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Miller v The Queen

Miller v The Queen

Case [2012] VSCA 265 31 October 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0043
PAUL ALAN MILLER	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, TATE JJA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 October 2012
DATE OF JUDGMENT	31 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 265
JUDGMENT APPEALED FROM	DPP v Miller (Unreported, County Court of Victoria, Judge Tinney, 27 January 2012)

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CRIMINAL LAW – Sentencing – Appeal against sentence – Appellant pleaded guilty to one charge of theft (charge 1), one charge of negligently causing serious injury (charge 2) and one charge of failing to render assistance after an accident (charge 3) – Total effective sentence of seven years’ imprisonment with non-parole period of five years – Sentence of five years nine months’ imprisonment on charge 1 – Whether sentence imposed was manifestly excessive – Sentence outside the range – Whether cumulation of 12 months imposed on charge 3 excessive – Application of principles in R v Verdins(2007) 16 VR 269 – Effect of delay on sentence – Appeal allowed – Appellant resentenced to four years on charge 2, same sentences on charges 1 and 3 but with cumulation of three months and six months – Total effective sentence four years nine months’ imprisonment with non-parole period of four years.

Gorladenchearau v The Queen [2011] VSCA 432, considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I agree with Ferguson AJA that the appeal should be allowed and that the appellant should be resentenced as she proposes.

TATE JA:

I also agree with Ferguson AJA.

FERGUSON AJA:

On 20 January 2012 the appellant, pleaded guilty to one charge of theft, one charge of negligently causing serious injury and one charge of failing to render assistance after an accident.

Following a plea, the appellant was sentenced on 27 January 2012 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1
Theft
[s 74 Crimes Act 1958 (Vic)]
10 years’ imprisonment
12 months’ imprisonment 3 months

2

Negligently causing serious injury

[s 24 Crimes Act 1958]

10 years’ imprisonment
5 years’, 9 months’ imprisonment Base

3
Failing to render assistance after an accident
[s 61(1)(b) Road Safety Act 1986] 10 years’ imprisonment
[s 61(3) Road Safety Act 1986] 30 months’ imprisonment 12 months

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years’ imprisonment

Pre-sentence Detention Declared: 600 days

6AAA Statement: 8 years’, 6 months’ imprisonment, with a non-parole period of 6 years’, 6 months’ imprisonment

Other orders:
On charge 1, licence cancelled and appellant disqualified for 12 months
On charge 2, licence cancelled and appellant disqualified for 24 months
On charge 3, licence cancelled and appellant disqualified for 8 years
from 27 January 2012.

There are four grounds of appeal against the sentences imposed. They are:

1.The sentence imposed on charge 2 was manifestly excessive in the light of current…

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 Miller v The Queen

Details

AGLC: Miller v The Queen [2012] VSCA 265
Case: [2012] VSCA 265
Decision Date: 31 October 2012

CaseChat Overview and Summary

Miller was convicted and sentenced to seven years’ imprisonment for theft, negligently causing serious injury, and failing to render assistance after an accident. The appellant appealed the sentence, arguing it was manifestly excessive and that the cumulation of 12 months for the failing to render assistance charge was too severe. The central issue before the court was whether the sentence imposed was outside the range of sentences that could be regarded as appropriate, considering the principles set out in R v Verdins. The court also considered the effect of delay on the sentence.

The court found that the sentence imposed was indeed outside the range of sentences that could be regarded as appropriate. The court concluded that the cumulation of 12 months for the failing to render assistance charge was excessive and amounted to a significant departure from the principles outlined in R v Verdins. The court found that the delay in sentencing had an impact, but it did not absolve the appellant of responsibility for the delay. The court decided that the appellant should be resentenced with a reduction in the cumulation of sentences for charges 1 and 3.

The appeal was allowed, and the appellant was resentenced to four years on charge 2, with the same sentences on charges 1 and 3, but with a cumulation of three months and six months. The total effective sentence was four years nine months’ imprisonment with a non-parole period of four years. This outcome was in line with the principles established in Gorladenchearau v The Queen, where the court emphasised the importance of proportionality in sentencing.

The final orders of the court were that the appellant's total effective sentence was reduced to four years nine months’ imprisonment with a non-parole period of four years. The court found that this sentence was proportionate and in line with the principles of sentencing as outlined in R v Verdins and other relevant authorities.

Orders