R v Miller - [2022] QCA 249

SUPREME COURT OF QUEENSLAND

CITATION:

R v Miller [2022] QCA 249

PARTIES:

R
v
MILLER, Lauren Maree
(applicant)

FILE NO/S:

CA No 180 of 2022
DC No 1659 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 26 August 2022 (Holliday KC DCJ)

DELIVERED ON:

7 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2022

JUDGES:

McMurdo and Bond JJA and Callaghan J

ORDERS:

1.   Application for leave to appeal against sentence granted.

2.   Appeal allowed.

3.   Vary the term imposed below such that the term of imprisonment be suspended forthwith, and the defendant must not commit another offence punishable by imprisonment within a period of five years if the defendant is to avoid being dealt with for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a single count of fraud with two circumstances of aggravation contrary to s 408C of the Criminal Code (Qld) – where over a 16-month period the applicant dishonestly obtained $141,578.40 from her employer – where the applicant used five different methods for obtaining the monies – where the applicant ceased offending upon detection – where the applicant had a complicated mental health history – where the applicant’s offending occurred in the context of a dysfunctional family relationship with her brother who was intimidating her to repay drug debts – where there was a nexus between the offending and the applicant’s mental health condition – where the applicant’s mental health condition worsened after the offending – where the applicant at the time of sentencing was the primary caregiver of her young daughter – where the applicant cooperated with police and made offers of repayment but the net loss was not repaid – where the applicant entered an early guilty plea and was remorseful – where the applicant was sentenced to four and a half years’ imprisonment suspended after eight months for an operational period of five years – whether the sentence was manifestly excessive – whether the sentencing discretion miscarried

Criminal Code (Qld), s 27, s 31, s 408C
Penalties and Sentences Act 1992 (Qld), s 9

Elliott v Harris(No 2) (1976) 13 SASR 516, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Clarke[2017] QCA 226, cited
R v Jackson[2011] QCA 103, cited
R v Tout[2012] QCA 296, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited

COUNSEL:

D S Caruana for the applicant
C W Wallis for the respondent

SOLICITORS:

Jahnke Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO JA: I agree with Callaghan J.
BOND JA: I have had the advantage of reading in draft…

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 Miller

Details

AGLC: R v Miller [2022] QCA 249
Case: [2022] QCA 249
Decision Date: 7 December 2022

CaseChat Overview and Summary

In the case of R v Miller, the applicant appealed against a sentence imposed by the trial judge. The applicant pleaded guilty to a count of fraud with two aggravating circumstances, involving the dishonest acquisition of over $140,000 from her employer over a 16-month period. The primary issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court had to consider whether the sentence of four and a half years’ imprisonment, suspended after eight months, was appropriate given the circumstances of the case.

The court examined various sentencing principles, including rehabilitation, punishment, denunciation, and deterrence. The court concluded that the sentence did not serve the purpose of rehabilitation, as the applicant's mental health would be adversely affected by incarceration. The court also found that the sentence sufficiently achieved the purposes of punishment, denunciation, and deterrence without the need for actual imprisonment. The court noted that the applicant's mental health issues and the context of her offending, including intimidation by her brother, played a significant role in its reasoning.

The court held that the sentence was manifestly excessive and that the sentencing discretion had miscarried. The appeal was allowed, and the sentence was varied such that the term of imprisonment was suspended forthwith. The applicant must not commit another offence punishable by imprisonment within a period of five years to avoid being dealt with for the suspended term of imprisonment.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Vary the term imposed below such that the term of imprisonment be suspended forthwith, and the defendant must not commit another offence punishable by imprisonment within a period of five years if the defendant is to avoid being dealt with for the suspended term of imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A sentence involving actual custody could therefore be imposed only if that preference was excluded by demands created on application of another principle or combination of these principles:(a)Rehabilitation and community protection (ss 9(1)(b) and 9(1)(e) of the Act)(i)In the particular circumstances of this case, actual incarceration was not a condition that was going to assist in the applicant’s rehabilitation. It was not, for example, a case in which imprisonment might act as a “circuit breaker” in a cycle of offending that was motivated by an addiction. The applicant’s true rehabilitation was always going to be dependent upon a restoration of her mental health. The uncontradicted evidence established that incarceration would have a damaging effect on that.(ii)A sentence that promotes rehabilitation is also one that serves the purpose of securing community protection. In truth, the applicant posed little threat to the community – she is unlikely ever to secure employment of a kind that would permit her to reoffend in a similar way. The recording of a conviction consequent upon a sentence of imprisonment will ensure that. Time in actual custody was not required in order to serve either of these purposes.(b)Punishment in a way that is just in all the circumstances (s 9(1)(a) of the Act)(i)The sentence was required to punish the applicant, but only to an extent and in a way that was just in all the circumstances. Any consideration of that which was “just” in this case had to recognise the relevance of the intimidation and the improbability of the applicant having committed any offence in its absence.(ii)The punitive nature of a wholly suspended sentence should also be acknowledged. Its Damoclean effect is such that the punishment is felt for its duration, and continues thereafter by reason of all the consequences “such a sentence involves on the defendant’s record and [their] future”.[49][49]Elliott v Harris(No 2) (1976) 13 SASR 516 at 527.(iii)On the other hand, uncontradicted evidence established that actual incarceration was going to place an additional burden on the vulnerable applicant. The fact that such punishment would be felt so keenly challenges a conclusion that it would be just in all the circumstances – those circumstances including the background discussed above.(c)Denunciation (s 9(1)(d) of the Act)(i)A “head term” of four and a half years’ imprisonment broadcasts the fact that the community does not approve of an offender’s conduct. It provides an objective measure of condemnation. In that way it has a freestanding significance, irrespective of the amount of time actually served. Indeed, it might be thought that a head term (expressed in years) can be a more effective form of denunciation than any term (expressed in months) of actual custody, particularly when that lower figure will so often depend to a large extent on an offender’s personal circumstances.(d)Deterrence (s 9(1)(c) of the Act)(i)This leaves for consideration the question of deterrence, both general and specific. It was allowed by the respondent that the need for both specific and general deterrence was met, in part at least, by a head term of four and a half years’ imprisonment.[50](ii)Given that separation from her daughter is a dire prospect for the applicant, it should be accepted that the shadow that would be cast over her life throughout a five-year operational period would act as a significant personal deterrent.(iii)In the context of offences of this nature, the prospect of actual incarceration does serve a purpose of general deterrence and the need to serve that purpose remains an important part of the sentencing process.(iv)In this case, the need was qualified by her Honour’s findings about the applicant’s mental health, both at the time of the offending and at the time of sentencing. These mandated the conclusion that the need for the sentence to act as a general deterrent was “moderated”. It is reasonable to query how the need for general deterrence could be “moderated” if not by addressing directly the question as to whether actual custody was required. And that question could only be answered in favour of incarceration if there was an identifiable reason for that option to be preferred. In my view, given the findings made on so much uncontested evidence, no such reason can be discovered.[50]Transcript at page 1-8, lines 25-40.Conclusion

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Miller [2022] QCA 249
PARTIES:	R v MILLER, Lauren Maree (applicant)
FILE NO/S:	CA No 180 of 2022 DC No 1659 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport – Date of Sentence: 26 August 2022 (Holliday KC DCJ)
DELIVERED ON:	7 December 2022
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2022
JUDGES:	McMurdo and Bond JJA and Callaghan J
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal allowed. 3. Vary the term imposed below such that the term of imprisonment be suspended forthwith, and the defendant must not commit another offence punishable by imprisonment within a period of five years if the defendant is to avoid being dealt with for the suspended term of imprisonment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a single count of fraud with two circumstances of aggravation contrary to s 408C of the Criminal Code (Qld) – where over a 16-month period the applicant dishonestly obtained $141,578.40 from her employer – where the applicant used five different methods for obtaining the monies – where the applicant ceased offending upon detection – where the applicant had a complicated mental health history – where the applicant’s offending occurred in the context of a dysfunctional family relationship with her brother who was intimidating her to repay drug debts – where there was a nexus between the offending and the applicant’s mental health condition – where the applicant’s mental health condition worsened after the offending – where the applicant at the time of sentencing was the primary caregiver of her young daughter – where the applicant cooperated with police and made offers of repayment but the net loss was not repaid – where the applicant entered an early guilty plea and was remorseful – where the applicant was sentenced to four and a half years’ imprisonment suspended after eight months for an operational period of five years – whether the sentence was manifestly excessive – whether the sentencing discretion miscarried Criminal Code (Qld), s 27, s 31, s 408C Penalties and Sentences Act 1992 (Qld), s 9 Elliott v Harris(No 2) (1976) 13 SASR 516, cited Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited R v Clarke[2017] QCA 226, cited R v Jackson[2011] QCA 103, cited R v Tout[2012] QCA 296, cited R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
COUNSEL:	D S Caruana for the applicant C W Wallis for the respondent
SOLICITORS:	Jahnke Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent