psychological problems. A detailed Report of a Neurological Assessment was admitted into evidence at the sentencing proceedings. The assessment was conducted in March 2013 after he was hospitalised from the Alexander Maconochie Centre when he had apparently taken an overdose of drugs and was found unconscious in his cell. The conclusions expressed in the report were as follows:

... given Matthew’s reports of cognitive change, observations on the ward, and clinical indicators of hypoxic brain injury, it is likely that Matthew’s poor performance on current assessment is due, at least in part, to his brain injury (i.e. rather than solely to drowsiness). He certainly performed well below the normal range for his age on a range of cognitive tasks including overall intellectual functioning, working memory, speed of information processing, new learning and recent memory, visuo-constructional tasks and aspects of executive functioning (e.g. abstract thinking, planning). These are likely to also reflect not only deficits for his age range, but as compared to pre-brain injury functioning. Slightly stronger performances were found on short-term attention span, visual reasoning, basic problem solving and his basic receptive and expressive language skills appeared intact. On the basis of these results, Matthew is likely to find many day to day tasks, circumstances and dilemmas difficult, as compared to age-matched peers. As compared to his peers, he may experience relatively more difficulty remembering events, new information or instructions, thinking through or responding to questions or events quickly, independently generalizing or applying his learning, weighing up and switching between variables or considerations, thinking carefully before he acts, planning ahead, generating a response or solution, and goal-directed behaviour generally. On the basis of the assessment results, I would be concerned about his ability to reside in the community safely without structure, support and supervision. I have concerns about his level of independence in his activities of daily living. I suspect with prompting he would be able to manage a number of [activities of daily living], but would require prompting. I also have concerns about his ability to make well informed decisions and therefore his vulnerability. Whilst Matthew’s cognitive functioning was assessed, I did not assess his psychological health and well-being as a part of this neuropsychological assessment. His reported history of depression and bipolar disorder, of swallowing sharp objects, and also the details pertaining to his most recent overdose ... warrants further consideration with respect to his care, rehabilitation and management. He has also experienced a deterioration in functioning previously (e.g. with continence) and neurological as well as psychological issues need to be considered carefully.

23. Physically, his health is also problematic. He suffered a neuropraxic injury to his left arm in 2011. As a result, his arm is effectively paralysed and his left hand is held in a tense grip. As a consequence of the injury, he experiences neuropathic pain in his hand and arm to such a degree that he has made many requests that his arm be amputated. He has a very limited understanding of the consequences of such a course of action and, in particular, of the likelihood of post-amputation “phantom pain”. He has attempted self-amputation, but, perhaps unsurprisingly, found his efforts too painful.

24. Mr Millard has a long and concerning criminal history. Apart from these offences, he has been found guilty of 91 offences in 17 court appearances. Most of the offences are dishonesty offences, including 12 offences of burglary or similar offences. He has been sentenced to prison on many occasions.

Manifest excess

25. The approach to the ground that a sentence is manifestly excessive is well known.

26. In R v TW (2011) 6 ACTLR 18 at 27-8; [60]-[61], Refshauge J, with whom Lander J agreed, explained as follows: 60 In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]): 32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [334]). 33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. 34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate. 61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v R [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court.

The appellant’s contentions

27. Mr K Archer, who appeared for Mr Millard, submitted that, having regard to Mr Millard’s disabilities, especially his psychological impairment and intellectual deficits, the sentence was excessive.

28. He submitted that, having regard to Mr Millard’s health, general deterrence should play little part in the sentence.

Mental impairment and sentencing

29. It may be accepted that Mr Millard’s mental conditions need to be carefully considered in the sentencing process. It is, however, too simplistic to say that general deterrence has no role in the sentencing of a person with a mental impairment. The severity of the sentence depends on all the circumstances.

30. The general principle was explained in the High Court in Muldrock v The Queen (2011) 244 CLR 120 at 138-9; [53]-[54] where, with reference to the Victorian decision in R v Mooney (Court of Criminal Appeal (Vic): 21 June 1978, unreported), the Court said: One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this: General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In the same case, Lush J explained the reason for the principle in this way: [The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community. (footnotes omitted)

31. To the same effect is the summary of relevant principles articulated by the Court of Appeal in Victoria in R v Verdins (2007) 16 VR 269 at 276; [32], as follows:

32 Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six 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. (footnotes omitted)

32. Nevertheless, the particular mental impairment and the circumstances of the offender must be considered and, as these formulations show, the part mental impairment plays will not always reduce a sentence.

33. As Brennan J said in Channon v The Queen (1978) 33 FLR 433 at 436-7:

Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpabilty of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another.

34. Thus, a sentence of some severity imposed on a person with a mental impairment is not necessarily one where general deterrence has played an excessive role. Considerations of protection of the community and specific deterrence, also purposes under s 7 of the Crimes (Sentencing) Act 2005 (ACT), may require a lengthy sentence of imprisonment.

35. It is not necessary to re-formulate these principles; they are clear in themselves. However, it is also clear that some relevant conclusions can be drawn from these statements of principle about how they bear on the conduct of the sentencing proceedings involving an offender with a mental condition. These may be summarised as follows:

(a) general deterrence will ordinarily, but not always, be excluded as a relevant factor, and may still play a part in the sentencing of an offender with a mental impairment in appropriate cases;

(b) specific deterrence will ordinarily, but not always, be excluded as a relevant factor, but may still play a part in the sentencing of an offender with a mental impairment in appropriate cases;

(c) evidence must be adduced on which the court can make the required findings;

(d) that evidence must address at least the following issues:

(i) the nature and severity of the mental impairment;

(ii) the effect that this has or may have on the moral culpability of the offender, or the deliberation with which the offence was committed;

(iii) the causal or other connexion between the mental impairment and the offending; and

(iv)the effect that the mental impairment may have on the offender’s experience of imprisonment (or other sentence) and the way in which it will have that effect;

(v) the likelihood of recidivism or reform arising from the particular sentence; and

(vi) whether the community requires protection from the offender and in what way.

Consideration

36. In this case, there was evidence to show that a number of these matters were relevant. They were, however, carefully addressed by the primary Judge. Her Honour said at [27]-[30]:

37. The offender is therefore in a very unfortunate situation. He has an underlying significant intellectual dysfunction. There is an overlay of a brain injury, and he has very significant and associated pain in relation to the left arm, and other parts of the left side of his body. The net result is that the offender acts impulsively, resorts to drugs to alleviate pain, is unable to form proper judgments, and has great difficulty learning new behaviour. Unfortunately, most of those problems are likely to be permanent. 28. The offender’s intellectual and psychological problems, and the longstanding polysubstance abuse are very closely related to his criminal history, and to the current offences. The offender's intellectual and psychological situation reflects on his moral culpability for the offences. He is not as morally culpable as someone who has the normal resources. His intellectual and psychological problems mean that he is of limited use as a vehicle for general deterrence (assuming that general deterrence is a relevant concept in relation to drug addicts who commit impulsive burglaries to support their addiction). 29. On the other hand, the offender’s criminal history shows that he a chronic high level nuisance. Over many years he has committed burglaries that would have had a significant impact on the victims. Sentence 30. The exercise before the Court is a very difficult one. The fundamental yardstick in relation to all the sentencing is the maximum available penalty. I have endeavoured to take into account the objective seriousness of the matters and the offender's very strong subjective circumstances, as well as his appalling criminal history, and the fact that the offences were committed while he was on parole for burglary matters.

38. The challenge by Mr Millard was articulated by his counsel as that “the balance her Honour struck was not an appropriate one”. His counsel went on to suggest that it was inappropriate to regard the sentencing exercise in this case as one where each act of further offending is met with increasingly longer prison terms with emphasis on specific and general deterrence, without moderating those outcomes by giving appropriate weight to the appellant’s compromised intellectual and physical state. He submitted that the case was very complex.

39. It was a complex sentencing exercise. It may be accepted that a court should not simply increase the penalties for repeat offending, though that may well be appropriate in many cases. After all, repetition of offending is one measure of the seriousness of the circumstances of subsequent offending, as explained in Ngo v Fairfield City Council (2009) 169 LGERA 56 at 61; [29]. Thus, the offending is likely to be regarded as more serious if it is a repeat of the same or same kind of offences.

40. Nevertheless, the antecedent criminal history of an offender cannot be given such weight as to lead to a penalty that is disproportionate to the offence for which he or she is actually to be sentenced. That is to say, the upper limits of the sentence for an offence must be set by the objective circumstances of the actual offence and this does not include prior convictions. See R v McNaughton (2006) 66 NSWLR 566 at 574; [24].

Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

41. In any event, Mr Millard’s criminal history shows that counsel’s submissions are not entirely fair. In 2006, Mr Millard was sentenced to 3 years imprisonment for a burglary offence, not so different a penalty than here imposed.

42. Further, lesser sentences since imposed have clearly not had the reformative effect that leniency might be hoped to achieve, nor have they deterred him from re-offending.

43. Given the maximum penalty for the offences, the term of imprisonment imposed cannot be said to be outside the range of a proper sentence for the objective seriousness of the offending.

44. It is important to note that there is no “tariff” for sentences for burglary offences. In Fusamalohi v The Queen [2012] ACTCA 49 at [15], Burns and Lander JJ said:

that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender.

45. In the same case, Refshauge J reviewed a number of decisions of the Court of Appeal, as well as the sentences provided in a list of sentences provided to the Court for the appellant, and said (at [51]-[52]):

46. These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months. 52. Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were present in the premises and the offender’s antecedents may all require a more severe sentence. There will be also other aggravating factors.

47. Of course, as to be inferred from that passage, previous sentences do not determine a precise range or tariff and care must be taken when applying what has been done in other cases, as the plurality cautioned in Hili v The Queen (2010) 242 CLR 520 at 537; [54]-[55].

48. In this case, the factors that made the offence of burglary more serious were that Mr Millard broke a glass panel and damaged the timber frame of the door on entry to the premises and that the owners came home when he was there.

49. His prior record also justified a severe sentence, because it shows limited capacity to reform. Indeed, despite efforts, he has been unable to complete a residential drug rehabilitation program in the community. He may be better able to do so in the structured environment of the Alexander Maconochie Centre, where the Solaris Program (see R v J M [2014] ACTSC 380 at [26]), is a therapeutic community drug rehabilitation program within the prison, though that is not a reason in itself for increasing the length of a sentence or for setting a long nonparole period: Muldrock v The Queen at 139-40; [56]-[58]. Indeed, the Report of the Court Alcohol and Assessment Program (CADAS) commented:

This client has an extensive history of making poor decisions and impulsivity control problems. It is difficult to know what information is fact and what is confabulation. CADAS is at a loss to recommend any treatment option and instead supports the recent referral to and involvement of the Public Advocate.

49. These matters suggest that reform is not a likely prospect.

50. As noted above, concerns were expressed in the Report of the Neuropsychological Assessment about Mr Millard’s ability to reside safely within the community without structure, support and supervision. The death of his mother deprives him of an immediate residence and the support and structure she could give. That does not require a more severe sentence but does deprive him of the leniency or mitigation that such support might justify.

51. The Report of the Neuropsychological Assessment did not make a direct link between Mr Millard’s mental impairments and his offending behaviour. The primary Judge, however, accepted that his drug addiction and impulsivity were relevant factors in sentencing, making Mr Millard of “limited use as a vehicle for general deterrence”.

52. This did not, however, address the issues of specific deterrence and protection of the community. Indeed, her Honour’s reference to Mr Millard being a “chronic high level nuisance” shows that these factors played a relevant part in the sentence and were not contraindicated by his mental impairment. There was no evidence to suggest that specific deterrence and protection of the community should play no part in the sentence.

53. There was, also, no clear evidence that Mr Millard would experience imprisonment more heavily than a person without such impairments.

54. It needs also to be noted that the structure of the sentence was that the sentences for the theft and for the attempted burglary were both made wholly concurrent on the sentence for burglary. While this may offend the principles in Pearce v The Queen (1998) 194 CLR 610, it does not, in this case, justify appellate intervention, both because it was not raised as a ground of appeal, and also because the total sentence was adequate to reflect the totality of the criminality of the offending.

55. Thus, while the sentence imposed for the burglary is higher than some other sentences that have, in the past, been imposed for this offence, the concurrency of the sentences for the other offences means that the whole of the criminality was represented in the sentence for the burglary.

56. Thus, while the sentence for the theft offence will commonly be concurrent with the sentence for the burglary offence (as explained in R v McMahon [2014] ACTSC 280 at [94]), there would be good grounds for a degree of cumulation of the sentence for the offence of aggravated burglary. Any reduction in the sentence for the burglary offence is likely to be offset by that cumulation.

57. While the approach of the primary Judge may not have, therefore, strictly accorded with the principles in Pearce v The Queen, there is a legitimate role for flexibility in the approach to be adopted by a sentencing judge as explained in Johnson v The Queen (2004) 205 ALR 346 at 356; [26].

Nonparole period

61. The setting of a nonparole period is a matter of discretion depending on all the circumstances of the case.

62. There has been quite some consideration in the High Court of the principles applicable to the setting of a nonparole period. Thus, in Power v The Queen (1974) 131 CLR 623 at 629, the majority described the general principle and purposes of parole as follows:

to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum period that a judge determines justice requires that he must serve having regards to all the circumstances of his offence.

63. In R v Shresthra (1991) 173 CLR 48 at 67-8, the majority said:

The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case. considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority, the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. (footnotes omitted)

64. Later in Inge v The Queen (1999) 199 CLR 295 at 302; [6]-[9], the majority said:

6 The principles which inform the exercise of a judicial discretion in fixing a non-parole period were considered in Bugmy v The Queen, a case of murder, and of a prisoner who had originally been subject to a mandatory sentence of life imprisonment. They direct attention to matters which include the rehabilitative purpose of parole, the need to protect the community, and the difficulty of predicting, a long time in advance, the facts which may affect a judgment as to whether parole should be granted, refused or postponed. To what extent, if at all, do those principles yield to the logic of the argument summarised above? 7 Both of the premises upon which the argument proceeds require qualification. 8 As to the first premise, it is true that there are authoritative judicial statements which refer to the need for an appropriate relationship, or an appropriate proportionality, between a head sentence and a minimum term or non-parole period. For example, in Lowe v The Queen Gibbs CJ said: No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. 9 However, he went on immediately to add: What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion. (footnotes omitted)

65. As has been said by appellate courts, such as in R v Bernath [1997] 1 VR 271 at 278, it is helpful to the court on appeal if a sentencing court articulates the reasons for setting a nonparole period, or at least for setting an unusual nonparole period. Indeed, in Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 at 194-5; [43], Callaway JA, with whom Maxwell P agreed, set out relevant principles for the procedure of fixing a nonparole period in a series of propositions as follows:

(1) When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given. (2) A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive. (3) Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny. (4) The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom. (5) The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release. (6) The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case. (7) It follows from (5) and (6) that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence. (8) All the relevant factors have to be taken into account. They are many and varied, but they include — (a) that a non-parole period has a penal element; (b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and (c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.

See also R v Flowers [2014] ACTCA 13 at [2]-[6], [54]-[55], [73]-[74].

66. It is clearly not a case of looking simply at the mathematical relationship between the head sentence and the nonparole period.

67. In this case, the offending was serious, particularly in the light of Mr Millard’s criminal history. Mr Millard showed little remorse or insight and no victim empathy. That confirms the view that the prospects of rehabilitation and reform are quite limited. This has two aspects, favouring a more severe punishment and also suggesting that a lengthy period on parole will not be to the ultimate protection of the community. Prospects of rehabilitation are an important aspect of the fixing of the nonparole period: Taylor v The Queen [2014] ACTCA 9 at [19].

68. This is reinforced by the uncertainty expressed by the author of the Neuropsychological Assessment Report as to Mr Millard’s ability to reside safely in the community without structure, support and supervision.

69. This is further strengthened by the fact that his recent offending history shows offences being committed within a short period of time after his release on parole; in one case, it was a matter of weeks, in the next case less than 6 months after release.

70. Mr Millard says that he copes badly in prison; he has committed acts of self-harm and taken overdoses of drugs. Fundamentally, these are matters that are the responsibility of the executive government. See R v Collins [2004] ACTSC 73 at [16] and the cases there cited.

71. There is nothing to show that the primary Judge’s discretion, which the fixing of a nonparole period quintessentially is, has in some way miscarried.

Technical aspects of nonparole period

72. There does appear, however, to be a technical oddity in the sentences imposed by the primary Judge and in particular the nonparole period.

73. As a result of the cancellation of parole granted on earlier sentences (the old sentences), Mr Millard was, at the time of the imposition of the sentences under appeal (namely 5 September 2014), also serving the remainder of the old sentences (from 3 June 2014 to 8 December 2015).

74. Her Honour specified the terms of the four sentences she imposed (the new sentences) both as periods and by reference to start and end dates. On each basis, the new sentences totalled 3 years and 9 months, to run from 6 March 2014 to 5 December 2017.

75. Thus, the remainder of the old sentences was to be served entirely concurrently with the new sentences.

76. Before the new sentences were imposed, Mr Millard had been in custody for almost exactly 9 months. That consisted of a total of 180 days of pre-sentence custody attributable to his arrest on the earlier three of the new offences, and a further period of approximately 3 months before sentencing was attributable to the cancellation of his parole on the old sentences.

77. Her Honour backdated the start of the new sentences by 6 months from the sentencing date, presumably to give Mr Millard credit for the 180 days in custody before his parole was cancelled.

78. Her Honour then noted that Mr Millard had, except for the 4 days when he was unlawfully at large, been in custody ever since 2 December 2013. She identified 6 December 2013 as what she described as “the notional commencement date for the effective sentence”, and then said “that is a period of four years imprisonment”. Her Honour then used the “notional commencement date” as the starting point for a new nonparole period of 2 years 9 months.

79. However, her Honour had not imposed a prison term of four years. The total of the term of imprisonment about to be served by Mr Millard under the old and the new sentences did not amount to four years. Nor did the “notional commencement date” appear to relate to any consequences of the cancellation of Mr Millard’s parole on the old sentences. In fact, it seems to have been calculated by reference to Mr Millard’s total time in custody attributable only to the new offences (180 days), rather than the total time served on the old offences before Mr Millard’s parole was cancelled (205 days).

80. In short, it is impossible to make any sense of the reference to a four-year sentence, of the “notional commencement date”, or of the setting of a nonparole period to start 3 months before the start of the new sentences and just under 6 months before parole on the old sentences was cancelled. This is certainly an unusual nonparole period, and one for which an explanation would have been desirable (as discussed at [65] above).

I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 13 May 2016