Miller v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Elkaim J,Wigney J
• Judgment Date: 01 June 2018
• Docket Number: File Number: ACTCA 31 of 2017
• Date: 01 June 2018

[2018] ACTCA 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Before:

Murrell CJ Elkaim and Wigney JJ

File Number: ACTCA 31 of 2017

Erin Miller

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr P Bevan (Appellant)

Mr J White SC (Respondent)

Cases Cited:

AB v The Queen [1999] HCA 46 ; 198 CLR 111

Barbaro v The Queen ; Zirilli v The Queen [2014] HCA 2; 253 CLR 58

Cranfield v The Queen [2018] ACTCA 3

Dinsdale v The Queen [2000] HCA 54 ; 202 CLR 321

Gillard v The Queen [2016] ACTCA 50

Hartman v Director of Public Prosecutions (Cth) [2011] NSWCCA 261

House v The King (1936) 55 CLR 499

Kentwell v The Queen [2014] HCA 37 ; 252 CLR 601

Lin v The Queen ; Ng v The Queen [2016] NSWCCA 200

Markarian v The Queen [2005] HCA 25 ; 228 CLR 357

Ma v The Queen [2010] NSWCCA 320

Monfries v The Queen [2014] ACTCA 46

R v Barrientos [1999] NSWCCA 1

R v Cartwright (1989) 17 NSWLR 243

R v El Hani [2004] NSWCCA 162

R v Ellis (1986) 6 NSWLR 603

R v Gallagher (1991) 23 NSWLR 220

R v M [2005] NSWCCA 224

R v Ngata [2015] ACTSC 356

Pang v The Queen [1999] NSWCCA 4 ; 105 A Crim R 474

R v Sukkar [2006] NSWCCA 92 ; 172 A Crim R 151

R v Thomson ; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

R v Toumo'ua [2017] ACTCA 9

Ryan v The Queen [2001] HCA 21 ; 206 CLR 267

SZ v The Queen [2007] NSWCCA 19 ; 168 A Crim R 249

Wang v The Queen [2010] NSWCCA 319

Williams v The Queen [2018] ACTCA 4

Wong v The Queen [2001] HCA 64 ; 207 CLR 584

Zhang v R [2011] NSWCCA 233

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 35 and 36

Criminal Code 2002 (ACT) ss 338, 603 and 717

Corrections Management Act 2007 (ACT) s 145

Drugs of Dependence Act 1989 (ACT) s 164

Supreme Court Act 1933 (ACT) s 37O

APPEAL — In General and Right of Appeal — Appeal against sentence — whether the primary judge erred in his assessment of the appropriate discount for the offender's pleas of guilty and assistance to authorities — where the Crown made submissions on the appropriate range of discounts

Decision:

See [22]

Elkaim J

Murrell CJ And

1 We have had the benefit of reading the decision of Wigney J in draft form.

2 We agree with and adopt his Honour's description and summary of the background to the appeal, the procedural history, the relevant legislation, the Crown's submissions and the sentencing judge's remarks.

3 We agree almost entirely with the consideration of the appeal by Wigney J but, regrettably, we do not agree with his ultimate conclusion. In our view, the sentencing judge fell into error in two respects:

• (a) The discount for assistance in relation to the Series 1 offence (10%) was too low.

• (b) The discount for the plea of guilty for the first of the Series 3 offences (20%) was also too low.

4 Wigney J has referred to the discount of 10% as being at “the very bottom of the ‘customary’ range of discounts”. This conclusion followed a concise review of the authorities which, in our view, indicates that while there is no fixed discount, the normal range will be significantly more than 10%, in particular where the assistance has been of considerable value.

5 Wigney J said that he doubted:

…that it would be correct to characterise the appellant's assistance as assistance that was at a “very high level”, even accepting that the decision by the appellant to give evidence against Mr Stott was instrumental in securing a plea of guilty from Mr Stott.

This is the conclusion that we specifically disagree with.

6 In our view, assistance that leads not only to a conviction but to a person changing from a plea of ‘Not Guilty’ to a plea of ‘Guilty’ is assistance at a high level. Not only has a conviction been secured but the necessity of going through a potentially lengthy trial has been overcome.

7 In addition, while we agree with Wigney J's comments regarding the inappropriateness of the Crown's submissions on the level of the discount (as a result of the decision of the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (‘Barbaro’)), a sentencing judge, faced with such submissions, should be extremely reluctant to take an approach which is more severe than that suggested by the Crown.

8 Criminal proceedings are adversarial. They are defined by the Crown putting a case to a judge or jury and the defence putting an opposing case. The task of the judge or jury is to decide between the two sides. A position taken by the Crown sets a limit beyond which a sentencing judge should not travel other than in exceptional circumstances.

9 In simple terms, as an example, if but for Barbaro, a Crown prosecutor submitted that an appropriate sentence was five years' imprisonment, a sentencing judge ought not sentence an offender to more than five years' imprisonment. As explicitly stated in Barbaro at [33]:

…if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.

10 The same reasoning should apply to a suggested discount for assistance. In this case the Crown prosecutor submitted that the discount, including the discount for the plea of guilty, should be in the order of 30 to 40%. The sentencing judge effectively halved the suggested discount.

11 Although there is no specific complaint that the discount of 10% for the plea of guilty was too low, the combined discount of 20% is the subject of the appeal. In our view the Crown's submission to the sentencing judge, whether or not it should have been made at all, was a correct analysis of the appropriate discount to be applied.

12 The plea of guilty was entered almost three months before the trial was due to commence. This was not a last-minute plea where the utilitarian value might be regarded as low. It was also not a plea at the earliest opportunity. We think a discount of up to 20% for the plea would have been appropriate and that this should have been combined with a discount of about 20% for the assistance provided. A combined discount is not necessarily a simple addition of the two discounts but rather an evaluative process guided by the two discounts in the overall circumstances of the case. Thus an overall discount of 35% would have reflected a correct conclusion.

13 The sentencing judge's result of a discount of close to half of what it ought to have been is enough to identify error of the type described in House v The King (1936) 55 CLR 499. Further, the sentencing judge did not make any specific assessment of the level of assistance.

14 It is difficult therefore to know if his Honour reached his conclusion of 10% on the basis of any specific finding about the assistance. If, as is our view of the assistance, his Honour felt there had been significant assistance, then there is error in the level of the discount. If, on the other hand, his Honour was of the view that the assistance was not at a high level, then that view of itself would constitute an error.

15 We now turn to the complaint made by the appellant about the Series 3 offences. The appellant says the discount should have been 25%. The appellant apparently received a discount of 20% for the plea of guilty. However, Series 3 was made up of three separate sentences. On close inspection of these sentences it can be seen that the 20% discount was only applied to the first of these sentences. The other two were reduced by 25%. There can therefore be no complaint about the two sentences which were reduced from eight months to six months.

16 For the first of the Series 3 offences the reduction was from two years down to one year and seven months. This is an approximately 20% reduction. There is no dispute but that the plea was made at the earliest opportunity. The Court in recent judgments has stressed the importance of discounts especially where there has been a guilty plea (see R v Cranfield [2018] ACTCA 3 and Williams v The Queen [2018] ACTCA 4).

17 In our view, the discount in respect of the first of the Series 3 offences should have been 25%. This is not only based on the early plea but also to achieve consistency with the other Series 3 offences. Had we reached a similar conclusion to Wigney J about the Series 1 offence we may have been reluctant to suggest the exercise of any discretion restricted to the single Series 3 offence. However as we are of the view that the appellant should be resentenced in any event then, on resentencing, we will apply a 25% discount for all of the Series 3 offences.

18 As noted by Wigney J, there is no appeal against the length of any sentence imposed. The only complaint relates to the discounts. Applying what we think are the appropriate discounts to the sentences for the Series 1 and the first Series 3 offence, the result is as follows:

Series 1: Accessory after the fact — 18 months less 35% is 11 months and 21 days.

Series 3: Supply of a drug of dependence — 24 months less 25% is 18 months.

19 The next consideration to arise is how the above reductions in sentence affect the overall sentencing of the appellant. The sentence for the Series 2 offence, trafficking in a controlled drug other than cannabis, produced the longest individual sentence. This was two years and five months dating from 22 June 2017 to 21 November 2019. This sentence is not under appeal. In addition, the head sentence of three years and seven months, commencing on 22 June 2016 and ending on 21 January 2020 was suspended from 21 March 2018. This date has now passed and the appellant has been released subject to the terms of the suspension.

20 We consider the appropriate way to proceed is to...