Miechel v The Queen

Case [2010] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2006 772

DAVID ANTHONY MIECHEL Applicant
v
THE QUEEN
Respondent

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JUDGES MAXWELL P, NEAVE JA and LASRY AJA
WHERE HELD MELBOURNE
DATE OF HEARING 28 September 2009;  1 June 2010
DATE OF JUDGMENT 9 September 2010
MEDIUM NEUTRAL CITATION [2010] VSCA 225
JUDGMENT APPEALED FROM R v Miechel (Unreported, Supreme Court of Victoria, King J, 26 May 2006 (date of conviction), 18 August 2006 (date of sentence))

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CRIMINAL LAW – Appeal – Conviction – Burglary – Theft – Trafficking in drugs of dependence (5 counts) – Accused police officer part of team investigating drug trafficking – Drugs stolen from property under police surveillance – Failure to direct jury as to complicity – Admission of ‘no comment’ record of interview – Use of mitochondrial DNA evidence – Manner in which DNA evidence led – Failure to eliminate other individuals from DNA evidence – Circumstantial case – Whether verdict unsafe and unsatisfactory – Application refused.

CRIMINAL LAW – Appeal – Sentence – Burglary – Theft – Trafficking in large commercial quantity of drug of dependence (2 counts) – Police officer – Breach of trust – 15 years’ imprisonment with non-parole period of 12 years – Whether manifestly excessive – Whether prison conditions more onerous than sentencing judge appreciated – Application refused.

CRIMINAL LAW – Drug offences – Trafficking – Drugs of dependence – Large commercial quantity – Mixed substances containing two or more drugs – Whether separate counts involved double counting of quantities – Whether counts independently supportable by separate quantities – Whether miscarriage of justice – R v Ahmed (2007) 17 VR 454 considered – Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 70, 120, Schedule 11 Part 3.

WORDS AND PHRASES – ‘mixed with another substance’.

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APPEARANCES: Counsel

Solicitors
For the Applicant Mr N Papas SC with
Ms S Keating and
Mr S Brown 		Victoria Legal Aid
For the Crown Mr J D McArdle QC Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA
LASRY AJA:

  1. After a month-long trial, the applicant, David Anthony Miechel, was found guilty by a Supreme Court jury of one count of burglary, one count of theft and five counts of drug trafficking.  He was sentenced as set out below:

Count

Offence

Maximum penalty

Sentence

Cumulation

1

Burglary

10y

5y

2y

2

Theft

10y

5y

−

3

Trafficking in a large commercial quantity of MDMA

Life imprisonment

13y

BASE

4

Trafficking in a large commercial quantity of methylamphetamine

Life imprisonment

13y

−

5

Trafficking in a commercial quantity of amphetamine

25y

8y

−

6

Trafficking in dimethylamphetamine

15y

18m

−

7

Trafficking in ketamine

15y

1m

−

Total effective sentence:  15y

Non-parole period:        12y

  1. The applicant now seeks leave to appeal against both conviction and sentence.  For reasons which follow, we would refuse both applications.

Circumstances of the offences

  1. The applicant joined Victoria Police on 24 April 1989. At the time of these incidents in 2003, he was attached to…

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AGLC
Miechel v The Queen [2010] VSCA 225
Case
[2010] VSCA 225
Decision Date

CaseChat Overview and Summary

The appeal in Miechel v The Queen involved the appellant, a police officer who was part of a team investigating drug trafficking. The appellant was convicted of burglary, theft, and trafficking in large commercial quantities of drugs of dependence. The appellant was found to have stolen drugs from a property that was under police surveillance. The appellant appealed against both his conviction and his sentence. The appeal against conviction raised issues such as the failure to direct the jury regarding complicity, the admission of a ‘no comment’ record of interview, the use of mitochondrial DNA evidence, and the failure to eliminate other individuals from the DNA evidence. The appeal against sentence questioned whether the 15-year imprisonment with a non-parole period of 12 years was manifestly excessive, taking into account the breach of trust by the appellant. Additionally, the appeal against sentence argued that the prison conditions were more onerous than the sentencing judge appreciated. The court found that the appeal against conviction was not successful as the verdict was not unsafe and unsatisfactory. The appeal against sentence was also dismissed as the sentence was not manifestly excessive. The court held that the sentencing judge had appropriately considered the breach of trust by the appellant and the other factors relevant to sentencing.

The court considered the legal issues regarding the appellant's conviction and sentence. The issues regarding the conviction included whether the failure to direct the jury as to complicity, the admission of the ‘no comment’ record of interview, the use of mitochondrial DNA evidence, and the failure to eliminate other individuals from the DNA evidence rendered the verdict unsafe and unsatisfactory. The issues regarding the sentence included whether the 15-year imprisonment with a non-parole period of 12 years was manifestly excessive, taking into account the breach of trust by the appellant, and whether the sentencing judge had appropriately considered the prison conditions. The court found that the verdict was not unsafe and unsatisfactory and that the sentence was not manifestly excessive. The court held that the sentencing judge had appropriately considered the breach of trust by the appellant and the other factors relevant to sentencing.

The court's reasoning was based on a thorough analysis of the evidence and the relevant legal principles. The court found that the evidence was sufficient to support the appellant's conviction and that the failure to direct the jury as to complicity, the admission of the ‘no comment’ record of interview, the use of mitochondrial DNA evidence, and the failure to eliminate other individuals from the DNA evidence did not render the verdict unsafe and unsatisfactory. The court found that the sentence was not manifestly excessive and that the sentencing judge had appropriately considered the breach of trust by the appellant and the other factors relevant to sentencing. The court held that the appellant's breach of trust was a significant factor in determining the appropriate sentence. The court also held that the sentencing judge had appropriately considered the prison conditions and that the appellant's appeal against sentence was not successful.

The final orders were that the appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The appellant's conviction and sentence were upheld, and the appellant was required to serve the 15-year imprisonment with a non-parole period of 12 years. The court held that the sentence was appropriate and that the appellant's appeal against sentence was not successful. The court also held that the appellant's breach of trust was a significant factor in determining the appropriate sentence and that the sentencing judge had appropriately considered the other factors relevant to sentencing.

Orders

Orders of the court

In our opinion the appeal against sentence must be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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