Middleton v The Queen

[2020] ACTCA 6

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Middleton v The Queen

Citation:

[2020] ACTCA 6

Hearing Date:

5 February 2020

DecisionDate:

5 February 2020

Before:

Burns, Mossop and Bromwich JJ

Decision:

Appeal allowed, see [8]

Catchwords:

APPEAL – CRIMINAL LAW – Appeal against sentence – incorrect maximum penalty applied with respect to some offences – requires re-sentencing process – unnecessary to consider whether to admit fresh evidence – charges remitted to a single judge of the Supreme Court

Parties:

Peter Middleton (Appellant)

The Queen (Respondent)

Representation:

Counsel

P Boulten SC with D Burrow (Appellant)

R Christensen with K McCann (Respondent)

Solicitors

McKenna Taylor (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 20 of 2019

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Elkaim J

Date of Decision:         6 July 2018

Case Title:  R v Middleton

Citation: [2018] ACTSC 198

BURNS J

1. The present appeal is an appeal against sentences that were imposed by a judge of the ACT Supreme Court with respect to certain sexual offences. Significant terms of imprisonment were imposed. The appellant appeals from those sentences and, by reference to an Amended Notice of Appeal, raises two grounds.

1. The first ground that I will refer to is a ground which relates to sentences imposed by the primary judge with regard to offences alleging sexual intercourse with a young person. It is conceded, as I understand it, that the primary judge applied the incorrect maximum penalty to those offences. It is accepted, as I understand it, by the Crown that this requires a re-sentencing process.

1. The other ground of appeal relates to an allegation that there was a miscarriage of justice in the original sentence proceedings by reason of material not being placed before the primary judge concerning the intellectual functioning of the appellant. In particular, the suggestion that he suffered at the time of these offences, and subsequently, from a form of dementia. With regard to that proposed ground of appeal, there is an application before this Court that fresh evidence be received. The fresh evidence that the appellant seeks to rely on is in the form of medical reports.

1. It is, I think, unnecessary to deal with the question of the admission of that material in light of the fact that it is accepted by the appellant that the proper course is to uphold the appeal, to set aside the sentences imposed by the primary judge, and remit the charges back to a single judge of the Supreme Court for re-sentencing. Such a course has not been opposed by the Crown.

1. This course has a number of distinct advantages over this Court proceeding to determine the admissibility of that material and then potentially engaging in a re-sentencing exercise. For one thing, this Court is not really in a position to be able to deal with questions of the weight to be given to the medical evidence, particularly as the author of the reports has not been cross-examined. There is, of course, some prospect that the Crown may wish to cross-examine that doctor in relation to the opinions which he has expressed in his reports.

1. Secondly, if the matter were to proceed to a re-sentencing exercise before this Court, it may well be that one or other of the parties to the proceedings may not be content with the orders made by this Court and may wish to appeal. In those circumstances, the only avenue of appeal which would remain open would be an application for special leave to the High Court, which is unlikely to be successful.

1. The proper administration of justice dictates that the matter be remitted to a single judge of the Supreme Court for re-sentencing. It is regrettable that the matter has to take this course but, in my opinion, it is the course which justice dictates.

Orders

1. I propose that the orders the Court make are that the appeal be allowed. That the orders made by the primary judge on 6 July 2018 be set aside and that the charges be remitted to a single judge of the Supreme Court for re-sentencing on a date to be fixed.

1. The matter will be listed in the Registrar’s List tomorrow, 6 February 2020 at 9 am.

MOSSOP J

1. I agree with the reasons given by Burns J and the orders which he proposes.

BROMWICH J

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Mossop and Bromwich.

Associate:

Date:

1. I also agree.