Director of Public Prosecutions v Miller

[2018] VCC 473

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

AT MILDURA
CRIMINAL JURISDICTION

CR 17-02500

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN BRETT MILLER

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	9 February 2018
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2018] VCC 473

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
The Accused was not represented

HIS HONOUR:

1Adrian Brett Miller, you are to be sentenced for one charge of negligently dealing with proceeds of crime under s.194(4) of the Crimes Act, two charges of possessing a drug of dependence and one charge of attempting to escape custody.

2In the circumstances of this case applicable maximum sentences are five years' imprisonment on each of the dealing with proceeds of crime and escape charges; and 12 months' imprisonment for possession of a drug of dependence.

3You pleaded guilty before me on 1 February.  When interviewed by police on
5 April 2017 you made some admissions but lied about the circumstances of your possession of about two and a half million dollars in cash, which is the subject of the proceeds of crime offence.  Emphatically that is the main charge you face.  There are four categories of dealing with proceeds of crime,  set out at s.194(1) to (4) of the Act in decreasing forms of mental state and seriousness.  Negligently dealing with proceeds of crime is the least serious category under s.194.   You offered to plead guilty to that at committal in November in 2017 and did so formally on 12 December.  The matter was then listed for plea hearing in this court. 

4You receive the benefit of your plea of guilty and the level of cooperation in that short history of the proceedings show.  Your plea has facilitated the interests of justice.

5At that plea hearing,  which ran on 1 and 8 February,  Mr O'Doherty for the Crown tendered a written Crown opening and a number of photographs depicting surveillance of you and the cash.  Mr Baker for you tendered a bundle of documents,  which included the psychological report of Dr David Ball dated
16 January 2018, medical records related to injuries suffered in a 2015 motor vehicle accident, the letter of your mother and stepfather, your own letter to the court, negative urine sample testing results taken in remand custody and certificates related to rehabilitation and educational programs undertaken in custody.

6The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A.  My own summary also has reference to matters put on your behalf. 

7In early April 2017 Australian Federal Police were investigating a man named Sikoulis and his involvement in drug importation from the United States.  It is not put by the Crown that you were part of that enterprise.  However, on 4 to 5 April there was surveillance of you,  and the Kenworth prime mover owned by you,  in Adelaide and travelling from there to Mildura in Victoria.  In Adelaide you were seen to receive from Sikoulis two suitcases and a plastic duffel bag.  You placed them in the sleeping cabin of the truck.

8Surveillance tracked you to a point where you were intercepted,  on the request of Australian Federal Police,  by Victoria Police in Victoria about 25 kilometres west of Mildura.  You were drug affected.  You have a long history of drug abuse, particularly heroin.   A search of your truck revealed a total of $2,407,900 in cash contained within the two cases and bag.  Police also found .2 of a gram of methylamphetamine and a small amount of rock heroin. 

9After police interview at the Mildura police station you were taken to Mildura Base Hospital in a state of drug withdrawal.  At about 3.10 am on 6 April there was a forlorn attempt by you to escape custody,  quickly thwarted and overcome. 

10As I have stated you have pleaded guilty to negligently dealing with proceeds of crime under s.194(4). Paragraph 7 of the tendered Crown opening relies upon the definition of that in DPP v Marell [2005] 12 VR p.581.  In more complete form that case states as follows at paragraph 31.

"New s.194(4) provides that a person must not deal with proceeds of crime being negligent as to whether or not it is proceeds of crime. Criminal negligence is not the same as civil negligence. The lack of care which may constitute civil liability will not be enough to make a person criminally responsible under the principles of criminal negligence developed by the courts at common law. To establish criminal negligence the prosecution must prove that the accused person consciously and voluntarily dealt with the property, although he or she failed to realise it was proceeds of crime, and this occurred in circumstances which involves such a great falling short of the standard of care which a reasonable person would have exercised, and such a high risk that the property was proceeds of crime, had the accused person's conduct merits criminal punishment."

11In contrast as to knowledge or lack of knowledge that it was proceeds of crime the same paragraph states as to recklessly dealing under s.194(3) and I quote:

"New s.194(3) provides that a person must not deal with proceeds of crime being reckless as to whether or not it is proceeds of crime.  The principles of recklessness have been developed by the courts at common law.  To be reckless a person must be aware that there was a substantial risk that the property is proceeds of crime and decide to deal with the property anyway despite this risk."

12Accordingly s.194(4) entails the circumstance in which the offender fails to realise that it was proceeds of crime, nor recognises a substantial risk of that. As I have said, the Crown has accepted your plea of guilty to the offence under s.194(4). You are not to be sentenced under s.194(3). Sub-s.(4) carries a five year maximum. Sub-s.(3) carries a ten year maximum.

13You are a now 42 year old man placed in remand custody,  awaiting this sentence.  You have been so placed for a little over ten months.  After prison you will return to live in Deer Park. 

14You were raised in the Horsham area by your mother who separated from your father when you were young.  She re-partnered.  A letter by your mother and stepfather was tendered in evidence.  You have described "a good childhood".  You left school at 15 and then home at 17.  After 18 you became licensed, including to drive heavy trucks, and have worked as a truck transport driver since.

15There was a truck accident in 2015,  without very serious physical injury, after which you lost that job.  You were placed on WorkCover payments.  That was suspended a short time before this offending.  You had purchased the truck you drove in late 2015.  You began using heroin in your early 20s.  Over time,  despite fluctuating dependence, you were able to function; for example, being in relatively consistent employment.  The 2015 accident and its consequences increased your drug use.  You stated to forensic psychologist Dr Ball that you were using up to three grams of heroin per day at time of offending.  I accept that in custody you have been drug free.  You seem to have used remand custody productively.

16Dr Ball states that you suffer significant anti-social personality features and narrowly fall short of a diagnosis of that disorder.  He states that development of depressive symptoms toward middle age is likely in such a condition.  There is also a diagnosis of severe stimulant and opiate use disorder.

17I see no room for significant application of the so-called Verdins' principles.

18Your criminal record states five court appearances in Victoria between March 1996 when you were 20 years of age and December 2016.  They are for drug and driving offences.  There are also drug related driving offences,  apparently  in Western Australia and New South Wales.   All of this seems consistent with your history of drug abuse.  You have not been sentenced to prison before.  In December 2016 you were sentenced to a community corrections order for drug offences, including trafficking heroin.  You face breach proceedings for non-compliance in the Magistrates' Court on
20 February.   As to that I have been provided with the community corrections breach report,  dated 3 November 2017. 

19You have told Dr Ball and Mr Baker put on your behalf that you did not know what was in the cases and bag until stopping over in Renmark, South Australia, and simply curious,  looking at what was there.   A mobile phone photograph taken by you at 6.18 pm on 5 April is in some way consistent with that.  Otherwise, however, your explanation of the circumstances, for example, of receipt and arrangements for delivery,  is sparse.  You did not give evidence.

20I am not satisfied that the particular circumstances of your explanation about ignorance of the cash and its discovery in Renmark is likely. However, as I have sought to make clear, you must be sentenced on the basis that whenever you discovered or came to know of the cash you did not at any stage realise that it was proceeds of crime. Nor were you aware of a substantial risk of that. However, you were negligent to the requisite standard as to the risk. This was addressed at some length in the plea hearing. The Crown has accepted your plea to the offence under s.194(4).

21This is still serious offending committed as to a great deal of money.  The amount is a significant aspect of its seriousness.  Your drug addiction and use of it at the time of offending explain;  but do not mitigate the offending.  You have a criminal record, albeit related to other forms of offending and consistent with long-term drug dependence.  Sentencing considerations of deterrence, moral culpability, denunciation and the need for proportionate punishment are relevant.  General deterrence is a particularly important purpose in respect of this type of offence.

22A sentence of imprisonment is necessary.  There are moderating factors.  These particularly include the following matters. 

231. You have pleaded guilty. The timing of it must be considered in the light of you having been charged with a more serious category of the proceeds of crime offence prior to your offer to plead to the s.194(4) offence and acceptance of that.

242.   The circumstances and nature of the offence, particularly bearing in mind the category and elements of the offence to which you plead. 

253.    I see you as capable of rehabilitation, although prospects for that must be somewhat guarded and will depend much on your ability to remain drug free.  As to that you face the challenge of a near 20 year use of a very addictive drug.  I should set a minimum term giving you the chance of rehabilitation.

26Mr Baker submitted that I should sentence you to time served or a combination of imprisonment and a community corrections order allowing immediate release.  You have now served 312 days. 

27I do not think that is a sufficient sentence.

28Having read the November 2017 breach report and heard counsel's submissions yesterday I have also come to the view that you are not a suitable candidate for such an order.  That is despite you being assessed as suitable by Community Corrections in the 2 February report requested by me.

29Mr Baker referred me to comparative sentencing cases and statistics. They were limited in respect of the s.194(4) offence.

30Having taken into account and weighed what I see to be the relevant,  competing matters I sentence you as follows.  Stand up please.

31On Charge 1, negligently dealing with proceeds of crime, you are sentenced to 18 months' imprisonment.  On Charges 2 and 3, possessing a drug of dependence, you are sentenced to one months' imprisonment on each.  On Charge 4, escape from custody, you are sentenced to one month imprisonment.

32Pursuant to s.16(3) of the Sentencing Act I direct that the sentence of one month on Charge 4 be served cumulatively on the sentence of 18 months for Charge 1. I do not find exceptional circumstances upon which to direct otherwise. However, I also seek to apply the principle of totality, both in respect of moderating the sentence on Charge 4 and in respect of the minimum term set before eligibility for parole.

33That is a total effective sentence of 19 months.

34I set a minimum term before eligibility for parole of 12 months.  I declare under s.18 312 days of pre-sentence detention.

35MR O'DOHERTY:  It is 310, Your Honour.

36HIS HONOUR:  I will state that again.  I declare under s.18 310 days of pre-sentence detention.  My earlier comment in sentencing reasons will be seen in that light.  It was in error. 

37Under s.6AAA had you not pleaded guilty I would have sentenced you to a period of two and a half years with a minimum term of 20 months.  Are there other matters?  Sit down please.

38MR O'DOHERTY:  Your Honour, I foreshadow disposal orders, Your Honour, for the items in the schedule.

39HIS HONOUR:  What has happened to the two and a half million dollars?  Has that somehow been dealt with otherwise?

40MR O'DOHERTY:  It is dealt with.

41HIS HONOUR:  There is a disposal order in relation to a log book, three mobile phones, the drugs, the suitcases, but not contents, the bag and other items seized from the truck.  I will sign that.  Is that it?

42MR O'DOHERTY:  Yes, Your Honour.

43HIS HONOUR:  Mr Miller can be taken into custody now, thank you.

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