Director of Public Prosecutions v McMillan
[2023] VCC 178
•16 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01117
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT McMILLAN |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 February 2023 |
| DATE OF SENTENCE: | 16 February 2023 |
| CASE MAY BE CITED AS: | DPP v McMillan |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 178 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – robbery – unlawful assault – Use of screwdriver as a weapon – mid-range example of offending – subject to community corrections order at time of offending – diagnosis of persistent depressive disorder complex bereavement disorder, borderline cognitive functioning and substance disorders – drug and alcohol affected at time of offending – high risk of re-offending – early plea of guilty – application of Verdins principles
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v R [2021] VSCA 169; Verdins v R (2007) 16 VR 209; Shalders v The Queen [2020] VSCA 323
Sentence:Total effective sentence of 37 months’ imprisonment, non-parole period of 24 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Acutt | Mr J. Coulter Office of Public Prosecutions |
| For the Accused | Mr S. Ranjit | Mr A. Cini Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Robert McMillan, I intend to sentence you to a total sentence of 37 months' imprisonment and will set a non-parole period of 24 months' imprisonment. I will declare your 17 days of pre-sentence detention (excluding today) as time served under my sentences.
2You have pleaded guilty to charges of robbery and armed robbery. You have also pleaded guilty to summary charges.
3The circumstances underlying these offences are set out in Exhibit A, a document entitled 'summary of prosecution opening on plea'. Your counsel agrees with its contents.
Circumstances
4At about 3.45 pm on 24 October 2021, you rode a motorcycle in Richard Road, Melton South. You stopped two persons riding their bicycles. You demanded one of the bicycles, saying it was yours. You claimed to be with 'Bros over Hoes', the name of a gang. You returned to your motorcycle and obtained a screwdriver. One of the two, Ivory Parks[1], asked you what BOH meant. She chuckled when you told her. You then pushed her into the bushes. This constitutes Summary Charge 3, a charge of unlawful assault.
[1] A pseudonym.
5The other person, fearing he would be stabbed, handed over his bicycle, thereby hoping you would leave. This constitutes the charge of robbery. You drove away on your motorcycle, towing the bicycle.
6These persons were picked up by the father of one. They looked for you unsuccessfully. They went to dinner and saw you and a female on a motorcycle. They followed, but you fled.
7At about 5.30 pm on the same day, five other persons were walking through Mount Carberry Reserve in Melton South. As they neared the Cobblebank Primary School, you drove at them on a motorcycle, causing one of the group to pull another out of the way. A female was with you.
8You drove past the group and then turned around. One of the group, Todd Pope[2], said 'Piss off'. You said, 'Are you having a go at me?' You then walked up to this person and struck him with your right fist to the head, causing pain. This constitutes Summary Charge 4 of unlawful assault.
[2] A pseudonym.
9Another person asked you to calm down, and you pushed yet another person, Matilda Briggs[3], to the ground. This constitutes Summary Charge 5 of unlawful assault. One of the group pushed you back. While this happened, the female on your motorcycle was encouraging you verbally.
[3] A pseudonym.
10You then produced the screwdriver and threatened to stab the group. You then demanded their phones and wallets. You threatened, then approached one and swung the screwdriver at him. He deflected the blow. He gave his backpack to you. It contained his phone, wallet and a drink bottle. This constitutes the charge of armed robbery. You took the bag and left.
11The second group continued walking and meet up with the first group and discussed what had happened. While they were discussing, you arrived and yelled, 'Oh, give me your phone'. The groups fled, arriving at Exeter Road. While one of them phoned, you returned. You called out, 'Don't call the police or I'll stab you', and, 'Give me the fucking phone'. One of the group, Max Williamson[4], intercepted you, telling you to back off. You then stabbed him under his left arm. The stab went through a sweatshirt and T-shirt, causing a minor cut. This constitutes Summary Charge 14 of unlawful assault.
[4] A pseudonym.
12Triple 0 was contacted. The father of one of the group searched Melton South for you, locating you at a service station in Melton. He blocked the path of your motorcycle with his vehicle. You and the female fled on foot, leaving the bag behind.
13On 26 October, a police member rang your last known phone number and left a message. The next day, you rang Sunshine police station enquiring. When advised, you said you would be there at 4 pm. You did. You were arrested and interviewed. You made no comment to all questions.
Victim Impact Statements
14There are no victim impact statements.
Criminal History
15Between 18 June 2012 and 5 August 2021, apart from an appeal, you have appeared in a criminal court on 10 occasions and have been found guilty of convicted of 57 charges.
16You have been sentenced to imprisonment on two occasions. Your longest sentence of imprisonment was 120 days, and that sentence was coupled with a community correction order of 12 months' duration. This occurred in this court on an appeal on 20 May 2016.
17At the time of committing the present offences, you were the subject of a community correction order imposed on 5 August 2021.
Psychologist
18Alison Mynard is a clinical psychologist. At the request of your solicitors, she interviewed you on 16, 21 and 24 January 2023.[5]
[5] Report dated 24 January 2023.
19Ms Mynard tested your general intellectual functioning and found you were functioning in the bottom 6 per cent of your age group.
20Ms Mynard diagnosed you as suffering from a persistent depressive disorder; a complex bereavement disorder, which is resolving; borderline cognitive functioning; and three forms of substance disorders – alcohol abuse, stimulant use and cannabis use. She was not prepared to diagnose you as suffering from an attention deficit hyperactivity disorder.
21You told her on the day of your offending, you had drunk alcohol heavily, smoked a significant quantity of cannabis and methylamphetamine. You told her of your desire to cease drug-taking.
22Ms Mynard identified three factors contributing to your offending:[6]
Firstly, his substance intoxication impaired his judgment and caused his impulsive and erratic behaviour.
Secondly, Mr McMillan's mental health issues, including depression, anxiety and unresolved grief had also impacted on his offending. Depression and complex grief have impacted Mr McMillan ongoingly, with a sense of disbelief, meaninglessness, hopelessness and helplessness about his future. His feelings of hopelessness have impacted Mr McMillan's decreased interest and effort in planning for his future, thinking through ideas, and thinking about consequences to his actions. Furthermore, his ability to pay attention to his emotions, think through and process his difficult past experiences, and making good decisions are reduced because his depressive symptoms have clouded these thought processes.
Finally, Mr McMillan's lower cognitive abilities have impacted on his offending behaviours. He specifically has quite impaired abilities when it comes to his perceptual reasoning abilities, scoring in low ranges for his perceptual reasoning skills. This means that he finds it more difficult to take in visual information and apply that information. Mr McMillan has great difficulty with his visual perceptual skills that mean he is very low in his ability to organize and interpret information around him and give it meaning. This can also include mis-interpreting facial expressions, body language and any other non-verbal language in interactions, which may have been at play in his offending.
[6] Paragraphs 78-80 of the report dated 24 January 2023.
23She considered you are a moderate risk of reoffending.
24Ms Mynard considered custody would be more onerous for you than for someone without your mental health conditions. Your mood would likely deteriorate, especially your depression.
25She recommended counselling, psychological and drug and alcohol. She identified a number of goals counselling should aim to achieve.
Personal
26You are now 31. You are an only child. While pregnant with you, your mother fell from a train, suffering a severe head injury. She could not look after you during your childhood and adolescence. You were raised by your mother's mother and her husband. Your grandmother died when you were 11. You found her death very difficult to cope with. You were supported by your
step-grandfather and an uncle and aunt.27Your parents separated when you were young. You have not seen your father since you were six. Unfortunately, he died two years ago. Your
step-grandfather died shortly before your father.28Your mother re-partnered. Fortunately, you got on well with your stepfather. After your release, you intend to live with your mother at least until you find an independent living arrangement.
29You were assisted by a 'helper' through primary and secondary school. You completed Year 10 at an alternative school. You have since obtained a welder's certificate, a certificate III in warehousing and logistics and a forklift licence. You have a white card which enables you to work on construction sites.
30Despite these qualifications, your work history is erratic. You have worked in plastering, roof restoration and driving a forklift. You believe your inability to gain employment is due to your criminal history. You last worked in 2015 as a forklift driver.
31You had an eight-year 'on and off' relationship until 2019. Your partner ended it because she feared your drug use would imperil her continuing care for her daughter of a previous relationship. Although you told the psychologist, Alison Mynard, of a relationship for the past 12 months, you now accept that relationship has ended.
32Your drug usage follows a typical pattern: cannabis at 15, methylamphetamine at 17, alcohol at 18. You have used Xanax, ecstasy and GHB.
Discussion
Purposes
33Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing.
34Robbery, armed robbery and unlawful assault are offences commonly encountered in this court, with robbery and unlawful assault very common in the Magistrates' Court. Plainly, my sentences on those offences should deter others from committing offences of the same or similar character is important.
35My sentences should deter you from committing the same or similar offences. I appreciate Ms Mynard's opinion as to the factors contributing to your offending. Her identification of your substance abuse on the day is significant, but your actions were pieces of pure thuggery. She thought you are a moderate risk of reoffending. I rate you higher. These offences occurred within months of you being placed on a community correction order. Whatever help you received on the order apparently had no impact on your consumption of drugs that day and re-offending so significantly. She saw your drug-taking as a form of self-medication for your psychological issues. Since your psychological issues have never been addressed and are longstanding, overcoming them and your addictions will take time. I consider you a high risk of reoffending.
36The community needs protecting from you. Although there are no victim impact statements, I would imagine all of the victims were afraid of you at various times in the two encounters.
37To me, your prospects of rehabilitation are uncertain. You intend to live with your mother once released. You are remorseful and your guilty pleas are evidence of that. You have returned clean drug screens while in prison, but as I have pointed out, the factors underlying your offending are longstanding and have not been addressed through counselling or treatment. You will need lengthy counselling and treatment to reduce or eliminate your problems. Whether that is so depends on your willingness to undertake such processes over a long time. I cannot predict that now. Time will tell.
38Section 5(2) of the Sentencing Act set out matters to which I must pay regard where they are relevant.
Maximum Penalties
39The maximum penalties for the offences are:
(a) robbery – 15 years' imprisonment;
(b) armed robbery – 25 years' imprisonment;
(c) unlawful assault – 15 penalty units or three months' imprisonment;
(d) use an unregistered motor vehicle on a highway – 50 penalty units for a subsequent offence;
(e) unlicensed driving – 60 penalty units or imprisonment for six months;
(f) careless driving – 12 penalty units for a subsequent offence.
Guilty Plea
40Your pleas of guilty were entered before any evidence was called at a committal hearing. There had been two earlier committal mention hearings. In terms of the process starting with the laying of charges and their completion with the verdict of a jury, these were early pleas of guilty.
41Also, your guilty pleas saved the time and expense of a trial and allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy and especially so for the five victims.
42The courts are still hampered by the effects of the pandemic in carrying out their work. At the present time, guilty pleas deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v The Queen,[7] where the court said – and I will read paragraph 35:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
[7] [2021] VSCA 169 at [35].
43Your guilty pleas entitle you to a significant discount on the sentence which would otherwise been imposed if you had pleaded not guilty but had been found guilty.
Verdins
44In the case of Verdins v The Queen,[8] the court dealt with mental impairment and sentencing and set out six principles. You rely on principles 4, 5 and 6.
[8] (2007) 16 VR 269.
45Principle 4 states:
Whether specific deterrence was to be moderated or eliminated as a sentencing consideration depended upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
46To be useful as a sentencing purpose, specific deterrence is important if you can be deterred by the experience of imprisonment from committing the same or similar offences. Your mental impairment does not prevent you from being deterred. By your remorse, you understand how wrong your behaviour was.
47I cannot see how your actions were due to misinterpreting facial expressions, body language or other non-verbal communications. You were the aggressor from the outset and retuned in that aggressive frame of mind when you confronted the second group of victims.
48In your case, principle 4 does not operate to eliminate or moderate specific deterrence as a sentencing purpose.
49Principle 5 states:
The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
50Principle 6 states:
Where there was a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this factor would tend to mitigate punishment.
51I have stated both principles. In your case, they overlap. It is clear Ms Mynard sees the likely deterioration in your mood while in prison. This is particularly so in relation to your depressive symptoms. I consider both principles apply and operate to moderate the sentences.
Current Sentencing Practices
52Little was said in relation to current sentencing practices. Your counsel referred me to the case of Shalders v The Queen[9] and to the median sentence for armed robbery being three years' imprisonment according to the Sentencing Snapshot published by the Sentencing Advisory Council.[10]
[9] [2020] VSCA 323.
[10] No.261, dated December 2021.
53In Shalders' case, your counsel drew my attention to certain paragraphs in the judgment setting out the circumstances of the offending. There are differences between Shalders' case and your case. Principally, Shalders was armed with an imitation firearm and was on bail at the time of his offending.
54In Shalders' case, Justice of Appeal Weinberg said of the gravity of the offending:[11]
…this was a very serious example of armed robbery, committed upon four innocent young men who were strangers to the applicant. The circumstances surrounding the commission of the offences must have been terrifying and would have had a profound impact upon the victims.
[11] At [58].
55I would describe your armed robbery as a mid-level example. You were not armed with an imitation firearm which was taken by the victims to be real. You were not on bail at the time. The effect on the victims of both incidents in your case would have been frightening. At the very least, the events would have had a lasting adverse effect on each of them.
56You counsel submitted I should sentence you to what is colloquially known as a 'combined' sentence; that is, a sentence of imprisonment coupled with a community correction order. Parliament has limited the period of imprisonment if such a sentence is contemplated. The limitation is too great for the principal offences you have committed.
Sentences
57On the charge of robbery, I sentence you to 18 months' imprisonment.
58On the charge of armed robbery, I sentence you to 30 months' imprisonment.
59On the summary charge of assaulting Ivory Parks, I sentence you to 14 days' imprisonment.
60On the summary charge of assaulting Todd Pope, I sentence you to one month's imprisonment.
61On the summary charge of assaulting Matilda Briggs, I sentence you to 14 days' imprisonment.
62On the summary charge of assaulting Max Williamson with a screwdriver, I sentence you to two months' imprisonment.
63On the charge of using an unregistered motor vehicle on a highway, I will convict and discharge you.
64On the charge of unlicensed driving, I will convict and discharge you.
65On the charge of careless driving, I will convict and discharge you.
66On the last three charges, I have convicted you and discharged you without further penalty. Imposing fines for each of those charges would serve no useful purpose. I doubt they would have any effect from the perspective of general deterrence. If the fines were not expiated in some way while you were serving the sentences of imprisonment, then their existence after your release would only hamper your rehabilitation.
67The sentence on the charge of armed robbery is the base sentence. Six months of the sentence on the charge of robbery and one month of the sentence on Summary Charge 14, being the charge of assault with a screwdriver, are to be served cumulatively upon the base sentence and themselves. The other sentences will be served concurrently. The total effective sentence is 37 months' imprisonment. I will set a non-parole period of 24 months' imprisonment.
68I declare the 17 days of your pre-sentence detention (excluding today) as time served under my sentences today.
Section 6AAA
69If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 54 months' imprisonment.
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