Director of Public Prosecutions v Millar

[2018] VCC 506

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01222

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER MILLAR

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2018
DATE OF SENTENCE:	18 April 2018
CASE MAY BE CITED AS:	DPP v Millar
MEDIUM NEUTRAL CITATION:	[2018] VCC 506

REASONS FOR SENTENCE
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Subject:

Catchwords:  Threat to kill; aggravated burglary; common assault; protection of the community; general deterrence; specific deterrence; lack of remorse; extensive criminal history; principle of totality; serious offender

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Locke	Office of Public Prosecutions
For the Accused	Mr C. Kilias	Vassis & Co

HIS HONOUR: 

1Christopher John Millar, you have pleaded guilty to –

2(i) one charge of make a threat to kill, contrary to s.20 of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment;

3(ii) one charge of aggravated burglary, contrary to s.77 of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment;

4(iii) one charge of common assault, contrary to common law.  The maximum penalty for that offence is five years' imprisonment;

5(iv) one charge of possession of a drug of dependence, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty for that offence is a fine of 30 penalty units or one year imprisonment or both; and

6(v) one charge of negligently dealing with the proceeds of crime, contrary to s.194(4) of the Crimes Act 1958. The maximum penalty for that offence is five years' imprisonment.

7You pleaded guilty following the conduct of a committal proceeding during which the victims of your offending were cross-examined.  You pleaded guilty following the listing of the matter for directions and a mention in this court, and whilst your plea is, therefore, not an early one, it has spared the community and witnesses the burden of a criminal trial.  Whilst I do not accept that you are truly remorseful for your offending, for reasons that follow, I have taken your plea into account in your favour in mitigation of sentence.

8You have admitted a significant criminal history for numerous serious offences of violence in New South Wales, the Australian Capital Territory and Victoria.  Your offending history began when you were a child, aged 14, when you appeared in the District Court at Parramatta in 1982 charged with robbery whilst armed and discharge of a loaded firearm in a public place.  You were committed to a children's institution for three years.  Thereafter you continued to offend in a relatively minor way until 5 May 1988 when you were convicted of assault occasioning actual bodily harm, assault and damaging Commonwealth property in the ACT Magistrates Court.  You were then sentenced to four months imprisonment. 

9On 14 November 1988 you were convicted of murder in the Australian Capital Territory Supreme Court and sentenced to 20 years imprisonment with a
non-parole period of 14 years.  Your offending involved you stabbing another man. 

10You were released from prison on parole at approximately 2001 and it would appear that you were permitted to travel to Victoria.  You have continued to offend in this State and have served terms of imprisonment and dispositions in the community for offences of violence, possession of prohibited weapons, possession of illegal drugs of dependence, making threats to kill and contravening family violence intervention orders.

11On 18 September 2015 you were charged with recklessly causing serious injury and threat to inflict serious injury.  You were released on bail.  The offending concerned an assault and threats made by you to two workmen who had apparently obstructed your path on your motor cycle adjacent to a tattoo parlour that you operate.  The case against you involved you punching one of your victims and breaking his jaw. 

12On 10 February 2016 you were placed on a Community Correction Order for
12 months for persistent contravention of a family violence intervention order.  On 27 June 2016 you were placed on a further Community Correction Order for 12 months for using a carriage service to menace.  The victim in both instances was your former wife.  At the time of your offending in this instance, you were therefore on bail and two Community Correction Orders for crimes of violence.

13I accept, as was submitted by the prosecution, that your criminal history in part gives this matter its undoubted gravity.  In my opinion, it is clear from that history that you pose a real risk to the community and the protection of the community from you is an important sentencing consideration in this case.  It is also plain that previous dispositions imposed by courts to support your rehabilitation have failed.  Specific deterrence is, therefore, also a prominent sentencing consideration in this case. 

14A prosecution opening was read to the court, and your offending may be summarised as follows –

15On Saturday 17 September 2016, at approximately 12.05 pm, you drove your motor cycle to the victim's home in Crib Point.  You also resided in that town.  For reasons that are not clear to me, you were angry with the victim, who is the sister of a close friend of your wife.  You were wearing all black clothing, a motor cycle helmet and dark glasses.  You approached the front door of the house demanding to speak to the victim's husband and yelling abuse.  You told her to stop driving past your house or you would "put a bullet through her chest."  You opened a door to the house, entered it and, in a rage, slapped the victim forcefully in the face.  The victim's young daughter observed your offending and was told to ring 000 by her mother, which she did.  You then left the premises and drove away on your motor cycle. 

16On 22 September 2016 investigating police arrested you and searched your premises, where they located stolen identification in the name of Emily Bryant and a small quantity of amphetamine.  You were charged and remanded in custody, and an application for bail was refused.

17You resorted to violence to resolve a dispute or personal slight and assaulted a defenceless woman in her home in doing so.  Your cowardly and threatening offending must be denounced by this court and you must also be punished for what you have done.  The offence of aggravated burglary is a serious crime and the penalty that I impose must be calculated to deter others from offending in this manner. 

18I have received in evidence a Victim Impact Statement from the victim and from her daughter, and I have no doubt that your serious offending has had a deeply traumatic effect upon them.

19I do not accept that you are remorseful for the harm that you have caused to them, and as recently as 28 March 2018, in an interview with Ms Carla Lechner, a forensic psychologist, you described the victim as "a psychotic ice user" and "a scary lady."  Your counsel made no cogent submissions that you are truly remorseful for what you have done, and nor has any evidence been called on your behalf in that regard.

20In my opinion, you do not have any real insight into the seriousness of what you have done, and your prospects of rehabilitation are to be approached with significant caution.  As I have said, the community is to be protected from you.  It is also clear from the other charges before the court that you continue to be prepared to act dishonestly and to use illegal drugs of dependence.

21I now turn to your personal circumstances. 

22You were born in New South Wales on 23 December 1968 and you are now aged 49.  As I have observed, you have an extensive and significant criminal history and have spent near enough to 20 years in prison or youth detention for serious crimes of violence. 

23I have received in evidence a psychological report of Ms Carla Lechner setting out your background and psychological profile.  I accept that you suffered institutionalised abuse whilst in care and, as a result, you developed deep-seated post-traumatic stress disorder and associated depression and anxiety that has significantly disturbed your development.  You suffer from impaired emotional regulation and symptomatic poly substance abuse disorder.  I accept that your mental state has also resulted in impaired impulse control, which is a cause of your offending.  In my opinion, you require ongoing and intensive psychological treatment for this, and as I observed, the fact that your condition persists accentuates the risk that you pose to the community. 

24Your condition increases the hardship that you have experienced in prison, and I also accept that the periods of lockdown that you have experienced in the Metropolitan Remand Centre have also increased that hardship.

25I accept that you have endeavoured to build a stable lifestyle and are married and operate your own business, a tattoo parlour.  A number of persons attended court to support you.  I also accept that, as you grow older, you may develop a greater level of insight into your offending behaviour, but you have not reached that point yet.

26On 16 February 2018 you were sentenced to 15 months imprisonment with a non-parole period of ten months in relation to the offences of recklessly causing serious injury and making a threat to cause serious injury which were committed by you on 18 September 2015.  147 days pre-sentence detention was declared as served by the Magistrate.

27By operation of s.14 of the Sentencing Act 1991, I am, therefore, required to fix a new non-parole period in respect of all the sentences that you are to serve. In doing so, I am required to have regard to the principle of totality, both in relation to the new non-parole period and the head sentence for the offences that I will sentence you for.

28Despite the fact that your offending occurred whilst on bail for other offences of violence, I do not propose to order cumulation in this case in relation to the sentence I impose and in respect of the sentence you are currently undergoing.  The sentences will be served concurrently. 

29By operation of Part 2A of the Sentencing Act 1991, you are to be sentenced as a serious offender for the offence of threat to kill, and the principal purpose for the sentence in relation to that charge is the protection of the community. The prosecution did not submit that I should impose a disproportionate sentence for that charge, and I have not done so. Furthermore, whilst I am satisfied that you pose an ongoing risk to the community, the sentences I have imposed are, in my opinion, proportionate to the seriousness of your offending and I have had regard to the purposes for which this sentence is to be imposed by operation of s.5 of the Sentencing Act 1991.

30Stand up, please, Mr Millar.

31In relation to the charge of making a threat to kill, you are convicted and sentenced to be imprisoned for 12 months. 

32In relation to the charge of aggravated burglary, you are convicted and sentenced to be imprisoned for three years and three months.

33In relation to the charge of common assault, you are convicted and sentenced to be imprisoned for 18 months. 

34In relation to the charge of possession of a drug of dependence, you are convicted and sentenced to be imprisoned for one month. 

35In relation to the charge of negligently dealing with the proceeds of crime, you are convicted and sentenced to be imprisoned for three months.

36I order that Charge 2 is the base sentence. 

37I order that six months of the sentence passed on Charge 1, nine months of the sentence on Charge 3 and the entirety of the sentence on Charge 5 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 2. 

38This makes for total effective term of imprisonment of four years and nine months.

39I fix a new non-parole period in relation to the two sentences of imprisonment imposed, and that is this sentence and the sentence you are currently undergoing, of two years and three months.

40I declare that you have served 426 days pre-sentence detention not including today.

41But for your plea of guilty, I would have imposed a total effective term of imprisonment of six years and imposed a new non-parole period of three years and six months. 

42I have made the ancillary orders sought by the prosecution.

43MS LOCKE:  As Your Honour pleases.

44MR KILIAS:  May it please Your Honour.

45HIS HONOUR:  Thank you.

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