R v Miller - [2012] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Miller [2012] QCA 168

PARTIES:

R
v
MILLER, Grant Lawrence
(applicant)

FILE NO/S:

CA No 40 of 2012
DC No 61 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mount Isa

DELIVERED ON:

19 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2012

JUDGES:

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

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MANIFESTLY EXCESSIVE – where applicant pleaded guilty to one count of rape – where applicant had sexual intercourse with the complainant as she was sleeping in her home – where applicant sentenced to five and a half years imprisonment with a parole eligibility date fixed after one third – where applicant was 18 years old at time of the offence and 21 years old at time of the sentence – where applicant had no criminal history, was of otherwise good character and had good prospects of re-employment – whether sentence was manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge concluded a sentence of five years could not be imposed – whether the sentencing judge fettered the exercise of his sentencing discretion

R v Basacar[2006] QCA 352, cited
R v Breckenridge [1998] QCA 136, cited
R v Elzinga; ex-parte Attorney-General of Queensland [1998] QCA 128, cited
R v Press [1997] QCA 7, cited
R v Q [2003] QCA 421, cited
R v Raymond [1994] QCA 441, cited

COUNSEL:

J A Greggery for the applicant
D P Jones for the respondent

SOLICITORS:

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

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

WHITE JA: I have read the reasons for judgment of Henry J and agree with his Honour that there is no error to be discerned in the sentencing judge’s approach. Nor can it be said that the sentence imposed of five and a half years was manifestly excessive. It may be that another judge might have acceded to the defence submission for a sentence which would have permitted a suspended sentence. Such a sentence would have given this young offender, with no criminal history and good prospects, the certainty of release. But, having said that, as Henry J’s reasons demonstrate, the sentence was within the exercise of a sound sentencing discretion.

HENRY J: The applicant pleaded guilty in the Mount Isa District Court on 7 February 2012 to one count of rape. He was sentenced to five and a half years imprisonment with a parole…

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 [2012] QCA 168
Case: [2012] QCA 168
Decision Date: 19 June 2012

CaseChat Overview and Summary

The appellant, Miller, appealed against his sentence for one count of rape. Miller had sexual intercourse with the complainant while she was sleeping in her home. He pleaded guilty and was sentenced to five and a half years imprisonment with parole eligibility after one third. The appellant was 18 at the time of the offence and 21 at the time of sentencing, had no criminal history, was of otherwise good character, and had good prospects of re-employment. Miller argued that the sentence was manifestly excessive and that the judge had fettered his discretion by concluding that a sentence of five years could not be imposed.

The legal issues for the court were whether the sentence was manifestly excessive and whether the judge had improperly fettered his discretion. The court noted that the sentence imposed was within the maximum penalty for the offence, and that the appellant's age and prospects for rehabilitation were relevant but not determinative factors in the sentencing process. The court held that the sentencing judge had not acted on the wrong principle and had not fettered his discretion. The court found that the sentence was not manifestly excessive given the seriousness of the offence and the need for deterrence and denunciation.

Accordingly, the application for leave to appeal against the sentence was refused. The court held that the sentence imposed was appropriate in all the circumstances and that there was no basis for interfering with the sentence. The appellant's arguments that the sentence was excessive and that the judge had fettered his discretion were rejected by the court. The sentence of five and a half years imprisonment with parole eligibility after one third was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence 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 [2012] QCA 168
PARTIES:	R v MILLER, Grant Lawrence (applicant)
FILE NO/S:	CA No 40 of 2012 DC No 61 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mount Isa
DELIVERED ON:	19 June 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2012
JUDGES:	Muir and White JJA and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – MANIFESTLY EXCESSIVE – where applicant pleaded guilty to one count of rape – where applicant had sexual intercourse with the complainant as she was sleeping in her home – where applicant sentenced to five and a half years imprisonment with a parole eligibility date fixed after one third – where applicant was 18 years old at time of the offence and 21 years old at time of the sentence – where applicant had no criminal history, was of otherwise good character and had good prospects of re-employment – whether sentence was manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the sentencing judge concluded a sentence of five years could not be imposed – whether the sentencing judge fettered the exercise of his sentencing discretion R v Basacar[2006] QCA 352, cited R v Breckenridge [1998] QCA 136, cited R v Elzinga; ex-parte Attorney-General of Queensland [1998] QCA 128, cited R v Press [1997] QCA 7, cited R v Q [2003] QCA 421, cited R v Raymond [1994] QCA 441, cited
COUNSEL:	J A Greggery for the applicant D P Jones for the respondent
SOLICITORS:	Anderson Telford Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent