Director of Public Prosecutions v Jepson-Miles

[2015] VCC 997

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN JEPSON-MILES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	29 May 2015
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v Jepson-Miles
MEDIUM NEUTRAL CITATION:	[2015] VCC 997

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B Lewis	Office of Public Prosecutions
For the Offender	Mr S. Northeast	Michael Brugman Barrister & Solicitors

HIS HONOUR: 

1On 4 December 2014, you were with a number of young friends, including your partner, at a house in Highton.  You were all drinking and using drugs.

2One of your friends contacted Chantel Couch, and Richard Lander. 
Ms Couch is 23 and Mr Lander 28.  Your young friend arranged for them to attend the house to supply the drug, ice.

3It seems both Couch or Lander had access to ice and they were, at least on that night, part of the distribution network that supplies ice to young people like you and your friends in Geelong.

4As I have said often in this court, and like so many of my judicial colleagues in all courts, have said, ice is a real scourge, gravely affecting our communities.  The police, the families of those addicted, the victims of ice user's violence, those working in the health system, governments at all levels, and ordinary members of our community are all united in trying to do something about this problem.

5One of the real problems is people like Couch and Lander, who are involved in selling the drug, which at least someone makes money from, by spreading that misery.  But on this night, you stole a small amount of the drug and you had a box-cutter.

6In the struggle that Ms Couch put up, she was cut to the hand and required our public health system to fix it up.  She is left with the reminder of what she was up to that night by reason of losing the tip of her finger. It is hard to consider Ms Couch as a victim as that term is usually used.

7Once the police became involved, you admitted your crimes and you pleaded guilty at an early point.  As has become plain during these proceedings,
I indicated to the Director of Public Prosecutions, my concern relating to Charge 1.  They have considered all that I have said and have proceeded with it.  There is nothing that I can do in respect of that, but my concerns, and
I think reflecting those of the community, have been expressed.

8You are a young man, Mr Jepson-Miles, 21 years old.  As is well understood, your young age requires me to give primary consideration to your rehabilitation.  If you are reclaimed now, the community is much the better off and much safer.  If you are simply gaoled and used as an example to others, then the general evidence that we now have is showing that it is well apparent that your chances of reform are much less likely.  The likelihood is that you will harden your attitudes if imprisoned and continue to offend.

9The principles relating to the sentencing of young offenders have been long appreciated and applied in the courts.  I will not read out what has been said in The Queen v Mills and Azzopardi v The Queen, but rather apply those principles in your case.

10While you are not a first-time offender, you do not have significant prior matters, nor any for violence, and that is an important consideration.

11You have pleaded guilty and expressed remorse.  If a young person is genuinely remorseful, the community is more understanding than the courts give the young offender a second chance; by remorse, I take that, or it should be taken to mean that you do not want to be involved in the criminal justice system and want to put these sorts of things behind you.

12While general deterrence is always important, I must keep in mind your young age and not over-emphasise general deterrence to the detriment of your rehabilitation.

13Denunciation is more problematic.  Any violence, no matter what is the circumstances, is intolerable.  However, I do not lose sight that the drugs that were stolen should never have been in the possession of Ms Couch, and she should not have been involved in its distribution.

14Also of concern is the discretion of the authorities not to charge her or Lander with the offences they plainly committed.  They simply move on.

15Mr Jepson-Miles, I heard from your mother, Mrs Miles, and she helped me a great deal about the difficulties that you have faced.  You were in the care of Mrs Miles from about seven months.  She told me that your birth mother had an addiction to heroin and you were born with that addiction.

16There is growing evidence of the difficulties confronting people who when their mothers take drugs while pregnant with them, or are alcohol abusers.

17You were born with what seems to be an autism spectrum disorder with a disinclination, profound perhaps, of speaking.  However, in certain circumstances you are able to communicate, it is just that that is your difficulty in doing so.

18So, school has been a struggle.  You had carers while you were at school or aides to get you through.  Your parents have tried to get you some work in the disability field, or working with that, but that has not quite worked out.  It is hoped that you will get some work in the future, though things will be hard for you, I have got no doubt.

19You are involved in a relationship and a parent, both of you, while very young, perhaps too young.  But you see your daughter who is in the care of your mother regularly, and she tells me that that works out.

20You have people who stand behind you and support you, your parents, your sister, and her husband and her family.  There are people who care for you.

21It seems you came across an uncle in recent times, and he took you into behaviour that has caused these problems.  Mr Jepson-Miles, you really do have to stick with the people who have stuck by you; then you will stay out of trouble because - you are not going to gaol now, but by a bare margin really - but if you get older and you keep committing crimes like this because you still use substances because you are influenced by people, well, you will end up in gaol and you will keep going back and you will have a wasted life. Your partner, will not know you, and neither will your child.

22Mr Jepson-Miles, as much as I can influence anything, you should stick with your parents.

23What I propose is that to take up options that have been considered in the recent times in our courts.  So in recent times the sentencing landscape in this State has changed.  Parliament has made significant changes to the Sentencing Act.

24Now a sentencing judge has the discretion to impose very lengthy and targeted community-corrections orders.  Further, now community-corrections orders can be in addition to significant terms of imprisonment of up to two years, and may also be imposed to commence after periods of parole.

25Also Parliament made it crystal-clear by the passing of s.5(4C), that I must not impose a sentence that involves confinement, unless I consider the purposes for which the sentence is imposed cannot be achieved by a community-corrections order with conditions.

26Our Court of Appeal in Bolton v The Queen has provided significant and detailed guidance to sentencing judges without the use of community-corrections orders.  The court emphasised the benefits of community-corrections orders as being capable of providing punishment and targeted rehabilitation, simultaneously.

27Also, the judgment has made it plain that sentencing courts need to re-think conventional wisdom about whether prison is really the only option.  These sentiments have been repeated by the Court of Appeal subsequent to Bolton and have become part of the current sentencing practices as revealed by numerous County Court sentences of late.

28Bolton made clear that a community-corrections order may well be appropriate for offenders that previously attracted even up to mid-range sentences of imprisonment.

29Given your age, and the circumstances of this offending, given the great difficulties that you have, taking into account your Aboriginal heritage, to an extent, but not over-emphasising that, that your particular problems with your autism spectrum disorder, I consider that all should be done to keep you out of custody and the new sentencing regime and new principles give even greater primacy to the non-custodial options.

30In my view, given the circumstances, all sentencing purposes can be well satisfied by a community-corrections order.  I had you assessed and you are suitable.

31In my view, given your particular problems, the community-corrections order will be onerous, whatever length it is.

32The important aspects of it I think are treatment for drug rehabilitation, mental health programs and rehabilitation programs.

33So I do not intend to impose significant community work, but I am told you have done it before and you can do it and I want to see if you can do it again, it might bring you some sense of discipline and your mother said that, in fact, you were "upbeat", to use the vernacular when you came home from community work.

34So the community-corrections order that I place you on will be for 12 months.  It will involve 50 hours of community work and treatment for drug, mental health, and programs to reduce your re-offending.  There will be supervision as well, but I am asking for you to return back before me, come back and tell me how you are going, in about three or four months' time.  We will fix a date for that.  There are other conditions that apply to everyone. 

35The next consideration I have is should there be a conviction?  You are a young person.  The crimes are serious and, in all the circumstances, do not consider that it is just or appropriate for you to be convicted for these offences, and the community-corrections order will be without conviction.

36I hope that will tell anyone into the future the level of criminality involved in the armed robbery, but I emphasise that the main focus of my sentence has been on the fact that you cut someone with the knife you had.

37Had you pleaded not guilty to these offences and been found guilty of them, then I would have imposed a two year community-corrections order with like conditions and more work.  I do not believe, in fact, that s.6AAA requires me to articulate what I would have done, but it would have been a more severe community-corrections order.

38Is there anything else required?  I note for the record that six days' of imprisonment has already been served, should there be any breach or the like, but I cannot declare it, in any way, that impacts upon any of the sentence going forward, but I have not ignored it.

39MR LEWIS:  I understand that, Your Honour, but there is the other orders,
I suppose, sought; that's the forensic sample, the forfeiture and disposal orders sought.  I've got forms of orders here that I think rely ‑ ‑ ‑

40HIS HONOUR:  Thank you.  The document will be printed out relating to the community-corrections order.  Mr Jepson-Miles can leave the dock and come and sit behind Mr Northeast.

41The judicial monitoring will be 7 August.

42MR NORTHEAST:  Your Honour.

43HIS HONOUR:  What do you say about the 464 application?

44MR NORTHEAST:  I've received instructions not to oppose it, sir.

45HIS HONOUR:  The prosecution sought an order that Mr Jepson-Miles provide a forensic sample.  In the ordinary circumstances I would probably not hesitate to have him provide such a sample, because of the seriousness of the offending, so I must take into account all aspects of this offending.  He does not oppose it.  But, notwithstanding that, I do not propose to grant the order.

46Mr Jepson-Miles, can you please just stand up there.  This community-corrections order will last for 12 months.  So it is a long time for you, and there are conditions that apply to everyone who are on these, and so they apply to you.

47The first of them is very important.  You must not commit any offence for which you could be imprisoned during the time this order is in place.  So the next 12 months if you commit any offence which could be punished by imprisonment, and almost every one you can think of falls into that category, so if you just sneak a drink out of the fridge in the supermarket or the service station, and take off, you probably would not be sent to prison for that by the magistrate, but theft is something that you will be imprisoned for.

48So you would breach this order and back you would come here and I will have to do it all again and I do not think I would be as merciful as I have been today which has been almost merciful beyond - stretching it beyond what it ought to be.  So do not get into trouble. 

49Possession of drugs, punishable by imprisonment, if it is ice.  Do you understand?

50OFFENDER:  Yes.

51HIS HONOUR:  So you must comply with any obligations and requirements under the sentencing regulations.  That means they will take your photo at the Office of Corrections, so they will know who you are.  Just got to comply with that.

52You have got to report to and receive visits from the Office of Corrections, and you have got to report to that Corrections Centre there in Lt Malop Street within two clear working days of this order starting.  So go on Monday.

53You must let the Community Corrections Officer know within two clear working days if you change your address, or your job; if you go back to live with your parents, for instance, if they will have you, I do not know, but if you go somewhere else, which is what your sister and brother-in-law were broadly indicating.

54But, in any event, wherever you live you have got to tell them.  You must not leave Victoria without getting permission, and you must obey all lawful instructions and directions from the Office of Corrections.

55So that applies to everyone.  What applies to you is 50 hours of unpaid community work over 12 months, so you have just got to get there on time, do not miss.  You must do the whole 50; get it done quick and you might benefit from it.

56You have got to be under the supervision of the Community Corrections Office for 12 months.  Got to undergo assessment and treatment for drug use and dependency, they will try and help you. 

57You must undergo any mental health assessment and treatment that is recommended by the regional manager.  Again, to help you.  You must participate in programs and courses that might address your offending problems; all right?  So they will pick the ones, if any, that suit you.

58All these people are there to help you stay out of trouble, so do your best to communicate with them as best you can.  Right?

59And you must attend on 7 August 2015, 9.30 in the morning, here at Geelong Court.  I will be on a video link probably rather than here, and I will see how you are going.  They will tell me.  If they tell me you are not doing what you are supposed to do, well, it will all start again and the focus will be on you.

60Sign that if you consent to it.  Is there anything required in this matter?  You can be seated Mr Jepson-Miles, when you get a copy of this you are free to go.

61Thank you very much to counsel in this case, Mr Lewis, for considering and tolerating what I was saying throughout.

62(Offender released.)

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