Director of Public Prosecutions v Miller

[2016] VCC 613

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00385
CR -16-00386

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:	13 May 2016
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2016] VCC 613

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	Ms E. Hill	Office of Public Prosecutions
For the Accused	Mr M. R. Simon	Mario Vaccaro Solicitors

HIS HONOUR: 

1Alexander Miller, you have pleaded guilty to one charge of trafficking in a drug of dependence, and one charge of handling stolen goods. 

2The trafficking is said to have taken place between 1 June 2013 and 6 May 2015.  The handling charge relates to 11 September 2014 in relation to firearms. 

3At your plea, a summary of your offences was tendered by the prosecution and will remain on the court file.  It was a highly detailed and it encapsulated the offending. 

4For purposes of this sentence, your offending can be summarise as follows:  You were aged 20 years of age at the time of the commission of the offences and you are considered to be at the middle range of offending.  You are an associate of co-accused Fogarty, Short, Rose and others.  You used the alias "Goose".  The summary outlines your conduct in relation to the trafficking, including many conversations with co-accused, making arrangements for the trafficking and movement, trading, exchanging and selling of ice and other drugs. 

5Your level of involvement was significant, both in relation to supply and the sourcing of drugs.  The summary outlines in details your willingness to use force and threats from time to time to enforce payment, including and on behalf of others.

6Large sums of money were involved and you co-operated actively in assisting others to traffic, intimidate, plan and actively seek transactions involving ice, firearms and other property in exchange of ice.  Your level of involvement was significant and enthusiastic, and for an extended period of time. 

7I have taken into account the various aspects of your involvement by reference to this summary.  You were part of an ongoing business in Wangaratta, which in effect flooded that area with ice, with the subsequent and consequent misery for addicts, their families, for the health, to their health and the criminal justice system, the increasing criminality and the negative social impacts on the community generally.  A whole generation of youth in particularly in the thrall of this pernicious drug which you so wantonly and selfishly traded.  I take this impact into account.

8I take your personal circumstances and these considerations, beginning with your plea of guilty, which was made at a relatively early stage and I accept it is accompanied by appropriate remorse.  It also has a utilitarian value inherent in having avoided the cost and inconvenience of a criminal trial.  This plea will attract a discount by law. 

9Your prior criminal history goes back to your teenage years and concerns essentially the abuse of alcohol, with a few violence and offensive behaviour charges dealt with in the Children's Court and which, in my view, do not necessarily indicate that your prospects of rehabilitation, by themselves, are anything but reasonable. 

10I should note that while in custody, you were sentenced and served a three month term for an assault on an ex-partner and driving offences, offences committed under the influence of drugs. 

11I take the view about your prospects because of what you have been able to achieve between your release on bail and today. 

12Before describing that progress, I should note that after your arrest, you have spent 403 days in custody by way of pre-sentence detention.  This reclusion was imposed in normal circumstances for about half of its duration.  The remainder was unfortunately spent in lockdown situation as a result of the riots in the prison facility.  Such a regime of imprisonment is harsher than usual and the impact of confinement of this type is significant, sometimes salutary, but often destructive and damaging.  You seem to have moved onto a rehabilitative phase, perhaps as a result of the harshness of this detention and I take it into account when assessing the aspect of just punishment. 

13You left school at Year 8 and started an apprenticeship as a fitter and turner, which you completed in 2012.  You were successful in this endeavour and were awarded the regional apprentice of the year in recognition.  You worked for your father, who has had a long-standing light engineering business in Wangaratta. 

14Although your parents separated when you were young, they remained on good terms, as indeed you remained with both of them.  Unfortunately the next step for you was interrelationships which either left you devastated or in a grip of
a drug addiction.  One culminated in being stabbed by the former partner of
a girl you were with at the time.  That woman is the mother of your very young child.  She too is a drug user with a significant police history and has now practically nothing to do with the child or with you. 

15This situation has confronted you with some challenges and choices.  You descended into trafficking in the period June 2013 to May 2015, descending quickly to a very serious realm of criminality.  However, upon your release on bail, you took up the opportunity to attend the Odyssey House Circuit Breaker Program from January 2016 to March of this year, and this proved to be a real circuit breaker.

16I received a letter from the case manager of that program and he speaks of the program contents and your progress through it.  He attests to your improved motivation, your maturing attitude and your participation in group and personal work.  Although like most have been addicted, you have tended to underestimate or minimise the difficulties ahead and the need for ongoing recovery. 

17You have attempted to reintegrate into the community with some positive decisions, and importantly the support of your family.

18Your daughter is about 15 months old and DHS is working with you to aim for your full custody of her.  You have daily contact and overnight care, four nights a week and you have been compliant with the requests for drug screens, which have been returned as clean. 

19You are living with your mother in Wangaratta and have maintained work during this period.  You are currently attending drug and alcohol counselling at Gateway, arranged by Odyssey, which is an important indicator of your commitment to abstinence, and you have completed also a driver education program, as well as Kangan Institute certificates for various completed programs, which were tendered.  I have taken these into account. 

20Letters from your father, your grandmother, your mother, your brother,
brother-in-law, co-workers and friends, all attest to your significant progress, their support and the expression of remorse, which you expressed to them.  Such progress is unfortunately all too rare, as seen in this courtroom, but in
a case like yours, when coupled with your relative youth, it is incumbent on a court to consider which disposition will best meet the applicable sentencing principle. 

21I consider that the gravity of the offending requires a term of imprisonment.  Consideration of all the matters I have mentioned, leads me to the conclusion that a combination of a prison term and a community corrections order is appropriate in your case. 

22The community corrections order can be punitive and can perform an auxiliary function to imprisonment by way of its conditions.  I had you assessed and the outcome found you suitable for treatment and rehabilitation for drugs and community work.  I consider that this condition is necessary to ensure the order is accurately reflective of the need for punishment, denunciation and deterrence.  I am also satisfied the order will facilitate your ongoing reclamation.

23Please stand. 

24On the trafficking charge, you are convicted and sentenced to 403 days imprisonment. 

25On handling stolen goods, a rolled-up charge relating to three firearms, you are convicted and sentence to nine months imprisonment, concurrent on Count 1. 

26I further order that you will be the subject of a community corrections order for 12 months, to perform 270 hours of community work, and to attend at drug treatment rehabilitation, as directed.  You should attend on the Wangaratta service by Tuesday the 17th by 4 pm. 

27But for your plea, I would have sentenced you to five years imprisonment, with a non-parole period of three and a half years. 

28I note for the records of the court that you have spent 403 days by way of
pre-sentence detention, which will be accounted for as having already been served.

29I have signed forfeiture and disposal orders and I make an order under 464ZF for the taking of a biological sample from you.  An authorised police officer will require you to undergo a scraping from the mouth, which is not a painful procedure.  If you do not consent when that officer asks you for that sample, he is authorised to use reasonable force to obtain a blood sample from you.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  You can step out of the dock.

32OFFENDER:  Thank you.

33MR SIMON:  Your Honour.

34HIS HONOUR:  Yes, Mr Simon.

35MR SIMON:  There is one matter I'd seek Your Honour's indulgence in.  My client provided extensive reports to Your Honour for the plea, one of which was a drugs and driving certificate of completion.  If - my client would seek that to be returned, so that when he's rehabilitated himself ‑ ‑ ‑

36HIS HONOUR:  Yes.

37MR SIMON:  Thank you, Your Honour.

38HIS HONOUR:  There is a folder containing various certificates which was exhibited, but I have the other folder which was also exhibited had copies of those, so I'll return those to you. 

39MR SIMON:  Thank you, Your Honour.

40HIS HONOUR:  Mr Miller, I want to make you understand, without any confusion or misunderstanding, 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, a sentencing court really will have no choice in relation to any further matter, not only during the
12 months, but beyond the 12 months. 

41You still have some way to go in relation to rehabilitation that you have undertaken.  I have only taken this step today because you are supported by your family and you seem to have made real efforts at rehabilitation, and because you seem to have taken responsibility for your child. 

42During that 12 months you will have obligations, almost on a frequent basis. 
I suggest that you communicate frequently with the service, you obey their directions.  If you come back before me on a contravention or a breach of this order, I will not be very impressed.  Am I clear about that?

43OFFENDER:  Yes, Your Honour.

44HIS HONOUR:  I will stand down.  Thank you.    

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