R v Miller
[2006] VSCA 140
•29 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 353 of 2005
| THE QUEEN |
| v. |
| KLE MILLER |
---
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 | |
---
Criminal law- Sentence – Factual error in exhibit before trial judge – Risk that erroneous document affected sentence – Other grounds dismissed – Appeal upheld - Prisoner re-sentenced.
---
| 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 fact, a perusal of the transcript of that intercepted call shows that the number of tablets discussed was in fact "about three", reducing the total value of drugs discussed in that call from $9,000 to $90. In his sentencing remarks the judge referred to a total figure in Exhibit C which was erroneous by $8,910 or almost 75% of the total sum referred to as having been the value of drugs discussed by the applicant on the telephone.
The Court granted the applicant leave to add a ground of appeal which challenged the sentences imposed because Exhibit C was erroneous.
It is possible, although certainly not inevitable, that the sentencing judge took into account the total value of drugs discussed as set out in Exhibit C in coming to the sentences that he did. There is a sufficient risk that he did so to require this application to succeed and for the consequent appeal to be upheld.[1] The important facts upon which a sentence is imposed must be accurate. In this instance a factual mistake for which the sentencing judge has no responsibility at all has led to a factual error in his Honour's sentencing remarks. The magnitude of the error and the fact that the judge mentioned the figure that he did leads to a conclusion that there was a real risk that it had played some part in the synthesis of his sentence. The applicant must be re-sentenced.
[1]See R. v. Fox [2003] VSCA 138, particularly per Charles, J.A. at [4] and Chernov, J.A. at [18].
However, before embarking on this exercise it is necessary to deal briefly with the other grounds of appeal argued in this case.
Grounds 1 and 2
These grounds together allege a failure by the sentencing judge to properly apply the sentencing principle of parity.
On 15 December 2004 his Honour Judge Duggan in the County Court sentenced Miller's identical twin brother in respect of one count of theft and four counts of trafficking drugs of dependence. The drugs were the same as those in respect of which Miller was sentenced in the case now before the Court. It was accepted by Judge Duggan and the sentencing judge in this case that Miller and his twin were engaged in a joint enterprise in respect of which the twin, Quinten Miller, was the dominant player. In the course of his sentencing remarks the judge made significant reference to Quinten Miller's case and to Judge Duggan's sentence. He discussed the principle of parity, accepted that Quinten Miller's role was somewhat more important in the criminal enterprise than that of the applicant and explained why, notwithstanding an adjustment which would be required on this account, the sentences of the two men were very similar. The fact is that Quinten Miller was in a position to and did extend considerable assistance to the authorities in prosecuting other persons involved in the same enterprise. Indeed it is suggested that a number of them pleaded guilty upon being informed that the Crown would be in a position to call Quinten Miller as a witness against them.
Co-operation with authorities in the prosecution of other criminals is a mitigating factor of a high order. The discount given to a person who pleads guilty and assists or offers to assist in other prosecutions is sometimes extremely large indeed, particularly perhaps in a drug case.[2]
[2]See R. v. Ritter [2000] VSCA 135 and R. v. Rostom [1996] 2 V.R. 97.
Thus, the application of the parity principle would mean that Quinten Miller's sentence would need to be looked at, for parity purposes, as a sentence without that significant mitigating factor. And, of course, this applicant's sentence must be looked at in the light of his lesser role in the overall criminality of him and his brother. Upon that exercise being undertaken, it is obvious that the sentence imposed upon the applicant did not in any way offend the principle of parity. He received the full benefit of it even though, perhaps without fault on his part, he was not in a position to extend the same assistance as his brother to investigators and prosecutors.
The judge was alive to the parity question. He dealt with it appropriately.
Ground 3
This ground alleges that the sentencing judge failed to give adequate weight to the applicant's age.
The applicant was 26 at the time he was sentenced and about 21 at the time he committed these offences. Although he was not a young offender in the statutory sense, by reason of his age and lack of criminal history he was a person in respect of whom rehabilitation might have been regarded as a more important sentencing consideration than some others.
In his sentencing remarks the sentencing judge expressed the view that he was satisfied that the applicant's prospects for rehabilitation were extremely high. He considered that there was little prospect of his re-offending in a like manner again. He also referred to his personal rehabilitation with respect to substance abuse. There is no more he could have done had he specifically referred to the applicant's youth, for it is with respect to the mitigating circumstance of probable rehabilitation that youth is regarded as being relevant, particularly where the age of the offender is not by itself suggestive of such immaturity as to explain the criminal behaviour.[3]
[3]As discussed by this Court in D.P.P. v. S.J.K. and G.A.S. [2002] VSCA 131.
There is no substance in this ground.
Ground 4
This ground alleges that the sentencing judge failed to give sufficient weight to the applicant's prospects for rehabilitation.
As already noted, he referred to the applicant's rehabilitation and the probability that he would not re-offend. There was no more he could have done.
There is nothing in this ground.
Ground 5
This ground relies upon the fact that there was a very long delay between the detection of the offences to which the applicant eventually pleaded guilty and his being sentenced. The sentencing judge referred to this matter at length in his sentencing remarks. He acknowledged that none of the delay was the responsibility of the applicant. Indeed, the delay appears to be unexplained.
His Honour referred to authorities which would suggest that delay might lead in some cases to what is referred to as an "undue degree of leniency": R. v. Todd[4]. To the authorities his Honour referred to can now be added the comments of Nettle, J.A. in R. v. Daniel Carmody[5].
[4][1982] 2 N.S.W.L.R. 517 at 520.
[5][2006] VSCA 139.
Having specifically raised the question of delay it is clear that his Honour considered it in imposing the sentences which he did upon the applicant. There is no basis for suggesting that he did so in any way erroneously.
Ground 6
This ground asserts manifest excess. It is sufficient to say that the sentences imposed by his Honour could not in any way bespeak error by their magnitude. There is nothing in this ground.
Apart from the ground concerning the youth of the applicant, his counsel conceded that each of the matters the subject of the other grounds was dealt with by the sentencing judge. Accordingly, to demonstrate error, it had to be shown that the sentencing judge had given insufficient weight to factors he had specifically
mentioned. This is a difficult task indeed.
Re-sentencing
The sentencing judge has appropriately and cogently explained the reasons for the sentences which he imposed. The only error exposed on this appeal was the factual error to which reference has already been made and in respect of which the applicant falls to be re-sentenced. Otherwise, the sentences imposed by the sentencing judge for the reasons which he gave are entirely appropriate.
Accepting the factual findings made by the trial judge, all of which with the exception of his finding as to Exhibit C are correct, I would reduce the non-parole period of the sentence which he imposed from two years and three months to 21 months. Otherwise the sentences imposed by the sentencing judge should be undisturbed.
BUCHANAN, J.A.:
I agree.
NETTLE, J.A.:
I also agree.
BUCHANAN, J.A.:
I have already made the order granting leave to amend the grounds of the application.
The remaining orders of the Court will be:
The application for leave to appeal against sentence is granted.
The appeal is instituted instanter and is allowed.
The sentences passed below are set aside and in lieu thereof the applicant is sentenced to be imprisoned for a term of three years and six months on count 1, to a term of 15 months on count 2, and to a term of 15 months on count 3. The applicant is fined $300 on count 4 and $500 on each of counts 5 and 6.
The orders made by the sentencing judge as to cumulation are confirmed.
The total effective sentence is four years' imprisonment.
The applicant is to serve a term of 21 months' imprisonment before he is to be eligible for parole.
It is declared that the period of 217 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
---
0
4
0