SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 353 of 2005
| THE QUEEN |
| v. |
| KLE MILLER |
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JUDGES: | BUCHANAN and NETTLE, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 June 2006 | |
DATE OF JUDGMENT: | 29 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 140 | |
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Criminal law- Sentence – Factual error in exhibit before trial judge – Risk that erroneous document affected sentence – Other grounds dismissed – Appeal upheld - Prisoner re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr D.P. Holding | Slades & Parsons |
BUCHANAN, J.A.:
I will ask Bongiorno, A.J.A. to deliver the first judgment.
BONGIORNO, A.J.A.:
On 24 November 2005 Kle Miller was sentenced in the County Court to a term of imprisonment, having pleaded guilty to a number of counts relating to the trafficking, cultivation and possession of various drugs of dependence. He pleaded guilty to one count of trafficking in ecstasy, one count of trafficking in LSD, one count of trafficking in cocaine, one count of cultivating opium, one count of possession of cannabis and one count of possession of methylamphetamine. He was sentenced to 3½ years' imprisonment on the first count, 15 months' imprisonment on each of the second and third counts, fined $300 on the fourth count and fined $500 on each of the fifth and sixth counts. The judge ordered that three months of the sentences on the second and third counts be served cumulatively upon the sentence imposed on the first count. Thus he imposed a total effective sentence of four years' imprisonment. He ordered that Miller serve a minimum of two years and three months before being eligible for parole.
Miller now applies for leave to appeal to this Court on six specified grounds. He has also applied to add a further ground which raises a factual error in the basis upon which the trial judge imposed the sentences sought to be appealed. The reason for seeking an amendment so late is explained in a memorandum from the applicant's solicitors to the effect that counsel only found the error in the last few days whilst reviewing his brief for this appeal. This error was in a document which recorded monetary amounts as having been the potential proceeds of drug dealing in which the applicant engaged.
That the relevant figure was erroneous was not conceded by the prosecutor but he did concede that it did not appear to be derived from its alleged source document and he could not prove, to the requisite standard, that it was nevertheless accurate.
In the course of the prosecution opening of the plea hearing the prosecutor tendered an exhibit, Exhibit C, which was a list of intercepted phone calls and a calculation of the monetary value of the drugs discussed in those calls. In respect of one such call, No. 2419, Exhibit C records that 300 tablets of ecstasy were discussed having a value of $30 each. In…
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- AGLC
- R v Miller [2006] VSCA 140
- Case
- [2006] VSCA 140
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the presence of an erroneous document before the trial judge constituted a significant error that necessitated the appeal to be upheld. The court considered whether the error was material and if it had the potential to affect the trial judge's assessment of the appellant's sentence. Additionally, the court needed to decide if any other grounds for appeal presented by the appellant were valid.
In its reasoning, the court found that the factual error in the exhibit was indeed material and could have influenced the trial judge's sentencing decision. The court was satisfied that there was a risk that the erroneous document had played a role in the severity of the sentence imposed on the appellant. As a result, the court determined that the appeal should be upheld. The other grounds for appeal presented by the appellant were dismissed as they did not provide a sufficient basis to alter the sentence.
Consequently, the appeal was allowed, and the appellant was re-sentenced by the court. The final orders of the court included the re-sentencing of the appellant, taking into account the correct facts and information, and without the influence of the erroneous document.
Orders
Orders of the court
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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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