Director of Public Prosecutions v Miles (a pseudonym)
[2024] VCC 109
•9 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RANDALL MILES (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 December 2023 and 15 January 2024 |
| DATE OF SENTENCE: | 9 February 2024 |
| CASE MAY BE CITED AS: | DPP v Miles (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 109 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of persistent contravention of a family violence intervention order, make threat to kill, arson and damaging property with intent to endanger life – pre-meditated offending - family violence offending – relevant prior offending – serious offender provision – no remorse – high risk of violent re-offending – poor prospects of rehabilitation – Verdins discussion
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Cotham [1998] VSCA 111; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 6 years imprisonment. Non-parole period of 3 years and 6 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Mr T. Warke Office of Public Prosecutions |
| The Accused was not represented |
HIS HONOUR:
Introduction
1The charges against you, Mr Randall Miles,[1] have taken an unusual path to this point. Along the way there have been trial listings and interlocutory proceedings including a sentence indication hearing. As to the last, I gave an indication, which you did not accept.
[1]A pseudonym.
2You have pleaded guilty to:
(a) two charges of persistent contravention of a family violence intervention order;
(b) five charges of making a threat to kill;
(c) two charges of arson; and
(d) a charge of damaging property with intent to endanger life.
3I will sentence you to a total effective sentence of six years' imprisonment and will set a non-parole period of three years and six months' imprisonment. Excluding today, you have spent 735 days in custody. I will declare those 735 days as time served under my sentences today.
4The circumstances of your offending are set out in a document entitled 'summary of prosecution opening for plea', which is Exhibit A.
Circumstances
5On 13 December 2018, the Magistrates' Court made two family violence intervention orders where you were the respondent to each order. Mel Sellers[2] was the protected person for one order and Spencer Miles[3] the other. Ms Sellers is your former wife. You and she are divorced, having been separated since January 1996. Spence Miles is your son. You consented to the making of the orders with the usual non-admissions. Each order continued until further order. The conditions of the orders were, broadly, no contact between you and the affected family member, with the exception of the order relating to Ms Seller permitting your communication through her lawyer provided you did not commit family violence while doing so.
[2]A pseudonym.
[3]A pseudonym
Charge 1
6Between 27 and 29 January 2022, you sent five emails to your son. Three of the five were sent on 28 January. At first, their content caused no disquiet for your son. Later, he feared for the safety of his mother and advised her of the contact. The sending of these emails within a 28-day period constitutes Charge 1, a charge of persistent contravention of a family violence intervention order.
Charges 2 and 4
7On 2 February 2022, Ms Sellers received an email from a sender claiming to be her nephew. It demanded financial information about a business she owned between 1988 and 2010. That day, she received two more emails from the same email address.
8The next day, she noticed three missed calls. Although she did not recognise the phone number, she recognised your voice on voicemails. There were a further seven calls and voicemails. In one of those seven voicemail messages, you said:
So Mel, here's my suggestion. Get the fuck out of that house or you're dead unless you pay that money by Saturday. And tell Spencer to stay a long way away from anything you own, anything – anybody that you have any … with any business, anything. You're fucked. You thought you could stick it up the accountant? That's how stupid you are, you slut.
9The contents of this email constitute Charge 4, a charge of making a threat to kill.
10On 4 February 2022, you attended Ms Sellers’ address. This attendance and your emails, your telephone calls including the voicemail containing the threat to kill constitute Charge 2, a charge of persistent contravention of a family violence intervention order.
Charge 3
11During the afternoon of 3 February 2022, you rang your brother, Sheldon[4], and made several threats to kill him and several other people. Because he thought you were very erratic, your brother hung up. These circumstances constitute Charge 3, a charge of making a threat to kill.
[4]A pseudonym.
Charge 5
12On 3 February 2022 at about 10 pm, you went to a service station and filled a container with petrol. You paid for the petrol.
13At about 12.15 am on 4 February 2022, you attended outside 40 Inglis Street, Ironbark[5], which houses the workshop of Brian Lindsey[6]. He came out of the workshop and saw you. You told him you intended to set fire to the car parked next to the entrance of the workshop. Mr Lindsey returned to his workshop and rang Triple 0. The car belonged to a total stranger,
Alfred Fitzpatrick.[7] You mistakenly believed the car belonged to Mr Lindsey or someone associated with him. You had known Mr Lindsey for many years.[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
14You deflated the four tyres of Mr Fitzpatrick’s car. You poured petrol onto the tyres and around the car. Using a rolled-up piece of toilet paper as a wick, you lit the paper and left. The ensuing fire caused extensive damage to Mr Fitzpatrick’s car and a switchboard attached to 38 Inglis Street[8]. Insofar as the damage to Mr Fitzpatrick’s car is concerned, these circumstances constitute Charge 5, a charge of criminal damage by fire or arson.
[8]A pseudonym.
Charges 6, 7 and 8
15At about 2 am on 4 February 2022, you went to the home of Ms Sellers and her partner, Raymond Parish,[9] in Lakes Entrance[10]. Mr Parish’s car was parked in the driveway. You poured petrol over his car and, again using toilet paper as a wick, set fire to it. It was extensively damaged. These circumstances constitute Charge 6, a charge of criminal damage by fire or arson.
[9]A pseudonym.
[10]Location deidentified.
16You then poured petrol over the front door of the house and attempted to pour petrol under that door. You set the petrol alight. You left. Both Ms Sellers and Mr Parish were present in the house. Mr Parish heard the sound of his car and the front door on fire. He saw the fire and yelled to Ms Sellers that the house was on fire. She ran downstairs where there was smoke. She called Triple 0, and he called the fire brigade. After walking through the flames, Mr Parish used the garden hose to put out the fire. The front porch and doorway were damaged. These circumstances constitute Charge 7, a charge of damaging property with the intent to endanger life.
Charges 9, 10 and 11
17At about 5 am on 4 February 2022, you were ultimately arrested at your home in Beaumaris. It took a specialist police unit to enter your home. Earlier, you refused to come to the front door, claiming the Comancheros were holding a gun on you.
18You were taken to a police station where you told a protective custody officer:
… she has taken everything from me, and my son [Spencer], who has put me in prison before. I had to make a big statement. I planned on killing them, nothing changes, if I get out they're dead.
19You reiterated this threat when interviewed by a police member, saying:
I may now go to gaol for a long period of time, but when I come out it's going to be a hell of a lot worse than that. I wanted to kill all three of those individuals and myself.
20With further questioning, you identified the 'three' as your former wife, your son and Brian Lindsey. You spoke about investigating obtaining a pistol licence, recently attending a gun shop and that the Comancheros said they would get you a gun. These statements and you gesturing in the shape of a gun caused the police member to believe you would carry out these threats. This constitutes Charges 9, 10 and 11, which are charges of making a threat to kill Ms Sellers, your son and Mr Lindsey respectively.
21The interview contained admissions of your offending. These included saying that damaging the car at Ironbark was to hurt Mr Lindsey, it was a down payment, and you would be back 'bigger and better'.
22As to Ms Sellers’ house, before the incident, you walked past it with your dog to see if anyone noticed, identify where there was surveillance and which way you could leave.
Criminal history
23Between 31 July 1995 and 4 January 2019, excluding appeals to this court, you have appeared in a criminal court on 14 occasions and have been found guilty or convicted of 55 charges.
24You have been sentenced to imprisonment on five occasions. Your longest sentence of imprisonment was imposed on appeal to this court on 25 March 2019 of 18 months' imprisonment with a non-parole period of 10 months' imprisonment. Two hundred and eighty-three days of your pre-sentence detention was declared as time already served.
25Among your previous convictions are four charges of criminal damage, including one for arson; three charges of persistent contravention of a family violence intervention order; and 11 charges of contravening a family violence intervention order.
26On 22 June 2012, you were convicted of seven charges, including charges of arson, recklessly causing injury and contravening a family violence intervention order. On the arson charge, you were sentenced to six months' imprisonment, of which three months was suspended for two years. On the other charges, you were placed on a community correction order for 15 months with conditions as to unpaid community work, supervision, treatment for drug abuse or dependency and treatment for mental health issues. It does not seem you contravened the suspended sentence order or the community correction order.
27Plainly, you have little or no regard for family violence intervention orders. You are a violent person, evidenced by your record of criminal damage offences. Without the need to pay regard to the serious offender provisions, there is already a strong need to have regard to the protection of the community from you.
Victim impact statement
28Mel Sellers is your former wife. In her impact statement, she details the cumulative impact of the consistent breaches of intervention orders, threats and actions toward her, her family, friends and colleagues since your separation in 1996 and subsequent divorce.
29For years, she has feared for her and her son's safety due to your actions. She had to cease her career due to your abuse, which has impacted her ability to earn an income and develop her career. It has caused her to develop a lack of self-confidence and worthiness.
30She states that emotionally:
‘I often feel severely demotivated as my best efforts have previously been undermined and used against me. This leads to frustration because I believe I should be bigger than this.
I often feel paralysed and unable to move forward – like I have a massive barrier that blocks my goals and dreams. I feel that there is no moving forward when the threat still remains’[11].
[11] Page 3.
31She remains fearful of you locating her and had to sell her family home of 22 years. This has displaced her from her social community at a significant financial cost.
32She experiences nightmares because of your actions towards her and is heartbroken over the effect your crimes have had on her son's life and relationships. She has had to engage in counselling due to the trauma you have caused her.
33Overall, your offending has caused a great deal of emotional trauma which has affected her physically and financially.
Personal
34You are now 67.
35You married in 1992 and separated in 1996. You have a son, now aged 26 or 27. From your perspective, your marriage broke down because your wife formed another relationship. You were divorced in April 1997.
36At the time of your remand into custody, you were living in the home of your deceased parents. You were unemployed and receiving a Jobseeker allowance. You have two younger brothers, one of whom is severely disabled and lives in supported accommodation with others. You were concerned about his state, but it appears he is well looked after.
37You were a successful student during your primary and secondary education. At the tertiary level, you obtained a bachelor's degree in business and a master's degree in marketing. You are highly educated. You are also clearly intelligent, in my dealings with you.
38You have a long history of employment in advertising, marketing and accounting. You are a certified practising accountant and a registered tax agent. You last worked in 2000. You cared for your ailing parents for about 10 years.
39For someone with such a long history of employment, you have also a long history of using cannabis, starting at 18 and used daily when you were in the community. You have not used other illicit drugs and you drank alcohol infrequently on social occasions.
40In custody, you are not taking any medicine. You rejected the offer of sodium valproate, seeing it as unnecessary. Other than that, you are physically healthy.
41Your time in custody has been difficult. Fellow prisoners have assaulted you on five occasions. For the last several weeks, you have been in solitary confinement for your own protection. You are awaiting a transfer to another prison. Solitary confinement means you are restricted to your cell for the entire day. You are not allowed to leave your cell to exercise but can make daily phone calls. You do speak to someone, a former school friend. No one visits you in custody.
42Three of the five instances of assault have resulted in you being physically injured. You believe the first instance occurred in 1998 or 1999 and resulted in a considerable loss of blood. You believe this assault was due to a mistaken belief in you informing on others. Following assaults, you are placed in solitary confinement.
43You believe Ms Sellers owes you $12m. But you have not taken legal action to recover these monies because of your son. Additionally, you say there is an order of the Family Court requiring Ms Sellers to pay you monies, and she has not.
Psychiatrist
44Fiona Best is a consultant forensic psychiatrist. At the request of your then solicitors, she interviewed you on 22 January 2023[12].
[12] Report dated 31 January 2023.
45At the interview, Dr Best considered you were unwell, requiring immediate psychiatric treatment, including the prescription of anti-psychotic medicine. To her, you presented with persecutory delusions, and she diagnosed you as suffering from a Delusional Disorder of a persecutory type. There are several types of this disorder. This disorder is continuous in the sense its symptoms will remain for the majority of the course of the illness. According to Dr Best[13]:
‘The central theme of Mr Miles’ delusions are those of being persecuted and conspired against by his ex-wife who he believes owes him significant sums of money amounting to $4m; he believes his ex-wife tricked him out of profits from her business; and that his parents were blackmailed and tricked by her.’
[13] At p11.
46This disorder has not been treated. It existed at the time of your offending. It affected your capacity to exercise appropriate judgment and to make calm and rational decisions and to think clearly.
47The disorder does not markedly impact your daily functioning, and your other behaviours are not obviously bizarre, according to Dr Best.
48Dr Best also diagnosed you as suffering from a cannabis use disorder. It is in early remission because you are in a controlled environment, being prison.
49Dr Best considered it highly likely you could establish the defence of mental impairment. However, you have chosen not to pursue that course.
50Using what she called the 'stalking risk profile', Dr Best said you met the criteria of a 'rejected stalker'. Seeing yourself as a victim of the injustice caused by Ms Sellers, you believe you were justified in taking the actions you took. Dr Best then noted[14]:
‘...Mr [Miles’] history of previous offending, co-morbid substance abuse and the issuing of threats are predictors of future assault.’
[14] At p12.
51Without targeted treatment, Dr Best considered your risk of future violent
re-offending is moderate to high. The risk is likely to increase if you are affected by substances or not taking antipsychotic medicine or both. I daresay because of your opposition to treatment, Dr Best did not go into the detail of any appropriate treatment.52Dr Best considered imprisonment would weigh more heavily upon you in that it prevented you seeking mental health and drug assistance in the community. Implicitly, she does not consider the same services are available in custody. She does note your view of your mental health precludes both treatment for it and your drug habit.
53Dr Best concluded her report by saying[15]:
‘[Mr Miles’] does not believe that he has a mental illness, or that he needs referral to specialist services or treatment. On assessment today, he demonstrated a strong commitment to pursue his ex-wife for the money he believes she owes him.’
[15] At p13.
Discussion
Purposes
54Section 5(1) of the Sentencing Act1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
55Each of those sentencing purposes is relevant to your sentencing.
56You are subject to the serious offender provisions in two ways. First, I will sentence you to imprisonment on each of the charges of making a threat to kill. This offence is a 'serious violence offence'[16]. Second, you are a serious arson offender. You will be sentenced to imprisonment on the present arson charges while in 2012 you were sentenced to imprisonment for the same offence.
[16] See clause 3 of Schedule 1.
57The effect of this is to raise the following:
(a) of the purposes of sentencing which I spoke about a few moments ago,
I must place the protection of the community from you as the principal purpose;(b) the sentences imposed should be served cumulatively upon each other unless I direct otherwise;
(c) I may impose a disproportionate sentence. However, such a measure was not sought by the prosecution.
58The serious offender provisions of the Sentencing Act require special emphasis upon the purpose of protecting the community from you. With you, it is particularly relevant to protecting Ms Sellers, her partner, your son, Mr Lindsey and anyone you think supports your former wife.
Prospects of rehabilitation
59Guilty pleas are frequently evidence of an offender's remorse, but I do not consider you are remorseful. The effect of the disorder and your statements after the offending are inconsistent with remorse.
60You will not accept treatment. You are convinced physical fitness is the answer to your mental health. You undertake courses in custody to stay active, not for their rehabilitative content. After all, you are highly qualified already. I daresay some of the courses add little or nothing to your existing knowledge. Dr Best qualified her view of your risk of violent re-offending. Without targeted treatment, it was moderate to high with the risk likely to increase if you are affected by substances or not taking antipsychotic medicine or both. Since both are likely, your risk of violent re-offending is high. Overall, your prospects of rehabilitation are poor.
61Section 5(2) of the Sentencing Act requires the consideration of various factors in sentencing where they are relevant to a particular case.
Maximum penalties
62The maximum penalties for the offences are:
(a) criminal damage by fire – 15 years' imprisonment;
(b) damaging property with intent to endanger life – 15 years' imprisonment;
(c) making a threat to kill – 15 years' imprisonment;
(d) persistent contravention of a family violence intervention order –
five years' imprisonment or a fine of 600 penalty units or both.Current sentencing practices
63In relation to current sentencing practices, nothing was drawn to my attention.
Nature and gravity of the offences
64Each of the charges of damaging property by fire is serious. The fact that it was occupied is captured by Charge 7 where your intent was to endanger life. Although damaging the house by fire is an element of Charge 7, this charge captures the additional ingredient of your intent to endanger life.
65Each of those offences was premeditated. You bought petrol at a service station and used the petrol to set fire to Mr Fitzpatrick’s vehicle, to Mr Parish’s vehicle and to Ms Sellers’ house.
66In arson cases, generally, a court will have some evidence of the value of the damage caused. I do not have such evidence. In relation to Ms Sellers’ house, the damage was limited. The intervention of Mr Parish was responsible for that. The other charges of arson involved motor vehicles, which were significantly damaged. I do not know the cost of repairing those vehicles or their pre-accident value if beyond economic repair.
67Your motive for these charges is revenge. I will again quote what you said to the police member:
‘I may now go to gaol for a long period of time, but when I come out it's going to be a hell of a lot worse than that. I wanted to kill all three of those individuals and myself.’
68This is an outpouring of the type of disorder identified by Dr Best. The anger you feel towards Ms Sellers and others and your willingness to act and intention to continue to so act if given the opportunity.
69I note the triggering event which you spoke of this morning. It is obvious these crimes were committed over a relatively short period.
70The charges of threats to kill are also serious. They express the anger and sense of hopelessness you feel towards Ms Sellers and others.
71I have already said you pay no apparent regard to the conditions of the family violence orders to which you are the respondent. Our Court of Appeal has repeatedly stressed the need for sentences to attempt to ensure compliance with those orders. As long ago as 1998, a justice of that court said[17]:
‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders.’
[17] R v Cotham [1998] VSCA 111 at [14].
Verdins
72Not unnaturally, not being a lawyer, you did not raise the principles stated in the case of R v Verdins[18], which deals with impaired mental functioning. However, the report of Dr Best raises some of those principles, and this morning we have discussed the principles that I have identified, and I have sought the submissions of both you and Mr Plummer for the Director.
[18] (2007) 16 VR 269.
73You were acting under the influence of a recognised psychological disorder or illness. This reduces your moral culpability for the offending. It also reduces the need in your case for my sentences to reflect the sentencing purpose of denunciation.
74With the sentencing purpose of general deterrence, acting under the influence of a delusional disorder means few others would identify with you such that they would be deterred by the sentence imposed on you.
75Despite the disorder, I do not consider it reduces the need to deter you from committing these offences or similar offences. Although you told the police of your determination to offend again, the existence of the disorder as the driver of your actions and outbursts does not reduce or eliminate the need to deter you.
76I have little doubt the disorder has led to your troubled time in custody. In the absence of accepting treatment, it will continue. In one sense, imprisonment will weigh more heavily on you than on a person in normal mental health.
77Dr Best considered imprisonment would weigh more heavily upon you because of the lack of appropriate mental health and drug assistance in custody. I doubt whether the unavailability is factually correct. However, your view of your mental health precludes both treatment for it and your drug habit. This is the unfortunate consequence of your disorder. It operates to moderate my sentences.
78There is no evidence to support the proposition imprisonment will worsen the symptoms of your disorder.
Guilty pleas
79These charges have now taken a slow and difficult course to this stage. In terms of the timing of your pleas, they came well after the mid-point of a proceeding which starts with the laying of the charges and finishes with the verdict of a jury.
80There are several benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. They show the victims and the world in general that you committed these offences.
81Second, they relieve the victims from the need to give evidence against you in a trial.
82Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and trials lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
83Fourth, the crisis addressed in Worboyes v The Queen[19] and other cases has abated. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. More recently, this court announced it had overcome the backlog of cases created by the pandemic. It had reached the pre-pandemic levels of pending cases. But in another respect, the virus still disturbs the smooth running of jury trials in this court, principally through the unavailability or loss of jurors. Pleading guilty still has benefits to the system identified in the case of Worboyes but to a much lesser extent.
[19] [2021] VSCA 169.
84Overall, your pleas of guilty entitle you to a sizeable discount on the sentences which would have been imposed if you had pleaded not guilty to the charges and had been found guilty after a trial.
Sentence
85On Charge 1, I sentence you to three months' imprisonment.
86On Charge 2, I sentence you to 12 months' imprisonment.
87On Charge 3, I sentence you to 12 months' imprisonment.
88On Charge 4, I sentence you to 12 months' imprisonment.
89On Charge 5, I sentence you to two years and nine months' imprisonment.
90On Charge 6, I sentence you to two years and nine months' imprisonment.
91On Charge 7, I sentence you to three years and six months' imprisonment.
92On Charge 9, I sentence you to 12 months' imprisonment.
93On Charge 10, I sentence you to 12 months' imprisonment.
94On Charge 11, I sentence you to 12 months' imprisonment.
95The base sentence is the sentence on Charge 7.
96Three months of the sentences on Charges 2, 3, 4 and 9 and nine months of the sentences on Charges 5 and 6 are to be served cumulatively upon themselves and on the base sentence. The other sentences are to be served concurrently. The total effective sentence is 72 months or six years' imprisonment. I will set a non-parole period of 42 months or three years and six months' imprisonment.
97Excluding today, you have spent 735 days in custody. I declare those 735 days as time served under my sentences today.
Disposal and forfeiture orders
98I will make the disposal and forfeiture orders in the terms of the draft orders.
Section 6AAA
99If you had pleaded not guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 10 years' imprisonment and set a non-parole period of six years' imprisonment.
Indication
100As I said earlier, at your request, I gave a sentence indication. You did not accept my indication. Owing to your non-acceptance, what I indicated does not bind me in sentencing you. Looking at the information given to me at the plea hearing, what I indicated remains the appropriate sentencing outcome. As I said when giving the indication, your then counsel's submission of a sentence which would see you released from prison in the near future was unrealistic.
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