R v Miller - [2006] VSCA 140

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…

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 [2006] VSCA 140
Case: [2006] VSCA 140
Decision Date: 29 June 2006

CaseChat Overview and Summary

In the case of R v Miller, the appellant challenged his sentence on appeal, claiming that a factual error in an exhibit used by the trial judge may have influenced the sentencing decision. The nature of the error was that the document in question, which was relied upon by the trial judge, contained incorrect information that could have affected the severity of the sentence imposed. The appeal was heard by the court, which was tasked with determining whether the error had indeed influenced the sentence and, if so, whether it warranted a re-sentencing.

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