Director of Public Prosecutions v Miller
[2018] VCC 1026
•5 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-00114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIGEL MILLER |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 May 2018 |
| DATE OF SENTENCE: | 5 July 2018 |
| CASE MAY BE CITED AS: | DPP v Miller |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1026 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Hotchkin | OPP |
| For the Accused | Ms C. Cussen | VLA |
HIS HONOUR:
1 Nigel Miller, you have pleaded guilty to one charge of aggravated home invasion, one charge of armed robbery and one charge of prohibited person in possession of a firearm.
2 The maximum penalties for these offences are as follows:
· Aggravated home invasion – 25 years’ imprisonment, with a mandatory non-parole period of not less than 3 years unless a special reason exists;
· Armed Robbery – 25 years’ imprisonment;
· Prohibited person in possession of a firearm – 10 years’ imprisonment;
3 On 5 February 2017 you travelled from Wodonga with three other men to an address at 109 Stoll Road, Robinvale. A co-offender, Mac Sikoulabout, was aggrieved by the behaviour of his former partner and he formulated a plan to invade the home where he thought she was living. He persuaded you and the two other offenders (Toumngeun and White) to become involved by telling you that there would be between $10,000 to $20,000 cash in the house. You were motivated by the prospect of obtaining “easy money.” You were a heavy user of drugs at the time.
4 The four of you arrived at the address between 1am and 2am. Sikoulabout remained at the vehicle whilst you and the other two men armed and disguised yourselves. Toumngeun armed himself with a sawn off .22-calibre rifle to which he had taped a large kitchen knife as a bayonet. White armed himself with a sawn off .22-calibre rifle and you armed yourself with a sawn off double-barrelled shotgun. You and Toumngeun forced your way through the front door of a caravan on the property. The victims, a married couple, were threatened and menaced. They were tied up and gagged. Toumngeun demanded money and searched the caravan. White entered the caravan at this time. The female victim screamed. She was hit on the forehead with a mallet and punched to the face. The male victim was struck to the face with a firearm. The three of you stole a gold necklace from the female, $200 in cash and 3 mobile phones.
5 The three of you left the caravan and went to the main house, which was close by. The rear door was kicked in. The third victim was in his bed. He was forced to the ground and Toumngeun hog-tied his wrists to his ankles, causing him pain. Money was demanded from him. He was struck to the face and body and the house was ransacked. You stole two mobile phones, $20 in cash, a novelty sword, and the victim’s house and car keys. The victim was struck on the backside and left knee with a gun. He was told that he would be killed if he reported the matter to the police. The three of you went to the car that was outside, used the keys to obtain entry and stole $200 from the victim’s wallet together with his passport, driver’s licence and ATM cards. Sikoulabout slashed the tyres of the car.
6 The victim from the house eventually managed to free himself and go to the caravan where he freed the other two victims before calling the police. The victims were conveyed to the Robinvale Police Station where paramedics saw them. Fortunately, the physical injuries were minor and didn’t require any further medical treatment. Whilst no victim impact statements were provided, the victims spoke of their distress in statements made to the police. One victim said he was really frightened and he did not feel safe in his home anymore. Another victim spoke of being very scared by these events. In addition, the necklace that was stolen from the female was of significant personal value.
7 Mr Miller, this is particularly serious offending. It was a planned operation. It was dark, you were disguised, you were in company and you were armed with a sawn off shotgun. You were prohibited from possessing a firearm. You and your colleagues forced your way into the caravan and the house. The victims were threatened and assaulted. Property was stolen.
8 The maximum penalty available for the offences of aggravated home invasion and armed robbery provides one measure of their seriousness. General deterrence is a paramount sentencing consideration. I have a responsibility in sentencing you to deter other people who may be tempted to behave in the way that you did. In addition, just punishment and denunciation are also highly relevant.
9 You have relevant prior convictions. Your criminal history commences with an appearance at the Wodonga Magistrates’ Court on 15 June 2010 for offences that included burglary, theft and going equipped to steal. You were placed on a bond to be of good behaviour. You were dealt with in May 2011 for breaching the bond and you received a short Community Based Order. There is a gap in the offending and then in May 2014 you were fined for offences that included threat to inflict serious injury, unlawful assault and assault with a weapon. On 24 June 2015 you appeared at the Wodonga Court on a large number of charges, including theft, criminal damage, threat to kill, recklessly cause injury, and prohibited person possess firearm. You were convicted and released on a Community Corrections order that included treatment conditions and a condition that you attend Wulgunggo Ngalu.
10 Wulgunggo Ngalu is a facility operated by Corrections Victoria. It offers Aboriginal men on a CCO the opportunity to reside in a safe place whilst undergoing assessment and treatment for the issues that lie behind their offending. It also gives offenders the opportunity to strengthen their cultural connections. Regrettably, you did not complete that order.
11 In November 2016 you again appeared at the Wodonga court on charges of criminal damage and aggravated burglary – person present and you received an aggregate fine of $3,000.
12 This history means that specific deterrence and community protection are relevant sentencing considerations. Your prior criminal history also explains why I am guarded about your prospects for rehabilitation.
13 I now move to matters relevant to your background.
14 Your background is discussed in detail in two reports that were tendered to the court. The first, dated 17 February 2018 is from Ms Gina Cidoni, Consultant Psychologist. The second, dated 18 May 2018 is from Ms Laura Scott, a clinical neuropsychologist. It is a very detailed report.
15 Both reports make it clear that your early life was “tumultuous with considerable negative input” as a result of exposure to domestic violence and drugs. Your mother and father abused drugs. You told Ms Scott that the family moved about a lot because your father was always “on the run.” He served periods of imprisonment for drug trafficking. Your mother suffered from a mental illness with a number of admissions to hospital for mental health treatment. As a young child you were frequently left in the care of your grandmother in Wagga. When you were 10 years old your family eventually settled in a commission house in Wodonga and you then lived with them “full time.”
16 You struggled at school, leaving at the beginning of year 11 to work as a concreter. You were diagnosed with anxiety and depression by your local GP when you were 17 years old and with PTSD following your father’s death. You were 20 years old (or thereabouts) when he died in traumatic circumstances. You were with him when he suffered a heart attack and that experience has had a profound effect upon you.
17 In sentencing you, I do take account of the hardship you suffered in your formative years. Your family circumstances were unsettled and difficult. It cannot have been easy. These are matters that mitigate sentence.
18 Drug abuse has been a problem in recent years. You believe your drug addiction developed in response to the trauma associated with your father’s death. After your father’s death, you had a period where you were drinking alcohol heavily and although your use of benzodiazepines and opioid analgesics seems to have commenced before your father’s death, the problem escalated after that date. You used opioids regularly from the age of 22 until your incarceration for the current offences. In more recent times, your drug problem was compounded by the regular use of the drug ice. You were abusing that drug at the time of this offending. This does not excuse your offending in any way.
19
Both of the reports contain information that is highly relevant to your personal circumstances. First, you suffer from an intellectual disability. Testing by
Ms Cidoni disclosed a full scale IQ of 67. According to Ms Cidoni, your low IQ indicates severely compromised planning, self-monitoring and impulse management. She describes you as immature, naive and impressionable. In addition, she opines that you are suffering a pervasive depressive disorder and a substance abuse disorder.
20
Ms Scott confirms that you suffer from an intellectual disability. Her testing disclosed a full IQ score of 68 (Borderline to Extremely Low). In addition,
Ms Scott conducted an assessment to determine whether you had an acquired brain injury (ABI) and /or a neurodevelopmental condition. Ms Scott noted that on 1 April 2015 you were admitted to the Albury Wodonga hospital with the likely cause of presentation being “polypharmacy overdose complicated by aspiration pneumonia.” On this, Ms Scott says, “The results of this assessment are consistent with an ABI following the documented hypoxic episode in April 2015. Although his cognitive profile is somewhat atypical of hypoxic brain injury, there is no doubt that the episode in April 2015 is the primary cause of his ABI.”
21 Ms Scott opines that her assessment reveals that you have “a low level of intellectual function overall with additional impairments in attention, processing speed, executive functions such as concept formation, abstract verbal reasoning, mental flexibility and idea generation.” She said that these impairments would make it difficult for you to be able to follow complex or confusing conversations, identify inconsistencies or challenge another’s viewpoint. They would also reduce your ability to weigh up different courses of action, consider the future impact of current choices or ‘problem solve’ complex situations. She also noted that your cognitive impairments made it easier for others to persuade you to a particular perspective or course of action.
22 Mr Miller, I am satisfied that your cognitive impairments, are matters that operate in a general way to mitigate sentence.
23 When you were first remanded, you were held in a mainstream unit at Port Philip Prison. Your cognitive impairments made this period of imprisonment more onerous for you than it would have been for someone without your impairments. In addition, as a result of the fire at that prison in late 2017, you had periods of 23-hour lockdown that made your imprisonment more onerous than that of other prisoners. These matters provide grounds for mitigating sentence. On this issue, I do recognise that your period of imprisonment is now less onerous that it was. This is because the prison authorities have transferred you to the Marlborough Unit within the prison. This is clearly a better place for you to reside whilst in the prison system. Your counsel told me that you are currently prescribed methadone, and anti-depressant and anti-psychotic medications.
24 There are some other matters in mitigation.
25 You have pleaded guilty. It is an acceptance by you of responsibility for your offending. It has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
26 You consented to having the charges heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a “sentencing conversation.” It was apparent to me from the way you participated in the process that you do have insight into the problems in your life that you need to address and that you are now expressing a willingness to use support to help you to try and address these problems. I give you credit for your participation in the Koori Court process. The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.”[1] Participation in the process is not easy. Indeed it is challenging and your participation in the process is a factor that is relevant to sentencing.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
27 In determining your sentence I take into account that this will be your first sentence of imprisonment.
28
I have already said that I am guarded about your prospects of rehabilitation. Your prior history is one factor that is influential. There is also the opinion of
Ms Scott that your cognitive impairments increase the risk of reoffending. Obviously, the risk of reoffending would be reduced if you were able to remain drug free upon your release from prison. Prosocial contacts would also be important. Ms Scott expresses the opinion that a referral to an ABI service would help you better understand and manage the impacts of your ABI. It would also assist you to better engage with treatment services for other issues such as mental health and substance use. Ms Scott notes that it is encouraging that you are willing to participate in therapeutic treatments. It is encouraging to see the number of courses that you have completed whilst in custody. You told
Ms Scott and you told the court, that you are motivated to improve your mental health and to remain drug free. You are keen to return to work upon your release. If you were able to stick to your resolve to remain drug free, participate in mental health support and obtain employment, your prospects for rehabilitation would be enhanced.
29 I now move to the issue of parity. His Honour, Judge Burke dealt with your co-offenders. They were in a more serious position than you because they had all been involved in a second aggravated home invasion on 17 April 2017. That second incident was even more violent than the first one. You had no involvement in the second home invasion. However, your co-offender Toumngeun falsely reported that you were involved in the second incident. He did this to protect two of his family members who were actually involved. This meant that you had the pressure of this false accusation hanging over your head until Mr White resolved it at the plea hearing at Mildura in December 2017. I take this into account in sentencing.
30 In relation to the offending for which you pleaded guilty, Judge Bourke sentenced Sikoulabout and Toumngeun to 7 years imprisonment on the aggravated home invasion and 4 years and 6 months on the Armed Robbery. White was sentenced to 6 years and 4 years respectively for these offences. For each offender, 6 months of the sentence on the armed robbery was made cumulative on the sentence for the aggravated burglary. An important factor that distinguished White from his co-offenders was his willingness to assist the proper administration of justice by revealing the true names of the other people involved in the second offending. And as I have said, as a consequence of that, charges laid against you were withdrawn.
31 I have come to the conclusion that you are less culpable than your co-offenders. First, there is the obvious fact that you were only involved in one home invasion. Secondly, your cognitive impairment operates as a matter that distinguishes you from the others. Thirdly, your deprived background also operates to distinguish you. Whilst one of the co-offenders (Sikoulabout) had no prior convictions, his position was made more serious because he was the person who planned and instigated both home invasions.
32 Finally, in the written submissions tendered to the court on your behalf, it was submitted that a mandatory non-parole period of less than three years should be imposed and that special reasons existed to justify such a course. I am unable to accept such a submission. The offending is so serious that, notwithstanding the matters in mitigation, it must attract a non-parole period greater than three years. In these circumstances, the issue of special circumstances is of no practical relevance.
33 Will you please stand. On charge 1, sentenced to be imprisoned for 5 years and 6 months. On charge 2, 3 years and 6 months' imprisonment and on charge 9, 9 months’ imprisonment. I order 6 months of the sentence on charge 2 be served cumulatively upon the sentence on charge 1. This makes a total effective sentence of 6 years. I fix a minimum term of 4 years before you will be eligible for release on parole. I declare 418 days pre-sentence detention.
34 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective sentence of 8 and ½ years with a minimum term of 6 years. You can be seated there.
35 HIS HONOUR: So, Mr Miller, do you understand what's happened?
36 OFFENDER: Yes, I do.
37 HIS HONOUR: It's a total effective sentence of six years with a four-year minimum before you'll be eligible for release on parole.
38 OFFENDER: No worries.
39 HIS HONOUR: And there's 418 days of pre-sentence detention.
40 OFFENDER: Okay.
41 HIS HONOUR: Mr Miller can be removed.
42 MS CUSSEN: As the court pleases.
43 MS HOTCHKIN: As Your Honour pleases.
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