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 cause harm to King was dismissed.
[2] R v Miller; R v Presley; R v Smith [2017] SASCFC 123.
Stanley J (the Sentencing Judge) sentenced the appellant for the charge of manslaughter. His Honour imposed a sentence of eight years with a non-parole period of six years and five months. The sentence and non-parole period were backdated to commence from 18 September 2013. The sentence was to run concurrently with the term of imprisonment of three years the Sentencing Judge imposed for the offence of aggravated causing harm with intent against King.
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.
There was evidence that Hall was struck from behind by the man who had the shovel and that he fell to the ground and was kicked and hit where he lay. One witness saw Hall be kicked in the jaw and a “hand coming at him like at the back of him and hitting him”. On the prosecution case this was Betts inflicting the fatal knife wound to Hall.
A witness stated that she saw five or six males come down the lane, surround Hall and King, and kick Hall while he was on the ground. There was also evidence that Hall was, at some stage, struck by a bottle. Hall died at the scene.
There is no doubt that it was a chaotic scene with people yelling, screaming and moving about.
The appellant, Presley, Smith and Betts returned to Presley’s house after the attack. Presley’s girlfriend gave evidence that upon their return Presley and Betts were agitated and screaming. Gary Willis, another person who had been drinking with the group at an earlier stage of the evening, gave evidence that on their return one of them said “We smashed them. We had a fight”, and that Betts said “I think I stabbed him, stabbed a bloke in the guts”.
The appellant was found guilty by jury of the murder of Hall and of aggravated causing harm with intent to cause harm to King.
As mentioned, after an unsuccessful appeal to the Court of Criminal Appeal in February 2015 the appellant successfully appealed to the High Court on the ground that the Court of Criminal Appeal erred in rejecting that argument.[3] The proceedings were remitted to a differently constituted Court of Criminal Appeal for determination of that ground.[4]
[3] Miller v R (2016) 259 CLR 380.
[4] R v Miller; R v Presley; R v Smith [2017] SASCFC 123.
Appeal Against Conviction
On remission to the Court of Criminal Appeal the appellant’s argument was that the evidence did not support the convictions of murder and aggravated causing harm with intent. Central to this submission was the evidence of the appellant’s level of intoxication and the lack of evidence of the appellant’s specific involvement in the attack.
Kelly J[5] found that, notwithstanding the intoxication evidence, it was open for the jury on the totality of the evidence to conclude that the members of the group had an intention to cause at least some harm to Hall and King when they returned to the laneway. Kelly J observed that “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”.[6]
[5] Vanstone and Lovell JJ agreeing.
[6] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [77].
Kelly J found that given the appellant’s intoxication and “the paucity of evidence” directly implicating the appellant in any particular attack on Hall, there was a doubt as to whether he turned his mind to “the critical question” of whether, at the time of the second altercation, one or more of his co-accused might go beyond causing just some harm to Hall and King and instead intentionally cause really serious bodily harm.[7] Kelly J found that she was left with a reasonable doubt as to “whether it was open to the jury to find that Miller possessed the necessary state of mind to be found guilty of the crime of murder.”[8]
[7] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [85]-[86], [89].
[8] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [88].
Accordingly, the Court of Criminal Appeal substituted the appellant’s conviction for murder with one of manslaughter and the appellant fell to be resentenced by the trial judge on the basis of this lesser offence.
Grounds of Appeal
The appellant was resentenced on 29 November 2017 to imprisonment for eight years, backdated to commence from 18 September 2013. The Sentencing Judge fixed a non-parole period of six years and five months.
The appellant now appeals against this sentence on four grounds.
1The learned sentencing Judge erred in sentencing the applicant upon the basis that he contemplated that his joint offenders might engage in unlawful and dangerous acts in relation to the deceased.
2The learned sentencing Judge erred in bringing to account the applicant’s generic actions in Grant Street. There was no evidence of what the applicant did in Grant Street and the state of the evidence should have been the basis of sentence.
3The learned sentencing Judge erred in stating that he declined to sentence the applicant “on the basis of any particular assault on Mr Hall”. There was no evidence of any assault by the applicant on Hall and that state of evidence should have been the basis of sentence.
4The sentence was manifestly excessive.
The first three grounds allege specific errors in the approach of the Sentencing Judge, and in particular in the factual basis upon which the appellant was sentenced. There is considerable overlap between grounds 2 and 3. Ground 4 is a complaint that the sentence was manifestly excessive.
The principles that govern an appellate court on an appeal against sentence are well established. The role of this Court is not to determine whether it would have imposed a different sentence to that imposed by the sentencing court. Rather, the onus is on the appellant to establish that the sentencing discretion exercised by the Sentencing Judge has been affected by some error in process, or, alternatively, that the sentence arrived at by the Sentencing Judge is plainly unjust or unreasonable.[9]
[9] House v The King (1936) 55 CLR 499 at 504-5; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 at [76]; R v Jongewaard [2009] SASC 346 at [40].
Ground 1
The appellant’s first ground of appeal was that the Sentencing Judge erred by sentencing on the incorrect mental element.
As discussed above, the Court of Criminal Appeal had found that due to the appellant’s level of intoxication at the time of the attack upon Hall it was open to the jury to find that he was party to a plan to intentionally cause some harm to Hall, but not open for them to find beyond reasonable doubt that this went as far as considering whether one of the group might intentionally cause really serious bodily harm. Only an appreciation of the possibility of the latter result could lead to a conviction for murder.
The impugned portion of the Sentencing Judge’s remarks in this respect is as follows:
In finding you guilty of manslaughter, the Court of Criminal Appeal was satisfied that the evidence was sufficient to prove that you must have contemplated that your companions on the night these crimes were committed might engage in unlawful and dangerous acts in relation to Mr Hall using one or more of the weapons that were brought down the laneway to Grant Street, where the fatal melee occurred.
(emphasis added)
The Sentencing Judge immediately stated:
The Court found that it was open to the jury to conclude that you were a party to a plan to cause harm with the intent to cause harm to Mr Hall.
It is likely that the Sentencing Judge took his remarks from the reasons of Kelly J in the Court of Criminal Appeal’s decision and that he was doing no more than repeating those remarks. Kelly J had observed:
… What I have said in relation to residual doubt about his contemplation that grievous bodily harm might be intentionally inflicted by his companions does not mean that there was not sufficient evidence to prove that he must have contemplated that his companions might engage in unlawful and dangerous acts in relation to Hall and King, using one or more weapons.[10]
[10] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [91].
The appellant submitted that the Sentencing Judge elevated the appellant’s mental state from that of contemplating that the group might intentionally inflict some harm upon Hall and King to that of contemplating that the group might engage in unlawful and dangerous acts against Hall and King. It was submitted that the incorrect assessment of the appropriate mental element led the Sentencing Judge to impose a heavier penalty than was justified.
The respondent contended that the Judge’s sentencing remarks should be read in their entirety.
The Sentencing Judge later in his remarks stated:
1I am satisfied that you went to Grant Street with the intention of causing harm…
2You are to be sentenced on the basis that you were engaged in a joint enterprise to cause Mr Hall harm…
3The objective circumstances of this offending carried a high risk of serious injury or death, even if your intoxication prevented you from realising this to be the case…
It is clear in my view that, when the sentencing remarks are read in their entirety, the Judge was aware of and sentenced the appellant on the correct basis. Read in context, the Sentencing Judge’s comments as to the appellant’s state of mind in the impugned passage do no more than accurately recount the matters inherent in the Court of Criminal Appeal’s decision to substitute a verdict of manslaughter. The impugned passage, in context, reflects no more than the principle that the act foreseen by the appellant must have been both unlawful and objectively dangerous, not that the appellant in fact foresaw that danger.
It is clear from the entirety of the remarks that the Sentencing Judge appreciated that the appellant was to be sentenced only on the basis that he had joined an enterprise to cause harm to Hall which was unlawful and objectively dangerous.
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.
Kelly J’s remark needs to be seen in context. Kelly J was considering the “background of the entire circumstantial case against Miller” which included the point mentioned.[12] It was not a finding; it was part of a summary of the prosecution case. Kelly J was considering the submission by counsel that “the evidence implicating Miller as a participant in the attack on Hall and King was equivocal”.[13]
[12] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [77].
[13] R v Miller; R v Presley; R v Smith [2017] SASCFC 123 at [76].

The respondent submitted that it was open to the Sentencing Judge to form the view that the appellant participated in the attack, not limited to presence and encouragement. The respondent submitted that while this evidence did not go so far as to establish that the appellant was armed with a weapon or that he delivered any particular, identifiable blow or blows, it was not so limited as to require the Judge to sentence on the basis that the appellant committed no assault at all.
As observed by the Court in R v Zefi,[14] the law in relation to the duty of a judge when sentencing a prisoner after a jury verdict is well settled. When, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the sentence rests with the judge, not with the jury. A judge is not required to sentence on the factual basis most favourable to the prisoner. A judge is entitled to form his or her own view of the facts, provided that view is consistent with the jury verdict. However a judge, in forming his or her own view of the facts, is still to have regard to the general principles of proof in criminal cases and must give the prisoner the benefit of any reasonable doubt when forming that view.
[14] (2017) 129 SASR 161.
A sentencing judge would only be bound by a factual finding by a Court of Criminal Appeal where the finding was a necessary step in the reasoning towards the disposition of the appeal. I do not accept that the Court of Criminal Appeal, either in the observation of Kelly J mentioned above or otherwise, made any finding of participation by the appellant that fell short of active physical participation by him in the assault of Hall. But even if the Court of Criminal Appeal did make such a finding, it was not a necessary step in their reasoning.
The prosecution did not allege that the appellant was armed with a weapon. The evidence established that the Aboriginal men acted with a unified purpose. Blood spatter evidence placed the appellant within a metre or so of Hall when he was attacked. The evidence when looked at in its entirety was sufficient to establish that all Aboriginal men present assaulted Hall although no precise blow struck by the appellant could be identified.
The Sentencing Judge’s finding that the appellant participated in the attack did not need to be predicated on his identifying the precise acts performed by the appellant; what was instead required was a finding that the appellant was a member of the group and that all members of the group actively participated in the sense that they physically assaulted Hall. The Sentencing Judge had the advantage of hearing and seeing the evidence. I have reviewed the evidence. In my view such a finding was open on the evidence. I would dismiss these grounds of appeal.
Ground 4: Was the Sentence Manifestly Excessive?
In Hili v The Queen[15] the High Court considered the approach to be adopted by an appellate court to the issue of whether the sentence imposed by a sentencing judge was manifestly excessive. Consideration should be given to the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[16] In the context of sentencing for multiple offences, regard must also be had to the need to ensure proportionality in the overall sentence through the application of one or more of the mechanisms available to the sentencing judge.[17] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[18]
[15] Hili v The Queen (2010) 242 CLR 520 at [59]-[60].
[16] R v Morse (1979) 23 SASR 98 at 99.
[17] R v W, PL [2017] SASCFC 119 at [38]-[50], [56].
[18] Hili v The Queen (2010) 242 CLR 520 at [59]-[60]; R v Turvey [2018] SASCFC 68 at [59] per Doyle J.
This Court has emphasised on many occasions that the offence of manslaughter is one with respect to which it is extremely difficult to identify any discernible sentencing standard. The circumstances that might lead to a conviction for manslaughter are varied and accordingly a sentencing judge must pay particular attention to the facts of each case to determine its objective gravity when exercising his or her sentencing discretion.[19] However, the sentencing judge must bear in mind that manslaughter involves the taking of a human life, a grave action that calls for a correspondingly grave response.[20]
[19] R v Weinman (1987) 49 SASR 248.
[20] R v Hill (1981) 3 A Crim R 397 at 402.
The maximum sentence for the offence of manslaughter is imprisonment for life.[21]
[21] Criminal Law Consolidation Act 1935 (SA), s 13(1).
The Sentencing Judge stated:
The law must impose a penalty which deters others tempted to become involved in violent situations and who encourage and join with others who introduce weapons into that situation.
The objective circumstances of this offending carried a high risk of serious injury or death, even if your intoxication prevented you from realising this to be the case.
…
Death resulted from an escalating series of confrontations which involved disproportionate reactions to events, all of which were unnecessary and could have been avoided if calm, rational, common sense had applied. It is a matter of profound regret that this did not occur.
As I also noted on the last occasion, your actions have had a profound effect on the eyewitnesses, on Mr King, and the family and friends of Mr Hall.
The appellant and his co-accused returned to the scene of an earlier confrontation involving Hall, at night, in a group of men that outnumbered the victims. They were intoxicated and some had weapons. The eyewitness evidence revealed that the attack upon Hall and King was swift, purposeful and violent. The offending was very serious; it cannot be categorised as being at the lower end of the scale of gravity for offending of this type.
The Judge took into account the factors personal to the appellant. The appellant was aged 26 at the time of the offending. After leaving school after year 8 he undertook a training program in metal fabrication although he had been unemployed since 2003. The Judge had regard to the fact that the appellant has a long-term and supportive partner and four children. The Judge took into account a psychological report tendered on his behalf.
In my view the Sentencing Judge had appropriate regard to the seriousness of the offending as well as adequately addressing the other features relevant to the sentencing task, including the appellant’s personal circumstances. I am satisfied that a sentence of imprisonment for eight years with a non-parole period of six years and five months is not manifestly excessive; it was well within the range of available sentences.
I would also dismiss this ground of appeal.
Order
Appeal is dismissed.
DOYLE J: I would dismiss the appeal. I agree with the reasons of Lovell J.