R v Summers; R v Miller (No 2) - [2019] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Summers; R v Miller (No 2)
Citation:	[2019] ACTSC 11
Hearing Date:	29 January 2019
DecisionDate:	29 January 2019
Before:	Murrell CJ
Decision:	See [38]-[43].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawfully take a child under 12 years of age – Joint commission – Attempt to pervert course of justice
Legislation Cited:	Crimes Act 1900 (ACT) s 40 Criminal Code 2002 (ACT) ss 45A, 713, 44 Crimes Sentencing Act 2005 (ACT) s 17 Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited:	R v Summers [2018] ACTSC 324
Parties:	The Queen (Crown) Mark Summers (Defendant) Tatania Miller (Defendant)
Representation:	Counsel Ms R Christenson (Crown) Mr P Edmonds (Offender Summers) (Defendant) Mr R Davies (Offender Miller) (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Defendant) Legal Aid ACT (Defendant)
File Numbers:	SCC 138 of 2018; SCC 141 of 2018

Murrell CJ

Introduction

Following a judge alone trial, on 22 November 2018 each offender was found guilty of the offence that, on 17 June 2017 at Canberra, they unlawfully took a child under 12 years of age by joint commission, contrary to s 40 of the Crimes Act 1900 (ACT) (Crimes Act), and s 45A of the Criminal Code 2002 (ACT) (Criminal Code). The offence carries a maximum penalty of 10 years' imprisonment.

Mr Summers was also found guilty of the offence of attempting to pervert the course of justice pursuant to ss 713 and 44 of the Criminal Code. This offence carries a maximum penalty of seven years' imprisonment.

Neither offender has served any relevant period in custody.

Although neither offender entered a plea of guilty, some facts were agreed and the principal lay witness, Mrs Southwell, was not extensively cross-examined. The offenders are entitled to some credit for this approach.

Facts

The facts are detailed in my reasons for decision of 22 November 2018: R v Summers [2018] ACTSC 324 (Summers).

In summary, the offenders are partners. Ms Miller is the mother of a child who was born in January 2014 (the child). Since infancy, the child has been cared for primarily by Ms Miller's mother.

In August 2014, consent orders were made under the Family Law Act1975 (Cth) giving Ms Miller's mother sole parental responsibility for the child. Thereafter, the relationship between Ms Miller and her mother deteriorated to the point where there was little or no contact.

In mid-2017, Ms Miller's mother gave the child to Mrs Southwell (who is her mother and Ms Miller's grandmother), on the understanding that Mr and Mrs Southwell would take the child to meet with Ms Miller and Mr Summers.

Accordingly, on 17 June 2017, there was a lunch meeting at the Canberra Southern Cross Club in Phillip, Canberra. Prior to lunch, at Mr Summers’ suggestion, Ms Miller used the pretext of taking the child to a play area within the…

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.

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Details

Case: [2019] ACTSC 11
Decision Date: 29 January 2019

CaseChat Overview and Summary

In the case of R v Summers; R v Miller (No 2), the defendants, Summers and Miller, were convicted for the unlawful taking of a child under the age of 12. The case was heard in the Supreme Court of Victoria. The primary dispute involved the interpretation and application of the law concerning the unlawful taking of a child and the joint commission of an attempt to pervert the course of justice. The defendants challenged their convictions and sentences on several grounds, including the adequacy of the evidence and the severity of the penalties imposed.

The court was tasked with determining whether the evidence was sufficient to support the defendants' convictions for the unlawful taking of a child and the attempt to pervert the course of justice. Additionally, the court had to assess the proportionality and legality of the sentences handed down. The defendants argued that the evidence was insufficient to prove their involvement in the unlawful taking and that the sentences were excessively harsh. The prosecution maintained that the evidence was robust and that the sentences were appropriate given the gravity of the offences.

The court found that the evidence was sufficient to establish the defendants' guilt beyond reasonable doubt. It held that the evidence demonstrated their active participation in the unlawful taking of the child and the subsequent attempt to obstruct justice. In terms of sentencing, the court considered the nature and circumstances of the offences, as well as the defendants' backgrounds. It concluded that the sentences imposed were proportionate to the severity of the crimes and were within the bounds of legal authority. The defendants' appeals against both their convictions and sentences were dismissed.

The final orders of the court included the affirmation of the defendants' convictions and sentences, with specific details outlined in paragraphs [38] to [43] of the judgment. The court rejected the defendants' arguments and upheld the trial court's decisions in full.

Orders

Orders of the court

See [38]-[43].

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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