Director of Public Prosecutions v Miller
[2018] VCC 1778
•1 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-00385
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER MILLER |
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| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 1 November 2018 |
| CASE MAY BE CITED AS: | DPP v Miller |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1778 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Sheid | |
| For the Accused | Mr A. Hands |
HIS HONOUR:
1Alexander Miller, on 13 May 2016, I convicted and sentenced you to a total effective sentence of 403 days' imprisonment, about 13 and a half months, for trafficking in a drug of dependence, methylamphetamine, between 1 June 2013 to 6 May 2015. I further sentenced you for handling stolen goods to be imprisoned for 9 months, concurrent with the previous sentence.
2On both charges, I then released you, subject to a community corrections order for 12 months, to perform 270 hours of community work and to undergo assessment and treatment for drug abuse.
3The community corrections order commenced on 13 May 2016 and having consented to such an order, you attended to the induction appointment for the order. In fact, you attended all scheduled appointments until November of 2016. In the next few months, you were contracted to complete community work and completed the hours. You contributed to a structure at your own expense over many hours, paying and supplying for all the materials for the job and when you completed the hours ordered, you continued to assist the place to which you had been contracted. However, cracks were beginning to appear in this thin veneer of rehabilitation.
4October of 2016 brought its first positive urine test, having been earlier in June 2016 assessed as not suitable for further treatment. You were to be reassessed for treatment when you were arrested and remanded in custody.
5In reality, something else had been brewing underneath this facade.
6Ultimately on 30 August 2018, you were convicted and sentenced to a term of imprisonment of six years with a non-parole period of four years, with 653 days taken into account by way of pre-sentence detention declared and so noted by the court.
7On that day, His Honour Judge Smallwood convicted and sentenced you to the above sentence for trafficking a drug of dependence in a commercial quantity, knowingly deal with proceeds of crime. You have committed these offences between August and November 2016, only a few short months after you had been released from prison on the other matters. It was noted that this was not survival trafficking by His Honour. You were engaged in the business of trafficking.
8The report from Corrections dated 9 October 2018 recommends that I order the cancellation of the order and resentence you to a term of imprisonment. Ms Burns opines that the term could not or should be resentenced to a term of imprisonment or run concurrently with your current sentence. But with great respect to the Wangaratta Community Services case manager and the Courts Assessment and Prosecution Officer who countersigned that report, this latter recommendation is not theirs to make.
9The order expired on 12 May 2017. On 3 October 2018, having been sentenced by His Honour, you were charged with breaching the order that I made and in due course, I heard the contravention plea in late October 2018. The basis of the contravention clearly is the further offending. It is instructive to refer to the summary of the prosecution opening which was prepared for the 2016 sentence which I imposed. I will not recite its contents except to say that I have read it again for purposes of this sentence to refresh my mind as to the matters which was put in a matter which was part of the large number of matters brought before the court under Operation Juliet.
10In addition, I refer to the Crown opening upon your plea for the 2018 matters. You assisted another with trafficking, couriering, enforcement and debt collection. You were a significant customer and closely involved with the principal, one Bourne. You can be heard in conversation in September 2016 to discuss violent methods to extract drug debts. A series of conversations were outlined to the court in that summary which demonstrated your involvement.
11More notable are the remarks of Judge Smallwood. He notes you had access to firearms, that you were heavily engaged in trafficking and could not be said to be survival trafficking. You were engaged in the business of trafficking with Bourne. His Honour did accept you were using at the time although he accepted you on occasions could exaggerate your participation and actions in pursuit of the criminal enterprise. He found you were basically "engaging in wannabe gangster behaviour".
12This was serious offending to which both general and specific deterrence obviously applied. He noted that you appeared somewhat remorseful and concerned to keep custody of your child. However, he also noted that you had custody of that child during the course of the latter offending and that it had made no apparent difference to you.
13He expressed grave concern, and understandably so, that the suddenness of your offending occurred after at least a year in gaol and within a few months of being placed on a community corrections order. He felt you still had some rehabilitation prospects but with the high risk of reoffending, particularly if you used drugs again. His Honour sentenced you to six years as a head sentence with a non-parole period of four years and a section 6AAA declaration of nine years with six non-parole period.
14He also noted an order to be placed on the records of the court a declaration that you had already served almost 22 months, not quite two years, as a pre-sentence detention.
15My own sentence of 2016 is also instructive. I found your involvement was significant in relation to the sourcing and supply of drugs, your willingness to use force and threats to enforce payment on behalf of others. I noted large amounts of money were involved and you assisted others to traffic and seek transactions involving ice as well as planned those transactions.
16I noted your extensive prior history going back to your teenage years. I noted your pre-sentence detention spent for about half of its duration in lockdown conditions and took that into account. In early 2016 till March, you had attended Odyssey House but what was thought to be a circuit breaker for your own addiction was an illusory hope even after ongoing counselling. The material tendered attested to what appeared to be significant progress and remorse. The community corrections order was put in place in order to seek to supervise, to assist in treating you and in aiding your rehabilitation. I said at the time that but for your plea I would have sentenced you to five years with a non-parole period of three and a half years; and most importantly, I said this at the end of my sentence:
"Mr Miller, I want to make you understand without any misunderstanding that this order is really the only opportunity that you are going to get from this point on. Because with a serious charge like trafficking, if you return to the court, having committed further offences, the sentencing court really have no choice in relation to any further matter during the 12 months and beyond the 12 months."
17You ignored my warning, committed most serious criminal offences during the course of the order, commencing soon after its imposition.
18I was shown during your plea a single negative urine screen dated 15 August 2018 from the Metropolitan Remand Centre. I was also shown certificates of completion by Caraniche programs on ice and its effects and a number of others completed by you of a vocational nature, as well as well-being programs undertaken and completed. I will take those into account.
19It was said that having gone into custody on 29 November 2016, you were sentenced on 30 August 2018 so that by 14 November, there would be almost two years of service with the earliest release on 14 November 2020.
20It was submitted you had supportive parents, sister and brother-in-law. It was urged that because of these factors including your desire to be with your daughter and to rehabilitate, a non-custodial disposition on resentencing effectively required a term of imprisonment concurrent with the second sentence to be served. This was also the submission that the prosecution put forward.
21I do not agree with this outcome. Although I must keep active and engaged the possibility of rehabilitation in your case, it appears to me that I should punish the breach with punishment and resentence according to the seriousness of the offending and the aspects to which the earlier original sentence alluded. To order total concurrency would not be satisfactory or appropriate from the point of view of taking and assigning proper responsibility for a substantial offence.
22I take into account the principle of totality, the days that you have spent in custody under the original order and then subsequent period of imprisonment both of which have been declared and noted by the court. In imposing a new sentence, I also take into account the extent of which you did abide by other aspects of the community corrections order. However, the breaching offences were very serious, contumacious in nature and I must impose a new total effective sentence and non-parole period.
23I will cancel the order and impose the following sentences.
24On the breach of the community corrections order, you are convicted and sentenced to one month imprisonment. On the trafficking a drug of dependence, you are convicted and sentenced to two years' imprisonment, being the base sentence. On the handling stolen goods which were related to firearms, you are convicted and sentenced to nine months' imprisonment. Each of those sentences will be concurrent on each other.
25I order that 12 months of the sentence of two years' imprisonment on the trafficking charge be cumulative on the current total effective sentence being served, making a new total effective sentence of seven years. I fix a new non-parole period starting today of two and a half years. I declare that you have served 62 days from 30 August 2018 excluding today by way of pre-sentence detention which will be noted for the courts' records.
26Is the import of the sentence understood, Mr Hands?
27MR HANDS: Yes, Your Honour.
28HIS HONOUR: And Mr Sheid?
29MR SHEID: Yes.
30HIS HONOUR: I have in effect imposed a new non-parole and a new total effective sentence by cumulating one year of my sentence in relation to the most serious offence of trafficking and I have stipulated a new non-parole period starting today which encompasses the period which Mr Miller was still to serve and I have in effect added six months.
31MR HANDS: Yes. Thank you very much.
32MR SHEID: Your Honour ‑ ‑ ‑
33HIS HONOUR: Yes.
34MR SHEID: I have some difficulties with this because of the case of Luu v The Queen [2018] VSCA 92, whereby on a resentence you in essence resentence - taking you back from the step - the word go but you also take into account the previous time that has been served in ‑ ‑ ‑
35HIS HONOUR: No, well, I have simply noted that back when the sentences were imposed, there were periods of pre-sentence detention which were served and declared.
36MR SHEID: Yes.
37HIS HONOUR: And all I have said is that I have taken into account those for purposes of the totality principle.
38MR SHEID: Yes.
39HIS HONOUR: That is, in order to note that Mr Miller has served that time - over a thousand days in prison. But I am not re-declaring any of that period of time that he has served under each of those sentences. I am simply declaring the time between the last sentence and today which form part of the time that he is serving under Judge Smallwood's sentence.
40MR SHEID: Your Honour, I can understand that but because it is a resentence he has already done the original - I think it was
41HIS HONOUR: 403 days.
42MR SHEID: The 403 days.
43HIS HONOUR: Yes.
44MR SHEID: My understanding is that you have to declare that as part of this sentence as well from Luu's case. Because otherwise you potentially get into a doubling up situation.
45MR HANDS: Yes.
46HIS HONOUR: If I declare it, that it will be part of the sentence in the sense that that will be deducted from the non-parole period.
47MR SHEID: Yes.
48HIS HONOUR: That is not my intention at all. That is why I said that my non-parole period begins today otherwise I would have somehow backdated my sentence. And that is the difficulty with that operation in that when would that backdating go back even if you wanted to take the 403 days? I took that into account and declared that when I sentenced him originally and that had been fully served. So that my term of imprisonment which attached or was in combination of the community corrections order had already been served in effect. So I am not now declaring a new non-parole period and then declaring that time again. I have tailored my length of sentence by considering under totality that he has served that period and then he served another 653 days under Judge Smallwood's sentence. And those two periods are properly declared. And if I am to declare now 403 days, that is 13 months of that, I would have to add that on if I wanted him to actually do two and a half years non-parole period by styling some other number.
49MR SHEID: Yes, Your Honour. That is what I am submitting. I know it seems - that is why on all - mind you, it could not achieve what you would like. The easier way to sometimes deal with these is punishment for the breach but Your Honour has already done that. But you can only do that to a maximum of three months anyway.
50HIS HONOUR: I have imposed one month.
51MR SHEID: Yes, I know.
52HIS HONOUR: And I have made it concurrent. If I then go to resentence this man on the original charges, having cancelled the order, I have to take into account the time that he has served at the time leading into my sentence, the time that then elapsed and what happened in between, whether he was in custody or not and he was not until he was rearrested in November. But then His Honour's sentence takes into account that he is in prison for 653 days before he comes to his sentence. So I do not see why it is that I now have to again declare 603 days when I come to resentence him.
53MR SHEID: No, no. Not 603 days, sir.
54HIS HONOUR: I am sorry, 403 days when I come to resentence him today when all I want to achieve is impose a term of imprisonment on the trafficking which gives him a new total effective sentence and a new non-parole period which extends his current non-parole period for a time. I do not see what declaring those days would actually achieve. He has already done those and I have taken those into account, as I have said, by considering the fact that he has done that time under the principle of totality. Your reading of Luu is that I should again declare the 403 days?
55MR SHEID: That is my reading of it, sir.
56HIS HONOUR: Do you have a copy of that authority?
57MR SHEID: Yes, I do, Your Honour.
58HIS HONOUR: I will read it.
59MR SHEID: Sorry, I have only got the one copy.
60HIS HONOUR: No, that is fine. I will read it.
61MR SHEID: I know it does complicate it, sir.
62HIS HONOUR: Thank you. I will just step down. I will step down.
63MR SHEID: Yes, Your Honour.
64(Short adjournment.)
HIS HONOUR: Mr Sheid, if your interpretation of Luu is correct, then the only way that I can achieve this in order to put into effect my intention is to do the following as far as I can manage the mathematics. Following the apparent intention of the Court of Appeal although I confess I am not precisely clear on the approach that Their Honours have taken and I note that that was clearly a case in which I had heard, at the first instance, His Honour - he and I made the error of resentencing on the contravention beyond what was the maximum required. But when it came to the other approaches in relation to s.83, in any event - but I do have a question about one aspect of it.
65So in order for me to impose a new non-parole period which means that Mr Miller has to serve an added six months in effect, I have to style this sentence as thus given the original periods if I follow what the Court of Appeal did in Luu.
66MR SHEID: Yes.
67HIS HONOUR: I would take into account first of all the matters that were raised before me as time served and the new sentence of His Honour Judge Smallwood. And then impose a sentence of two years and one month on the trafficking, being really the 403 days which amounts to 13 months and the 12 months of the community corrections order which yields that 25 months which is two years and one month.
68MR SHEID: Yes.
69HIS HONOUR: And then order a non-parole period of 19 months, 13 months of which is accounted for by the 403 days that has already been served. Leaving six months of that non-parole period to be served.
70MR SHEID: I think that sounds about right, sir.
71HIS HONOUR: Now, the issue is how do I ensure that Corrections understands that - first of all what do I do about the total effective sentence of His Honour's sentence? Does that, in your view, remain unaffected if I do not make any cumulation upon my sentence of the total effective sentence that is imposed of six years? And probably more importantly, how does it affect the time which is currently being served as a non-parole period which is being extended, under my intention, by six months
72MR SHEID: Yes. Your Honour, I think with the traffic drug of dependence, you would have to declare six months of that to be cumulative upon the sentence of His Honour Judge Smallwood.
73HIS HONOUR: By reference to the non-parole period?
74MR SHEID: Yes.
75HIS HONOUR: Yes. And you think that that would suffice without me having to interfere with his total effective sentence? That is the head sentence.
76MR SHEID: I think so, sir.
77HIS HONOUR: Yes. Well, that may be right. In any event, my intention is not necessarily - and I do not think it would actually serve any purpose in my sentence to increase the total effective sentence. I simply want to add to his non-parole period. So having done it in that way, do you say that that is pursuant to Luu? That that is the way that I should do it?
78MR SHEID: I think so, sir.
79HIS HONOUR: Well then, that is what I would do. So I will repeat that.
80The order of the court in relation to the breach of community corrections order, having cancelled the order, is to impose conviction and sentence of one month imprisonment. On the handling stolen goods, conviction and sentenced to nine months' imprisonment. And on the trafficking in a drug of dependence, conviction and sentenced to two years' and one month imprisonment which is the base sentence. And I make all those sentences concurrent.
81I then order that the applicable non-parole period to that sentence will be 19 months and declare that Mr Miller has served 403 days by way of pre-sentence detention. Leaving in effect six months' non-parole period cumulative upon Judge Smallwood's sentence, cumulative on his non-parole period.
82MR HANDS: Your Honour, does the two years and the one month ‑ ‑ ‑
83HIS HONOUR: Yes.
84MR HANDS: The one month for the breach is cumulative?
85MR SHEID: Yes.
86HIS HONOUR: No, no. I have made all the sentences concurrent.
87MR HANDS: I see.
88HIS HONOUR: Including that one month.
89MR HANDS: Yes.
90HIS HONOUR: So that the total effective sentence in effect is two years and one month.
91MR HANDS: Yes.
92HIS HONOUR: I have then declared a 19-month non-parole period, 13 months of that in effect have been already served by a pre-sentence detention leaving six months' non-parole period which because he is undergoing sentence, will be added to the non-parole period which he is currently undertaking from His Honour's sentence and which a couple or I think two years remain. Making in effect, the new non-parole period of two and a half years.
93MR SHEID: Yes.
94MR HANDS: Yes, that is right. That was always your intention, Your Honour.
95HIS HONOUR: My question - and it is probably unanswered - is that I had done so by adding a year to the total effective sentence, that is the head sentence, making that seven years. But if I am, according to the analysis in Luu, not required to do that, then I will not interfere. And that is one view of what in effect is the way in which to handle it. I must confess that I remain puzzled by this particular aspect of sentence.
96MR SHEID: Your Honour, I understand that question and I find it puzzling as well.
97MR HANDS: We both remain a little puzzled.
98HIS HONOUR: Well, the judgment itself, with great respect to the Court of Appeal, is not the easiest authority to follow.
99MR SHEID: And, Your Honour, as a prosecutor, one had made the various submissions the way you had done it prior to this, because as soon as that came out I certainly looked at some of the breaches that I had done as to whether - because I had basically done the old submission that you - you do not look at it in isolation - the first sentence, but it is - you look at it as though you had not done the CCO and I had been making that submissions and then all of a sudden it was turned on its head.
100HIS HONOUR: But there is the question I think about the head sentence. When there is a circumstance such as Mr Miller's where he is being resentenced subsequently to a much more substantial period than he is undergoing, firstly because it is fair to take into account the time that he served and so that a proper calculation can be made by Corrections, I will endeavour to make my order as clear as possible so that Corrections are not confused
101MR SHEID: Yes, Your Honour.
102HIS HONOUR: But I am not, under this analysis, addressing a new head sentence. I am simply stipulating a new non-parole period.
103MR HANDS: Your Honour, in your original formulation you said that there was PSD of 62 days from 30 August. That is to be vacated?
104HIS HONOUR: Yes, it is.
105MR HANDS: Yes, thank you.
106HIS HONOUR: Yes. Because I have taken into account the original period and that remains simply as time served in relation to the other sentence rather than mine.
107MR HANDS: Yes.
108MR SHEID: Yes, Your Honour.
109HIS HONOUR: Well, thank you for that, Mr Sheid.
110MR SHEID: Thank you, Your Honour.
111HIS HONOUR: All right, thank you, Mr Miller. Yes, thank you, gentlemen. I have another matter that I need to proceed with so I will excuse you.
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