R v Miles - [1999] QCA 325

IN THE COURT OF APPEAL [1999] QCA 325
SUPREME COURT OF QUEENSLAND
C.A. No. 96 of 1999
Brisbane
[R v. Miles]
THE QUEEN
v.
ROLAND TREVOR MILES
(Applicant)
McMurdo P
McPherson JA
Pincus JA

Judgment delivered 20 August 1999
Joint reasons for judgment of McMurdo P and Pincus JA, separate reasons for judgment of McPherson JA concurring as to the order made
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS

- SURPLUSAGE - lack of correspondence between count in indictment and offence created by s 419(4) Criminal Code - whether aggravating allegations able to be ignored so as to reduce count to fit language of s 419(4)

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS -

APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - conviction of number of offences, including assault doing bodily harm and committing an indictable offence while in a dwelling house - whether sentence of three years with recommendation for parole after one year manifestly excessive - requirements of personal deterrence and general deterrence such that sentence appropriate
Brelsford (CA No 301 of 1995, 14 September 1995)
Go (1990) 73 NTR 1
Counsel: Mr B Devereaux for the applicant
Mr R Martin for the respondent
Solicitors: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
Hearing Date: 6 July 1999
JOINT REASONS FOR JUDGMENT - McMURDO P and PINCUS JA
Judgment delivered 20 August 1999

The applicant applies for leave to appeal against sentence, having been convicted on pleas of guilty of five offences, three of which were charged on indictment; two were summary charges. He is a middle-aged man with no criminal history and complains of what he says is the excessiveness of the punishment imposed, namely 3 years imprisonment with a recommendation that he be considered for release on parole after 1 year.
The first count in the indictment alleged that the applicant -
" . . . broke and entered the dwelling of one Enid Elizabeth Buckley in the night time and therein unlawfully assaulted one Evelyn Enid Miles and thereby did her bodily harm".
This does not correspond with any of the offences created by s 419 of the Code, which was substantially amended by the Criminal Law Amendment Act 1997, s 72. The present scheme of s 419 is that subs 1 creates an offence of, to put it simply, entering or being in a dwelling with intent and subs 2 and 3 provide for life imprisonment if that is done in certain circumstances. Subsection 4 creates a separate offence and it is that which most closely corresponds with the drafting of count 1.
Counsel for the respondent pointed out that if one ignored the allegation of breaking and the allegation that the offence was committed in the night-time the count would be good under…

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 R v Miles

Details

AGLC: R v Miles [1999] QCA 325
Case: [1999] QCA 325
Decision Date: 20/08/1999

CaseChat Overview and Summary

In the matter of R v Miles, the appeal was against the sentence imposed on the applicant, who was convicted of various offences against his wife and her mother. The injuries to the victims were documented through photographs that were presented in evidence. The applicant sought leave to appeal against the sentence, arguing it was excessive in comparison to a similar case, Brelsford. The Court of Appeal was tasked with determining whether the sentence was manifestly excessive and if it was appropriate given the circumstances and the need for both personal and general deterrence.

The legal issues before the court included whether the sentence was excessive relative to the precedent set in Brelsford, and whether the sentence appropriately balanced personal and general deterrence. The court considered the nature and severity of the injuries inflicted, the applicant's prompt display of remorse, and the presence of a domestic violence order against the applicant.

The Court of Appeal found that the sentence was not manifestly excessive and was within the proper range. The court placed significant weight on the injuries to the victims and the applicant's prior history of violent behaviour, as evidenced by the domestic violence order. The severity of the injuries and the need for both personal and general deterrence were considered in reaching this conclusion. The court rejected the appeal, affirming the sentence imposed by the lower court.

In summary, the application for leave to appeal against sentence was dismissed, and the original sentence was upheld. The court found that the sentence was appropriate and not manifestly excessive, considering the severity of the injuries and the need for deterrence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There were photographs in evidence showing the injuries to the complainants, the applicant's wife and her mother. The sentence imposed was not a low one, but appears to us to derive support from that imposed in Brelsford (CA No 301 of 1995, 14 September 1995); both sides relied on this case. We would find it impossible to conclude that the seriousness of the events in Brelsford is so far removed from that of the present case as to justify the conclusion that the penalty imposed here - the same as that in Brelsford - was manifestly excessive. Emphasis was rightly placed on the fact that the applicant was the subject of a domestic violence order caused by apprehension about his behaviour. Although he showed very prompt remorse, it appears to us that the requirements both of personal deterrence and general deterrence make the sentence imposed one which was within the proper range. We would refuse the application. REASONS FOR JUDGMENT - McPHERSON JA Judgment delivered 20 August 1999 I agree with what McMurdo P and Pincus JA have written on the subject of the sentence in this case, as well as the defect (and its effect or consequence) in the first count in the indictment. The application for leave to appeal against sentence should be dismissed.

Ratio Decidendi

Legal Principle Established

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IN THE COURT OF APPEAL	[1999] QCA 325
SUPREME COURT OF QUEENSLAND

CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS
- SURPLUSAGE - lack of correspondence between count in indictment and offence created by s 419(4) Criminal Code - whether aggravating allegations able to be ignored so as to reduce count to fit language of s 419(4)
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS -
APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - conviction of number of offences, including assault doing bodily harm and committing an indictable offence while in a dwelling house - whether sentence of three years with recommendation for parole after one year manifestly excessive - requirements of personal deterrence and general deterrence such that sentence appropriate
*Brelsford* (CA No 301 of 1995, 14 September 1995) Go (1990) 73 NTR 1
Counsel:	Mr B Devereaux for the applicant Mr R Martin for the respondent
Solicitors:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	6 July 1999