Director of Public Prosecutions v McMillan

[2019] VCC 1115

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00833

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK MCMILLAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 July 2019
CASE MAY BE CITED AS:	DPP v McMillan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1115

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes with Ms L. Treasure
For the Accused	Mr C. Pearson with Mr J. Dowsley

HIS HONOUR:

1Patrick McMillan you have pleaded guilty to the following offences with the following maximum penalties:

·    Charges 1 and 11, theft of a motor car, carry a maximum penalty of 10 years. 

·    Charges 2, 3, 4 and 5, armed robbery, carry a maximum penalty of 25 years. 

·    Charge 6 being a prohibited person in charge of a firearm, carries a maximum penalty of 10 years. 

·    Charge 7, handle stolen goods, carries a maximum of 10 years. 

·    Charge 8, being a prohibited person in possession of an imitation firearm, carries a maximum of 10 years. 

·    Charge 9, common law assault, carries a maximum of five years.  

·    Charges 10 and 12, aggravated carjacking, carry maximum penalties of 25 years each. 

·    Charge 13, reckless conduct endangering serious injury, carries a maximum of 10 years.

·    Summary offences of unlicensed driving, three months, of fraudulent use of registration plates, six months, of dealing with property suspected to be proceeds of crime, two years and unlicensed driving, three months.

2You have admitted extensive prior convictions.  It is necessary to say something about them later in these sentencing remarks.

3The Crown tendered a prosecution opening on plea as exhibit A. A summary of your offending is as follows

4Charge one relates to the period from 21 November – 24 November 2017 when you drove a stolen GTS Holden Commodore.  You were not licensed to drive at the time (summary charge 14). The car was fitted with stolen registration plates (charge 7 handle stolen goods).  In the early hours of 22 November 2017 you were driving the stolen Commodore and you were in the company of your co-offender Michael Heyfron.  Michael Heyfron was the brother of a person you were visiting, whom you knew from prison.  Heyfron recognised the occupants of another car and asked you to intercept them.  In doing so, Heyfron pointed a handgun and you pointed a sawn-off shotgun at their car as you pulled up alongside them.

5You and Heyfron ordered the occupants out of the car.  They sped off and one of the two of you fired a shot.

6You intercepted them again and forced them out of the car.  Heyfron held a pistol and a knife and you held the sawn-off shot gun.  Together you demanded money, phones, wallets and “gear” from them.

7Charge 2 (armed robbery) was committed when you struck the first victim to the head with the butt of the shot gun.  He fell to the ground and Heyfron grabbed his wallet and phone.  This victim suffered a laceration to the side of his head and was treated at the northern hospital.

8Charge 3 (armed robbery) was committed when you and Heyfron pointed your firearms at the second victim and demanded his wallet and mobile phone.  He had thrown them into the bushes but told Heyfron where to find them.  Heyfron retrieved the items and slashed the victim across the face with the knife.  You hit him with the shot gun causing him to fall to the ground.  When he was on the ground you kicked him and continued to hit him with the shot gun.  The second victim was treated at the Northern Hospital for the laceration to his face.

9Charge 4 (armed robbery) was committed when you pointed the shot gun at the head of the third victim demanding money.  He said that he had no money but offered you his car keys.  You assaulted him by striking him to the left side of his head with the butt of the shot gun.  He fell to the ground and you and your co-offender took money from him.

10Charge 5 (armed robbery) was committed on the fourth victim when he was stabbed multiple times to the stomach, body, leg and arm.  Although it is not contained in the opening, the charge in the indictment refers to the fact that his (and you admit by your plea of guilty) wallet and phone were stolen. Further, in the depositions this victim refers to the fact that you hit him multiple times with the shot gun.  He states that you held the barrel of the gun and swung the butt into his body randomly, hitting him as hard as you could.  This victim has had multiple operations on his left arm and it is not clear whether he will regain full use of his hand.

11Charge 6 (being a prohibited person in possession of a firearm) was committed by your possession of a sawn-off shot gun.  Because of your criminal history, you are a prohibited person.  The pieces of the firearm used by you were later recovered by police.  When pieced together, the components made a complete 12 gauge single barrel shot gun.  The serial number had been removed.

12A couple of days later your offending continued.  About 4:30 PM on Friday 24 November an off duty police officer saw you driving erratically in the stolen Holden Commodore.  He followed you briefly and you intercepted his car.  You got out brandishing what was later found to be an imitation firearm (charge 9 prohibited person possessing an imitation firearm).  You pointed the gun at him and yelled “why the fuck are you following me?”  You were approximately 1m from the driver’s window with the firearm pointed directly at the victim’s head (charge 9 common law assault).

13After this, the Police Air Wing monitored your driving.  Much of the driving was captured on video, which was played to the court.  Charge 13 – reckless conduct endangering serious injury is a charge which covers the span of your driving on 24 November 2017.  A charge of reckless conduct occurred over approximately a 75 minute period as you drove through the Glenroy – Thornbury area down through Chadstone to Springvale Road.  Your driving took place on freeways roads and streets.  In the course of your driving, you:

·Drove at high speeds of 151 km/h along Springvale Road and a breathtaking 201 km/h along the eastern freeway;

·Drove at times along the wrong side of the road, on the footpath and through a pedestrian crossing where a person was crossing and stopped because of your driving; and

·Drove through red traffic lights and against signals and signs causing traffic to stop as you weaved your way through passing cars dangerously, weaving through oncoming traffic and intersections where you entered and passed regardless of give way requirements.

14I saw some 40 minutes of footage.  I note that not all of these activities were conducted at high speed.  Nevertheless, all your acts in combination and over the distance of travel showed your driving to be highly irresponsible and reckless.  Your driving exposed countless drivers and pedestrians to the risk of serious injury.  Remarkably, nobody was hurt.

15I must return however to some specific acts which occurred during the course of your driving.

16Charge 10 aggravated carjacking.  Part way through the driving you stopped at Ivanhoe train station and ran towards a Jaguar car.  You pointed the imitation handgun at the female driver.  The driver showed remarkable tenacity and bravery and tried to fend you off.  She threw the car keys out of her car. You grabbed the keys and pulled her out of the car and threw her onto the road. The victim tried to take the handgun from your lap but you pushed her away and sped off in her car.

17The footage of this incident graphically depicts the force with which you acted and the intimidating manner in which you menaced the victim and the surrounding persons with the handgun.

18Charge 11 theft of motor car. Also in the course of your driving you swapped from the Jaguar to stealing a 2016 Mercedes-Benz Coupe.  As you drove off in that car you collided with another car.  You had a further collision as you drove recklessly in that Mercedes car.

19Charge 12 aggravated carjacking you committed a second offence of aggravated carjacking when you drove the Mercedes into a car park at Chadstone shopping centre and stopped in front of a Nissan skyline sedan.  You walked over to the driver of the Nissan with the handgun in your hand and pointed it at the driver.  You repeated “get out get out get out” over and over again. The driver and two passengers got out of the car and you drove off in the Nissan skyline on to Dandenong Road.

20It goes without saying that you continue driving in a manner that endangered the lives of the general public.

21You were arrested sitting in your car in the driveway of your home.  The imitation handgun you had used through the day was in your lap.

22When police searched other vehicles you had stolen and used through the day, they found a loaded shot gun in the Holden GTS, and a handgun magazine base plate and magazine spring in the black Mercedes.  Identification and bank cards suspected of being the proceeds of crimes (not from the armed robberies) were also located and constitute summary charge 20 – deal with suspected proceeds of crime.

23You were interviewed by police on 25 November 2017.  You admitted that you initially were driving the red Holden Commodore but stated that you had no recollection of any of the events of the day before that because you had been on a 3 to 4 week bender taking crystal methamphetamine, cocaine, GHB and alcohol.  You said again that you had been awake for about three or four weeks, and you stated that you were psychotic and had blacked out.

Objective gravity and moral culpability

24The theft of the first car was a serious instance of this type of offending, as it was stolen for use as a means to commit other crimes.  Having said that, I will not doubly punish you, but it remains a serious instance of this offending. Moreover, the last offending for which you received a period of imprisonment involved charges of theft of car and being a prohibited person in possession of a firearm.

25The crime of armed robbery is, in any form, a serious offence.  This is marked by the fact that it carries a maximum period of imprisonment of 25 years.

26Although it appears you were neither the planner nor instigator of the armed robberies on the four young men, your actions during the course of the armed robbery make these offences extremely serious instances of this type of offending.  It seems a shot had been fired by either you or your co-offender as you gave chase to rob these young men.  This could only have been done to intimidate the men into compliance.

27Not only were you armed with a shot gun, which you pointed at your victims to intimidate them, but you hit your victims with it to inflict pain and injury in addition to that intimidation.  Further, you knew that your co-offender was armed and had inflicted injuries on a couple of the victims with the knife that he wielded.

28In all, your actions were vicious, cowardly and terrifying.  Although no victim impact statements have been filed, it is apparent that apart from the physical injuries, your actions are likely to stay with each of these young men for the rest of their lives.

29It goes without saying that your moral culpability for this offending is very high. Whilst I was told that you had explained your actions occurred because of your drug bender, that explanation, if true, does not in any way mitigate your offending.

30The assault on the off-duty policeman where you pointed the black imitation handgun from a distance of less than a metre from his face ranks as an appalling act of assault by intimidation.  The apprehension of fear and the image you created will no doubt stay with that person for a long time, if not forever.

31The two offences of aggravated carjacking require me to impose a term of imprisonment with a non-parole period of not less than three years unless a special reasons exist.  No special reason was offered on your behalf.  In any event, your offending on each of these offences must be met by the mandatory requirements of this provision.  Your use of a handgun to intimidate drivers out of their cars and the violence used against the first victim are just disgraceful acts of violence.

32As for your driving, the distance travelled and the length of time you drove, taking into account the matters I have outlined already makes this an extremely serious instance of a reckless conduct endangering serious injury.  Again, as I have already averted to, your driving exposed countless members of the general public to your dangerous acts.  The aerial footage makes it apparent that there were hundreds if not thousands of persons who you came into contact with by your driving.  Nor can you take credit for the fact that no one was injured.  It is apparent that the other drivers and people exposed to your conduct were forced to take countless evasive actions to avoid colliding with you.

33In all, your acts must be met by the principles of general deterrence, specific deterrence, denunciation and there must be a high measure of protection of the community. I bear in mind the principles of just punishment.  I must also have regard to the principle of totality in setting an overall total effective sentence with a non-parole period.  Nevertheless, even taking into account the principle of totality, your offending in this spree must be met by stern punishment.  In this case, it means that you will serve a long period of imprisonment for your actions.

34You were remanded in custody on 24 November 2017 and have now spent 605 days presentence detention excluding today.

35I turn now to your personal circumstances.

36You are 34 years of age and were born on 29 November 1984.  You were raised in Adelaide; essentially by your mother.  You describe your father as a “bikie” who was absent for most of your life.  Notwithstanding this, you now have a good relationship with your father.  You describe life with your mother as far from easy.  You attended multiple primary schools and only completed year 8 at high school.  You describe your mother as constantly re-partnering and always stoned and drunk.  You were often in foster care.  You described her as violent and abusive towards you.

37After school you completed a roof tiling apprenticeship and had your own business for a period of time.  You were able to remain out of trouble with the police for some 5 years but then had trouble when you became an ice user and then addicted to the drug.

38Psychological reports of Carla Lechner describe you as suffering major depressive disorder and stimulant use disorder in early remission in a controlled environment.  You reported a history of multiple suicide attempts when you were younger.  Ms Lechner assesses you as having an average/low average intelligence.  Ms Lechner considers your drug use undermines your capacity to make sound decisions and judgements.  You have a long history of drug abuse. You started smoking cannabis at aged 12 or 13 and then commenced using amphetamines at aged 18. From the age of 26 you started using
methylamphetamine.  In addition to that you report having used a lot of LSD, cocaine and ecstasy.  You also drank alcohol to excess until you were about 21 years of age.

39You are not presently prescribed any medication.

40Your criminal history dates back to 2006 when you were 21 years old.  You have multiple appearances for dishonesty matters, driving, drug possession, assaults and reckless conduct endangering injury.  You have prior convictions for assaulting police.  Disturbingly, you have a prior conviction for possession of a controlled weapon and 3 prior convictions relating to possession of firearms.  You were imprisoned on each of these firearms convictions.

41I note however that over your seven appearances, all were in the Magistrates court.  This is your first appearance outside that court.  I also note the five year hiatus in offending up to 2011.  This seems to coincide with your roof tiling business.

42Ms Lechner considers that you are currently a high risk of violent reoffending and that you require a high level of intervention to reduce that risk.

43In your instructions to your counsel, you state that at the time of your offending you were paranoid as a result of an incident where you were shot at by police in August 2012.  You instructed your counsel that the police action in August 2012 was unjustified and that you have suffered a sense of paranoia for having had your life placed in danger.  Mr Pearson submitted that this event provided a background to this offending as you suffered ongoing paranoia as described by Ms Lechner in her psychological reports because you thought that you were being followed by police on 24 November 2017.

44I have read your letter of apology together with your expressions of regret and I note that a further expression of regret was read to the court today and I note your expression of remorse for your actions.  I note in that letter that you take responsibility for your offending.  Although you consider your life was at risk as at 24 November 2017, you state that this does not excuse your offending.

45I have also read the references provided on your behalf.  The reference of Penelle Munro speaks of a different side to you and of your desire to overcome your addiction to ice.

46Mr Pearson submitted that I should take into account in mitigation of the sentence I impose upon you the following factors:

·The early plea of guilty has a utilitarian benefit and should be seen as facilitating the course of justice.  Your expressions of remorse and the fact that you take responsibility for your offending contribute to the effect of the plea;

·Mr Pearson also submits I should take into account the fact that you come from a very deprived background.  The fact that your father was absent and provided little if any structure to your childhood; combined with the highly detrimental effect of your mother’s influence means that I should have regard to the social norms by which you were taught to operate as a young man;

·Next, although there must be levels of cumulation between sentences or groups of sentences and taking into account the minimum terms provided for aggravated carjacking, Mr Pearson submitted that I must fully bear in mind the principle of totality.  The effect of this is that I must not impose a crushing sentence upon you;

·Mr Pearson submitted that I should not consider your prospects of rehabilitation to have been extinguished.  Rather, he submits that you do have the capacity to behave yourself notwithstanding the effect you have had on a large number of people and that you are assessed as still being a high risk of reoffending.  Mr Pearson submitted I can take into account your work history as a roof tiler and the references of Ms Munro and Cunningham to show that there is still the prospect that you can reform.

47Ultimately, Mr Pearson submits that you may set a longer than usual period of parole. Mr Pearson points to the fact that you are settled in the prison environment at Ravenhall and you have taken the opportunity to undertake one-on-one counselling. And I note your recent counselling.  You have completed vocational and other courses whilst at Ravenhall, you work as a billet and you have had no discipline issues since being in prison.

48Ms Coombs on behalf of the OPP submitted on the other hand that these are serious examples of serious offences.  You acted with a high degree of violence and injuries were caused to victims during the armed robbery.  Moreover, your driving exposed a large number of people to the potential for injury.  The aggravated carjacking was attended by intimidation and violence.  Your drug use may provide context for the offending but it cannot be used to mitigate it.

49Ms Coombs submitted your offending must be met by denunciation, just punishment, general and specific deterrence.

50The Crown considered that you have however demonstrated some awareness of your behaviour, and that I ought to have regard to that in assessing your prospects for rehabilitation.

51A principal matter for consideration is the issue of parity.  In rough terms, I am required by the law to have regard to the sentence imposed on your co offender for the armed robberies.  Parity is a notion of equal justice.  This does not mean that the sentence imposed on Heyfron will be blindly and equally given to you. Rather, it means that after I take into account the differences in your age and criminality and having regard to the roles you each played in the armed robberies, that there is an equality of justice in the outcomes between the two of you.

52I conclude that the early plea of guilty should mitigate your sentences. I consider the plea has considerable utilitarian value.  Although I give some weight to your expression of remorse and taking responsibility for your actions, this must be limited by the fact that these expressions remain largely untested while you remain in custody.

53In recent times, courts are receiving last-minute letters written by prisoners on an increasingly frequent basis.  On their own they can mean relatively little.  It is when you get back out into the community that your remorse and regret will really be tested.  If you are able to truly overcome your addiction to ice and remain drug-free and incident free, the community will know that you have truly developed insight into your offending.

54For these purposes, I will accept that you are beginning to develop insight and have remorse for your actions.  Nevertheless, you must still face the dominant principles of deterrence, denunciation and protection of the community for your violent and dangerous actions on 21 and 24 November 2017.  Your prospects for rehabilitation can only be assessed as poor at this time.  Ms Lechner considers you remain a high risk of violent reoffending.  I consider that her recommendation for high intervention in order to break the cycle of addiction is warranted.

55If you are granted the opportunity for parole, you must work hard not only to get parole, but to maintain it.

56I will proceed to sentence now, Mr McMillan. 

57On Charge 1, theft of a motor car, you are convicted and sentenced to 12 months’ imprisonment.  On Charge 2, armed robbery, you are convicted and sentenced to 4 years’ imprisonment.  On Charge 3, armed robbery, you are convicted and sentenced to 4 years’ imprisonment.  On Charge 4, armed robbery, you are convicted and sentenced to 4 years’ imprisonment.  On Charge 5, armed robbery, you are convicted and sentenced to 4 years and 11 months’ imprisonment.  Charge 6 being a prohibited person in prohibited person in possession of a firearm, you are convicted and sentenced to 2 years and 3 months’ imprisonment.  Charge 7, handle stolen goods, 9 months’ imprisonment.  Charge 8, being a prohibited person in possession of an imitation firearm, 21 months’ imprisonment.  Common law assault, you are convicted and sentenced to 2 years’ imprisonment.  Aggravated carjacking, you are convicted and sentenced to 5 years’ imprisonment.  Theft of a motor car, you are convicted and sentenced to 9 months’ imprisonment.  Charge 12, aggravated carjacking, you are convicted and sentenced to 4 years and 6 months’ imprisonment.  Charge 13, reckless conduct endangering serious injury, you are convicted and sentenced to 4 years and 6 months’ imprisonment.

58On the summary offence of unlicensed driving, you are convicted and sentenced to 2 months’ imprisonment.  On the summary offence of fraudulent use of registration plates, you are convicted and sentenced to 2 months’ imprisonment.  On the summary offence of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 2 months’ imprisonment.  On unlicensed driving you are convicted and sentenced to 3 months’ imprisonment.

59For the purposes of cumulation I will now distribute a summary.  The base sentence is Charge 5.  On Charge 1, I cumulate 3 months, on Charge 2, I cumulate 8 months, on Charge 3 I cumulate 8 months, Charge 4, I cumulate 8 months, Charge 6, I cumulate 12 months, Charge 7, I cumulate 1 month, Charge 8 I cumulate 10 months, Charge 9, I cumulate 7 months, Charge 10, I cumulate 20 months, Charge 11, I cumulate 1 month, Charge 12, I cumulate 18 months, Charge 13, I cumulate 24 months.  That leads to a total effective sentence of 14 years’ and 11 months.  I order that you serve a non-parole period of 10 years and 4 months.

60The 6AAA declaration is, but for the plea of guilty I would have sentenced you to 19 years with 14 years and 8 months to serve.  You are disqualified from driving for a period of 5 years. The period of 605 days presentence detention excluding today is reckoned as already served. 

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