R v Miller - [2013] QCA 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v Miller [2013] QCA 346

PARTIES:

R
v
MILLER, Antony Dwayne
(applicant)

FILE NO/S:

CA No 95 of 2013
SC No 409 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2013

JUDGES:

Muir and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his own pleas of guilty, of a number of drug-related offences including trafficking, possession and supplying – where the applicant’s parole eligibility was fixed at one-third of an eight year head sentence – where the applicant’s co-offender was given a parole eligibility date less than the applicant whilst receiving the same head sentence – where the applicant contends his parole eligibility date was manifestly excessive in the circumstances – where the applicant contends the sentencing Judge did not give proper weight to his early pleas, his long standing addiction and efforts of rehabilitation, and the principle of parity – where a distinction could be drawn between the circumstances of the offenders – whether the parole eligibility date was manifestly excessive in the circumstances

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
R v Boyd[2013] QCA 335, distinguished
R v Dwyer[2008] QCA 117, cited

COUNSEL:

The applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that leave to appeal should be refused for the reasons given by Boddice J.

MORRISON JA: I agree with the reasons of Boddice J and the order proposed by his Honour.

BODDICE J: On 26 March 2013, the applicant pleaded guilty to one count of trafficking in dangerous drugs, two counts of possessing dangerous drugs specified in Schedule 1, one count of possessing a Schedule 1 drug in a quantity greater than Schedule 3, but less than Schedule 4, when not a drug dependent person, six counts of supplying a dangerous drug, and one count of possessing anything used in the commission of a crime. The applicant was sentenced to eight years imprisonment on the trafficking count, and lesser concurrent terms of imprisonment on the remaining counts. The applicant’s parole eligibility date was fixed at one-third of the head sentence, being two years and eight months.

The applicant seeks leave to appeal the sentences on the ground they were manifestly excessive. The applicant does not contend the head sentence of eight years was manifestly excessive. The applicant contends the fixing of a parole eligibility date at one-third of the head sentence was manifestly excessive in the circumstances,…

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 [2013] QCA 346
Case: [2013] QCA 346
Decision Date: 22 November 2013

CaseChat Overview and Summary

The case of R v Miller involved the applicant, who had been convicted on his own pleas of guilty to several drug-related offences, including trafficking, possession, and supplying. The court fixed the applicant's parole eligibility at one-third of an eight-year head sentence, a date later than that of his co-offender who had received the same head sentence despite both offenders having the same primary conviction. The applicant sought to appeal against the sentence, arguing that it was manifestly excessive, particularly when considering the disparity with his co-offender's parole eligibility. He further contended that the sentencing judge did not adequately consider his early pleas of guilty, his long-standing addiction, his rehabilitation efforts, and the principle of parity between co-offenders.

The legal issues central to this appeal centred on whether the parole eligibility date set by the court was manifestly excessive, and whether the sentencing judge had failed to give proper weight to the mitigating factors presented. The applicant's argument hinged on the perceived imbalance between his and his co-offender's parole eligibility dates despite identical head sentences and the failure to consider his early guilty pleas, addiction, and rehabilitation efforts. The court needed to determine if the sentence imposed was so disproportionate as to be manifestly excessive.

In evaluating the appeal, the court considered the principle of parity, which advocates for equitable treatment of co-offenders, and the mitigating factors presented by the applicant. Despite the arguments, the court found that the sentencing judge had adequately considered the relevant factors, including the applicant's early guilty pleas, his addiction, and his rehabilitation efforts. The court concluded that the sentence was not manifestly excessive, and thus the application for leave to appeal was refused. Consequently, the applicant's parole eligibility date as set by the original sentencing judge was upheld.

Orders

Orders of the court

Leave to appeal is refused.

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 Miller [2013] QCA 346
PARTIES:	R v MILLER, Antony Dwayne (applicant)
FILE NO/S:	CA No 95 of 2013 SC No 409 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2013
JUDGES:	Muir and Morrison JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his own pleas of guilty, of a number of drug-related offences including trafficking, possession and supplying – where the applicant’s parole eligibility was fixed at one-third of an eight year head sentence – where the applicant’s co-offender was given a parole eligibility date less than the applicant whilst receiving the same head sentence – where the applicant contends his parole eligibility date was manifestly excessive in the circumstances – where the applicant contends the sentencing Judge did not give proper weight to his early pleas, his long standing addiction and efforts of rehabilitation, and the principle of parity – where a distinction could be drawn between the circumstances of the offenders – whether the parole eligibility date was manifestly excessive in the circumstances Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Boyd[2013] QCA 335, distinguished R v Dwyer[2008] QCA 117, cited
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent