Director of Public Prosecutions v Miles
[2021] VCC 198
•16 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JON MILES |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2021 | |
DATE OF SENTENCE: | 16 February 2021 | |
CASE MAY BE CITED AS: | DPP v Miles | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 198 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – Koori Court Division – sentencing conversation – burglary – theft – armed robbery.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Harrison | Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Brogden | Martin Middleton Oates Lawyers |
HER HONOUR:
1Jon Miles, you have pleaded guilty before me to two charges of burglary, two charges of theft and two charges of armed robbery. Those offences relate to four incidents.
2In addition, there are related summary charges numbered 9 and 10 and those charges are for committing indictable offences whilst on bail. Summary Charge 9 relates to 28 June 2020, when you committed the burglary whilst on bail. Summary Charge 10 relates to 4 July 2020, when you committed the armed robbery whilst on bail.
3Each of the charges are serious and that is reflected in maximum penalty that the court may impose and they are as follows:
· armed robbery, 25 years’ imprisonment;
· burglary and theft, 10 years’ imprisonment;
· commit indictable offence whilst on bail, 30 penalty units or three months’ imprisonment.
4I shall proceed to sentence you on the basis of the written Prosecution Opening dated 22 January 2021 that was summarised at the plea hearing.
5The first incident occurred on 9 May 2019 at approximately 7.38 am. You entered as a trespasser a building located 159D Eighth Street, Mildura, which is operated by a pawn broker, with the intention to steal. At the time you were disguised, wearing a motorbike helmet on your head and wearing gloves. You had a torch and a sledgehammer. You used the sledgehammer to smash the bottom half of the rear door of the premises to gain entry. Once inside you used a torch to locate items and you stole a Samsung S9 mobile phone and $5,500 worth of assorted jewellery.
6The second incident occurred at about 7.36 am on Sunday 9 June 2019. You attended the “On the Run” service station located in Irymple. At that time, you attempted to disguise yourself by wearing gloves, a hooded jumper with the hood pulled over your head, dark pants, a beanie and white material covering the bottom half of your face. You had a knife concealed inside your left sleeve. Once inside the store, you took the knife out and held it directly in front of you with a straight arm and walked to the register, where one of the victims, Zack Mannak, was making a cup of coffee. You pointed the knife at him, reaching over the counter to do so. You produced a hat and demanded that Mr Mannak put money in the hat. When he did not do so, you moved down to another register that was operated by Lisa Baldock. You walked up to her and made further demands for money. She opened her register and provided you with cash. You left the service station with $400 cash.
7On 28 June 2019, you were arrested and interviewed in respect to the incidents and you answered, “no comment,” which was your right.
8On 16 April 2020, you were bailed from Mildura Magistrates’ Court for unrelated offending and returned to court on 26 August 2020.
9The third incident occurred at about 11.39 pm on Sunday, 28 June 2020, when you attended the front door of the Mildura Pawn Broker and, at that time, you gained entry by using a small axe to break the glass on the front door. Once inside the store, you obtained $5,000 worth of assorted jewellery, as well as an Apple iPhone 8 Plus mobile phone, and then you left the store. You were wearing gloves and had clothing wrapped around your head in an attempt to disguise your face. As you ran from the store, you were captured on CCTV with the clothing falling from your face revealing your identity.
10The fourth incident occurred on Saturday, 4 July 2020 at about 10.45 pm. On that occasion you were with a female co-offender, Natalie Nash, and you entered the Irymple Hotel. You were told by hotel staff that it had closed and then you asked the staff to call a taxi. You told them that your car had broken down and you said that you were going into Mildura. A taxi was then called and whilst you were waiting you covered the bottom half of your face.
11The victim, the taxi driver Avtar Dhaliwal, collected you and your female co-offender from the Irymple Hotel. You got into the driver’s side passenger rear seat and Ms Nash sat beside the taxi driver in the front passenger seat. He drove you towards your destination. Ms Nash directed the taxi driver to pull into a carpark and whilst this was happening, you removed a knife from your pocket and sat forward in your seat leaning forward. When the vehicle stopped you reached around the driver’s seat with one hand and held the knife at the victim’s throat, and the other hand on the victim’s left shoulder. You asked him to give you all his money and said that you would not hurt him. Your female co-offender reached across and took his wallet, telling you, “I’ve got it”. The victim asked her to give his licence back to him, and you told her to do so. She did so after removing $300 in cash and then you both left the taxi. The victim drove away and later contacted police to report the incident.
12On Tuesday, 7 July 2020, you were arrested and searched and found to be in possession of $170 in cash. A record of interview was conducted and on that occasion you also gave “no comment” answers.
13Armed robbery is a Category 2 offence for the purposes of s5(2H) of the Sentencing Act 1991 insofar as it was committed in circumstances where you were in company with one or more persons. As such the Court must make an order in respect to imprisonment unless the court is satisfied one of the sub-sections of s.5(2H) is activated. There was no reliance upon any of the exceptions made on your behalf by Mr Brogden.
14You have been in continuous custody since your arrest on 7 July 2020 and I note on 1 October 2020 at the Mildura Magistrates' Court you were sentenced to a term of 3 months and 21 days’ imprisonment on unrelated summary offending.
15Your co‑offender in relation to Charge 6, the armed robbery of the taxi driver, has been charged and her matter is to be the subject of a contested committal hearing that is yet to be heard.
16Mr Miles, the offending has had serious consequences and I have had regard to the victim impact statements that have been provided. Avtar Dhaliwal states that he was very frightened and he is now very hypervigilant whenever he is required to drive. He has become very emotional and is afraid to be alone. Your actions caused significant disruption to his business and personal life. He has now sold his family home and is living in rental premises because he could not afford to meet his mortgage payments due to his income from taxi driving being dramatically reduced after this incident.
17Ms Baldock, one of the store attendants at the service station, says that she was left in shock and shaken by the armed robbery. She now feels very unsafe and insecure at work. She has reduced her socialising and is scared to be alone. She feels very emotional about this event and it has had a big impact on her life.
18The other store attendant, Zack Mannak, has not provided a victim impact statement but, common sense dictates that the circumstances of the armed robbery would have been very frightening to observe.
19There are a number of aggravating features to your offending. The burglaries on Mildura Pawn Brokers, a commercial premises, are both serious examples of commercial burglary. They were planned, you took steps to disguise yourself, you were equipped with the necessary items that facilitated your entry into the store and the value of the property stolen was not insignificant.
20Both armed robberies are serious examples of this serious offence. The steps you took to disguise your identity in relation to the occasion you entered the “On The Run” service station and also in the taxi driver is noted. On both occasions there was a degree of planning in order to make effective your actions. You acted with the co-accused in relation to the taxi driver and both the service station and taxi driver were soft targets. The victims were vulnerable, working at night and those sorts of armed robberies are sadly far too prevalent in our community.
21There is a real need for the Court to emphasise general deterrence and denunciation and to provide for protection of the community in the sentence that is to be imposed.
22I consider that your moral culpability is high.
23I have taken into account all the matters that have been put on your behalf by
Mr Brogden in mitigation of penalty. You entered a plea of guilty at the earliest stage at the committal mention on 10 November 2020. You have saved the State the cost and inconvenience of a trial and in particular you spared the witnesses from further trauma associated with giving evidence and being cross-examined. The plea does have real utility and this is particularly so in the context of the current COVID‑19 pandemic. You have facilitated justice and your sentence will be discounted accordingly.24I accept that the plea is an indication of genuine remorse and an acceptance of responsibility on your part. It is evident that you have used your time in prison to reflect on your behaviour and that you do now understand that the consequences of your actions have had a lasting impact upon each of the victims.
25You have written apologies to each victim confirming that you are sickened by your own actions and the violence that you have exhibited. You acknowledge the physical and emotional pain that you have caused each of those victims.
26You have also admitted before me your prior extensive criminal history. You do have relevant convictions recorded for similar offending insofar as there are a number of convictions recorded for burglary and theft, breaching bail conditions and dishonesty. In the past you have had convictions recorded in respect to unlawful assault. You do not have any prior convictions in respect to armed robbery. I note that there have been extensive periods of time spent either in youth detention or in prison throughout the years from 2013 although this is the longest period that you have spent in adult custody.
27On 12 December 2019 you were placed on a Community Correction Order for 18 months by the Mildura Magistrates’ Court. It would appear from the progress report in relation to that order that you were making good progress but that has now been thwarted through this serious offending. You were able to obtain some assistance in the community from your alcohol and drug worker Tina Taylor and you were making general progress in addressing your offending behaviours. The fact that you committed these serious offences during the currency of the order reflects very poorly on your rehabilitation prospects. Contravention proceedings have yet to be commenced.
28I have had regard to your personal history and background. I have read and taken into consideration the report of Carla Lechner, clinical psychologist, dated 21 November 2020. I have had regard to her diagnosis of major depressive disorder and symptoms of opioid use disorder and also she acknowledges your past history of post-trauma symptoms.
29You are now 27 and you are the youngest of six children that were born to your parents. Your mother is of Torres Strait Islander heritage from Erub (Darnley Island). You have a good relationship with both parents and your older siblings. You have never married, and you are not currently in a relationship. You have an eight-year-old son who is currently in your mother's care. Your father is very frail suffering from chronic obstructive airways disease, and you have expressed a desire to be able to be there to support your father and to care for him in the future.
30You have enjoyed regular access to your son over the years and continue to have telephone contact with him whilst you are in custody.
31You were born in Mackay, Queensland and your family travelled and lived throughout Queensland and New South Wales prior to finally settling in Mildura when you were aged about nine years of age. Your childhood was somewhat disrupted insofar as you attended six primary schools. You had difficulties learning. You completed Year 10 at Irymple Secondary College.
32Your parents managed a local caravan park where you resided on site. You were exposed to drug and alcohol abuse, fights and domestic violence in your childhood and I have taken that all into consideration.
33You started but did not finish a building and construction course at Sunraysia TAFE and you have never been employed.
34In 2014 your then partner committed suicide and you were deeply affected by that experience.
35There is a chronic history of polysubstance abuse including abuse of illicit drugs, prescribed drugs and alcohol. You commenced smoking cannabis at aged fourteen. You began using heroin heavily as well as MDMA in your mid-teens and also you have used methylamphetamines at different stages. You have abused prescribed medications. You are currently accessing Buprenorphine in prison but otherwise you are not prescribed any medications.
36You were a heavy drinker up until 2015 at which time you were diagnosed with Hepatitis C and since then you have not relapsed into alcohol abuse.
37You successfully completed the Wiimpatja program, which is a residential drug rehabilitation program, that is operated through the Mildura and District Aboriginal Services in the three months between October to December 2019. That is a 12-week residential rehabilitation program. You now are aspiring to become a chef and want to pursue this goal upon your eventual release from custody.
38You do understand the link between your longstanding drug addiction and criminal offending.
39The motivation for this set of offending was that you needed money to fund your drug habit. You were suffering because your face-to-face rehabilitation supports had ceased due to the impact of COVID and you found it very difficult to cope. That was said to be the catalyst for you relapse into substance abuse and whilst this does offer some explanation for your behaviour, it does not in any way excuse your behaviour.
40You have used your time productively whilst being held at Port Phillip Prison. You are employed as a food line billet, working every day and you are wait listed for drug and education courses.
41Your matter proceeded by way of a sentencing conversation in the Koori Court Division of this Court. Uncle Mark Bland and Auntie Ada Pederson the Elders and Respected Persons spoke at length with you about your offending behaviour and the need to focus on the future. When speaking with them you demonstrated a good knowledge of your cultural history. You expressed to them a commitment to becoming a better role model for your young son. You look forward to rebuilding your relationship with him upon your eventual release. Auntie Ada emphasised the importance of you maintaining your cultural connections and the need for you to focus on future goals. You expressed to her a strong desire to give back to community and acknowledged the hurt that you have caused through your actions.
42You acknowledged to both Elders that you know about the services that can be provided through MDAS. You accept that you need to seek help and that you must change your behaviour to make good your expressed intentions to become a better role model for your son.
43Both Elders urged you to address your underlying issues in relation to your major depressive disorder and that you should maintain your program, your Buprenorphine program whilst in prison and upon your release. They urged you to continue the strong connections that you have in community with Tina Taylor, your alcohol and drug counsellor, and also that you should seek help whilst you are in prison. They emphasised that there was no shame in doing so.
44They both condemned your behaviour and emphasised the harm that you caused to each of the victims of your crimes. They condemned the use of knives and highlighted just how dangerous your behaviour had become.
45You engaged appropriately with the Elders and you were genuine in your responses. I consider that you showed genuine remorse as well as good insight into your offending behaviour as well as knowing what steps need to be taken to address your offending behaviour in the future.
46I have taken into account your participation in the sentencing conversation in mitigation of penalty.[1]
[1] Honeysett v The Queen [2018] VSCA 214
47I have had regard to the impact of COVID-19. The pandemic has caused additional stress and concern for prisoners and families as it has for every member of our community. Furthermore I have taken into account that it would be particularly difficult for you having regard to your major depressive disorder, not being able to have in real life contact with your relatives and other supporters and the fact that you are so far away from your home and also your young son. I have taken that into account.
48Overall, having regard to your past history and antecedents, taken with the seriousness of this offending and your past difficulties in maintaining and engaging with appropriate support services and also adhering to court orders such as bail orders and community correction orders, I am somewhat guarded about your prospects of rehabilitation.
49However, you have expressed very positive attitudes towards what you can do for the future to address your underlying offending behaviours and you do have the advantage of being able to return to live with your parents upon your release where you can be settled and seek assistance in respect to your future goals. You have strong connections in Mildura and there is a good network of culturally appropriate services and community support from whom you can seek assistance and advice on your release so that there is a cause for some optimism.
50In formulating the sentence, I must condemn your behaviour. General and specific deterrence are very important features as well as the need to emphasise the protection of the community.
51The fact that you armed yourself with knives and threatened victims on two separate occasions is very serious and in particular, the occasion involving the taxi driver would have been terrifying for him and could have had fatal consequences. You really do need to reflect on the need to stop offending because you risk not only harm to yourself but others in the future unless you do something to address your underlying offending behaviours.
52In sentencing you I must impose just punishment. I have also had regard to the principles of totality and the fact that you have already spent a short time whilst in custody undergoing sentence for unrelated offending.
53I will now announce the formal sentence.
54The formal sentence is as follows
55Charge 1 – burglary – you will be convicted and sentenced to 12 months’ imprisonment;
56Charge 2 – theft – convicted and sentenced to 12 months’ imprisonment;
57Charge 3 – armed robbery – convicted and sentenced to 3 years’ imprisonment;
58Charge 4 – burglary – convicted and sentenced to 12 months’ imprisonment;
59Charge 5 – theft – convicted and sentenced to 12 months’ imprisonment;
60Charge 6 – armed Robbery – convicted and sentenced to 3 years and 6 months' imprisonment;
61Summary Charge 9 – convicted and sentenced to 1 month imprisonment.
62Summary Charge 10 – convicted and sentenced to 1 month imprisonment.
63Charge 6 is the base sentence, that is 3 years and 6 months. I make the following orders for cumulation: 3 months on Charge 1; 1 year on Charge 3; 3 months on Charge 4 and the sentences imposed in relation to the related summary charges 9 and 10 are cumulative upon each other and upon the base sentence making a total effective sentence of 5 years and 2 months' imprisonment. I fix a non‑parole period of 3 years 6 months.
64I make the following declaration pursuant to s6AAA, but for your plea of guilty I would have imposed a term of 7 years’ imprisonment to serve 5 years’ imprisonment.
65I declare 123 days pre‑sentence detention and direct that that be entered into the records of the Court.
66I make the disposal order sought.
67Finally I make the three compensation orders sought; two on behalf of Mildura Pawn Shop and one on behalf of Avtar Dhaliwal, the taxi driver.
68I believe that covers everything, gentlemen.
69MR BROGDEN: Yes, Your Honour, it does.
70HER HONOUR: Mr Brogden, do you want to have the opportunity of speaking with your client directly prior to the link being discontinued?
71MR BROGDEN: Yes, Your Honour, if I could be put in a lobby for five minutes that would be appreciated.
72HER HONOUR: We will do that. I will adjourn the court formally and I will leave the Bench and if you could just indicate to my tipstave when you are ready for the conversation to be conducted he will make those arrangements but I would just ask everyone else to leave the proceedings now and I thank you both for your assistance today. Thank you.
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