R v Milini - [2001] QCA 424

SUPREME COURT OF QUEENSLAND

CITATION: R v Milini [2001] QCA 424

PARTIES:
R
v
MILINI, Andrew Mario

(applicant)

FILE NO/S: CA No 190 of 2001
SC No 296 of 2001

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 9 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 September 2001

JUDGES:
McPherson JA, Chesterman and Douglas JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application and appeal against sentence allowed. Sentence varied by reducing it to imprisonment for 5 years suspended after serving 2 years with an operational period of 3 years

CATCHWORDS:
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 – where applicant pleaded guilty to a charge of unlawful killing and sentenced to 7 years’ imprisonment – where Mental Health Tribunal previously found the applicant suffers from paranoid schizophrenia – where finding of mental illness irrelevant to the culpability of the applicant because the charges were based on criminal negligence not an intention to kill or cause grievous bodily harm – whether mental illness not amounting to insanity relevant to sentencing

Criminal Code (Qld) s 304A
Mental Health Act 1974 (Qld) s 33(1)(b), s 35A

R v Benstead CA No 9 of 1995, 23 May 1995, referred to
R v Cole SC No 611 of 1999, 28 June 2001, referred to
R v Dunn CA No 29 of 1994, 13 May 1994, cited
R v Hile [1999] QCA 17, referred to
R v Hill SC No 261 of 2001, 5 September 2001, referred to
R v Lock SC No 479 of 1997, 10 September 2001, referred to
R v Mackenzie [2000] QCA 324, CA No 353 of 1999, 11 August 2000, referred to
R v Streatfield (1991) 53 A Crim R 320, cited
R v Ward SC No 74 of 1999, 8 December 2000, referred to
R v Whelan NSWCA No 144, 5 October 1990, cited

COUNSEL: Mr J M McLennan for the applicant
Mr D Meredith for the respondent

SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I have read and agree with the reasons of Chesterman J for allowing this appeal. This case bears some superficial resemblance to R v Mackenzie [2000] QCA 324, except that there the offender was a person of above average intelligence, whereas the applicant here was assessed by Dr Kingswell as being of low average intelligence with an IQ of only 84. In both, the offender originally pleaded guilty to an offence of manslaughter by criminal negligence in the handling of a loaded firearm. On appeal the Crown sought to make a distinction between the two cases on the ground that in R v Mackenzie the offender believed the gun was unloaded, whereas here the applicant believed it was…

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 Milini

Details

AGLC: R v Milini [2001] QCA 424
Case: [2001] QCA 424
Decision Date: 9 October 2001

CaseChat Overview and Summary

The case before the court was an appeal by Milini, who had been convicted of unlawful killing and sentenced to seven years' imprisonment. Milini had previously been found by the Mental Health Tribunal to suffer from paranoid schizophrenia. The appeal focused on the relevance of Milini's mental illness to his culpability and sentencing. The court was tasked with determining whether the applicant's mental illness, which did not amount to insanity, was relevant to the sentencing process.

The legal issues the court had to resolve were whether the applicant's mental illness, while not affecting his culpability, should have been taken into account during sentencing. The court considered whether the sentence should have been reduced due to the applicant's mental health condition, despite it not exculpating him from the charge. The central question was whether factors other than culpability could influence the severity of the sentence.

The court found that the sentencing judge had failed to adequately consider the impact of Milini's mental illness on his capacity to control his actions. The court emphasised that while the mental illness did not affect Milini's culpability, it was relevant to the sentencing as it influenced his ability to understand and control his actions. Consequently, the court allowed the appeal and reduced the sentence to five years' imprisonment, suspended after serving two years, with an operational period of three years. This decision reflected the need to balance the seriousness of the crime with the mitigating effects of the applicant's mental health condition.

Orders

Orders of the court

Application and appeal against sentence allowed. Sentence varied by reducing it to imprisonment for 5 years suspended after serving 2 years with an operational period of 3 years

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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CITATION:	R v Milini [2001] QCA 424
PARTIES:	R v MILINI, Andrew Mario (applicant)
FILE NO/S:	CA No 190 of 2001 SC No 296 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	9 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2001
JUDGES:	McPherson JA, Chesterman and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application and appeal against sentence allowed. Sentence varied by reducing it to imprisonment for 5 years suspended after serving 2 years with an operational period of 3 years
CATCHWORDS:	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 – where applicant pleaded guilty to a charge of unlawful killing and sentenced to 7 years’ imprisonment – where Mental Health Tribunal previously found the applicant suffers from paranoid schizophrenia – where finding of mental illness irrelevant to the culpability of the applicant because the charges were based on criminal negligence not an intention to kill or cause grievous bodily harm – whether mental illness not amounting to insanity relevant to sentencing Criminal Code (Qld) s 304A Mental Health Act 1974 (Qld) s 33(1)(b), s 35A R v Benstead CA No 9 of 1995, 23 May 1995, referred to R v Cole SC No 611 of 1999, 28 June 2001, referred to R v Dunn CA No 29 of 1994, 13 May 1994, cited R v Hile [1999] QCA 17, referred to R v Hill SC No 261 of 2001, 5 September 2001, referred to R v Lock SC No 479 of 1997, 10 September 2001, referred to R v Mackenzie [2000] QCA 324, CA No 353 of 1999, 11 August 2000, referred to R v Streatfield (1991) 53 A Crim R 320, cited R v Ward SC No 74 of 1999, 8 December 2000, referred to R v Whelan NSWCA No 144, 5 October 1990, cited
COUNSEL:	Mr J M McLennan for the applicant Mr D Meredith for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent