Director of Public Prosecutions v Miller
[2019] VCC 1345
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00594
CR-19-00742
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN MILLER BEAU HIGGINS |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 August 2019 | |
CASE MAY BE CITED AS: | DPP v Miller & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1345 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms Danks | |
| For Accused Miller For Accused Higgins | Ms Valos Mr Goodfellow |
HER HONOUR:
1 Beau Higgins and Justin Miller, you have both pleaded guilty to one charge of intentionally causing injury committed on 5 November 2018 where you were co‑offenders with a third person, Stephen Kirby.
2 Mr Higgins, you have also pleaded guilty to assisting an offender in relation to disposing of a weapon used in that offending and to a related summary offence of committing an indictable offence on bail.
3 Mr Miller, you have pleaded guilty to an additional charge of burglary.
4 Mr Higgins, you were 27 years old as at the date of this offending and you are now 28. Mr Miller, you were 37 years old as at the date of the offending and are now 38. Mr Kirby was 52 years old at the time of the offending. He has been committed to stand trial on charges of intentionally causing serious injury in circumstances of gross violence, recklessly causing serious injury in circumstances of gross violence and relevant statutory alternatives, unlawful assault with a weapon and make threat to inflict serious injury. His matter is listed for trial on 18 May 2020.
5 You, Mr Miller and Mr Higgins, both knew each other. Mr Miller, you and Mr Kirby were known to each other, whereas you, Mr Higgins, had previously had no dealings with Mr Kirby. The victim of the offending before me is Mr Sion Bennett. As at November 2018 he was 48 years old. He was known to both of you. Mr Miller, you and he had met earlier through your nephew's girlfriend, Iris Ramkia.
6 At the time of this offending, Mr Miller, you were staying with your nephew and Iris couch surfing after being released from custody in September 2018. According to you, Mr Miller, Iris reported to you that she had been sexually assaulted by Mr Bennett.
7 On Sunday 4 November 2018 Stephanie Galea was asked by you, Mr Miller, to drive to an address in Thornbury to pick up a friend of yours, Stephen Kirby. She did so and returned to your address in Reservoir with Kirby and his girlfriend. You both were waiting for them. Later that night Ms Galea was asked by Mr Kirby is she could drive all three of you to an address in Thornbury. She was told that the person who lived there owed drugs and that you were going there to 'Get the gear that was owed to them'. Ms Galea agreed once Mr Kirby had located the address Ms Galea parked at the end of the street. You both left the vehicle with Mr Kirby. Ms Galea remained in the car. It was about 5.30 am on Monday 5 November 2018 by this stage.
8 The victim, Mr Bennett, was asleep on his couch when he heard a knock on the door. He answered and recognised you, Mr Miller. He recalls that you were wearing dark clothes with short sleeves and riggers gloves. As he opened the door and you walked inside your co-offenders rushed in. The victim recognised you, Mr Higgins. You were wearing a hoodie. The victim did not know Mr Kirby.
9 Mr Miller, you asked the victim for a syringe. He walked into the kitchen to get one and at this time he observed that you, Mr Miller, were already in the kitchen closing the blinds. The victim also saw that one of the other males was checking the blinds at the front of the premises. You, Mr Miller, said to the victim, 'So you've been touching up Iris, have ya?'. The victim responded, 'No, I don't know what you're talking about. She stayed here the other night. She snuggled up to me and fell asleep'. You, Mr Miller, then said, 'Bullshit. She said you raped her and now you're going to get'.
10 The victim then observed you, Mr Higgins and Mr Kirby coming towards the kitchen. Mr Miller, you then grabbed the victim by his shirt and jump punched him which caused him to stumble backwards. You then said, 'You're gonna get it now'. You, Mr Higgins and Mr Kirby also rushed towards the victim and soon all three of you were 'At him in the kitchen'. Mr Higgins, you later admitted landing punches on the victim.
11 It is these actions by both of you which constitute the offence of causing injury intentionally. The victim at one stage during the assault kicked you, Mr Higgins, either to your chest or face in self defence. He also had hold of the other males' jumpers in an attempt to hold them off. At some point you, Mr Miller, were holding him down in an apparent attempt to shut him up as he was 'Yelling out for help'.
12 It is around this point that the victim was stabbed in the chest by Mr Kirby. The blade of the knife was inserted approximately 10 centimetres into his chest narrowly missing his heart. The blade punctured his lung causing blood loss, pain and trouble breathing. Mr Kirby then slashed at the victim's throat causing a laceration between his neck and chin. The victim initially did not realise he had been stabbed but saw a voluminous amount of blood coming from his chest. The prosecution accept that neither of you were aware Kirby had a knife or had any intention of causing injury by stabbing the victim. You are not responsible for his additional action of stabbing the victim.
13 To defend himself the victim managed to drag you, Mr Miller, to the ground and knee you to the face. He also managed to kick you, Mr Higgins, to the chest. You, Mr Higgins, then ran from the apartment to Ms Galea's car. She said she had been waiting approximately five minutes when she saw you running back to her car. You got into the front passenger seat and Ms Galea noticed that your hands were shaking. You were no longer wearing the gloves you had on when you left the car and your knuckles were red and purple. You told her that you had been, 'Bashing this guy', and that you had given the victim, 'A few punches to the face and had bashed him a little and that Justin (Miller) had done the same thing'. You told her that, 'Stephen was putting holes into this guy'. Ms Galea told you to stay in the car and she observed that you were, 'Really scared'.
14 Still inside the victim's address the victim looked down and saw that Kirby had a knife and that is when he realised he had been stabbed. He then took hold of Kirby's wrist to avoid being stabbed any more. The victim was told to let go of Kirby's wrist to which he replied, 'You let go of the knife and I'll let go of you'. At this point the victim says he started to find it difficult to breath and as a result he had no choice but to let Kirby go. The victim recalled that the entire incident happened in the space of a couple of minutes.
15 Mr Kirby and you, Mr Miller at this point returned to Galea's car. That was about five minutes after Mr Higgins. Kirby had gloves on. She also observed that he had blood spattered over his face and hands, that he looked like he had been hit in the face and had a cut above his right eye. Mr Miller, your shirt had blood all over it as a result of you slipping in the kitchen while Mr Kirby was stabbing the victim. Your T-shirt was later disposed of by Ms Galea.
16 Once in the car Kirby told her to, 'Go go go'. While driving back to Reservoir Kirby was boasting about how he had, 'Put holes in this guy'. Ms Galea then pulled over in a panic and she told you all that she wanted to call an ambulance. Kirby, who was seated behind her, then produced a small box cutter knife and held it to her cheek. He told her, 'Don't call for help. It will come back on us. If you do I'll come after you and your son. If I can't then someone else will come for you and your son'.
17 Ms Galea dropped you all off at Miller's Reservoir address. You all then started talking about what happened and Ms Galea described that you both, Mr Miller and Mr Higgins, were arguing with Kirby because it was not part of the plan to stab this person. That the plan was, 'To go in there, bash him up a bit and take stuff from him'. One or other of you said, 'You've gone too far. This wasn't supposed to happen'. Meanwhile paramedics were called by Mr Bennett's neighbours and he was taken to the Royal Melbourne Hospital. He was admitted and treated for his injuries.
18 The prosecution, as I have said, does not allege that either of you, prior to the altercation, were aware that Kirby had a knife or intended to use one to seriously injure the victim. The prosecution does not allege that either of you caused any injuries associated with the use of the knife or as a result of the stab wounds to the victim's chest.
19 Specifically what is alleged and accepted by the both of you through your pleas of guilty is that, as a result of the initial physical altercation with you both, the victim suffered a laceration to the left eyebrow and a haematoma to the left side of his forehead. The prosecution concede these are low level injuries. Nonetheless the victim did also suffer extensive serious injuries as a result of the stab wound and remained in hospital until 10 November 2018. In the days following this event, sometime between 5 and 14 November, you, Mr Higgins, disposed of the kitchen knife used to stab the victim by throwing it in a bin outside your address. The prosecution accept that you did this on the instruction of Mr Kirby. That knife has not been recovered.
20 Mr Higgins, you were on bail at the time of this offending. You were, in fact, on bail for theft of the same victim's motor vehicle on 16 October 2018, that is about three weeks before these events. The car was, in fact, taken from the victim's house by another person and driven to your address where you used it, hence the theft of motor vehicle. You had been bailed on your own undertaking to appear at Heidelberg Magistrates' Court in relation to that offence on 25 February 2019. On my enquiry your counsel submitted and the prosecution accepted that despite this earlier offence there is no evidence to suggest you had a particular conflict or animosity against the victim.
21 While the victim, Mr Bennett, was still in hospital in the days following being stabbed, Iris Ramkia attended at his address and stole his blue Ford sedan. She then drove back to the address where she was living and where you were staying, Mr Miller, and she picked you up. Both she and you then returned to the victim's address where you broke in and stole numerous items belonging to him. You and she left with the stolen items in the victim's car and disposed of that property at an undisclosed location. That property has not been located.
22 In my view that is a particularly low act. You knew the victim had been stabbed and was in hospital. It somewhat diminishes your expressions of outrage that Kirby had inflicted a series injury on the victim. Your moral culpability for that further offending against the same man in those circumstances is high.
23 Principles of general deterrence, denunciation and just punishment are relevant to the sentencing task for offending such as this. In particular, premeditated offending committed in company in the middle of the night in a person's home cannot be tolerated. Your behaviour represents vigilante action. That is taking the law into your own hands and attempting to solve a conflict through violence. The community must be protected from such offending.
24 In relation to you, Mr Miller, you apparently took matters into your own hands when you received the report of some wrongdoing by the victim against your nephew's girlfriend. You were candid about this during your record of interview wherein you admitted the motivation for your attendance, that you had already made up your mind that Iris's allegations were true when you attended and that you overreacted. Mr Higgins did not know of that allegation but you apparently attended to extract drugs or a drug debt. You, Mr Higgins, were less honest in your record of interview. However, by your early plea of guilty you have since admitted your part in this offending.
25 You are both men with serious prior criminal convictions and you have both spent periods of time in custody. Opportunities have been afforded to both of you by way of sentencing dispositions aimed at your rehabilitation but these have apparently been largely unsuccessful.
26 Turning to you, Mr Higgins. At the time of this offending you were on bail in relation to the theft of the victim's car. You had also only recently been released from custody onto a community correction order. That release occurred on 19 June 2018 after having served six months in custody. I have read the breach report from that CCO. It reveals that as early as three weeks after your release you tested positive for methamphetamine. Your attendance at supervision drug counselling, a program aimed at men's behaviour change, had all tailed off or was non-existent. You had completed zero hours of unpaid community work having failed to attend.
27 Nonetheless and somewhat surprisingly that breach report recommends that given your limited involvement with Corrections and 'His youthful age there may still be rehabilitative value for him to be placed on a further community correction order'. That is a generous concession in light of your prior criminal history which includes a number of dishonesty offences including burglaries, thefts, robberies and assaults. When you entered the Magistrates' Court jurisdiction in 2011 and 2012 you had already had some history in the Children's Court. As early as 2012 you breached a community based order.
28 You also have a history of violent offences, in particular, assault in company and unlawful assault in 2012 where you received short terms of imprisonment. Happily, there is a significant break in your prior criminal offending effectively between 2012 and 2017 and that is a significant matter.
29 Unfortunately your return to offending was significant with offences of recklessly cause injury, contravening family violence intervention orders, unlawful assault, threat to inflict serious injury, a number of driving matters, failing to obey police directions and more dishonesty. Those matters were dealt with in December 2017 and 2018.
30 It is from the appearance in December 2017 in relation to some of those matters that you received the six months' imprisonment plus an 18 month community correction order and as I have said, you were released in June 2018 on that sentence and you committed this offending in November 2018. That rapid decline relates to your relapse into serious drug use upon your release. Drug use has dogged you for some years now and it is clear that it represents the biggest barrier to your successful rehabilitation.
31 Turning to your history. Mr Higgins, you were born in Melbourne and raised in Broadmeadows and Reservoir. Your family history has not been without its difficulties. Your parents separated when you were six months old as a result of your father's extreme violence towards your mother. You have only met your biological father a handful of times, the last being two years ago. He was a heavy drinker and apparently showed little interest in your life.
32 Your mother remarried, however, that relationship did not last. It was your stepfather, Shane, who stepped forward and took care of you after he and your mother separated. Your mother has remained involved in your life though and you spent school holidays with her growing up. Both she and Shane have been present in court through these proceedings. You have one brother, an older maternal half-brother and a younger maternal half-brother and sister through your mother.
33 When you were 15 years old you and Shane went through months of homelessness before eventually being granted a commission house. At age 16 you commenced a relationship which lasted for five years. You and your partner lived in Frankston together for approximately four years. That is, at that very young age, you were living independently. When you separated you moved back in with Shane and you remained with him until 2011. You moved out living at a friend's house and couch surfing prior to being in prison for the first time in 2012.
34 You then met your next girlfriend when you were 21. You have two children together, a daughter born in April 2015 and a son born in November 2016. That period coincides with you being offence free. However, that relationship was marred – can I just confirm this, Mr Goodfellow? It is mutual drug use as part of that relationship is my memory?
35 MR GOODFELLOW: I think that's right, Your Honour.
36 HER HONOUR: All right. If you would just confirm that and I will come back to it at the end.
37 MR GOODFELLOW: Thank you, Your Honour.
38 HER HONOUR: That relationship was marred by mutual drug use and by your violent behaviour towards your partner and eventually broke apart. Together you had rented a home in Whittlesea but you lost this in 2017 when work became irregular. Your partner moved with the children to her mother's home. Around the same time there was a family violence intervention order imposed by police. You were then homeless, sleeping rough for about six months.
39 You have some ongoing contact with your former partner and children by telephone and you do remain hopeful about some reunification at least with your children in the future. Any goal in relation to that is somewhat uncertain given your past behaviour towards her. However, I accept that you do hope to engage with your two young children, to be a part of their life in a way in which your father was not there for you. Your children should provide a real motivator for you to rehabilitate yourself.
40 After that relationship concluded you moved in with your mother and brother in Preston before being remanded eventually for this offending. You attended Broadmeadows West Primary School and you completed Year 7 and 8 at Hillcrest Secondary College before you were expelled. You moved to Erinbank Secondary College where you completed Years and 9 and 10, then Coburg Special School for Year 11 as a result of some literacy difficulties which had first been discovered in Grade 5 and were confirmed in Year 7.
41 You do have some work history. You were involved in detailing caravans for 12 months before working in bricklaying, plumbing and draining. You also worked for three years with Whittlesea Removals which was your most recent position. You have an offer of employment through a family member involved in scaffolding and you are apparently keen to take up that position. The period where you were offence free between 2012 and 2017 coincides with your time as a removalist. Capacity to engage in employment for decent periods of time and to be offence free in that context is a positive and a protective factor which bodes well for your prospects of rehabilitation.
42 As I said earlier, the real barrier to your success is your drug use. That history is as follows. You started consuming alcohol from about the age of 16 by way of binge drinking. You first used cannabis at around the same age and you were using daily from ages 18 to 24. You have experimented with heroin, GHB and ecstasy but use of methamphetamine on and off in your mid 20s was a real problem and you were again using heavily at the time of this offending. Your ice use has led to paranoid delusions and hallucinations. You have reported suffering from feelings of depression and anxiety since you were around 20 years of age and you acknowledge that this has worsened when you have been using drugs. You reported some limited drug treatment exposure on previous CCOs but you were never really committed.
43 Your counsel submitted that in all the circumstances you ought be given another opportunity to undertake a community correction order and that I should impose a combination sentence of imprisonment plus such an order. That submission was supported by the prosecution.
44 I must, in your case, take into account the issue of totality in consideration of the appropriate sentence. You are currently undergoing sentence which relates to the breach of the community correction order you were on and associated offences for which you were on bail at the time of the offending before me.
45 Those matters were dealt with on 28 May 2019 and you received a term of seven months' imprisonment with presentence detention of 85 days. That sentence will end in October of this year. The presentence detention therefore which I can take into account in this matter is limited to 110 days.
46 Ultimately I have accepted the submission that you should be given another opportunity. I have received a CCO assessment report which attests to your suitability and confirms your engagement in programs in custody, your intention to live with your mother on release and to take up employment and to try and re-engage with your children. In your case the sentence I impose will be one which combines imprisonment with a community correction order.
47 I take that course for the following reasons in summary. Your early plea of guilty, the lower end nature of the injury inflicted in this case, the fact that when the incident escalated in violence largely at the hands of Mr Kirby you exited that situation.
48 I accept, as the prosecution do, that your disposal of the knife was done out of fear of Mr Kirby. I accept that at age 28 you are still a relatively young person with a future ahead of you. You are someone with family support and will return to live with your mother on your release. You have some employment history as I have outlined and you are keen to get back to work and contributing to the community with a job apparently on offer. Both of those matters are positives for you.
49 If you can use the period of incarceration to remain abstinent from drug use before commencing a community correction order that will bode well for your rehabilitation. You must continue to engage in whatever programs are available to you in custody to address your drug use and its underlying causes. You must then engage with all programs offered to you by Corrections upon your release.
50 Given your release date will be able to be predetermined I would hope that structures will be put in place by Corrections prior to your release so that there is not a gap in structure when you are released from custody. In other words, I would hope that you can be referred for drug testing and treatment in advance of your release as well as anger management and any counselling or treatment for mental health issues so that programs can commence immediately.
51 I am mindful of the issues of parity when dealing with co-offenders. Parity takes into account considerations of the offending to which you have pleaded guilty and your roles in the joint offending. It must also take into account your personal circumstances which includes your relative ages, your relevant prior criminal histories, your personal circumstances at the time and since. In that sense equal justice may result in different outcomes.
52 With those matters in mind I turn to you, Mr Miller. Your personal history too has had its difficulties. You have tried to counter those difficulties through now chronic drug use. You are 10 years older than your co-offender. Your criminal history is more extensive. Your personal situation is complicated by the existence on an acquired brain injury as a result of severe traumatic head injury sustained in 2012 after an assault.
53 Turning first to your personal history. You report a stable and happy early family life. You grew up around Greensborough then Broadford. You have a half-sister who is older than you as well as a full brother who is younger. Your mother is deceased. Your father remains in your life and was present in court at your plea. He is a solid support to you.
54 You attended St Patrick's in Kilmore and were a good student of above average ability, particularly good at maths and science. You then attended Broadford Secondary College completing Year 7 and then jumping over Year 8 straight into Year 9. Unfortunately this resulted in bullying due to your younger age. You started misbehaving as a result, eventually being expelled without completing Year 10.
55 You then obtained work variously as a labourer, house painter and eventually obtained a qualification as a roof tiler. You also completed a Certificate III in Hospitality. You were working as a roof tiler in 2012 when you were assaulted. As a consequence of that assault you suffered a brain injury resulting in epileptic seizures. Seizures and roof tiling are not compatible and so you have not been able to work in that occupation since.
56 Your work history has been punctuated by periods of offending. That offending has largely been driven by drug use. You say you started drinking alcohol at a young age and had a heavy addiction up until about four to five years ago. You regularly consumed half a slab or half a bottle of scotch per day. You used marijuana on a daily basis during your mid-teens and around aged 17 you turned to amphetamines using half a gram on a daily basis up until 2005.
57 In 2001 you developed an addiction to methamphetamine, regularly using one to two points per day when out of custody and that situation remained up until the current period of incarceration. You had also commenced using heroin as a way of pain management after a serious car accident in about 2013. You were using between half to one gram per day on a daily basis.
58 You had only been out of custody for two months leading to this offending. You say you had managed to stay drug free for a month before the grip of your chronic ice addiction took hold again. You were again using heavily at the time of this offending.
59 Despite your reports of a happy childhood you have also suffered a number of traumas. You were the victim of abuse at the hands of a neighbour between the ages of five to nine. In 1992 at around age 11 you witnesses a car blow up and below in the car burning. This was an accident on the Hume Highway following which you reported being too scared to go to sleep. In 1993 you witnessed a car hit by a freight train. You never received any psychological counselling for any of these events.
60 At some point in your history you were in a relationship and you have a 10 year old daughter, Catherine. She resides with your father who has custody of her. You also have a two year old son, Colin, who has Down syndrome and is in DHHS care. You have hopes of being part of your children's lives, in particular of being responsible for the day to day care of your daughter. I will return to that.
61 As I mentioned, you have suffered a traumatic brain injury. In fact, you have been involved in three events where you have been rendered unconscious, sustained head injury and required in-patient care.
62 In 2009 you were assaulted in prison resulting in a period of time in intensive care. In 2012, as I have referred to, you were assaulted by a number of persons where you were struck to the head with a baseball bat as well as kicked to the head. That resulted in a lengthy hospital stay. Following that you had a formal diagnosis of epilepsy following grand mal seizures. In 2013 you were involved in a motor vehicle accident leading to a loss of your spleen and other internal injuries and some loss of consciousness from hitting your head.
63 I have received two comprehensive reports detailing those matters. Firstly, from Carla Lechner, psychologist and secondly, from Martin Jackson, neuropsychologist. Mr Jackson's report in particular draws on a number of other reports related to those past traumas and your diagnoses and treatment. He also administered extensive testing to you. He says,
'Mr Miller's cognitive and behavioural impairments as seen on the current neuropsychological assessment are quite consistent with having sustained a significant traumatic brain injury in the past.'
64 It is noted that in particular the assault in 2012 resulted in a severe traumatic brain injury with a CT brain scan showing a variety of injuries. They are a right temporal extradural haemorrhage with moderate mass effect and uncal herniation on the right, that is brain swelling, as well as right subarachnoid haemorrhage, left temporal lobe haemorrhage, contusions, right temporal lobe haematoma and a small left subdural haemorrhage and multiple skull fractures'.
65 In Mr Jackson's words, 'This was clearly a very significant head injury'. It is noted that the impairments that Mr Miller demonstrates primarily in the areas of new learning and memory and to a lesser degree in executive skills are consistent with bilateral damage to his temporal and frontal lobes.
66 As a result of that severe injury he opines that you have a number of cognitive difficulties with processing information, learning, remembering complex or unstructured information, planning and organisation. He says your thinking is said to be somewhat concrete and inflexible and your problem solving and ability to predict outcomes of your behaviour is impaired. These are permanent difficulties according to him.
67 Since those injuries you have also had several admissions to psychiatric hospital wards as a result of self harming due to anxiety, in particular in 2015 you were admitted on four occasions.
68 Your counsel submitted that principles of Verdins are enlivened in your case. I accept that they are. However, your counsel sensibly conceded that given your pre-existing criminal history, that is prior to those head injuries and given your chronic history of drug use any moderation of the sentencing principles would be modest. I agree.
69 In particular both Mr Jackson and Ms Lechner state that you appreciate right from wrong. Mr Jackson states,
'On the balance of probabilities Mr Miller's cognitive and behavioural impairments would have contributed to his offending behaviour but not necessarily been the primary cause. The issue with offending against a person was present prior to his traumatic brain injury although the presence of behavioural and cognitive impairments will have exacerbated this problem.'
70 He also states,
'Mr Miller's cognitive and behavioural impairments do not affect his ability to understand the wrongfulness of his actions. However, he does have a mild disorder of impulse control and monitoring and therefore will have a propensity to act without thinking. Furthermore, the executive impairment he has will impact on his ability to make calm and reasonable decisions and appropriate judgments.'
71 In relation to limbs 5 and 6 of Verdins I accept that those impairments will render a term of imprisonment more difficult for you. Although I note that you have stated to Ms Lechner that in the absence of drug use and in a contained environment your mood state has actually improved somewhat. In one sense that is a concerning statement as it evidences the fact, as attested to by Mr Jackson and Ms Lechner, that you are at risk of institutionalisation.
72 Mr Jackson, in referring to your past history of trauma and your more recent history, notes that you have had admissions to psychiatric wards in the past as a result of slashing yourself when you have become anxious and have not coped. In this context he says,
'Therefore there is certainly the potential of poor coping in the prison environment and his mental health will need to be closely monitored.'
73 I note also that you have apparently been a Crown witness in relation to a murder which occurred in 2014. This has apparently added to your burden in custody. You are currently in protection in the Hopkins Correctional Centre as a result.
74 Both Mr Jackson and Ms Lechner attest to the fact that you have expressed genuine remorse for your offending on these occasions, in particular the fact that your co-accused stabbed the victim.
75 In your case, Mr Miller, I make the following comments and findings. I repeat my earlier comments regarding the seriousness of persons committing an offence such as this, in company, at night, in a person's home. However, I accept the following. The injury inflicted was a low level one. You made full and frank admissions in your record of interview explaining your misguided sense of loyalty to your nephew's girlfriend and the reasons behind the offending. That version, in fact, is supported by what the victim says as to the initial conversation when you attended.
76 You conceded to police you acted rashly, accepting the allegations as truthful and that you went over the top in your response. You volunteered to police your involvement in the subsequent burglary of the victim's premises. The police had previously no information as to the identity of person's involved in that offence. To this end I am satisfied that this volunteered information entitles you to the type of discount discussed in the case of Dorin.
77 You pleaded guilty at the first committal case conference in February, some three months after the offending. You too are entitled to a discount as a result of that plea. In your case it saved the victim being cross-examined and has utilitarian benefit in saving the time and expense of a trial.
78 In your case I am also satisfied that it reflects genuine remorse at your offending and empathy for the victim, Mr Bennett. I accept that Verdins applies in your case, however, any moderation of sentence in line with limbs 1 to 4 is modest. Limbs 5 and 6 do apply, however, again any discount as a result is a modest one. Given your criminal history and your chronic drug use, like your co-offender your prospects of rehabilitation are guarded and are almost solely dependent on your ability to remain drug free.
79 You are apparently in line for a TAC payout with regard to your 2013 motor vehicle accident. Your father is acting as your guardian in that litigation, as I understand, and will manage any funds coming from that compensation. That is important as it will ensure that those funds are not wasted on drug use. It will also assist you to realise a goal which apparently is that you will use those funds to buy a house in the country where you can be free of the drug culture you know in Melbourne. You are also keen to assist your children financially and possibly re-engage with them, certainly with your daughter, in real and practical parenting. Those are motivators for you.
80 Despite the prosecution indicating that in your case a combination sentence of imprisonment and a CCO is within the sentencing range, your counsel conceded that the proper sentence is one of a head sentence and parole. In my view, your counsel is correct and that was an entirely appropriate concession.
81 If you could both stand now please.
82 Mr Higgins, in relation to you on the charge of causing injury intentionally you are convicted and sentenced to eight months' imprisonment plus a 15 month community correction order. In relation to the charge of assisting an offender you are convicted and sentenced to three months' imprisonment. In relation to the offence of committing an indictable offence on bail you are convicted and sentenced to a term of three months' imprisonment. The total effective sentence I impose is eight months' imprisonment and 15 month community correction order. I declare presentence detention as 110 days reckoned as part of that sentence.
83 In relation to the community correction order the conditions of that order, in addition to the core conditions, are that you will be under supervision. You are to complete 200 hours of unpaid community work. I permit that up to 100 hours of that work be offset against the unpaid community work. So in other words, the more treatment that you do up to 100 hours can be taken off the unpaid community work hours.
84 The treatment aspects of that order will be that you be subject to drug testing and treatment including urine analysis. That you be subject to mental health assessment and treatment as directed and that I impose a specific offence related program including but not limited to an anger management program.
85 But for your pleas of guilty the sentence I would have imposed would have been one of two years' imprisonment with a non parole period of 12 months.
86 Mr Miller, in relation to the charge of causing injury intentionally you are convicted and sentenced to 16 months' imprisonment. In relation to the burglary you are convicted and sentenced to 14 months' imprisonment. I direct that seven months of that sentence be served cumulatively. Therefore the total effective sentence in relation to you is one of 23 months' imprisonment and I direct you serve 12 months before becoming eligible for parole. In your case I declare 283 days presentence detention as reckoned as having been served as part of that sentence.
87 But for your pleas of guilty the sentence I would have imposed would have been one of three years and six months' imprisonment with a non parole period of two years and two months' imprisonment.
88 I propose to make the disposal orders that were sought.
MR GOODFELLOW: As Your Honour pleases.
HER HONOUR: Mr Higgins, do you agree to undertake the community correction order that I've outlined?
OFFENDER HIGGINS: Yes, I will, Your Honour.
HER HONOUR: All right. Well I'll have you sign that order. Mr Goodfellow, on that factual matter, are you able to confirm that?
MR GOODFELLOW: May I just seek instructions?
HER HONOUR: Yes.
MR GOODFELLOW: Thank you, Your Honour.
HER HONOUR: An issue?
MS DANKS: Yes, Your Honour.
HER HONOUR: Yes.
MS DANKS: Just there's two disposal orders, one for Higgins and one for Miller.
HER HONOUR: Yes. Yes.
MS DANKS: The one for Miller is just for a pair of Nike shoes. We don't need that order granted. Those shoes will be returned to him.
HER HONOUR: All right. Thanks very much.
MS DANKS: Thank you, Your Honour.
HER HONOUR: That's Mr Higgins.
MR GOODFELLOW: On that issue, it was mutual for a short period of time.
HER HONOUR: All right.
MR GOODFELLOW: Her use was far more limited and for a far shorter period of time than his but - - -
HER HONOUR: All right. Well I think in fairness - - -
MR GOODFELLOW: - - - that was correct that statement.
HER HONOUR: Sorry, I interrupted you. I think in fairness to her I won't include that because it doesn't sound - - -
MR GOODFELLOW: As Your Honour pleases.
HER HONOUR: - - - like that was an operative factor on the - - -
MR GOODFELLOW: No, he – that's right. He certainly attributes no responsibility or blame towards her in terms of his own use.
HER HONOUR: All right.
MR GOODFELLOW: So no issue with that. Thank you, Your Honour.
HER HONOUR: Thanks very much for that indication. All right. So Mr Higgins, in particular in relation to you, you will have and the prison authorities will be able to determine for you your release date at which point you'll take up that community correction order. As I've said in my sentence, ultimately it is a matter for Corrections but I'm hopeful that some plans will be put in place, if not assessments done, before you are released because as you yourself know, it's a very critical time for relapse, when you come out of custody. So I'm hoping you and Corrections can turn your minds to that period of time and have something in place for when you come out in addition to what I've outlined as the supports that are there for you. Now your promise on this order is that you will complete the order that I've outlined. You understand that?
OFFENDER HIGGINS: Yes, Your Honour.
HER HONOUR: And you understand that any breach, whether it's by reoffending or not doing what Corrections tell you to do will bring you back to me and I will have to resentence you on this offending.
OFFENDER HIGGINS: Yes, Your Honour.
HER HONOUR: All right. Well you'll be given a copy of that order before you leave and as I said, that order will commence as soon as you are released. All right and Mr Miller, in relation to you, you've got the non parole period that I've set. Obviously parole and when you're granted it is a matter beyond me and it's for the Post Sentence Authority. All right. Thanks very much. Thanks, counsel.
MR GOODFELLOW: If Your Honour pleases.
HER HONOUR: Yes please.
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