Director of Public Prosecutions v Miller

[2019] VCC 125

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-01815

DIRECTOR OF PUBLIC PROSECUTIONS

v

MADISON MILLER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	14 February 2019
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2019] VCC 125

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Stougiannos
For the Accused	Mr R. Alexander

HIS HONOUR:

1Madison Miller, you have pleaded guilty to one charge of attempted armed robbery and once charge of causing injury recklessly.

2A summary of the prosecution opening was tendered to the court and exhibited and it will be retained.

3For purposes of this sentence it will be sufficient to recite these facts:  you are 23 years old, 22 at the time of the offending.  Just prior to these offences you visited a friend's place at Wendouree.

4On the relevant date on May 2018, at 10:00pm at night, you went a few houses down the street and knocked on a door of a home.  Your reasons for doing so are unclear.  You have given differing accounts on the occasions that you were asked.  You told police you had used about a gram of ice that morning.  You told police you had an argument with your ex-partner about not wanting to be with him and receiving threats.

5You told the assessing officer with Corrections recently on the 11th of this month that you had been to visit your ex-partner to obtain drugs.  You had smoked ice two hours prior to going to your ex-partner's home to get more drugs and that you rang him to come get you, but he could not.  You said you were looking for somewhere to stay, but you needed a car to drive back home.

6You told the occupants of the house that you name was Sarah, untrue, and that you had an argument and had been assaulted by your boyfriend, another untruth.  You were holding a phone charger and asked the older male resident if you could charge your phone.  You told him not to call the police.

7The two residents were a couple in their 60s.  They had been watching TV peacefully.  They asked if you had somewhere to go and stay, and when they were told by you that you didn't they offered you a bed to stay the night.  They set up the bed in a spare room.  The man went to bed while his wife continued watching TV. Later that night you went into the man’s bedroom, made inappropriate advances towards him and offering inappropriate favours in exchange for the keys to his car so that you could go back to your friend's house.  He refused, but offered to drive you.  You produced a large serrated bread knife you had taken from the kitchen and held it up, shaking it at him while demanding his car keys and phone.

8You told the police you had grabbed the knife to make a sandwich in the kitchen and that you had been startled by the man.  You told Corrections you did not know where the knife came from.

9The man stood up and used the doona to attempt to take the knife from you, and you ran out into the hallway.  He chased you because his wife was still in the loungeroom and she has hearing problems and was not aware of what was happening.  When he got close to you, you lunged at him with the knife three or four times.  He defended himself with a picture frame.  He finally tackled you onto the ground in the lounge area.  You wrestled with him while on the ground, punching him and kicking him.

10You broke free and ran to the door.  You were restrained once again and kicked the man forcibly in the groin and ran to the kitchen.  You grabbed a saucepan there and swung it at the man, grazing the top of his head.  He then grabbed you in the hallway and held you on the ground until police arrived and arrested you.  You bit him on the arm, leaving a bruise and he had injuries to his hand, and to his head.

11The police arrived and called an ambulance to transport you to hospital because you told them you were about to have epileptic seizures.  You were taken there, but once there you were released without treatment.

12During the record of interview you expressed some remorse, denied the offences on the basis that you could not recall all that had happened in the home.  You asserted that you had used ice, but you accepted that you had bitten and kicked the man, but denied hitting him with the saucepan.  You were regretful of your action and admitted you possibility wanted his car and his phone.  You said you had probably kicked him in the groin.

13The two victims of your conduct have made victim impact statement.  I have read them and take them into account.  These two citizens were in the sanctity of their own home, you inveigled yourself in that home, at night.  They reacted admirably and showed you generous concern.  You responded to their kindness by abusing their altruistic instinct and attacked them in their own home.  They are to be commended for their generosity.

14That such good Samaritans should be terrorised in their own home at night by a stranger is utterly repugnant and the community has a right to look to the court for protection and to denounce such behaviour in strong terms.  Such attacks in the home with the use of a very dangerous weapon in the hands of a drug addled individual causes consternation and dismay, as well as fear.

15Mr Trounson speaks of his anger and upset at the loss of the feeling of safety and security he is entitled to have in his own home, especially at night.  He experiences ongoing anxiety and stress, and his sleep is disturbed.  He's had to seek psychological counselling support, as well as having to finance new security systems.

16Mrs Trounson said this crime has had a profound affect on her life.  It has caused her to withdraw from her social life with family and friends.  She suffers from anxiety, depression, loss of sleep and fear.  She experiences panic attacks and cannot stay in the home alone, especially at night.  She too has had to seek psychological help.

17It is easy to underestimate the impact of such criminality upon vulnerability and easy targets.  The sentence in my view must reflect the vindication of their rights, which have been so wantonly interfered with by your conduct, to achieve a measure of social rehabilitation for them in true recognition of the damage and hurt you caused.  I take their victim impact statements into account.

18The offence of attempted armed robbery is a very serious offence.  It comes with a maximum 20 years' imprisonment, and to recklessly cause injury has a maximum of five years.  By these maximum the Parliament has given an indication of the level of seriousness of these offences. 

19I take your plea into account. It was entered at the earliest opportunity.  Therefore, your sentence will be reduced accordingly by operation of law.  The plea has a utilitarian value of having avoided a criminal trial with its attended costs and trauma.  I accept that you have now gained some appropriate insight and have expressed some remorse for your offending.

20I take into account your personal background and history.  Much of this history is gleaned on the plea material and in the report of Mr McKinnon, a consulting psychologist, dated 27 October 2018.  What is clear is that your mother neglected you and your brother, used drugs, split from your father and frequently relocated.  You went into foster care at age just three. As a young child you ran away often, stayed in youth hostels and on the streets.  Your mother was violent, as were her partners with whom she gave birth to five other children.  For the last eight or so years you have lived in Melbourne.

21You told Mr McKinnon you are currently in a relationship with a man who lives in Yarrawonga, or works in Yarrawonga, who I was informed this morning has accommodation at Mulwala and can provide some stable accommodation on its face.  Although, this relationship is not of longstanding.

22You have very little by way of educational obtainment.  Your polysubstance abuse history commenced when you were about 13 years of age with cannabis and alcohol.  You told Mr McKinnon that it was your mother who gave you ecstasy tablets.  By age 15 you were using ice and other amphetamines, Valium and GHB.  You have had seizures of an epileptic nature at times when using ice and speed.

23Mr McKinnon conducted an assessment of your psychological and found you anxious and depressed.  Your intelligence is within the normal range, but he diagnosed you as suffering symptoms that meet the clinical criteria for post-traumatic stress disorder.  You were diagnosed with ADHD at about age five and prescribed Ritalin for some years.  You suffer from clonic-tonic seizures and are prescribed, currently, Seroquel, Epilim and Olanzapine.  Two of those are antipsychotic medication, often used in the control of epilepsy and the third is an anti-epilepsy medication.

24The post-traumatic stress disorder is currently at mild to moderate levels in the context of the effect of the medication, and your substance abuse is in remission.  Essentially due to your custodial situation.

25You are chronically distressed and you have expressed shame and remorse to Mr McKinnon.  Your drug uses forms part of the background I take into account.  Clearly, it is a disadvantage background which I consider lies at the source of your drug problem.  You are largely without family support and you have in fact not received visits whilst in reclusion.

26Mr McKinnon opines that you do not possess an inherently antisocial or criminal character and that the use of ice, lack of sleep and hopelessness contributed to your lack of sound judgement, impulsive behaviour, self-absorbed and anti-social irresponsible reckless lifestyle.  He notes you have coped well with your remand imprisonment, with positive consequences of stability, wellbeing and improvement in your physical health, and medication impact.

27Mr McKinnon did note that you have a prior history for a series of various offences.  I have some question or query over his assessment in relation to your personality, given these priors.

28Your drug history is longstanding and its affect is well known to you.  As you explained to police in the interview, it cannot provide an excuse beyond mere explanation.

29You have a substantial record of criminal priors, which starts in 2015, which I will not recite.  But I will not that it includes violence, drug and bail offences, breaches of community corrections orders, dishonesty offences, driving offences, trafficking offences and offences which have attracted a multitude of sanctions by the court.  In particularly, no less than three community corrections orders have been imposed by the Magistrates' Court.

30The month immediately before these offences, that is in April 2018, you were placed on a 12 month community correction order for entering a building with intent to steal, making use of false documents and theft.  This community correction order related to offences about which I was given some detail.  They are noteworthy.

31In January 2018, a glazier attended at your premises.  You told him you had no money or food.  He bought you food and gave you cash.  Later that month, with another male, you went to the victim's work premises and requested more money.  When he refused you later returned and entered the office at the premises and stole a blank cheque.  When you were questioned by an adjourning business owner you told them that you had left your phone charger inside.  You wrote the cheque to you, forging the glazier's signature for $8,9000, which you deposited in your bank account, but this was blocked.

32In early February you woke up a victim who was asleep in his caravan.  You told him you had been the victim of domestic violence, you asked to use his phone and call your dad who you claimed was a policeman.  And when you distracted the owner you fled with the phone.

33The matter with the glazier and the caravan owner involved offending committed on 3 February 2018 and 6 February 2018.  And on 2 February you had been placed on a community corrections order by the Wangaratta Magistrates' Court.

34I mention these matters not because you are to be punished for them again, which would not be proper and just, but because it shows that a number of elements of your modus operandi was clear and you adopted a course, which in this case led you consciously into more serious offending.

35I have taken into account the many certificates of completion of courses which you have undertaken whilst on remand.  This endeavour is to your credit and demonstrates that when abstinent and medicated you can begin to benefit from a rehabilitative path.  However, these are achieved in a controlled and stable environment.

36You have also written directly to the court addressing the victims to express your regret and remorse.  I take the contents of these documents into account.

37In my view, left to your own devices at this juncture of time to proceed either upon a community corrections order or to a voluntary rehabilitation therapeutic environment is not likely to be successful and would fail to adequately meet long term prospects for rehabilitation, which in my view are best managed by a parole disposition, which can be designed to manage the issues that have beset you.  Your prospects must be guarded.  But in a person of your age the court should be slow to lose hope in eventual rehabilitation.  In the meantime, any other disposition but imprisonment, in view, would fail to properly reflect the need for general deterrence, specific deterrence and just punishment.

38In this context I should mention the previously letter from Odyssey House, which confirms their willingness to offer a place in their therapeutic community.  This would be a voluntary program and residence thereunder are not supervised directly by staff.  It may be that some such admission may be possible in the future under parole condition.

39This morning I received a letter dated 12 February 2019 from Odyssey House.  It appears to be a standard letter outlining the requirements and expectations of residence admitted.  It confirms that you have been deemed suitable for admission as of 18 February, if deemed appropriate by the court.  For the reasons stated above, this is not a current option for you, but may form part of a future parole condition explored and finalised at that time, at the discretion of the parole board.

40As I have said, I take into account your youth.  Though you are not strictly speaking a youthful offender, you are not long out of that category and I accept that your disadvantaged background history of drug abuse and general instability should mitigate your punishment.

41It was argued both orally and in written submissions that I should place significant weight upon your asserted self-identification as an indigenous person, from your maternal side of the family.  This concept was simply stated and asserted without much further elaboration.  Rather the decisions for Fernando and Bugmy in the High Court were mentioned, res ipsa loquitur as it were, and that your claimed Aboriginality would naturally reduce your sentence.  No details were given as to how this claim comes to be made.  It was said that the disadvantaged background identified was somehow tied to this claim of Aboriginality.

42In my view, the passages quoted by counsel from both decisions simply recognise that an offender who was raised and has a background of abuse and violence is entitled to call into reckoning this depravation and have her moral culpability assessed in its full context.  That is, to throw light on the offending conduct.  This would involve a realistic recognition of the grave social difficulties faced by those of Aboriginal communities, which frequently proceeds the commission of crime.

43However, some greater evidentiary material should canvass the link between the offender and the community which she asserts she identifies with, beyond the mere assertion of belonging.  Otherwise the claim reduction in moral culpability remains only anchored to a basic claim of Aboriginality, or in this case part Aboriginality, without any of the relevant real life connections, which if based in reality could lead to such an amelioration of sentence.  I accept that to some extent your claimed Aboriginality is relevant to understanding your deprived background.  But without more constructive evidence this is but a slight factor in the synthesis to be applied.

44I asked that assessment be made to ascertain your suitability for a community corrections order.  I sought that assessment at the time when I had no decided the appropriate disposition.  For the reasons set out in the report you were found unsuitable.  In my view, when all relevant matters are considered, a community corrections order whether alone or in combination with a sentence of imprisonment would not adequately meet all sentencing considerations applicable here, particularly general deterrence, specific deterrence and punishment as I have indicated above.

45Please stand.

46On the attempted armed robbery you are convicted and sentenced to three years' imprisonment.

47On the recklessly cause injury you are convicted and sentenced to 12 months, that will be a period concurrent.

48This makes a total effective sentence of three years. I order that you serve a non-parole period of twenty-two months.

49I declare that you have served 277 days, excluding today, by way of
pre-sentence detention.  I will have that number noted in the records of the court as having already been served.

50But for your plea of guilty I would have sentenced you to four years' imprisonment, with a non-parole period of two and a half years.

51Are there any other ancillary orders?

52MR STOUGIANNOS:  No, Your Honour.

53HIS HONOUR:  Thank you.

54MR ALEXANDER:  As Your Honour pleases.

55HIS HONOUR:  Yes, thank you, Mr Alexander.

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