Director of Public Prosecutions v Griffith-Millin
[2022] VCC 1116
•26 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01368
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON PAUL GRIFFITH-MILLIN |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2022 | |
DATE OF SENTENCE: | 26 April 2022 | |
CASE MAY BE CITED AS: | DPP v GRIFFITH-MILLIN | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1116 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Attempted armed robbery – armed with flick knife – offending took place at a brothel – young offender – spontaneous and opportunistic – offending committed under the influence of drugs – justice plan – offender disabled within the meaning of the Disability Act 2006 – limited criminal record – good prospects for rehabilitation – early guilty plea – genuine remorse – conviction recorded
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Disability Act 2006
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269; R v Mills (1998) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Boulton v The Queen (2014) 46 VR 308; DPP v Negash [2019] VCC 1811; DPP v Bird [2018] VCC 431; DPP v Arora [2017] VCC 289
Sentence: Two-year Community Correction Order with a Justice Plan condition.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms V. Jones | Office of Public Prosecutions |
| For the Accused | Ms N. Freijah | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Mr Griffith-Millin, you have pleaded guilty to an indictment containing one charge of attempted armed robbery, contrary to s 75A and s 321M of the Crimes Act1958. This offence carries a maximum penalty of 20 years’ imprisonment.
2The prosecution opened the case in accordance with an amended summary of prosecution opening dated 24 January 2022.[1] Your counsel indicated that the opening was an agreed document for the purpose of sentencing.
[1]Exhibit A.
Circumstances of the offending
3You were born in January 2000 and was aged 21 at the time of this offending. You are now 22 years old.
4The victim, Ms Jeong along with her husband, was the owner of a brothel business located in Heidelberg West.
5At about 1:29am on 29 March 2021, you attended the brothel. You were greeted by the victim who took you inside a room. She arranged for two of her female employees to introduce themselves to you. Whilst the introductions occurred, the victim had left the room. Following the introductions, Ms Jeong came back into the room and asked you which of the two women you wished to engage.
6You pulled out a flick knife from your pants, pointed it at Ms Jeong and made a demand for money. Ms Jeong ran from the room, across the landing and into a nearby staff room where the two women were waiting. You ran after Ms Jeong still holding the knife. You tried to push into the staff room, but the victim and the two other women managed to keep the door closed and prevented you from entering. These are the facts giving rise to the attempted armed robbery.
7One of the women called out that she was going to call the police. You left the brothel and ran down the street.
8The incident was captured on CCTV footage.[2] The footage was played in court.
[2]Exhibit B.
9The police were notified and attended the premises. The police were told that the offender appeared to be drug and/or alcohol affected. You were identified on CCTV footage.
10On 31 March 2021, a warrant was executed at your home address. You identified yourself to the police and were co-operative during the search. Various items of clothing visible on the CCTV footage were retrieved from your bedroom. Also found in your bedroom was a silver flick knife that you utilised in the offending. You made full admissions to the offending.
11Following your arrest, you were taken to Mill Park police station where you participated in an interview. You made full admissions and apologised for your offending.
12Following the interview, you were charged and remanded in custody. You were granted bail on 12 May 2021. Therefore, you have served 43 days in custody.
Criminal History
13Your criminal history is limited to one appearance on 13 May 2019 before the Heidelberg Magistrates’ Court. You were sentenced without conviction to a 12-month adjourned undertaking for offences including handling stolen goods, possessing cannabis, and committing an indictable offence whilst on bail.
Personal Circumstances
14Dr Matt Treeby has prepared a neuropsychological assessment report dated 20 December 2021.[3] The report sets out your personal background.
[3]Exhibit 2.
15You were born in January 2000 and raised in the suburbs of Preston and Heidelberg West. You are one of five siblings. Your father continues to work as a maintenance worker. Your mother, currently unemployed, worked as a manager at the McDonald’s franchise in Northland.
16You have described your childhood in positive terms, enjoying a good relationship with your parents.
17You were born with Ehlers-Danlos syndrome (EDS) which is a hereditary disorder resulting in connective tissue and other congenital anomalies. You have a number of physical abnormalities as a result of EDS including hypermobility of your joints, hammer toes, and tapering fingers. You also have reduced bone density making you vulnerable to fractures. You have previously sustained fractures to the thumb, toe, and arm.
18You attended a primary school in Preston and went on to attend high school in Thornbury. You indicated being a shy and well-behaved student. However, you struggled academically and experienced learning difficulties across the mainstream curriculum. You left high school at the conclusion of Year 9.
19You then attended the Ticket to a Trade program at Melbourne Polytechnic over a six-month period at the age of 16. You undertook trials in tiling, carpentry, bricklaying, and electronics, but struggled with gaining proficiency in the core skills necessary to be successful in these professions.
20You commenced casual employment at the Northland McDonald’s store in 2017. Upon your grant of bail, you continued working between 20 and 30 hours each week. You undertake relatively simple tasks such as making hamburgers and cleaning. You were briefly trialled on customer service and order taking but were overwhelmed by the multi-tasking requirements of these roles. I am told following your plea hearing, you lost your employment at McDonald’s and you are no longer in employment.
21You have been in one previous relationship. Regrettably, your former partner who had a history of mental health difficulty committed suicide in March 2020. She was four weeks pregnant with your child at the time of her death. You are currently single.
22You continue to reside in a Department of Housing property with your parents, maternal grandmother, and two brothers. You maintain the full support of your parents and maternal grandmother. You have never lived independently and are reliant upon your mother to assist with tasks such as planning and organising medical appointments and managing your work roster. You do not drive and have never held a driver’s licence or a learner’s permit.
23You first consumed alcohol at the age 14. Currently, you consume a six pack of beer every two or three days. You began using cannabis at the age of 15 and continue to smoke it. Following your partner’s suicide in March 2020, you commenced smoking methamphetamine to deal with your grief.
24You told Dr Treeby that the offending occurred in the context of a four-week period of daily methamphetamine use. You owed $200 to your drug dealer. Dr Treeby quotes you saying to him:
“At the time when I did it, I was pretty cooked. I was under the influence meth. I’d had three or four points and I’d been awake for five or six days. That’s when your head is all over the place and you can’t think. That’s when you do stupid shit. It just…it just happened. I wasn’t thinking properly and it just happened. I’m an idiot for doing it. I feel ashamed and I’m apologetic. I just wish I didn’t do it. I’ve learnt my lesson.”
Gravity of the offending and sentencing considerations
25The court must also have regard to the objective gravity of the offending for which you now fall to be sentenced.
26Attempted armed robbery is an inherently serious offence. This is clearly demonstrated by the maximum penalty fixed by Parliament, namely 20 years' imprisonment.
27The offending was committed against a vulnerable female victim in the early hours of the morning in her workplace. You produced a flick knife and pointed it at the victim. The victim ran away but you persisted, chasing her, and trying to enter the staff room. It was only after one of the women in the staff room stated she was calling the police that you left the brothel and ran away. While there is no victim impact statement, it is clear that this would have been a terrifying incident for both the victim and the other two females present in the premises. I accept that the offending was out of character and unsophisticated. It was spontaneous and opportunistic. Your state of intoxication at the time of the offending may explain your conduct but does not in any way excuse it.
28Any sentence must denounce your conduct. It must also deter others who may contemplate committing such an offence. Your youth, particularly in light of a limited criminal history, requires me to give emphasis to your rehabilitation.
Neuropsychological Assessment
29Dr Treeby’s report reveals the following pertinent matters:
· You impressed as emotionally and behaviourally immature relative to your chronological age.
· In addition to EDS as already alluded to, you experienced delay with the development of your speech and language abilities. During your formative years at school, you experienced learning difficulties which were never formally identified or assessed.
· A neuropsychological assessment revealed that you performed in the extremely low range on an overall measure of your intellectual ability.
· You obtained a full-scale IQ of 61. This assessment indicates that your intellectual functioning falls in the mild intellectual disability range.
· Your cognitive impairment is long-standing and will be permanent. You have broad difficulties with comprehension, reasoning, judgement, planning, and organisation due to your mild intellectual disability.
· Dr Treeby opines that you will require permanent support with complex activities of daily living as you progress through adulthood.
· You would benefit from engagement with the National Disability Insurance Scheme (NDIS) so that you can receive ongoing case management assistance.
· You would be eligible for a disability support pension.
· In terms of rehabilitation, Dr Treeby assessed you as being low risk of similar offending and considered your prospects for rehabilitation as favourable.
Matters in mitigation
30Despite the seriousness of the offending you committed, there are a number of matters in mitigation. In combination, they are compelling.
31Your counsel accepted that an attempted armed robbery is a serious offence, and in many cases, would attract a term of imprisonment. However, she submitted that taking into account the circumstances of the offending, your subjective circumstances and other significant matters in mitigation, all sentencing purposes could be met by a suitably fashioned Community Correction Order with a Justice Plan condition.
32The prosecution, whilst noting the matters impacting upon the objective gravity of the offending, fairly conceded that the disposition urged by the defence was open.
33I accept that your plea of guilty was entered at the earliest opportunity and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and cost of a trial and has spared the victim from having to give evidence. Your plea has facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in the current COVID-19 environment when the court is facing an increased backlog of trials.[4]
[4] See Worboyes v The Queen [2021] VSCA 169, [35] – [39].
34I also accept that your plea of guilty is demonstrative of genuine remorse.
35You were co-operative with the police investigation and made full admissions to the offending. You have expressed remorse to Dr Treeby.
36You were 21 years of age at the time of the offending and have now turned 22. Your criminal history is limited to a single appearance before the Magistrates Court in May 2019. There are no other matters pending.
37You have experienced 42 days on remand during the Covid-19 pandemic. You experienced two weeks of complete isolation. In addition, you experienced further random lockdowns, limited access to courses, and only one in-person visit from your mother.
38You were the victim of an assault by a cellmate on 11 May 2021. This assault led you to be hospitalised, having sustained facial injuries requiring stitches.
39I accept that your time in custody has been onerous, and it will be a poignant reminder to you not to re-offend.
40Further, I accept the submissions of your counsel, supported by the prosecution, that because of your intellectual disability, limbs 2 through to 5 of Verdins[5] are enlivened.
[5]R v Verdins (2007) 16 VR 269.
41Your youth and limited criminal history allow the court to give importance to your rehabilitation. I have had regard to the principles in the case of Mills[6] and Azzopardi.[7] In circumstances where you have made good progress since being granted bail on 12 May 2021, any sentence should encourage the continuation of that progress. Maintaining and progressing rehabilitation at this stage in your life, is not only in your and your family’s interest, but is also in the interests of the community at large. Further, you require assistance dealing with your long standing, but undiagnosed intellectual disability and issues with drug dependency.
[6]R v Mills (1998) 4 VR 235.
[7]Azzopardi v The Queen [2011] VSCA 372.
42In my judgement, all sentencing purposes can be met by the imposition of a Community Correction Order. I take into account the guidance in Boulton v The Queen.[8]
[8] (2014) 46 VR 308.
43At the conclusion of the plea hearing, the Court adjourned the matter to request a statement from the Secretary to the Department of Health and Human Services confirming whether you have an intellectual disability within the meaning of the Disability Act 2006 and for the preparation of a plan of services.
44The Court has received a Statement of Intellectual Disability dated 2 February 2022.[9] The statement confirms that you have an intellectual disability within the meaning of the Disability Act 2006.
[9]Exhibit 4.
45The court has also received a Justice Plan and a Disability Overview Report dated 19 April 2022.[10] I have had regard to the objectives and principles specified in Part 2 of the Disability Act 2006.
[10]Exhibit 5.
46Your counsel submitted that I should exercise my discretion and not record a conviction.[11] She referred me to three sentencing cases of this court.[12] Counsel for the prosecution submitted that bearing in mind the seriousness of the offending, a conviction should be recorded.
[11]Sentencing Act 1991 (Vic), s 8.
[12]DPP v Negash [2019] VCC 1811; DPP v Bird [2018] VCC 431; DPP v Arora [2017] VCC 289.
47Ultimately, I have determined that the offending was far too serious not to record a conviction. Those who commit such offending must understand the serious repercussions that follow. I also bear in mind that you have been before the courts previously.
Sentencing
48Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Griffith-Millin, as follows:
49On Charge 1, attempted armed robbery, you will be sentenced with conviction to a Community Correction Order for a period of 2 years commencing today.
50Every Community Correction Order has core conditions that you must comply with. They are as follows:
51You must not commit any offence punishable by imprisonment.
52You must comply with any obligation or requirement prescribed by the regulations.
53You must report to and receive visits from the Secretary.
54You must report to the community corrections centre within two clear working days.
55You must notify the Secretary of any change of address or employment within two clear working days of the change.
56You must not leave Victoria except with the permission of the Secretary.
57And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
58In addition to the mandatory core conditions, the Community Correction Order will also include the following special conditions:
59First, you will have to perform 70 hours of unpaid community work as directed.
60Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
61Third, you must undergo any mental health assessment and treatment as directed.
62Fourth, you will be subject to supervision as directed for the duration of the Community Correction Order.
63Fifth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9.30 am on Monday 1 August 2022.
64Pursuant to s80 of the Sentencing Act1991, the Community Correction Order will also have attached to it a Justice Plan condition. You must engage with a Disability Justice Co-ordinator from the Department of Families, Fairness and Housing for the duration of the order, participating in any planning as required. I also direct that you be referred to and undergo an assessment with Australian Community Support Organisation’s (ACSO) Community Offenders Advice and Treatment Service (COATS) and follow all the treatment recommendations.
65Pursuant to s48CA(2) of the Sentencing Act 1991, I direct that treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
66You must report to the Reservoir Community Correction Centre by telephone within two working days from today.
67Mr Griffith-Millin, you need to understand that if you were to breach the Community Correction Order in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.
68The offence of breaching a Community Correction Order itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the original order, namely the attempted armed robbery. You would then face the possibility of being sent to custody.
69There are serious consequences attached to any breach. Do you understand that Mr Griffith-Millin?
70OFFENDER: Yes, I do.
71HIS HONOUR: Thank you. No doubt your lawyers will explain all the conditions of the order in more detail, but having taken you through those conditions, do you also understand the conditions of the proposed Community Correction Order?
72OFFENDER: Yes, I do.
73HIS HONOUR: Thank you. I need to now ask you; do you consent to being placed on a Community Correction Order in the terms I have outlined and to abide by all of its conditions?
74OFFENDER: Yes.
75HIS HONOUR: Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where you are appearing by way of a video link.
Section 6AAA declaration
76Pursuant to s6AAA of the Sentencing Ac 1991t, I indicate that had Mr Griffith-Millin pleaded not guilty and had been found guilty of the attempted armed robbery, he would have been sentenced to a term of six months’ imprisonment in combination with a two-year Community Correction Order.
Disposal order
77Pursuant to s33(1) of the Confiscation Act 1997, I grant the forfeiture order sought in relation to the flick knife.
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