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:
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.
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.
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…
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- AGLC
- Miller v The Queen [2011] VSCA 143
- Case
- [2011] VSCA 143
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the comments made during the trial infringed section 20(3) of the Evidence Act 2008, which pertains to the judge's role in the trial. Furthermore, the court had to determine if a Palmer direction was necessary to address any potential prejudice caused by the comments. The court also examined the admissibility of evidence under section 66(2)(b) of the Evidence Act 2008, which concerns evidence of a representation. Finally, the court considered whether the sentence imposed was appropriate given the circumstances of the case.
The High Court found that the comments made during the trial did not infringe section 20(3) of the Evidence Act 2008 and that a Palmer direction was not necessary. The court also determined that the evidence in question was admissible under section 66(2)(b) of the Evidence Act 2008. However, the court found that the sentence imposed was excessive and did not adequately reflect the appellant's immaturity at the time of the offences, the long delay between the last offence and the complaint, and the strong evidence of rehabilitation. Consequently, the appeal was upheld, and the appellant was re-sentenced.
Appellant re-sentenced.
Orders
Orders of the court
Appellant re-sentenced.
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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