Director of Public Prosecutions v Miller

[2017] VCC 1759

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01465

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE LEONARD MILLER

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2018
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2017] VCC 1759

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Armed robbery – lengthy criminal record – Long standing addiction to drugs and alcohol

Sentence:Convicted and sentenced to 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment – Pre-sentence detention 179 days’ imprisonment – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Andrews	Solicitor for Public Prosecutions
For the Accused	Ms C. Woodward	VLA

HER HONOUR:

1Shane Leonard Miller, you have pleaded guilty to one charge of armed robbery which has a maximum penalty of 25 years imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence.

2You were 36 years old at the time of the offending, and you have just turned 37.

3The victim, Jamal NURE, was 47 years of age at the time of the offending  He is a father of seven (7) and works full time driving taxis for Silver Top Taxis.

Offending

4On the 2 June 2017, the victim started his shift at 3:20 am.  At about 3:30 am, he pulled his taxi up alongside you, outside the Werribee train station.  He partially wound down his window and asked you where you wanted to go. You said  "Point Cook".  The victim then asked you whether you had money and you replied, "Yes, I have, do you want me to pay upfront". The victim then unlocked the doors and you sat in the left rear passenger seat of the taxi.

5The victim told you he would like you to pay upfront and the fare to Point Cook would be $35.00.  You agreed to pay that amount.  You handed the victim a black NAB visa card and instructed him to use the ‘tap and go’ option.  The victim tapped the card against the taxi’s EFTPOS machine but the card was declined.  You then tried to use the card by inserting it into the EFTPOS machine and entering the PIN.  Again the card was again declined.

6You produced a second card and the victim again tried the "tap and go" function of the EFTPOS machine.  The card did not work and the victim asked you to try entering the PIN.  At this point you became angry and started swearing at the victim. 

7You retrieved a pair of black gloves from the bag that you were carrying and put the gloves on whilst saying, I'll show you, I'll show you".  You then removed a steel jemmy bar from your bag.  You raised the bar up near your head as if you were going to hit the victim.  The victim pleaded with you, saying, "Don't be silly, don't be silly, it's not good for me, it's not good for you".  You replied, "I don't care, turn off the camera, give me the money".

8You continued to yell at the victim for money. The victim told you that he only had the coins which were in the centre console of the taxi.  You were not satisfied with this response and continued to yell at him to give you notes.[1]

[1] Statement of Jamal NURE, p 17

9The victim picked up his mobile phone and exited the car.  He called 000.  You slid across the rear seat and got out of the taxi from the driver’s side rear door.  You got into the driver’s seat and rummaged through the centre console, taking all the coins.

10Police attended in response to the victim’s 000 call.  You were still in the driver’s seat of the car.  You were removed from the taxi and placed under arrest.  You were searched.  You had $18.85 of coins in your pocket.[2]

[2] Statement of Trevor RENDEN, p 20

11You were taken to the Werribee Police Station.  Due to your high level of intoxication, you were unable to be interviewed for a number of hours.

Record of Interview

12A record of interview commenced at about 9:40 am on the 2 June 2017.  During the interview you made the following comments and statements:

13When asked your version of events you said, "I got in the taxi, we had a verbal altercation.  I produced a crowbar out of my bag and threatened him with it".[3]

[3] Record of Interview, Q&A 11, p  27

14You could not recall what you had said to the victim but agreed that you probably made demands for money.[4]

[4] Record of Interview, Q&A 12 – 13, p  27 – 28

15You could not remember what the altercation was about – that is the victim’s request for you to prepay the $35 fare or your cards being declined.[5]

[5] Record of Interview, Q&A 44 – 49, p 31; Q&A 184 – 188, p 47 - 48

16You said you had been drinking alone at the pub from about 6 pm where you had consumed about ten schooners of full strength beer.[6]

[6] Record of Interview, Q&A 16 – 31, p 28 - 29

17You said you took $5 worth of coins from the taxi.[7]

[7] Record of Interview, Q&A 147, p 42

18When the victim’s version of events was put to you in relation to you arming yourself with the jemmy bar, you said, "Yeah, the crowbar.  I could’ve bashed his fuckin’ brains in if I really wanted to".[8]

[8] Record of Interview, Q&A 193, p 49

19Mr Miller, your offending is serious and warrants a punishment which is just in all of the circumstances and your conduct must be denounced.  There is no evidence of an impairment of mental function or other matter which might reduce your moral culpability, which I find is high.  You behaved in a most frightening manner toward the victim who was doing nothing more than trying to earn a living for his family.  He was especially vulnerable, as he was a soft target in close proximity to you once you had entered the cab.  Further, you offended against him in the dead of night, which added to his vulnerability.  These two aspects are aggravating features of your offending.

20I accept that your offending was not premeditated.  You frankly told police that you had tools of trade with you because you are a thief.  However, I am most dubious about whether you genuinely believed you had the means to pay the fare, once the victim told you how much this would be.  I was told that the second credit card that you proffered on that occasion was not yours.   However, you do not face a charge in respect of this matter and I do not sentence you in relation to that aspect.  You quickly resorted however to demanding money from the victim once it became clear that you could not pay the fare.  I was told that you had $25 cash in your pocket, but rather than proffer this, you decided to rob the cab driver.

21You were extremely intoxicated at the time, which helps account for your actions, but by no means excuses them.  It also helps to explain the lack of sophistication in your offending which enabled the driver to get out of the cab and call the police, who arrested you, while you were still stealing coins from the car.

22I understand that you have battled alcohol dependency for many years now, having achieved abstinence at times, but returning to abusing it as a means of coping with the various life challenges that you have faced.  If you did not know by now, there is a definite link between your alcohol abuse and committing criminal offences.  I place you on express notice, that if you continue to abuse alcohol and commit offences, then your decision to abuse alcohol may well be treated as an aggravating feature of any future offending.   Do you understand this?

23ACCUSED:  Yes, I do.

24HIS HONOUR:  Thank you, you can sit down.  You have a lengthy criminal history with a prior conviction for armed robbery although this was in 1998.  You received the benefit of a community based order with treatment conditions attached, which you subsequently breached.  You have committed offences nearly every year since then.  In 1999 you were sentenced to an aggregate term of three months and seven days’ imprisonment for a number of offences which included aggravated burglary - offensive weapon, unlawful assault and possessing a prescribed weapon, as well as cannabis and dishonesty offences.

25Later that year, you received a two year suspended gaol term for breach of a community based order.  You continued to commit a variety of offences for which you received various dispositions, including community based orders and intensive corrections orders and suspended sentences, each of which you breached.  You committed offences involving violence or threats to inflict violence, and for being in possession of weapons, as well as a number of dishonesty and alcohol related offences.  Your criminal record gives me a good deal of concern in respect of your prospects of rehabilitation.

26I allow for a significant discount in the sentence that you would otherwise receive because of your early plea of guilty which has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of contested proceedings.

27Your record of interview was frank, although not brimming with regret in some respects, at that time.  Your counsel told me that it is evident from the video recording that you were still affected by alcohol when interviewed and that you told police that you were not really sure of what you were saying at that stage.  This concerns me if you were interviewed at a stage where you were not fully in command of your senses.  The prosecution did not take issue with this submission by your counsel. 

28Your counsel submitted that you have shown remorse for your offending.  You wrote a letter to the court which was articulate and indicative of remorse.  I have also taken into account the most helpful letter from your parents, which indicates, amongst other things, that when you are affected by alcohol you are aggressive and pretty well impossible to live with.  When you are not so affected, you are polite and have strong family values and show a good deal of learning in some areas.  

29Your letter to the court was somewhat self- serving, Mr Miller, in circumstances where you have repeatedly offended. However, in all of the circumstances, I accept that you are remorseful for what you have done, in the context of now being sober.  It really does seem that you can be two different people, depending on whether you are drunk or sober.

30Your Counsel observed that you have been able to successfully complete past periods of parole due to the fact that you were being supported and monitored.  Once the support fell away, or you were faced with a difficulty, you tended to revert however to alcohol abuse and criminal offending.

31It is clear that the key to you not offending is to remain sober. Unfortunately, your efforts in the past have all failed, although some have been successful for a time.

32You come from a loving and supportive family, who espouse strong family values, and who have always been there for you, even when your behaviour has been poor.  They will support you as best they can upon your release from gaol, indicating that they will assist you with finding accommodation and employment.

33I take into account your background and other matters which were put on the plea.  By way of background I was told you attended school until the end of Year 9.  You struggled with school discipline and poor peer association.  You then obtained various labouring jobs and obtained qualifications in forklift driving and warehousing.  You have had difficulty in sustaining employment because of your addiction to alcohol and due to your criminal history.

34You experimented with alcohol when you were quite young and you have also used cannabis on and off from the age of 14.  You first took heroin when you were 17 and became addicted to opiates although you became abstinent after one and a half years of use.  You also experimented with amphetamines, using from time to time, and you have also been dependent on prescription drugs.  
I was told by your counsel that you were initially attracted to crime, as you saw this as a way to gain a reputation amongst your peers.  As an older person, this is something that you now recognise as having been a mistake.  However, you commenced committing offences in the context of alcohol abuse and negative peers, as I have said.

35In the past you have been able to manage your alcohol abuse, at times, through the use of a monitoring anklet at one stage, and you have previously abstained from alcohol from 2004 to 2007, and from December 2016 until early 2017.  
I was told that you are open to effective treatments to finally overcome your issues with alcohol, having developed a good deal of insight in respect of your dependency and the need for ongoing support and treatment.  These are positive signs, Mr Miller, which I have taken into account, but I am also mindful of the fact that you have a longstanding addiction which will be most challenging to conquer, and that your offending for which I now sentence you, has occurred in fairly recent times. 

36I was told that in about 2003 you commenced a relationship with a young woman which endured for nine years. You have a son from that relationship who is now eight years old. You have had no contact with him since the breakdown of your relationship in 2012.  The breakdown of your relationship was largely caused by your alcohol abuse, as I understand the situation.  You did not attempt to see your son after the break-up.  I understand that you wish to see him at some stage in the future and that not seeing him has been a major stressor for you.

37According to your father, you are quite guarded about things which have had an impact on you over the years, things which may help to explain your behaviour and dependence on alcohol.  You have the love and support of your family who have always been there for you and will be in the future.  Unfortunately this love and support has not meant that you stopped committing offences in the past, but it is still a protective factor in the future, if you make up your mind to draw on that very positive resource.  Many people who come before these courts are not so blessed with the unconditional love of their families, Mr Miller.  So I do hope that you can finally thank them and do some justice to yourself by turning your life around for the better. 

38You have been abstinent from alcohol whilst in gaol and have been trying to occupy your days with various courses offered in respect of small business and horticulture.  You have applied for courses to assist you with managing substance abuse and relapse prevention.  You are well read, and as I have said, you are articulate, and it would be most beneficial to others and to you in the future if you could help those who struggle with literacy which is the curse of many who come before these courts.

39I was told that you are now mature and have appropriate insight, such that you are now resolved to live a productive life, rather than commit criminal offences.  While this is encouraging news, you committed a serious offence not so long ago, and in view of your offending on that occasion, your criminal history and struggles with alcohol and other substances over the years, I am afraid that I regard your prospects of rehabilitation as rather poor.  This means I must give fairly strong weight to the protection of the community, and specific deterrence.  I must also place strong weight on general deterrence in a bid to deter others from offending as you have.

40Your counsel’s primary submission was that you be sentenced to a term of imprisonment in combination with a community corrections order.  I made it clear that this was not appropriate in your case.  Ms Woodward’s alternative submission was that I impose a gaol term with a non-parole period that would allow for a significant period on parole.  The prosecution submitted that only an immediate gaol term with a non-parole period was appropriate.

41As I made clear at the plea hearing, a gaol term which involves a non-parole period is the only sentence available to me in all the circumstances of your case.  Further, I am not of the view that there is anything in your case which would justify a shorter than usual non-parole period.  Your counsel urged me not to impose a crushing sentence and I do not propose to do so.  However, I must impose a sentence that gives appropriate weight to all sentencing principles.

42I do hope that you go from strength to strength in gaol Mr Miller, and that you are released into the community as an older and wiser man, who is supervised under a decent period of parole, to help you live productively in the community and hopefully reconnect with your son.  As you would know, it is not up to me as to when you are released on parole, and I cannot speculate about that.  Much depends on your behaviour in gaol and the view taken by the parole board in due course.

43Would you please stand up.  You are convicted of the offence of armed robbery and I sentence you to four years, six months' imprisonment with a non-parole period of three years’ imprisonment.

44I declare that you have already served 179 days which will be reckoned as already served.

45If not for you plea of guilty I would have sentenced you to six and a half years' imprisonment with a non-parole period of four and a half years’ imprisonment.  Please take a seat, sir. 

46Is there anything arising from those sentencing remarks?

47MS ANDREWS:  No, Your Honour.

48MS WOODWARD:  No, Your Honour.

49HIS HONOUR:  All right, yes, thank you, if you could remove Mr Miller, thank you. 

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