Miles v The Queen

Case [2014] ACTCA 41


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

MILES v THE QUEEN

Citation:

[2014] ACTCA 41

Hearing Date(s):

6 May 2014

DecisionDate:

29 August 2014

Before:

Murrell CJ, Penfold J & Ross J

Decision:

1. In relation to ACTCA 18 of 2013 the appeal be dismissed.

2. In relation to ACTCA 77 of 2013 the appeal be upheld and the appellant be resentenced as follows:

2.1 A new sentence of imprisonment for 4 years, to replace the sentence imposed by Burns J, is to run from 5/1/2011 until 4/1/2015.

2.2 A reduction in the concurrency between that sentence and the sentences imposed by Nield AJ from 3 years and 9 months to 3 years, so the sentence imposed by Nield AJ would start on 5/1/2012 and run until 4/2/2023, giving a total effective sentence of 12 years and 1 month. 

2.2 For the above sentence a new non parole period of 7 years and 7 months is set, commencing on 5/1/2011 and ending on 4/8/2018

Category:

Principal Judgment

Catchwords:

APPEAL – GENERAL PRINCIPLES – appeal against sentence – parity principle – earlier conviction appeal impact on the assessment of the objective seriousness of the offending having regard to the changed basis upon which the sentence is to be assessed – whether sentence for the offence of aggravated robbery was manifestly excessive – appeal upheld.

APPEAL – GENERAL PRINCIPLES – appeal against sentence – parity principle has not operation when co-offender has been granted immunity from prosecution – lack of remorse – prospects for rehabilitation – consideration of scheduled offences – appeal dismissed.

Legislation Cited:

Criminal Code 2002 (ACT) ss 48, 310

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 66, 74

Cases Cited:

Attorney General’s Application under s.37 of the Crimes (Sentencing Procedures) Act 1999 No 1. of 2002 (2002) 56 NSWLR 146

Barbaro v R (2014) 305 ALR 323
Bugmy v The Queen (2013) 249 CLR 571
R v Diamond (Unreported, Supreme Court of the ACT, Nield AJ, 29 October 2010)
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Fox v Percy (2003) 214 CLR 118
Green v R; Quinn v R (2011) 244 CLR 462
Hili v The Queen (2010) 242 CLR 520
Lacey v Attorney General (Qld) (2011) 242 CLR 573
Lowe v The Queen (1984) 154 CLR 606
Mill v The Queen (1988) 166 CLR 59
Pham v The Queen (2009) 193 A Crim R 190
Postiglione v The Queen (1997) 189 CLR 295
R v Barton (2001) 121 A Crim R 185
R v Campbell [2010] ACTCA 20
R v Cox (1996) 66 SASR 152
R v Ellis (1993) 68 A Crim R 449
R v Kerr [2003] NSWCCA 234
R v Malvaso (1989) 50 SASR 503
R v Tracey-Campbell [2010] ACTCA 20
R v Tresize (Unreported, Supreme Court of the ACT, Nield AJ, 7 September 2012)

Parties:

Christopher Miles (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr Gill (Appellant)

Ms Jones (Respondent)

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Details
AGLC
Miles v The Queen [2014] ACTCA 41
Case
[2014] ACTCA 41
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Miles, for offences including aggravated robbery. The appeal was heard by Murrell CJ, Penfold J, and Ross J in the ACT Court of Appeal.

The court was required to determine whether the sentence imposed for aggravated robbery was manifestly excessive, particularly in light of the parity principle and the impact of an earlier conviction appeal on the assessment of the objective seriousness of the offending. Additionally, the court considered whether the parity principle had any operation when a co-offender had been granted immunity from prosecution, and whether the appellant's lack of remorse and prospects for rehabilitation were appropriately considered, along with the nature of scheduled offences.

The court upheld the appeal in relation to the aggravated robbery sentence, finding it to be manifestly excessive. The reasoning involved a reassessment of the objective seriousness of the offending, taking into account the changed basis upon which the sentence was to be assessed following the earlier conviction appeal. The court also determined that the parity principle did not apply in the context of a co-offender who had been granted immunity.

Consequently, the appeal in ACTCA 18 of 2013 was dismissed, while the appeal in ACTCA 77 of 2013 was upheld. The appellant was resentenced for aggravated robbery to a term of imprisonment of 4 years, running from 5 January 2011 to 4 January 2015. This resulted in a reduction in the concurrency of sentences, leading to a new total effective sentence of 12 years and 1 month, with a non-parole period of 7 years and 7 months, commencing on 5 January 2011.

Orders

Orders of the court

1. In relation to ACTCA 18 of 2013 the appeal be dismissed.

2. In relation to ACTCA 77 of 2013 the appeal be upheld and the appellant be resentenced as follows:

2.1 A new sentence of imprisonment for 4 years, to replace the sentence imposed by Burns J, is to run from 5/1/2011 until 4/1/2015.

2.2 A reduction in the concurrency between that sentence and the sentences imposed by Nield AJ from 3 years and 9 months to 3 years, so the sentence imposed by Nield AJ would start on 5/1/2012 and run until 4/2/2023, giving a total effective sentence of 12 years and 1 month.

2.2 For the above sentence a new non parole period of 7 years and 7 months is set, commencing on 5/1/2011 and ending on 4/8/2018

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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