Miller v The Queen [2012] VSCA 270

2 The appellant has been granted leave to appeal against the sentence.

3 In the morning of 15 September 2008, the appellant, Colin Ribbons, Stephen Gates and Colin White, drove to the house of Benjamin Ladd in Bacchus Marsh where Ladd lived with his partner and their young child. The appellant believed that Ladd was responsible for a burglary at the appellant's house some weeks before and the theft of the appellant's car the previous night. Ribbons and Gates were each armed with a loaded .45 calibre pistol.

4 Ladd's partner answered the door and the offenders forced their way in. (Aggravated burglary). The Crown case was that the offenders intended to assault Ladd while armed with an offensive weapon.

5 The appellant and Ribbons made their way to Ladd's bedroom. The appellant punched Ladd in the head a number of times while he was sleeping. Ladd woke and grabbed a guitar and a club to defend himself, whereupon Ribbons produced his pistol and pointed it at Ladd. Ladd's partner attempted to intervene but was grabbed by Gates and removed from the room. (Common assault). Gates returned to the room and produced his pistol. Ladd dropped his club whereupon Ribbons struck him a number of times to the face with his pistol. (Intentionally causing injury). Ribbons then removed the magazine from his pistol, showed Ladd the bullets in it, replaced the magazine, cocked it and placed it against Ladd's leg. Ribbons told Ladd that unless he did what he was told, Ribbons would put a bullet in him. (Threat to kill).

6 The appellant questioned Ladd about the burglary and the theft of the motor car. Ladd admitted being involved in the burglary but denied that he stole the motor car. The offenders compelled Ladd to telephone his sister, are former partner of the appellant, who was also believed to be involved. The sister declined to attend the premises.

7 The appellant and Ribbons took Ladd in their car to the house of his sister. (False imprisonment of Ladd; kidnapping of Ladd and false imprisonment of Ladd's partner).

8 At the sister's house, Ladd was sent in to persuade her to come out. She declined. The offenders then return today Ladd's premises. Ladd was told that he must return the stolen property within 24 hours or they would return and shoot him and his family.

9 The appellant is now aged 47 years. His parents and their forebears were involved in amusement rides and sideshows. When the appellant was in year 11, his parents separated and the appellant left school to assist his father with his business.

10 The appellant developed his own business in the sideshow industry and also branched out into computer programming. He became a respected, intelligent computer programmer and was involved in a number of companies concerned with computers and graphics.

11 The appellant married in the early 1990s. The appellant's first wife had a twoyearold son when he married and the appellant and his wife had three children later. The appellant separated from his wife and formed another relationship with a woman the appellant had known for a number of years.

12 The sole ground of appeal is that the sentencing judge erred by imposing the same sentence on the appellant as that which was imposed on the cooffender, Ribbons, thereby infringing the principle of parity.

13 The appellant and Ribbons received the same sentence.

14 The sentencing judge described the respective roles of the appellant and Ribbons in the commission of the offences in the following terms:

Although you, Miller, were not armed with a weapon, it is clear that you organised these crimes. You knew that Gates and Ribbons were armed with weapons and the venture was clearly your undertaking with Ribbons and Gates providing the recruited muscle. Although Ribbons and Gates were arm would loaded pistols, you were the ringleader of this group. I see no reason to distinguish between you and Ribbons in arriving at an appropriate sentence.

15 Counsel for the appellant pointed out that not only was Ribbons armed, it was Ribbons who carried out the major assault and the chilling threat to Ladd. Counsel also submitted that the fact that Ribbons had no personal grievance against Ladd hardly mitigated his moral culpability.

16 Nevertheless, counsel for the appellant appeared to accept that no sensible distinction could be drawn between the appellant and Ribbons in terms of their roles in the commission of the offences. The thrust of his case was that the differences in the antecedents, character and prospects of rehabilitation of the offenders required a lesser sentence to be imposed upon the appellant.

17 The appellant had two previous Court appearances when he was fined for offensive behaviour and being drunk and for handling stolen goods. The sentencing judge said that the prior offending was 'irrelevant'. Ribbons, on the other hand, had 87 prior convictions from 28 previous court appearances including convictions for unlawful assault, assault with a weapon, threat to kill, drug offences and offences of dishonesty. On ten occasions he had been sentenced to terms of immediate imprisonment and on other occasions received suspended sentences and correction orders. When the offences the subject matter of this appeal were committed, Ribbons was subject to both a suspended sentence and an intensive corrections order, the latter for an offence of threat to kill. Ribbons was also a serious violent offender in respect of count 6, the threat to kill, for he had previously received a term of imprisonment for a like charge.

18 The appellant was able to call in aid a considerable body of evidence as to his character in terms of his evidence and written references. The appellant had built up various businesses in computing and amusement rides, married and fathered three children. He was a member of the local Lions Club and over the years devoted considerable time to conducting charitable fundraising events. Several witnesses said that the actions constituting the offences were out of character. Written material before the Court described the appellant as generous and caring, a man of honesty and integrity. The sentencing judge appeared to accept the material. He described the appellant as a middle aged man. He was 46 years old at the time he was sentenced and one who 'has demonstrated himself to be other than on the occasion for which I am to sentence you, a well respected and decent member of the community'. The sentencing judge added:

I accept that this event is to be seen as a oneoff event in your life and I accept the submission of your counsel that your prospects for future rehabilitation can be described as excellent.

19 His Honour did not make any finding as to Ribbons' prospects of rehabilitation. Although there was evidence of Ribbons assistance to disadvantaged young people, his strong sense of family and the respect in which he was held by others, the material advanced at the plea did not lead his Honour to express an opinion as to Ribbons character in the terms he used to describe the appellant.

20 In my opinion it is apparent that the sentencing judge took no account of the character and antecedents of the appellant and Ribbons in determining the

relationship in which their sentences should bear to each other.[1] In stating that he saw no reason to distinguish between the appellant and Ribbons in arriving at an appropriate sentence, his Honour limited his analysis to the roles played by the offenders in the commission of the offences. His Honour did not say that he regarded the appellant as having played a greater role in the commission of the crime and on that account, the fact that he had a better record than Ribbons did not warrant a disparate sentence. In any event, I would not agree with such a conclusion.

21 In this respect, I am of the opinion that his Honour erred.

22 The principle of equal justice 'requires different outcomes in cases that are different in some relevant respect.[2]

23 The cases of the appellant and Ribbons did differ in the material respects I have described. Although I do not regard the sentence imposed upon the appellant as manifestly excessive, it is, I think, necessary to reduce the sentence to a degree in order to avoid an unjustified equivalence of the cases of the appellant and Ribbons.[3]

24 Accordingly, I would allow the appeal and reduce the sentence imposed on the charge of aggravated burglary to four years' imprisonment. Otherwise I would confirm the individual sentences and the orders for cumulation. The total effective sentence thus becomes six years and three months' imprisonment and I would fix a nonparole period of four years' imprisonment.

25 I adopt what has been said by the learned presiding judge as to the circumstances of the offending and the matters put in mitigation on behalf of the appellant but I am unable to agree with his conclusion that the sentencing judge took

no account of the character and antecedents of the appellant and of the cooffender Ribbons in determining the relationship which their sentences should bear to each other.

26 The sentencing judge heard and accepted evidence of laudable community work and engagement by Ribbons which was of a kind, in my view, not significantly different to that which he heard in relation to the appellant.

27 As the presiding judge has said, his Honour did refer to the roles played by the two offenders when stating that he saw no reason to distinguish between them. It is significant, in my view, that he prefaced his conclusion that he would not distinguish between them with statements to the effect that the appellant organised these crimes, that he knew the others had pistols, that the venture was the appellant's undertaking, and that the cooffender Ribbons had been recruited by the appellant as 'muscle'.

28 In my view, the sentencing judge was well aware of the disparity in the criminal records of the appellant and Ribbons. Indeed, he set them out in some detail.

29 I read his Honour's reasons as a determination not to distinguish between the two of them because of the factors which he set out immediately prior to announcing his conclusion that he would not distinguish between them, namely, that this was the appellant's undertaking and that he had recruited the others. He was the ringleader.

30 In my view, this was an approach which was reasonably open to the sentencing judge and I do not consider that any error on his part has been demonstrated. Nor do I consider it to be manifest that the sentencing judge has sentenced so as to produce a legitimate and justifiable sense of grievance given his findings as to the appellant's role.

31 Finally, I note that a reduction in the appellant's sentence for aggravated

burglary would put him on a par with the cooffender Gates, who made full admissions and who pleaded guilty.

34 The order of the Court is that the appeal is dismissed.

[1] Cf Teng v R (2000) 22 VR 706, [66].

[2] Wong v R [2001] HCA 64; (2001) 207 CLR 584, [65]. See also Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v R [2011] HCA 49; (2011) 244 CLR 462, [28] (French CJ, Crennan and Keiffel JJ).