Millard v The Queen [2020] ACTCA 20

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

Representation: Counsel R Davies (Appellant) S Jerome (Crown)

Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 22 of 2019

Decision under appeal: Court/Tribunal: ACTSC Before: Burns J Date of Decision: 24 May 2019 Case Title: R v Millard Citation: [2019] ACTSC 221 Court File Number: SCC 241 of 2018; SCC 242 of 2018

THE COURT:

Introduction

1. This an appeal by an offender against the severity of sentences imposed upon him by a judge of this Court, for offences of theft and causing grievous bodily harm (GBH) in mid-2018. The sentence was imposed following guilty pleas prior to the charges being listed for trial, and, in the case of the GBH offence, for a lesser offence than was on the indictment. The overall head sentence imposed was four years and nine months, with a nonparole period of three years and eight months.

2. The theft offence, in contravention of s 308 of the Criminal Code 2002 (ACT), involved the appellant taking a mobility scooter from outside a shopping centre. The appellant had a lengthy history of dishonesty offences, and the case against him was overwhelming. The maximum prison sentence was 10 years’ imprisonment. He was sentenced to imprisonment for 2 years and 5 months.

3. The GBH offence, in contravention of s 25 of the Crimes Act 1900 (ACT), involved the appellant setting his pit bull terrier onto 3 police officers who had come to his residence in the course of investigating the theft of the mobility scooter that had taken place 5 days earlier. A female police officer was seriously injured, requiring some 80 or 90 stitches in one leg, some 30 stitches in one arm and remedial surgery, and sustaining scarring and ongoing physical and psychological damage. The events were recorded and again the case against the appellant was overwhelming.

4. There was a dispute at the sentence hearing being as to whether, as the appellant claimed, he had tried to prevent his dog from attacking the police, or whether, as the sentencing judge found, he had deliberately caused his dog to attack. The appellant’s prior challenge to the prosecution case as to the deliberateness of his action is not maintained on appeal. The appellant had one prior violence offence in 2009 in Queensland (erroneously recorded as two such offences through no fault of the sentencing judge). The maximum prison sentence was five years’ imprisonment. He was sentenced to imprisonment for three years and seven months.

5. The GBH sentence was backdated to commence on the day that the appellant was arrested and remanded in custody, 1 July 2018, and is to expire on 31 January 2022. The theft sentence will commence 28 months after the commencement of the GBH offence on 1 November 2020 and will expire on 31 March 2023. The aggregate nonparole period commenced on 1 July 2018 and will expire on 28 February 2022.

6. The sole appeal ground of manifest excess is sought to be established by seeking to establish error on the part of the sentencing judge in the following respects:

(a) Error in the characterisation of the seriousness of each offence;

(b) Error in the discount allowed for the guilty pleas for each offence;

(c) Manifestly excessive sentences imposed for each offence having regard to sentences imposed in other cases; and

(d) A manifestly excessive nonparole period.

The facts as found by the sentencing judge

7. The sentencing judge’s remarks on sentence as to what happened on 27 June 2018 and 1 July 2018 are succinct and cannot be improved upon by any summary. His Honour said as follows:

8. On the morning of 27 June 2018 you stole a mobility scooter from the shopping centre at Cooleman Court, Weston. The owner of the scooter was a disabled woman who had parked it outside a pharmacy and removed the keys from the ignition before meeting with her carer for a coffee. You had driven your own mobility scooter to Cooleman Court that morning and, seeing the other mobility scooter unattended, you used the key from your scooter to drive the stolen mobility scooter back to your house at Rivett. You then returned to Cooleman Court and drove your own scooter back to your house.

9. Through information provided to police and by reference to closed circuit television footage, you were quickly identified as the thief. The scooter was valued at $2,795 and its owner was unable to travel without it because of her disability. At about 9.40 am on 1 July 2018 three uniformed police officers, including DE, went to your unit in Rivett. One of the police officers recorded what then occurred on a digital tape recorder.

10. You opened the front door of your unit but left the screen door locked. Police saw a tan coloured pit bull terrier called ‘Buddy’ behind the screen door. The dog was behaving aggressively and you said, “[s]tay Buddy, stay.” You assured police that the dog would not attack them. They asked you to hold onto the dog. You told the dog to get back. You told police that you had to get the keys to the screen door and you walked back into your unit before returning about one minute later. You told the dog to get back and to stay. You then unlocked the door and opened it. The dog ran out the front door and attacked police.

11. What occurred at this time was a matter of contention. The prosecution alleged that you urged the dog to attack police by saying to it, “[g]o, go, go, go.” Your counsel submitted that what you said was, “[n]o, no, no, no.” I have listened very carefully to the recording of these events using headphones and amplifying the recording to allow me to hear more clearly what you said.

12. Based upon the recording only, I would only be satisfied that it is more probable than not that you said, “[g]o,” as opposed to “[n]o.” This would not be sufficient for me to sentence you on the basis that you had deliberately set your dog onto the police.

13. There is, however, other evidence which must be brought to account. First, on 28 July 2018 you rang your then girlfriend from the AMC. Your conversation was lawfully recorded. I am satisfied in that conversation you told your former girlfriend that during this incident you had said words to the effect of, “[g]o Buddy. Go Buddy. Good doggy.”

14. In addition, the Agreed Statement of Facts records that after the dog ran out of the unit and began to attack police, you took no steps to try to gain control of it. This strongly suggests that the dog’s escape from the open front door was not accidental or unexpected.

15. Having listened closely to the recording of this incident, your voice appears to show no concern or urgency until police deployed a taser and subsequently attempted to shoot the dog. At that time your expression of concern and urgency related to the wellbeing of the dog. You called on police not to hurt the dog. In addition, there can be no doubt that you were aware that your dog was an aggressive, if not savage, animal which had attacked people in the past.

16. You took no steps to secure the dog before opening the screen door, despite being asked to do so by police, and despite the aggression which the dog had shown the police through the screen door. Indeed, the attack did not end until one of your neighbours came and pulled the dog off DE. You later told police in a recorded interview that your dog did not like police.

17. In addition, you had a motive for setting your dog on the police. You knew that the stolen mobility scooter was in your unit and that a distraction may provide you with an opportunity to move the scooter. Dealing with the aggressive dog and any injury that it may inflict would likely be the first priority for the police. They may not have been able to continue their investigation into the theft of the scooter that day, which would have given you an opportunity to move it. I am ultimately satisfied beyond reasonable doubt that in opening the front screen door as you did, you intended that your dog would attack police.

18. As the recording of these events demonstrates, what followed was a horrific attack on DE. Attempts to make the dog desist by deploying OC spray and a taser were unsuccessful. Police unsuccessfully attempted to shoot the dog. Very significant injuries were occasioned to DE from which she has not fully recovered. The Victim Impact Statement prepared by DE speaks of the extreme fear and pain she experienced in his attack. It also speaks of the physical and emotional effects on her of the attack and her subsequent treatment.

19. DE underwent surgery for nearly four hours in which somewhere between 80 and 90 stitches were placed in her leg. Approximately 30 further stitches were required for her hand. Further such surgery was required. DE has prominent scarring and continuing significant disability. It is probable that these issues will continue to afflict her for the foreseeable future. In addition, she sees a psychologist for trauma therapy once a week. Her mental and emotional health have also been detrimentally affected.

The sentencing judge’s reasons and conclusions

Objective seriousness of the theft offence

8. The sentencing judge found that the monetary value of the mobility scooter was reasonably significant and its value to its owner had to be considered, including that it would be owned and used by someone with a disability. While the theft was not premeditated, there had been ample opportunity for the appellant to think about what he was doing, given that he returned to retrieve his own scooter. The motive was greed, with a plan to sell the scooter and keep the proceeds. The scooter was returned to its owner by police. His Honour concluded that the offence was in the mid-range of objective seriousness. Objective seriousness of the GBH offence

9. The sentencing judge correctly observed that the appellant was not to be sentenced on the basis that he intentionally caused grievous bodily harm to the injured police officer, but was satisfied that he intentionally did the act which caused the grievous bodily harm. His Honour found that the extent of the harm and the circumstances in which it took place made it a very serious example of this type of offending, seriously aggravated by the victim being a police officer acting in the execution of her duty and necessitating the discharge of both a taser and a firearm in a public place. His Honour was of the view that the GBH offence was in the upper range of such offences.

Prior offences

10. The sentencing judge characterised the appellant as being heavily recorded for offences of dishonesty, but not heavily recorded for violence offences with only 2 such prior convictions in Queensland 10 years earlier. In fact, there had been only 1 prior offence involving violence, but this error was not material in the manner and context in which it was recorded by his Honour, making it unnecessary to consider further an argument advanced by the appellant that this in any way vitiated the sentence imposed for the GBH offence. These offences were committed while the appellant was on a Recognisance Release Order for a federal dishonesty offence imposed in 2016 by a judge of the Supreme Court of the ACT.

11. The sentencing judge found that the appellant was not entitled to any leniency in sentencing based upon his criminal history, with that history also revealing a continuing attitude of disobedience to the law calling for particular emphasis on personal deterrence and protection of the community.

Subjective features

12. The sentencing judge found that the appellant had a stable upbringing by his mother, who had died in 2014. At the time of being sentenced, aged 36, he had been incarcerated for the majority of his adult life, usually reoffending within months, and sometimes days, of being released. His compliance with community-based orders was poor. He had a long history of polysubstance abuse and continued to take illegal drugs even when on parole. He already had 5 instances of disciplinary action in prison in under 10 months since his arrest for these offences.

13. The appellant had earlier in time suffered a stroke due to a drug overdose and was on a disability pension when not incarcerated. He had multiple physical and mental health issues, but there was no evidence that this had played any part in this offending. He had lied in various respects in relation to his offending. He could easily have restrained his dog, but did not do so, contributing to the conclusion that the attack (although not the result) was deliberate.

14. The sentencing judge found that there was no remorse demonstrated, but rather only attempts by the appellant to minimise his responsibility. He was found to have poor prospects of rehabilitation.

Guilty plea discounts

15. The sentencing judge discounted the sentence for the theft offence by 20% and the sentence of the GBH offence by 10% in light of the guilty plea to each charge. His Honour observed:

16. On all of the material before me I am satisfied that your prospects for rehabilitation are poor. You entered an early plea of guilty to the charge of theft, but the evidence against you on that charge was very strong. Your plea nevertheless had utilitarian value and I will reduce by approximately 20 per cent the otherwise appropriate sentence with regard to that charge.

17. Your plea with regard to the charge of causing grievous bodily harm was not early but nevertheless had utilitarian value. I will reduce by approximately 10 per cent the otherwise appropriate sentence with respect to that charge in the light of your plea of guilty.

Appeal arguments

Asserted error in the characterisation of the seriousness of the theft offence

16. The appellant submits that there was nothing “particularly aggravating” about the circumstances of the theft. He submits that while it may be presumed that the owner of the scooter suffered from some form of disability because it was an agreed fact that she could not travel without it, the nature or extent of her disability or how the theft of the scooter impacted on her life or daily routine beyond inconvenience was not known, noting that she was in the company of her carer at the time the scooter was stolen.

17. The appellant submits that the theft offence was really no different from a stolen car case. That submission must be rejected. The dependence of the owner on the mobility scooter was obvious to the appellant. She had used it to get to the shopping centre. It was obvious that she would probably be stranded and likely to be distressed about that, with her independence compromised. In this sense it was more serious than stealing a car for which there would not ordinarily be any basis for knowing about any special dependence placed upon it.

18. The appellant’s submissions fall well short of establishing any error on the part of the sentencing judge. In the absence of any challenge to the findings of the scooter’s reasonably significant monetary value, its value to its disabled owner and user, the opportunity to reflect (and presumably return the scooter rather than just going back to collect his own scooter) and the motivation of greed and profit, his Honour has not been demonstrated to have erred in the assessment of objective seriousness.

Asserted error in the characterisation of the seriousness of the GBH offence

19. The appellant relies upon McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439 at [37] and R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27] to submit that the GBH offence is principally a “result offence” which significantly depends for the assessment of objective seriousness on the seriousness of the injury inflicted, even though the manner of the infliction, the reason for it and the circumstances surrounding it remain relevant. After referring to the sentencing judge’s summary of the treatment that the police officer received, acknowledging that his conduct and the injuries sustained were objectively serious, and acknowledging that it was a significantly aggravating feature that the victim was a police officer acting in the course of her duties, the appellant submits that it is “not hard to imagine” conduct much more heinous or injuries much more severe.

20. It has long been established that an offence may properly be characterised as being in the worst category without being the worst possible: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [18] (Kilic). However, as Kilic makes clear, the conclusion that an offence is in the worst category should be reserved for offences that warrant the imposition of the maximum penalty. For offences that do not warrant the imposition of the maximum penalty, a reference to being in the worst category should be avoided as it is apt to confuse and even tend to suggest that the sentencing judge did not properly appreciate the seriousness or effects of the offence: Kilic at [19]-[20]. Rather, in offences that do not warrant the imposition of the maximum penalty, “a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called”: Kilic at [19], citing Ibbs v The Queen (1987) 163 CLR 447 at 452 and Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27]. That is, there needs to be a determination of the relative seriousness of the offence committed within the range of offending able to be comprehended by the offence provision.

21. The sentencing judge did not find that this offence was in the worst category, nor contemplate imposing the maximum penalty. His Honour set out the facts and circumstances in detail, and made findings of fact, including on the disputed fact that the appellant had deliberately caused his dog to attack the police. His Honour detailed the injuries suffered, referring to the Victim Impact Statement and evidence. As summarised at [9] above, his Honour concluded:

22. With regard to the offence of causing grievous bodily harm, you are not to be sentenced on the basis that you intentionally caused grievous bodily harm to DE. I am satisfied, however, that you intentionally did the act which resulted in grievous bodily harm being occasioned to her. The extent of the harm occasioned and the circumstances in which it was occasioned make this a very serious example of this type of offending. It is a seriously aggravating feature that the victim was a police officer acting in the execution of her duty. Your acts also necessitated the discharge of both a taser and a firearm in a public place. In my opinion, this offence falls into the upper-range of such offences.

23. While the sentencing judge did not spell out a spectrum of offending from least to most serious, his Honour necessarily and implicitly did conduct the substance of the required exercise and thereby met the requirements identified in Kilic. No error in the assessment of the objective seriousness of the GBH offence has been demonstrated. Asserted error in the discount allowed for the guilty plea for the theft offence

24. The appellant submits that a plea of guilty entered at “such an early stage as a second mention in the Magistrates Court ought to have attracted a reduction in the penalty in the order of 25% without good reason not to” and that no such reason was identified other than the strength of the prosecution case. The increased discount sought would have meant a reduction of sentence of 9 months instead of the 7 months which was allowed.

25. This argument rises no higher than the identification of a basis upon which a greater discount could have been given, falling short of even identifying, let alone establishing, any error in not doing so. The discount given was comfortably within the exercise of the sentencing judge’s discretion in light of the features of the offending and other considerations identified by his Honour.

Asserted error in the discount allowed for the guilty plea for the GBH offence

25. The appellant relies upon the indication he gave at a case conference prior to a trial date being fixed that he would plead guilty to the lesser statutory alternative of causing grievous bodily harm, being the statutory alternative to the charge on the indictment of recklessly inflicting grievous bodily harm, and entered that guilty plea less than 2 weeks later. He submits that the reduction of the sentence by almost 10% fell short of what was said to be required by the decision in Blundell v The Queen [2019] ACTCA 34 at [7] – [18] (Blundell). He also points to the obligation in s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) to have regard to “current sentencing practice”. He therefore contends that the sentencing judge should have reduced the sentence to be imposed by 15%. The increased discount sought would have meant a reduction of sentence of just over 7 months instead of the 5 months which was allowed.

26. The key passages in Blundell make it clear that the requirement in s 35 of the Crimes (Sentencing) Act to take into account the utilitarian value of a guilty plea makes this a primary factor in determining the extent of the discount to be given. Moreover, in the course of its history the Supreme Court of the ACT has developed the practice of giving a 15-20% discount when the plea happens soon after a case conference. Plainly, the encouragement of guilty pleas at an early stage is important, but not at all costs.

27. It is clear that a usual practice of a 15-20% discount when this happens soon after a case conference is not to be confused with a mandated practice (Blundell at [8]). Nor does a discount of at least 15% create any more than an expectation arising from that being the general application of that practice (Blundell at [14]). That is, such a discount range remains no more than guidance, however compelling, in the exercise of the discretion, and is not a fetter on the exercise of the discretion. It remains the fact that this guidance may be departed from in an appropriate case.

28. The sentencing judge’s reasons identify that his Honour had in mind at least two recognised bases for departing from a 15-20% discount for a guilty plea that occurs following a case conference and before a trial date has been fixed. First, in this case there was an express finding of poor prospects of rehabilitation, elevating the need for personal deterrence and protection of the community, and weighing against giving full effect to the utilitarian value of the plea in this case. Secondly, the utilitarian value of the guilty plea was itself qualified in that the appellant disputed that he had intentionally caused his dog to attack the police. This was likely to have been the key live issue at any trial, reducing the utilitarian value of the guilty plea. Those two factors, in the context of the clearly overwhelming prosecution case, left ample room for his Honour to limit, quite properly, the discount to about 10%. No error has therefore been established in the exercise of his Honour’s discretion.

Asserted manifestly excessive sentence imposed for the theft offence having regard to sentences imposed in other cases

29. The appellant points to statistics from the ACT Sentencing Database that indicate that out of 287 instances in the Supreme Court in which a full-time custodial sentence for theft was imposed, only 4 cases resulted in a sentence of more than 3 years, only 4 cases resulted in sentences between 30 and 36 months, and only 6 cases resulted in sentences between 24 and 30 months. The imposition of custodial sentences for theft was even less common in the Magistrates Court, despite a sentencing jurisdiction of up to 5 years’ imprisonment.

30. Bare sentencing statistics of this kind are of little assistance to the sentencing process, either at the point of imposing sentence, or on appeal. As the High Court has repeatedly pointed out, what is required in sentencing is consistency in the application of principle, not numerical equivalence: see R v Pham [2015] HCA 39; 256 CLR 550 at [28] and the cases there cited. As the High Court observed in Kilic at [22], by reference to a range of prior authority, the examination of prior cases dealing with the same offence:

may provide a relevant “yardstick” by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed. (Footnotes omitted) As the High Court further pointed out in Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 at [51] (Dalgliesh), quoting with approval from Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; 172 A Crim R 181 at 196 [30]-[31]:

[T]he need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed.

31. In this case, the sentencing judge was entitled to have regard to the appellant’s extensive criminal history and the increased need for personal deterrence and community protection in arriving at an appropriate sentence, features that were not shown to be present in other cases by reliance upon only bare statistical outcomes. The appellant has not identified, let alone established, any basis for finding error on the part of the sentencing judge in arriving at the duration of the sentence that was imposed for the theft offence. Asserted manifestly excessive sentence imposed for the GBH offence having regard to sentences imposed in other cases

32. The appellant points to the starting point sentence of 4 years prior to the guilty plea discount, being 80% of the 5 year maximum. He submits that it would be expected that such a high sentence would be reserved for offences approaching, but falling short of, the worst-case category. The problem for the appellant is that, in substance, the sentencing judge found, without error, that this offence did approach, but fell short of, the worst category. His Honour did not find that the maximum sentence was required, even as a starting point.

33. The appellant also relies upon sentencing statistics which indicate how the Supreme Court has previously sentenced offenders for this specific offence, with each such sentence being lower than that imposed upon him. He characterises his offence as being less serious than the most serious of those offences, but only by reference to a few general features. As already noted above, prior sentences imposed in other cases are but one relevant yardstick against which to assess the sentence to be imposed, but not merely as a bare number. More importantly, such a very limited number of prior cases may not afford any basis for the identification of a meaningful range: see Kilic at [25] in which a similar conclusion was reached and the quote from Dalgliesh reproduced at [30] above. Unless that is done, the reference to the prior sentences rises no higher than an impermissible attempt to treat each as some kind of precedent.

34. It is not to the point that the sentence before the guilty plea discount was 80% of the maximum given the finding of the seriousness of the offending, nor that the GBH sentence was heavier than sentences imposed in a very limited number of prior cases involving the same provision. What must be shown is error, which has not taken place.

Asserted manifestly excessive nonparole period

35. The appellant does not take issue with the structure of the sentences, but contends that the nonparole period of about 77% of the aggregate head sentence required the scrutiny of this Court because it was beyond the common range of 50-75% referred to in Henry v The Queen [2019] ACTCA 5 at [14]. He accepts that merely being outside the range does not necessarily indicate error, but submits that such error is present, characterising the 2% departure as “significant” in the absence of any apparent reason for doing so. He submits that the sentencing judge ought to have explained the reason for the departure, in the context of an already high head sentence, itself said (unsuccessfully) to be manifestly excessive. He submits that the finding of poor prospects of rehabilitation was not a sufficient reason to reduce the opportunity for that to take place.

36. While the sentencing judge did not provide any separate reason for the very slight departure from the common range, that was not required in light of his Honour’s careful and detailed reasons. Contrary to the appellant’s submissions, the finding of poor prospects of rehabilitation, and the very sound basis for that conclusion given the appellant’s long history of high levels of recidivism, were ample justification for a relatively high nonparole period. It is not just that a sound basis for giving any greater opportunity for rehabilitation on parole was absent, but also that his Honour expressly found an enhanced need for personal deterrence and community protection. As was pointed out in Blundell at [28], in fixing a nonparole period, it is generally important to focus on the offender’s prospects of rehabilitation, albeit not to the exclusion of the other purposes of sentences in s 7 of the Crimes (Sentencing) Act. His Honour was entitled to find, in effect and in context, that that personal deterrence and community protection should prevail over rehabilitation given the poor prospects of the latter being successful. No error has been demonstrated.

Conclusion

37. As none of the arguments advanced by the appellant have established error, and it has not been shown that the sentences were excessive, let alone manifestly so, the appeal must be dismissed.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Justice Bromwich.

Associate:

Date: 23 April 2020