SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0631
| JAMES MILKINS | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG, MANDIE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 March 2011 |
| DATE OF JUDGMENT | 13 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 93 |
| JUDGMENT APPEALED FROM | R v Milkins (Unreported, County Court Of Victoria, Judge Chettle, 12 May 2009) |
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CRIMINAL LAW –– Application for leave to appeal against conviction – Armed robbery, prohibited person possess unregistered firearm, theft, prohibited person use unregistered firearm, possession of defaced or altered firearm – Whether charge to jury adequate regarding burden and standard of proof – Whether direction to jury adequate regarding identification evidence – Whether judge ought to have given propensity warning – Whether certain verdicts unsafe and unsatisfactory – Leave sought to add ground in respect of Crown’s reliance on similar fact evidence -Trial judge adequately warned jury of dangers of mistaken identification – Classical ‘propensity warning’ not required in the circumstances – Powerful circumstantial case – Open to Crown to invoke similar fact evidence - Leave to amend by adding ground refused – Leave to appeal against conviction refused.
CRIMINAL LAW – Application for leave to appeal against sentence – Total effective sentence 15 years with non-parole period 12 years - Whether fixing of non-parole period of 80% total effective sentence too high - Whether sentence manifestly excessive – Extensive criminal history with few mitigating factors – Offences merited lengthy terms of imprisonment - Questionable prospects of rehabilitation - Need for both specific and general deterrence - Leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C B Boyce | Victoria Legal Aid |
| For the Crown | Mr T Gyorrfy | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
After a trial that lasted some eight days, the applicant, James Milkins, was convicted in the County Court at Melbourne of nine counts arising out of the commission of four separate armed robberies. He was acquitted of a further six counts on the presentment. The offences in question all took place between March and June 2007.
The counts upon which the applicant was convicted, and the sentences imposed for each, are set out in the following table:
Count Offence Sentence Cumulation 1 Prohibited person possess unregistered firearm 3 years’ imprisonment 1 year 2 Armed robbery 7 years and six months’ imprisonment 2 years 3 Armed robbery 7 years and six months’ imprisonment 2 years 5 Prohibited person possess unregistered firearm 5 years’ imprisonment Nil 6 Armed robbery 7 years and six months’ imprisonment 2 years 11 Theft of motor vehicle 15 months’ imprisonment 6 months 12 Prohibited person use unregistered firearm 7 years’ imprisonment Nil 14 Armed robbery 7 years and six months’ imprisonment Base sentence 15 Possession of firearm which has been defaced or altered 12 months’ imprisonment Nil
This made a total effective sentence of 15 years. A non-parole period of 12 years was fixed. In addition, it was ordered that any licence…
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- AGLC
- Milkins v The Queen [2011] VSCA 93
- Case
- [2011] VSCA 93
- Decision Date
CaseChat Overview and Summary
The court examined whether the trial judge adequately warned the jury of the dangers of mistaken identification and concluded that a classical 'propensity warning' was not required in the circumstances. It found that the case against Milkins was a powerful one, circumstantially, and that it was open to the Crown to invoke similar fact evidence. The court determined that the trial judge's direction to the jury regarding identification evidence was sufficient, and the verdicts were safe and satisfactory. Consequently, leave to amend the grounds of appeal by adding a new ground concerning the Crown's reliance on similar fact evidence was refused. Similarly, leave to appeal against the conviction was refused.
Further, the court addressed the appeal against the sentence, focusing on whether the non-parole period of 80% of the total effective sentence was too high and whether the sentence was manifestly excessive. Given Milkins' extensive criminal history, the limited mitigating factors, and the need for both specific and general deterrence, the court found the sentence to be appropriate. The court held that the sentence was neither manifestly excessive nor did it excessively fix the non-parole period. Consequently, leave to appeal against the sentence was also refused.
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Background
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