R v Miller - [2018] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v MILLER
[2018] SASCFC 88
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)
22 August 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE
The appellant was sentenced to imprisonment for eight years with a non-parole period of six years and five months for manslaughter.
The appellant appeals against the sentence imposed on the basis that the judge failed to sentence on the appropriate factual basis and that the sentence was manifestly excessive.
Held, by Lovell J (Peek and Doyle JJ agreeing), dismissing the appeal:
1. The sentencing judge did not sentence the appellant on the incorrect mental element;
2. It was open for the sentencing judge to sentence the appellant on the basis that he actively participated in the assault on the victim;
3. The sentence imposed is not manifestly excessive.
Criminal Law Consolidation Act 1935 s 13(1), referred to.
R v Miller; R v Presley; R v Smith [2017] SASCFC 123; Miller v R (2016) 259 CLR 380; Hili v The Queen (2010) 242 CLR 520, considered.

R v MILLER
[2018] SASCFC 88
Court of Criminal Appeal: Peek, Lovell and Doyle JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J: The appellant was found guilty of murder by a jury along with three co-accused, Johnas Presley (Presley), Wayne Smith (Smith) and Joshua Betts (Betts) in relation to an incident that occurred on 12 December 2012. They appealed their convictions on grounds that included that their convictions were unreasonable or not able to be supported having regard to the evidence. The Court of Criminal Appeal dismissed the appeals.
The appellant, Presley and Smith appealed to the High Court[1] on the ground that the Court of Criminal Appeal erred in rejecting their contentions that their convictions for murder were unreasonable or could not be supported having regard to the evidence. The High Court upheld the appeals and remitted the proceedings back to a differently constituted Court of Criminal Appeal for determination of that ground.
[1] Miller v R (2016) 259 CLR 380.
The Court of Criminal Appeal allowed the appellant’s appeal against conviction for murder on the basis that it was not open for the jury to conclude beyond reasonable doubt that the appellant was party to more than a plan to cause harm with intent to cause harm to Hall with one or more weapons.[2] The appellant’s conviction for murder was quashed and a verdict of manslaughter substituted. The appellant’s appeal against conviction for the offence of aggravated causing harm with intent to…

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 [2018] SASCFC 88
Case: [2018] SASCFC 88
Decision Date: 22 August 2018

CaseChat Overview and Summary

The appellant appealed his sentence for manslaughter, arguing that the Sentencing Judge erred by failing to sentence on the appropriate factual basis and that the sentence imposed was manifestly excessive. The case involved a group of Aboriginal men, including the appellant, who, after a confrontation where one of their group was assaulted, returned to the scene with the intention of causing harm. During the subsequent altercation, the deceased, Mr Hall, was killed.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the Sentencing Judge correctly determined the appellant's level of participation in the events leading to Mr Hall's death, and whether the sentence was manifestly excessive. Specifically, the court had to consider whether the appellant's involvement extended beyond mere presence and encouragement, and if so, what was the appropriate basis for sentencing him for manslaughter, particularly in the context of joint enterprise.

The Full Court rejected the appellant's grounds of appeal. The court affirmed the Sentencing Judge's finding that the appellant's involvement went beyond mere presence or encouragement. While acknowledging that the evidence did not permit a finding of a specific assault by the appellant on the deceased, the judge was satisfied that the appellant went to the scene with the intention of causing harm and participated in a joint enterprise to do so. The court found that the appellant's submission of "mere presence and encouragement" was more akin to aiding and abetting, whereas the prosecution case established a joint enterprise from the outset. The court concluded that the Sentencing Judge was entitled to sentence the appellant on the basis that he was criminally responsible for Mr Hall's death as a consequence of this joint enterprise.

Orders

Orders of the court

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Background

Background to the litigation

The appellant now appeals the sentence on the grounds that the Sentencing Judge failed to sentence in relation to the charge of manslaughter on the appropriate factual basis and further that the sentence was manifestly excessive.Background In order to address the appellant’s grounds of appeal it is necessary to set out, in some detail, the background to the offending. The appellant, Presley, Smith and Betts are all Aboriginal men who, on the evening of 12 December 2012, were drinking at Presley’s residence at Elizabeth Park. They had been drinking for much of the day and were all grossly intoxicated. At some stage in the evening before 11.00pm Betts, Presley and Presley’s girlfriend left the premises in order to buy marijuana. The appellant and Smith remained at Presley’s house. On the way home, Betts urinated against the fence of a residence located at 12 Grant Street, Elizabeth Park. The victims, Hall and King, were at King’s house at 13 Grant Street. Hall approached Betts and Presley in a laneway situated between 10 and 12 Grant Street and began remonstrating with them. He told Betts not to urinate on the street. King also entered the lane. Presley said that he was looking to buy some cannabis. Hall replied that he did not want that kind of behaviour on his street. A heated exchange between the four men followed and during the course of some pushing and shoving Betts was punched in the mouth. Presley and Betts then left and returned to Presley’s residence. Betts’ lip was bloodied. Upon their return to Presley’s house Betts told their other companions that he had been struck by some “white fellas” who had jumped them in the laneway between 10 and 12 Grant Street. Presley said “Let’s go back and see what these people – go and see what the problem is”. The appellant, Betts, Presley and Smith then all left together on foot. There was evidence that Presley had a baseball bat and that Betts had a knife. There was no evidence that anyone knew Betts had a knife. The four men returned to the scene of the earlier incident at Grant Street. Hall, King and some other neighbours were still gathered near the entry to the laneway when the group returned. There was conflicting evidence as to how much time elapsed between the first incident and their return, with accounts varying from three to 20 minutes. There was also differing evidence as to how many men made up the group of men that included the appellant, Presley, Betts and Smith, with estimates ranging between four and eight people. King gave evidence that the Aboriginal men were hitting a fence with the weapons they were carrying as they approached. One of the Aboriginal men was said to have been holding a shovel. King began to run down the laneway away from the approaching men and towards his house, when he was struck from behind on his shoulder. He gave evidence that he turned and saw that it was the two men he had encountered earlier, namely Betts and Presley. King said that each had an object and that each struck him. King sustained a fracture to his arm. Witnesses reported that King was kicked and hit while on the ground by two men, one of whom had a tattoo of a crucifix on his face. This was Betts.

Evidence

Evidence Before The Court

I would reject this ground of appeal.Grounds 2 and 3: The Appellant’s Level of Participation on the Evidence It is convenient to deal with these grounds together. The Sentencing Judge sentenced the appellant on the basis that while he could not specify with any particularity any individual assault by the appellant upon the deceased, he was satisfied that the appellant’s involvement had gone beyond mere presence or encouragement. In particular, the Judge found:The evidence of your offending on that night establishes that you came down the laneway to Grant Street in company with Messrs Betts, Presley and Smith for the purpose and with the intention of attacking Mr Hall and Mr King.The evidence establishes that you were physically proximate to airborne blood from Mr Hall. I accept the submission of your counsel, Mr Aitken, that the evidence of the blood on your shoes was not consistent with you having kicked Mr Hall while he was lying on the roadway.On the other hand, I accept the submission made by Ms Telfer SC, for the Director, that while the evidence does not permit a finding to be made about precisely what you did, you should not be sentenced on the basis that you did nothing and only encouraged your companions by your mere presence at the scene.I am satisfied that you went to Grant Street with the intention of causing harm and that your actions once in Grant Street were consistent with that intention. Nonetheless, I do not sentence you on the basis of any particular assault on Mr Hall, but you are to be sentenced on the basis that you were engaged in a joint enterprise to cause Mr Hall harm, and in consequence of that joint enterprise he was killed. Accordingly, you are to be sentenced on the basis that you are criminally responsible for the taking of his life. The appellant submitted that there was an absence of evidence implicating the appellant as an actual assailant of Hall; he therefore was to be sentenced only for what he contemplated as a possibility others in his group might do. Reference was made to the observation of Kelly J, who when considering the circumstantial case against the appellant, stated:The totality of the eyewitness evidence to the effect that no Aboriginal man in Grant Street at the time of the attack was standing back not participating in the attack on Hall.[11][11] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [77]. This remark, it was submitted, meant no more than that all Aboriginal men participated in the attack and that participation, in the context of this case, could have meant presence and encouragement. The appellant’s submissions appeared to go as far as suggesting that the observation of Kelly J bound the Sentencing Judge to that finding. The prosecution case, and the evidence, established a joint enterprise before any of the Aboriginal men left Presley’s house to confront Hall and King. The appellant’s submission of “mere presence and encouragement” is redolent of an “aid and abet” case rather than joint enterprise.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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