Miller v The Queen

[2011] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0351

JOTHAM REUEL MILLER	Applicant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and HARPER JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 May 2011
DATE OF ORDERS	2 May 2011
DATE OF PUBLICATION OF REASONS FOR JUDGMENT	16 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 143
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge McInerney, 17 September 2010)

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Criminal law – Conviction – Whether submissions of counsel for Crown or judge’s comment infringed s 20(3), Evidence Act 2008 – Motive to lie – Whether Palmer direction (Palmer v The Queen (1998) 193 CLR 1) necessary – Whether evidence of representation under s 66(2)(b), Evidence Act 2008 admissible – Application for leave to appeal refused.

Criminal law – Sentence – Sexual offences committed on four occasions when applicant aged a little over 14 and aged 17 – Circumstances of offending evidenced applicant’s immaturity – Long delay between last offending and complaint – Sentence imposed some 16 years following offences – No subsequent offences – Strong evidence of rehabilitation – Appeal upheld – Appellant re-sentenced.

R v Boland (2007) 17 VR 300 applied.

Appearances:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones with Mrs E McKinnon	Michael Brugman
For the Respondent	Mr J D McArdle, QC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. On 2 May this year, the Court refused the applicant, Jotham Miller, leave to appeal against conviction.  It granted him leave to appeal against sentence, allowed his appeal, and re-sentenced him.  These are my reasons for joining in those orders.

1. The applicant, a man born 5 July 1975, and so now aged 35, was found guilty after trial in the County Court on four charges involving sexual offences.  Two of the offences which he was found guilty were committed between October 1989 and June 1992.  The two other offences were committed between October 1992 and March 1995.  There was a single complainant, a woman born on 10 June 1982.  The first two offences of which the applicant was found guilty were in fact committed, it seems, when he was a little over 14, and the other offences when he was aged about 17.  The complainant was aged, at the respective times, approximately eight and ten.

1. Following the guilty verdict, and a plea hearing, the applicant was sentenced on 17 September 2010 as follows:

Charge 1	Sexual penetration of child under 10	18 months’ imprisonment
Charge 2	Sexual penetration of child under 10	18 months’ imprisonment
Charge 3	Attempted sexual penetration of child under 16	6 months’ imprisonment
Charge 5	Sexual penetration of child under 16	2 years’ imprisonment

The judge cumulated 3 months of each of the sentences on charges 1 and 2 on each other and on the sentence on charge 5.  The total effective sentence was thus 2 years and 6 months’ imprisonment.  The judge ordered that 22 months of that period be suspended for a period of…