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Milkins v The Queen

Milkins v The Queen

Case [2011] VSCA 93 13 April 2011

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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…

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 Milkins v The Queen

Details

AGLC: Milkins v The Queen [2011] VSCA 93
Case: [2011] VSCA 93
Decision Date: 13 April 2011

CaseChat Overview and Summary

The case of Milkins v The Queen involves an application for leave to appeal against both the conviction and the sentence handed down by the lower court. The defendant, Milkins, was convicted of multiple offences including armed robbery, possession of an unregistered firearm by a prohibited person, theft, use of an unregistered firearm by a prohibited person, and possession of a defaced or altered firearm. The legal issues presented to the court included whether the charge to the jury was adequate regarding the burden and standard of proof, the adequacy of the direction to the jury concerning identification evidence, the necessity of a propensity warning, and the safety and satisfaction of certain verdicts. Additionally, the court considered whether leave should be granted to add a ground related to the Crown's reliance on similar fact evidence.

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.

Orders