R v Mills - [2008] QCA 146

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mills [2008] QCA 146

PARTIES:

R
v
MILLS, Garry John
(applicant/appellant)

FILE NO/S:

CA No 46 of 2008
SC No 960 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2008

JUDGES:

Keane, Holmes and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal against sentence granted1.

Appeal against sentence allowed2.

Sentence of 10 years imprisonment set aside; and in lieu thereof applicant sentenced to nine years imprisonment3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted of manslaughter on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where the learned sentencing judge proceeded on the basis that 10 years imprisonment had been held by the Court of Appeal to be at the lower end of the range for cases such as the present – whether the basis on which the learned sentencing judge proceeded was erroneous

Criminal Code Act 1899 (Qld), s 268
Penalties and Sentences Act 1992 (Qld), s 161B

R v Dwyer[2008] QCA 117, cited
R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, distinguished
R v Sebo; ex parte A-G (Qld)[2007] QCA 426, applied

COUNSEL:

A W Moynihan SC for the applicant/appellant
T A Fuller for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 27 November 2007 the applicant, who had been charged with the murder of his wife, pleaded guilty to her manslaughter. The Crown accepted the applicant's plea in full discharge of the indictment. On 29 January 2008 he was sentenced to 10 years imprisonment. A period of 930 days was declared to be time already served under the sentence.

The applicant seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

The circumstances of the offence

The parties agreed upon a "Statement of Facts" which was placed before the learned trial judge. From this statement, it appeared that the applicant and his wife were high school sweethearts who married in 1996 when he was about 22 years old and she was two years younger. Together they had two children who were aged nine and six at the date of the wife's death. The relationship between the deceased and the applicant had deteriorated. Police had been called to three incidents of domestic violence between 1997 and 2002.

The applicant killed his wife on the morning of 10 July 2005. On the evening prior to her death, the deceased had gone out to a nightclub. When…

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 Mills

Details

AGLC: R v Mills [2008] QCA 146
Case: [2008] QCA 146
Decision Date: 6 June 2008

CaseChat Overview and Summary

In the matter of R v Mills, the applicant, having been convicted of manslaughter on his own plea of guilty, sought to appeal against the sentence imposed by the sentencing judge. The Court of Appeal was tasked with determining whether the sentence of 10 years imprisonment was appropriate, particularly in light of the sentencing judge's reliance on a previous case where a similar sentence was deemed to be at the lower end of the range for such cases.

The key legal issue before the Court was whether the sentencing judge had erred in their assessment of the appropriate sentence for the applicant. Specifically, the Court needed to consider if the sentencing judge had correctly applied the principles of sentencing in arriving at a sentence of 10 years imprisonment, given that this was considered at the lower end of the range for cases similar to the present one.

In examining the matter, the Court found that the sentencing judge had indeed erred in their assessment. The Court of Appeal held that the basis upon which the sentencing judge proceeded was erroneous, as the previous case cited did not provide a clear basis for the sentence at the lower end of the range. Consequently, the Court allowed the appeal against the sentence. The sentence of 10 years imprisonment was set aside, and in its place, the applicant was sentenced to nine years imprisonment.

Orders

Orders of the court

Application for leave to appeal against sentence granted1.

Appeal against sentence allowed2.

Sentence of 10 years imprisonment set aside; and in lieu thereof applicant sentenced to nine years imprisonment3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Mills [2008] QCA 146
PARTIES:	R v MILLS, Garry John (applicant/appellant)
FILE NO/S:	CA No 46 of 2008 SC No 960 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2008
JUDGES:	Keane, Holmes and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Application for leave to appeal against sentence granted1. Appeal against sentence allowed2. Sentence of 10 years imprisonment set aside; and in lieu thereof applicant sentenced to nine years imprisonment3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where applicant convicted of manslaughter on his own plea of guilty – where applicant sentenced to 10 years imprisonment – where the learned sentencing judge proceeded on the basis that 10 years imprisonment had been held by the Court of Appeal to be at the lower end of the range for cases such as the present – whether the basis on which the learned sentencing judge proceeded was erroneous Criminal Code Act 1899 (Qld), s 268 Penalties and Sentences Act 1992 (Qld), s 161B R v Dwyer[2008] QCA 117, cited R v Schubring; ex parte Attorney-General (Qld) [2005] 1 Qd R 515; [2004] QCA 418, distinguished R v Sebo; ex parte A-G (Qld)[2007] QCA 426, applied
COUNSEL:	A W Moynihan SC for the applicant/appellant T A Fuller for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent