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 88Court 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.
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…
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- R v Miller [2018] SASCFC 88
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CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence Before The Court
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Reasons for decision
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Ratio Decidendi
Legal Principle Established
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