The Queen v Ryan; Miller v The Queen - [2019] NTCCA 20

CITATION:The Queen v Ryan; Miller v The Queen [2019] NTCCA 20
PARTIES:THE QUEEN
v

RYAN, Aaron

AND BETWEEN: MILLER, Dillon
v

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NOs:CA (AS) 2 of 2018 (21803523) and
CA (AS) 3 of 2018 (21803520)

DELIVERED:  17 September 2019
HEARING DATE:  12 December 2018
JUDGMENT OF:  Grant CJ, Barr and Hiley JJ
CATCHWORDS:

CRIME — Appeals — Appeal against sentence — By Crown against inadequacy
Crown appeal – whether total effective sentence of main offender manifestly inadequate – robbery and assault causing serious harm to shopkeeper – sentencing where two offences contain common elements – overall sentence needs to ensure that the offender is not punished twice for the same conduct – appeal allowed – respondent resentenced.
CRIME — Appeals — Appeal against sentence — Manifest excess
Appeal by co-offender – whether total effective sentence of co-offender manifestly excessive – robbery and assault causing serious harm to shopkeeper – co-offender’s involvement less serious than that of the other offender – appeal allowed – appellant resentenced.
Criminal Code 1983 (NT) s 211
Sentencing Act 1995 (NT) s 40(6), s 52
Bara v The Queen [2016] NTCCA 5; Bugmy v Queen (2013) 249 CLR 571; Carroll v The Queen (2011) 29 NTLR 106; Edmond & Moreen v The Queen [2017] NTCCA 9; Mill v The Queen (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610; R v Bendelle (SCC 20106693; 2 May 2003); R v Chambers (SCC 20015052; 9 March 2001); The Queen v Evans [2013] NTCCA 9; The Queen v Mossman [2017] NTCCA 6; Wright v The Queen [2007] NTCCA 5 referred to.
REPRESENTATION:
Counsel:
The Queen:S A Robson
Ryan:I Read SC
Miller:M Aust with J R Murphy
Solicitors:
The Queen:Office of the Director of Public Prosecutions
Ryan:Northern Territory Legal Aid Commission
Miller:North Australian Aboriginal Justice Association
Judgment category classification: B
Number of pages: 34

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The Queen v Ryan; Miller v The Queen [2019] NTCCA 20

No. CA AS 2 of 2018 (21803523) and
No. CA AS 3 of 2018 (21803520)
BETWEEN:
THE QUEEN

Appellant
AND:
AARON RYAN

Respondent
BETWEEN:
DILLON MILLER

Appellant
AND:
THE QUEEN

Respondent

CORAM: GRANT CJ, BARR and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 17 September 2019)
THE COURT:
Introduction

On 14 August 2018 Aaron Ryan, the respondent in CA(AS) 2 of 2018 (Ryan), and Dillon Miller, the appellant in CA(AS) 3 of 2018 (Miller), were convicted and sentenced in relation to offending on 20 January 2018.
Both of them had pleaded guilty to three offences which they committed in company with each other, namely aggravated robbery and unlawfully causing serious harm to LV at the United Service Station, Heavitree Gap, and aggravated unlawful assault on MK. Ryan also pleaded guilty to aggravated…

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] NTCCA 20
Decision Date: 17 September 2019

CaseChat Overview and Summary

The case of *The Queen v Ryan; Miller v The Queen* concerned appeals against sentences imposed by a lower court. The appeals were heard by Grant CJ, Barr and Hiley JJ. The Crown appealed against the sentences imposed on Ryan, arguing they were manifestly inadequate, while Miller appealed against his own sentence, contending it was manifestly excessive. Both offenders had been convicted of robbery and assault occasioning serious harm to a shopkeeper.

The central legal issues before the court were whether the total effective sentence imposed on Ryan was manifestly inadequate given the seriousness of his offending, and conversely, whether the total effective sentence imposed on Miller was manifestly excessive, particularly in light of his lesser involvement compared to Ryan. The court was required to consider how to sentence for offences that contained common elements, ensuring that an offender was not punished twice for the same conduct.

The court reasoned that the sentencing of Ryan, the main offender, required a total effective sentence that reflected the gravity of the robbery and the severe assault, including multiple punches and stomps to the head of the victim. The court found that the original sentence imposed on Ryan was manifestly inadequate. In relation to Miller, the court acknowledged his involvement in the robbery and assault but considered it to be less serious than Ryan's. The court allowed the Crown's appeal against Ryan's sentence and allowed Miller's appeal against his sentence.

Consequently, the court resentenced both offenders. Ryan was resentenced to a higher total effective sentence, while Miller was resentenced to a lower total effective sentence, reflecting the court's assessment of their respective culpability and the need for appropriate punishment and deterrence.

Orders

Orders of the court

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Background

Background to the litigation

Counsel for the Crown has conceded that if the Crown’s appeal against the inadequacy of the Ryan sentences is unsuccessful, Miller’s appeal should be allowed.Relevant factsThe robbery and assault at the United Service Station - both Most of these events were recorded on CCTV footage which was shown to this court. To some extent that footage amplified the facts that had been agreed.[1] Some time prior to 5.30 pm on Saturday, 20 January 2018 the offenders travelled to the United Service Station in Miller’s car. Miller was driving. Both of them were heavily intoxicated and affected by alcohol and methamphetamine. They formed a common intention to steal alcohol from the liquor outlet at the store at the United Service Station. The liquor outlet was a caged area situated inside the store and had its own cash register inside the store. The principal victim, LV, aged 30, and his wife, SA, worked at the United Service Station as console operator and store manager respectively. The two of them were the only people working there at the time of the robbery and assault, having commenced duty at 10 am. At about 5.30 pm, Ryan entered the store and walked quickly to the liquor outlet. He was not wearing a shirt and appeared well-built and taller than LV. He picked up two 10 pack cartons of Jim Beam and Cola cans from the refrigerator and walked over to the spirit area where he picked up seven small bottles of Bundaberg Rum. While he was doing that, Miller entered the store. He too was taller than LV and was stockier than Ryan. Miller walked inside the shop, appeared to briefly look at what Ryan was doing, then quickly returned to the front door and held it open in order for Ryan to make a swift exit. When Ryan walked past the register, someone signalled to LV to indicate something was wrong. LV confronted Ryan and asked him what he was doing. He tried to take hold of Ryan’s shorts to prevent him from leaving without paying and followed Ryan as he was heading for the door. Ryan dropped some of the bottles on the ground, quickly moved towards LV who was retreating, and punched LV to the face with his right fist. At the same time Miller moved forward from the doorway and then punched LV twice to the face with a left right combination. LV was shielding his face and body and trying to move out of the way. However he was unable to retreat as a counter was immediately behind him. Ryan then picked up one of the bottles of rum, approached LV again and threw the bottle at LV with full force from about a metre away. The bottle struck LV in the head. Ryan then punched LV to the face again, twice, with right hand punches. Those punches were so hard that LV fell almost two metres to his right and onto the floor. Ryan’s punches appeared to be deliberate and forceful, not the kind of wild punches one would expect of a person heavily intoxicated. Ryan moved straight to where LV was lying on his side trying to protect himself and stood over LV. He then stomped on LV’s head with full force three times with his right foot. Miller picked up several bottles of rum from the floor and went over to where LV was cowering and stomped twice on his head. Both of the offenders were barefooted.

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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