R -v- MILLAR [2001] WASCA 54

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 54
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:154/2000	Heard:	23 OCTOBER 2000
Coram:	KENNEDY J PIDGEON J MURRAY J	Delivered:	7/03/01
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed Sentences increased
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Parties:	THE QUEEN ADAM DAVID MILLAR
Catchwords:	Criminal law and procedure Sentencing Two counts of sexual penetration of a child and one count of aggravated sexual penetration without consent Complainant aged 13 years, respondent aged 23 Crown appeal Effective head sentence of 3 years' imprisonment, directed to be served concurrently with a prior sentence Sentences inadequate Effective head sentence of 5 years substituted
Legislation:	Nil
Case References:	Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Everett v The Queen (1994) 181 CLR 295 Lowndes v The Queen (1999) 195 CLR 665 R v Allpass (1993) 72 A Crim R 561 R v Clarke [1996] 2 VR 520 Attorney-General v Tichy (1982) 30 SASR 84 Dinsdale v The Queen (2000) 74 ALJR 1538 House v The King (1936) 55 CLR 499 Ling v The Queen [2000] WASCA 129 R v B (1993) 68 A Crim R 547 R v Clark [2000] WASCA 229 R v Grein [1989] WAR 178 R v Podirsky (1989) 43 A Crim R 404 R v Tait (1979) 46 FLR 386

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- MILLAR [2001] WASCA 54 CORAM : KENNEDY J

PIDGEON J

MURRAY J

HEARD : 23 OCTOBER 2000 DELIVERED : 7 MARCH 2001 FILE NO/S : CCA 154 of 2000 BETWEEN : THE QUEEN

Appellant

AND

ADAM DAVID MILLAR

Respondent

Catchwords:

Criminal law and procedure - Sentencing - Two counts of sexual penetration of a child and one count of aggravated sexual penetration without consent - Complainant aged 13 years, respondent aged 23 - Crown appeal - Effective head sentence of 3 years' imprisonment, directed to be served concurrently with a prior sentence - Sentences inadequate - Effective head sentence of 5 years substituted

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Sentences increased

Representation:

Counsel:

Appellant : Ms J A Girdham

Respondent : Mr A E Monisse

Solicitors:

Appellant : State Director of Public Prosecutions

Respondent : Legal Aid WA

Case(s) referred to in judgment(s):

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Everett v The Queen (1994) 181 CLR 295
Lowndes v The Queen (1999) 195 CLR 665
R v Allpass (1993) 72 A Crim R 561
R v Clarke [1996] 2 VR 520

Case(s) also cited:

Attorney-General v Tichy (1982) 30 SASR 84
Dinsdale v The Queen (2000) 74 ALJR 1538
House v The King (1936) 55 CLR 499
Ling v The Queen [2000] WASCA 129
R v B (1993) 68 A Crim R 547
R v Clark [2000] WASCA 229
R v Grein [1989] WAR 178
R…

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 Millar

Details

AGLC: R v Millar [2001] WASCA 54
Case: [2001] WASCA 54
Decision Date: 7 MARCH 2001

CaseChat Overview and Summary

In the case of R v Millar, the respondent was convicted of two counts of sexual penetration of a child and one count of aggravated sexual penetration without consent. The complainant was 13 years old at the time of the offences, and the respondent was 23. The Crown appealed the sentence of the respondent, contending that the sentences imposed were inadequate and not reflective of the gravity of the offences. The Crown sought an increase in the sentences imposed by the trial judge.

The key legal issue before the court was whether the sentences imposed on the respondent were manifestly inadequate. The court had to consider the nature and circumstances of the offences, the age of the complainant, and the principles of sentencing relevant to sexual offences against children. The court was also required to determine whether the sentences should be served concurrently or consecutively, and whether the effective head sentence of 3 years was appropriate.

The court found that the sentences imposed by the trial judge were manifestly inadequate and did not adequately reflect the seriousness of the offences. The court noted that the respondent had taken advantage of the complainant's age and vulnerability, and that the offences had caused significant harm to the complainant. The court also considered the need for general deterrence and to uphold the community's sense of justice. In light of these considerations, the court substituted the effective head sentence of 3 years with an effective head sentence of 5 years. The court also determined that the sentences should be served concurrently with a prior sentence.

The court's decision was that the Crown's appeal should be allowed, and the sentences imposed on the respondent should be increased. The court substituted the effective head sentence of 3 years with an effective head sentence of 5 years, to be served concurrently with a prior sentence.

Orders

Orders of the court

Appeal allowed

Sentences increased

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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