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Middleton v The Queen

Middleton v The Queen

Case [2018] VSCA 23 15 February 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0160

SIMON MIDDLETON	Applicant
v
THE QUEEN	Respondent

– AND –

S APCR 2017 0161

SHANE MIDDLETON	Applicant
v
THE QUEEN	Respondent

– AND –

S APCR 2017 0163

ANGELO ANAGNOSTOU	Applicant
v
THE QUEEN	Respondent

– AND –

S APCR 2017 0243

RENEE COMEADOW	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 January 2018
DATE OF JUDGMENT:	15 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 23
JUDGMENT APPEALED FROM:	DPP v Middleton (Unreported, County Court of Victoria, Judge Stuart, 28 June 2017) DPP v Anagnostou (Unreported, County Court of Victoria, Judge Stuart, 29 June 2017)

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CRIMINAL LAW – Appeal – Sentence – Four offenders charged with attempting to pervert the course of justice – One applicant also charged with armed robbery – Applicants together attempted to persuade prosecution witness to resile from statement made to police – Statement identified first applicant as perpetrator of armed robbery – First applicant already serving lengthy sentence of imprisonment for unrelated offending – Fixing of new single non-parole period – New non-parole period imposed below excessive – Sentences for two of remaining three offenders also excessive – Appeals allowed – Sentences reduced.

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APPEARANCES:	Counsel	Solicitors
For the applicant Simon Middleton	Mr S Bayles	Pica Criminal Lawyers
For the applicant Shane Middleton	Mr M Thomas	Paul Vale Criminal Law
For the applicant Angelo Anagnostou	Mr A J Patton	Valos Black & Associates
For the applicant Renee Comeadow	Mr P J Smallwood	Theo Magazis & Associates
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
COGHLAN JA:

Introduction

On 17 November 2016, Shane Middleton was sentenced by his Honour Judge Stuart, in the County Court at Melbourne as follows (‘the 2016 sentence’):

Charge on Indictment Offence Maximum Sentence Cumulation

1. Traffick in a commercial quantity of a drug of dependence (MDMA)
[s 71AA Drugs, Poisons and Controlled Substances Act 1981] 25 years 3 years’
imprisonment Base

2 Store firearm in an unsecure manner whilst unlicensed
[s 129A Firearms Act 1966] 4 years 1 month imprisonment -

3 Possession of a drug of dependence (Cannabis) 5 penalty units Dismissed -

4 Possession of an unregistered handgun [s 7B(1) Firearms Act 1966] 7 years 18 months’ imprisonment 8 months

5 Handle stolen goods
[s 88 Crimes Act 1958] 15 years 2 years and 6 months’ imprisonment 1 year

6 Recklessly deal with the proceeds of Crime 10 years 1 year imprisonment 3 months

Related Summary Offence Commit indictable offence whilst on bail 3 months 1 month
imprisonment 1 month

Total Effective Sentence: 5 years’ imprisonment

Non-Parole period: 3 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 211 days

6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years

The 2016 sentence is not the subject of the proceedings before this Court. That sentence is, however, an integral…

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 Middleton v The Queen

Details

AGLC: Middleton v The Queen [2018] VSCA 23
Case: [2018] VSCA 23
Decision Date: 15 February 2018

CaseChat Overview and Summary

The appeal before the court involved four individuals charged with attempting to pervert the course of justice, with one of the applicants also facing charges related to armed robbery. The applicants had conspired to persuade a prosecution witness to retract a statement given to the police, which implicated the first applicant as the perpetrator of the armed robbery. The first applicant was already serving a significant prison term for unrelated offences. The court was tasked with determining whether the sentences imposed were excessive and needed adjustment.

The legal issues at hand centred around the appropriate sentence for each of the four applicants. Specifically, the court needed to consider whether the new non-parole period set for the first applicant, who was already serving a lengthy sentence, was excessive. Furthermore, the court had to determine if the sentences for two of the remaining three applicants were also excessive. The applicants argued that their respective sentences were disproportionately high given their roles and the circumstances of the case.

The court acknowledged that the sentences for the first and two of the remaining applicants were excessive. The court recognised the importance of ensuring that the sentences were proportionate to the offending and the role each applicant played. Consequently, the appeals were allowed, and the sentences for these three applicants were reduced. The court set new, more appropriate non-parole periods that better reflected the nature and circumstances of their offending. The sentence for the fourth applicant, who was not found to have an excessive sentence, remained unchanged.

Orders