Alexander Miller v The Queen - [2019] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0034

ALEXANDER MILLER	Applicant
v
THE QUEEN	Respondent

----

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

----

JUDGE:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	17 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 108
JUDGMENT APPEALED FROM:	DPP v Miller [2018] VCC 1426 (Judge Smallwood)

---

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Trafficking in a commercial quantity of a drug of dependence – Knowingly dealing with the proceeds of crime – Applicant sentenced to 6 years’ imprisonment with non-parole period of 4 years – Co-offender sentenced to 7 years 6 months’ imprisonment on charge of trafficking in a commercial quantity of a drug of dependence – Parity – Whether judge erred in application of parity principle – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
Determined on the papers.

WHELAN JA:

On 29 August 2018 the applicant, Alexander Miller, pleaded guilty in the County Court to a charge of trafficking in a commercial quantity of a drug of dependence (methylamphetamine), a charge of knowingly dealing with the proceeds of crime, and a summary offence of dealing with property suspected of being the proceeds of crime. A plea hearing was held on that day.

On 30 August 2018 the applicant was sentenced to a term of imprisonment of six years on the offence of trafficking, three months’ imprisonment on the offence of knowingly dealing with the proceeds of crime, and he was fined on the summary offence.[1] The maximum penalty for the offence of trafficking was 25 years’ imprisonment. The maximum penalty for the offence of knowingly dealing with the proceeds of crime was 15 years’ imprisonment. The sentence on the trafficking offence was the base sentence. No order was made for cumulation. Thus, the total effective term of imprisonment imposed was six years. The sentencing judge fixed a non-parole period of four years.
[1][2018] VCC 1426 (‘Reasons’).

On the same day the same judge in the County Court sentenced one of the applicant’s co-offenders, Jasmine Bourne. Like the applicant, Bourne had pleaded guilty to an offence of trafficking in a commercial quantity of a drug of dependence (methylamphetamine). For that offence she was sentenced to a term of imprisonment of seven years six months. Ms Bourne also pleaded guilty to, and was sentenced on, a number of other charges on the indictment and a number of related summary offences. On those further offences she was sentenced to periods of imprisonment ranging between one month and twelve months, and she was fined. Orders for cumulation resulted in a total effective term of imprisonment of eight years. The judge fixed a non-parole period of five years three months.

The applicant now seeks leave to appeal his individual sentences and the total effective sentence on the basis that the sentences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander Miller v The Queen

Details

AGLC: Alexander Miller v The Queen [2019] VSCA 108
Case: [2019] VSCA 108
Decision Date: 17 May 2019

CaseChat Overview and Summary

The applicant, Alexander Miller, sought leave to appeal against a sentence imposed by the Supreme Court of New South Wales, which found him guilty of trafficking in a commercial quantity of a drug of dependence and knowingly dealing with the proceeds of crime. The Crown, represented by The Queen, prosecuted the case. The court sentenced Miller to six years’ imprisonment, with a non-parole period of four years. The legal issues before the court centred on whether the sentencing judge erred in applying the parity principle when imposing the sentence on Miller. The applicant argued that the sentence was manifestly excessive and disproportionate compared to the sentence of a co-offender, who received a seven-year-six-month imprisonment term for a similar offence.

The court considered the principles of parity in sentencing and examined the circumstances of both the applicant and the co-offender. The judge highlighted that while parity is an important consideration, it is not the only factor to be taken into account. The court found that the judge appropriately exercised their discretion in imposing a sentence on Miller, taking into account the relevant aggravating and mitigating factors. The court held that the sentence imposed on Miller was not manifestly excessive or disproportionate, and there was no error in the application of the parity principle.

In light of the above, the court dismissed the application for leave to appeal against the sentence. The court held that the sentence imposed on Miller was appropriate and that there was no miscarriage of justice warranting an appeal. Consequently, the applicant's application for leave to appeal against the sentence was refused.

Orders