Director of Public Prosecutions v Millar, Jake
[2017] VCC 731
•7 June 2017
| 1 IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE MILLAR |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2017 | |
DATE OF SENTENCE: | 7 June 2017 | |
CASE MAY BE CITED AS: | DPP v Millar, Jake | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 731 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Attempted armed robbery, blackmail, prohibited person in possession of a firearm, recklessly causing injury, theft, obtaining financial advantage by deception, fare evasion, criminal damage and assault with a weapon.
Sentence: TES – 6 years imprisonment with a minimum of 3 years and 10 months’ to be served before becoming eligible for parole. Disposal order made and licence cancelled and disqualified for a period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson for plea Ms Gillahan for sentence | OPP |
| For the Accused | Mr P. Casey | Ann Valos Criminal Law |
HER HONOUR:
1. Jake Millar, you have pleaded guilty to one charge of attempted armed robbery which has a maximum sentence of 20 years’ imprisonment; one charge of blackmail, which has a maximum sentence of 15 years’ imprisonment; one charge of being a prohibited person in possession of a firearm, which has a maximum sentence of ten years’ imprisonment or a fine of 1200 penalty units; one charge of recklessly causing injury, which has a maximum sentence of five years’ imprisonment; and four charges of theft of a car; one charge of theft of petrol; one charge of obtaining a financial advantage by deception, being evasion of a taxi fare; and a charge of criminal damage - all of which are offences with a maximum sentence of ten years’ imprisonment.
2 You consented to this court dealing with a summary offence of assault with a weapon, to which you also pleaded guilty. This has a maximum penalty of three months’ imprisonment or a fine of 15 penalty units.
3 Your plea of guilty to all these charges was indicated early in the process, which saved the community the time and cost of a trial, and showed you accept responsibility for the offences. It also saved your victims from having to give evidence at your trial, although as the pleas were indicated at the committal hearing, some if not all of them would have expected to give evidence up until that point. However, as a result of your pleas of guilty, the sentences I impose today will be less than would have been imposed if you had been found guilty after a trial.
4 I sentence you on the basis of the prosecution opening, an agreed summary which was read out in court.[1]
[1] Exhibit A
5 Your offending was a crime epidemic occurring on four days spread over the period of 31 March to 8 April 2016 and involving nine victims. This was apparently fuelled by your addiction to methylamphetamine (ice).
6 On 31 March, you stole a car worth an estimated $500 from Hoppers Crossing. The car was not insured and so the victim suffered a financial loss as well as loss of the car (Charge 1 - theft). On 2 April, you drove that car to a service station where you filled up with petrol and drove off without paying, which was captured on CCTV (Charge 2 - theft). This caused a loss to the operator of the service station.
7
On 3 April, you bought some “ice” from a man named Matthew
Byrne-Mazaris. The following day, you contacted him to complain about the drug he sold you, and you instructed him to meet you at a park in Werribee to sort it out. You were waiting for Mr Byrne-Mazaris, seated in a car driven by a woman, when Mr Byrne-Mazaris arrived there in his car, accompanied by two men. One man called Matthew Bakes was sitting in the rear passenger seat behind Mr Byrne-Mazaris.
8 The woman got out of the car you were in, and gave Mr Byrne-Mazaris a quantity of ice, and he gave her $160. It is accepted that this was a return of the ice which you had bought, and a refund of the money you had paid.
9 Not satisfied with this outcome, you got out of the car holding a sawn-off rifle (Charge 3 – prohibited person in possession of a firearm). You approached Mr Byrne-Mazaris and demanded drugs and money from him, saying you would count to three (Charge 4 – attempted armed robbery). Mr Bakes, sitting in the back seat, called out to you, and you pointed the rifle through the window and hit him in the forehead with the barrel (summary offence - assault with a weapon).
10 You then pointed the rifle through the driver’s window again, counted to three and fired a shot into the right thigh of Mr Byrne-Mazaris; the bullet passed straight through and struck the inside of his left thigh (Charge 5 – recklessly causing injury). As you tried to operate the bolt action of the rifle, Mr Byrne-Mazaris reversed his car away from you and drove himself to hospital. He was later taken by ambulance to the Royal Melbourne Hospital and was admitted for three days.
11 Although the offence of recklessly causing injury only has a maximum sentence of five years’ imprisonment, I consider your actions in firing from a rifle into the leg of Mr Byrne-Mazaris at close range to be the most serious of your offences, and a most serious example of that type of offence. Mr Byrne-Mazaris has suffered greatly, still has difficulty standing, walking or running, and the pain and discomfort keeps him awake. He has also suffered psychologically with the shock of your callous and cowardly attack, and lost his job because he was unable to drive following his discharge from hospital. His physical scars from your criminal actions will always remind him of the trauma you inflicted on him. I take the impact on him[2] very much into account in deciding the appropriate sentence on Charge 5.
[2] Exhibit B
12 I also note that you have shown no remorse for causing his injury, saying to a forensic psychologist in March this year[3] that because you thought he had ripped you off, you shot him; that it was the principle of the thing, you wanted to give him a message, and that there are repercussions for him treating you that way.
[3] Exhibit 2
13 I will come back to the psychological report later.
14 I also consider the summary offence of assault with a weapon to be a very serious example of that type of offence involving as it did an actual blow to the victim Mr Bakes, and the use of the barrel of the rifle to do so. Again, you have expressed no remorse for the impact on Mr Bakes. The attempted armed robbery is also a serious example of that type of offence because you were armed with a firearm, and because you used the rifle in a menacing way, not just having it with you.
15
Returning to your offending, on the night of the day you shot
Mr Byrne-Mazaris, you booked a taxi under a false name using your grandmother’s mobile telephone number. You caught the taxi from near where you lived with your grandmother, and travelled to Werribee. You went into the house you had been driven to, saying you would return to pay the fare of $50. You did not, and when the driver came to the door, you were extremely aggressive to him and refused to pay (Charge 6 – obtaining a financial advantage by deception). He suffered that financial loss as well as being intimidated by you.
16 In the early hours of 8 April, four days later, a car worth $3000 was stolen in Werribee. A few hours later, you were captured on CCTV travelling in the stolen car in Wyndham Vale (Charge 7 – theft).
17
Overnight on 6-7 April, a car worth $17,000 was stolen in Seabrook, not far from where you lived with your grandmother. In the afternoon of
8 April, you were observed driving the stolen car in Werribee (Charge 8 – theft).
18 Shortly before 8 am on 8 April, a car worth $5000 was stolen from the same street in Seabrook as the theft in Charge 8. At about 6 pm, you were observed as a passenger in that car as it was driven to an address in Wyndham Vale by another man (Charge 9 – theft).
19 That other man went to the door of a house and asked a woman if her son was home. When told that he was not, the man returned to the stolen car. Not satisfied with this outcome, you got out of the car and went to the front door where you spoke to the father, Mr Alan Murphy. You claimed that his son owed you money for a drug debt, and said “Someone’s got to pay the money” while looking towards Mr Murphy’s work van. When you were told you could not take the van, you said that you had to get the money somehow, that you had to either bash the amount out of his son or come back and shoot him (Charge 10 – blackmail). This was not an idle threat as you were holding the rifle at the time. This is also a serious example of this type of offence because of the threatened menace of the firearm.
20 You then walked away from the front door and fired a shot from the rifle through the rear back window of Mr Murphy’s van (Charge 11 – criminal damage) before leaving the scene in the stolen car. Although I have no victim impact statement form Mr Murphy, I have no doubt that he suffered from your actions; first, his van was damaged, second, he would have been intimidated at the very least by being confronted by an angry young man with a rifle, and even more so when it was fired.
21 For Charges 7, 8 and 9, the thefts of the cars, it does not matter whether or not you were the original thief who stole the car. The law says that if you use a car as if you were the owner, without the owner’s permission, that is theft. In each instance, the owner suffered the loss of the car, and you used the cars as if they were your own private Uber service.
22 You were arrested later on 8 April, and you told police where to find the firearm, hidden under the floor in a bedroom cupboard. Giving police that information, entering your plea of guilty, and your young age are about the only things to be said in your favour. This is an appalling series of offences, showing total disregard for other people’s safety or their property. All the offences are serious examples, and your offending is made even more serious by the fact that you were serving a community correction order at the time.
23 It is true that you had only one appearance in court before committing the offences for which I am sentencing you, but it was a consolidation of a large number of matters on 23 October 2015, where you received an aggregate sentence of four months’ imprisonment and were convicted and released on a community correction order for 12 months commencing in November 2015, with a number of conditions including that you undertake anger management, drug treatment, and mental health assessment.
24 The offences involved in the consolidation were seven burglary charges, ten theft charges, one handling stolen goods charge, one recklessly causing injury charge, one false imprisonment charge, two assault charges, one threat to inflict serious injury charge, two charges of theft of a car, two drug possession charges, a firearm charge, two possession of ammunition charges, four driving charges, one criminal damage charge, one intentionally damage property charge, three charges of committing an indictable offence whilst on bail, three charges of failing to answer bail, and three charges of stating a false name. These are all highly relevant to the sentences I am passing today.
25 This is a very poor record for someone then aged 21. You are now aged 22, but did not learn any lessons from that first sentence. In my view, it was a very lenient sentence and clearly was designed to give you a chance to commit to your rehabilitation. You repaid that leniency by a drug fuelled crime binge, as I have described.
26 While your young age is a factor that is usually taken into account on the basis that a young person should ordinarily be given a sentence that provides an opportunity to rehabilitate, I find that your chances of rehabilitation are very, very slim. You are at a high risk of re-offending. However, I will apply the usual principle of rehabilitation to a limited extent and impose a sentence that will allow you some opportunity to improve your life, if you choose to take it. You will need close supervision if the community is to be protected from you on your eventual release from custody.
27 Your counsel told me of your background and personal circumstances[4], and there was also information in the psychological report[5] which I referred to earlier.
[4] Exhibit 1
[5] Exhibit 2
28 Your early life was better than many who appear in this court, having a good relationship with your parents despite their on and off relationship, and you have a much younger sister aged six who you seem to care a lot about. You completed Year 10 and then completed a roof tiling apprenticeship. Again, unlike you, many young men come to this court having no family support, and being unable to start, let alone finish, an apprenticeship.
29 Your counsel relied on the opinion of the psychologist that a serious assault you suffered at the age of 17 has affected you and led to symptoms of post-traumatic stress disorder. You were apparently hit from behind during a fight at a house party, and received a skull fracture. A social worker at the Royal Melbourne Hospital where you were admitted considered you had post-traumatic stress disorder, but you did not want to engage in any counselling at that time.
30 Ms Lechner, the forensic psychologist who assessed you for the hearing before me, is of the opinion that your drug use began after this assault, and that you then lost your job, your mood deteriorated and your use of ice escalated. You had a short time doing casual plumbing work but when you were laid off, you did not look for work again and instead turned to crime.
31 Ms Lechner described your mindset in March 2017 as still linked with the offending sub-culture. It seems that the assault in 2012 made you feel vulnerable and so you have tried very hard never to be seen as a victim again, resulting in your ‘tough guy’ image and the use of a firearm on a number of occasions to promote that image. Your counsel told me that when you went into custody in April 2016, your attitude was bad, but that you have had 14 months on remand to reflect, and that you want to accept responsibility for your actions. The only problem with that submission is that your own words as reported by the psychologist as at March 2017, when she assessed you, do not reflect any such change. But perhaps it has all happened in the last two months.
32 I do understand that as a young man in gaol, you probably thought you had to continue your tough image to keep safe, but you will find it harder to change the longer you keep it up. I also note that because of the assault in which you suffered a serious injury, you should be in a better position than most to understand the impact of your assaults on your victims. Yet, there has been no remorse shown by you, especially for the victims of your shooting, your assault with a weapon and the damage caused by the discharge of the firearm.
33 You have made some efforts while on remand, which I take into account. I am told that you have undertaken a number of courses, such as welding, occupational health and safety, food handling and traffic management. You were on a waiting list for a six hour drug and alcohol program on managing cravings[6], but unfortunately, the first three hours were held on the day you attended this court for your plea. You are now booked to do that program tomorrow. It is in your favour, however, that for the first time in four years, you have been drug free for 14 months while on remand and that is a good start.
[6] Exhibit 3
34 Your chances of rehabilitation are not good, as I said before; but because of your young age and with the support of your parents, there will be some opportunity for rehabilitation in the sentence I give you. Of course, nothing will change if you do not stay off the drugs once you are back in the community. But you do have the physical capacity to work as well as having a qualification as a roof tiler, and if you really want to get back into a proper way of life, you have the means to do it.
35 You should take any opportunity to help yourself, such as accessing counselling for your drug abuse, and for your post-traumatic stress disorder arising from your assault, whether that is while you are in custody, or on parole, or in the community through a Mental Health plan with a doctor of your choice when you are released. It is all up to you.
36 The sentence I impose on you must take into account the need to protect the community from you, and the need to deter you from re-offending, as well as deterring others from committing such offences. Given the serious nature of your offending, these are very important principles in your case. The use of firearms in offences is increasing, in my experience. This is a dangerous trend and so general deterrence is of the utmost importance for all of your offences involving the rifle.
37 It is conceded that the only appropriate sentence is one of imprisonment.
38 Stand up, please, Mr Millar.
39 You are convicted and sentenced to imprisonment as follows:
40 On Charge 1 – theft – six months;
41 On Charge 2 – theft - three months;
42 On Charge 3 – prohibited person in possession of a firearm – 12 months;
43 On Charge 4 – attempted armed robbery – three years;
44 On Charge 5 – recklessly causing injury – two years;
45 On Charge 6 – obtain financial advantage by deception – one month;
46 On Charge 7 – theft – six months;
47 On Charge 8 – theft – six months;
48 On Charge 9 – theft – six months;
49 On Charge 10 – blackmail – one year six months;
50 On Charge 11 – criminal damage – 12 months;
51 On the summary offence of assault with a weapon – two months.
52 The sentence of three years’ imprisonment on Charge 4 is the base sentence. I direct that 16 months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 3, four months of the sentence imposed on Charge 10, three months of the sentence imposed on Charge 11, the whole (being two months) of the sentence imposed on the summary offence, and one month of the sentences imposed on Charges 1, 6, 7, 8, and 9 are to be served cumulatively on the sentence imposed on Charge 4 and on each other. The sentence on Charge 2 is concurrent with all other sentences.
53 That makes a total effective sentence of six years’ imprisonment. I direct that you serve a minimum of three years ten months before becoming eligible for parole.
54 I declare that you have served 425 days in pre-sentence detention not including today and direct that these are to be deducted administratively from your sentence.
55 I advise that if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed on all charges is a total of eight years’ imprisonment with a minimum of six years.
56 Finally, I note that you have consented to the forfeiture of the rifle and ammunition, and disposal of other items found in your possession, and I have made those orders.
57 Just take a seat for the moment. Could I just confirm that 425 days is the agreed pre-sentence detention?
58 MR CASEY: Yes, Your Honour.
59 HER HONOUR: Thank you. Does counsel wish me to go through the cumulation again?
60 MR CASEY: I got the first part, Your Honour.
61 HER HONOUR: Yes, well, I will just go through again.
62 MR CASEY: Yes.
63 HER HONOUR: So three years is the base sentence, then 16 months on Charge 5, six months on Charge 3, four months on Charge 10, three months on Charge 11, two months of the summary offence and one month on Charges 1, 6, 7, 8 and 9. That should make the total effective sentence of six years' imprisonment.
64 MR CASEY: Yes, Your Honour.
65 HER HONOUR: All right. Are there any other orders required?
66 MR CASEY: No, Your Honour.
67 HER HONOUR: All right, thank you. Yes, Mr Millar may be removed.
(At a later stage.)
68 MS GILLAHAN: If the court pleases, I appear on behalf of the Crown. There's just one matter that I neglected to raise before, and that's the licence cancellation or suspension.
69 HER HONOUR: Yes, well, I did say, "Any other orders?" and neither the prosecutor on the plea nor you informed me of that matter.
70 MS GILLAHAN: Yes, Your Honour, I apologise.
71 HER HONOUR: Mr Casey, do you have any instructions about whether Mr Millar holds a licence?
72 MR CASEY: He believes he does, Your Honour.
73 HER HONOUR: All right, thank you. Do you have any submissions to make about the period of time that he is to be disqualified?
74 MR CASEY: As I understand it's a minimum of 12 months, and I don't take the matter any further than that, Your Honour.
75 HER HONOUR: All right, thank you.
76 MS GILLAHAN: Your Honour, I believe it's as the court specifies, there's no minimum.
77 HER HONOUR: Yes, I am just having a look now. Yes, I think it might have been a minimum in the past, but certainly since 2013 it is as the court considers.
78 Yes, all right. Mr Millar, if you could stand up again, please.
79 I have been reminded that the law provides that if a person is charged with a serious offence involving a motor car, that the licence that they hold must be cancelled and they must be disqualified, and that is for a time that is for the court to decide. So I will be cancelling your licence and disqualifying you from obtaining another one, and because you are going to be in custody for the next period of time, it seems to me, to have any impact, this disqualification period needs to incorporate a period of time after your potential release. So you are going to be disqualified for three years. My quick calculations indicate to me that if you get parole at the first time you are eligible, then there might be a period of about four months where you will be in the community and you will need to find your own way around as further punishment for having driven people's cars when you did not have any permission to do so. So three years. If you end up staying in gaol longer, well, then you might do the whole period of disqualification whilst in custody. But that is the order that is made.
80 Yes, all right, thank you.
81 Thank you. Mr Millar may be removed.
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