Director of Public Prosecutions v Miller
[2016] VCC 288
•16 March 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01871
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID NEIL MILLER |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 March 2016 |
| DATE OF SENTENCE: | 16 March 2016 |
| CASE MAY BE CITED AS: | DPP v Miller |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 288 |
REASONS FOR SENTENCE
---Subject: Criminal Law- Sentencing- Armed Robbery- Gaol and CCO Combined.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Roper | John Cain, Solicitor for Public Prosecutions. |
| For the Accused | Mr T Huynh | Victoria Legal Aid. |
HER HONOUR:
1David Miller, you have pleaded guilty before me to one charge of armed robbery and that relates to an occasion when you attended with Marley Wright, the Bottle-O-Liquor store in Kingsbury on 19 June 2015 and robbed Pratheen Krishnagouda. At that time, you robbed him of money and four bottles of alcohol, Marley Wright had with him an offensive weapon, namely a sharp metal object.
2Armed robbery is serious and that is marked in the maximum penalty prescribed by Parliament and that is 25 years' imprisonment.
3I accept insofar as your role of the armed robbery is concerned, that it was undertaken with Marley Wright who is a young indigenous man who was 18 at the time and is now 19.
4It was not very sophisticated offending and the motivation was to obtain cash and alcohol. It was opportunistic offending. It is serious offending but not the most serious example of this type of offence.
5I accept that the plan to commit robbery was spontaneous. When you entered the store, you did not know that Marley Wright was armed with a sharp metal object. However, the fact you stayed and assisted him to execute the robbery, when you became aware of him having possession of the object and using it as a means to extract the cash and take the alcohol, means that you are a participant in an armed robbery and you will be sentenced accordingly. I consider that your roles are equal in respect to this offence.
6The offending occurred when you were going through a very difficult stage of your life. There is a real context to this offending. You had separated from a long term partner with whom you have three children. You were living on the streets off and on and staying occasionally at Marley Wright's home. You were drinking to excess. That provides a context to the offending but does not in any way provide any excuse for your offending.
7The attendant, Mr Krishnagowda was alone when you affected the armed robbery and his Victim Impact Statement shows the effect it had on him and its ongoing consequences. He said it was a very traumatic experience. He was unable to work alone or travel in a tram following the incident. He was always in constant fear that someone would harm him and it caused him deep stress. He lost his job and he could not go to work and was depressed and in constant fear. He has been emotionally and mentally affected and he is unable to work in the retail area anymore and travelling alone scares him.
8In sentencing you, there is a need to emphasise both general and specific deterrence and I will talk a little bit more about that in a particular context of you and your background shortly. I must impose just punishment.
9Marley Wright was sentenced by this court on 17 February 2016. There are some distinguishing features that mean your case is being treated differently from his; that justifies a disparity in sentence.
10Marley was only 18 at the time of the offending. You were aged 29. Marley is considered at law to be a youthful offender and rehabilitation is paramount and the principles of R v Mills[1] apply.
[1] (1998) 4 VR 235.
11Marley Wright is indigenous and participated in the Koori Court division of this court and different principles apply as was enunciated by the Court of Appeal in R v Steelie Morgan[2]. His participation in the Koori Court process is mitigatory. He did have a prior criminal history. There was some five appearances in the Children's Court including four offending related to dishonesty, unlawful assault and robbery and he breached probation by undertaking this offending.
[2] [2010] VSCA 15.
12He too had a seriously disadvantaged background. He is the youngest of five children. His parents were unable to properly care for him over his formative years with consequential developmental delay and educational disadvantage.
13Like you, the Department of Health and Human Services and Child Protection played a very real role in his care over his childhood.
14He had made real efforts whilst on the Koori Intensive Bail Support Program (KIBSP) to deal with all of his underlying offending behaviours. Unfortunately he breached his bail by breach of an intervention order and was then kept in adult custody and had been on remand when he was sentenced, being in custody for 19 days.
15He was convicted and placed on a Community Correction Order for 12 months with special conditions; that he undergo community work 100 hours, supervision treatment and assessment for drugs and testing and offender programs and also he is subject to judicial monitoring.
16In your favour, Mr Miller, I have taken into account various factors highlighted by Mr Huynh in mitigation. Firstly, the early plea of guilty entered at the first opportunity at the committal case conference. There is real utility in your plea. You have spared the victim particularly, the trauma of having to give evidence and come to court. I consider that you have facilitated justice and therefore your sentence will be discounted accordingly.
17I consider that the plea of guilty is evidence of remorse and that was further evidenced in the answers that you gave to police when they interviewed you following your arrest.
18You were co-operative with the police. Unlike Marley Wright, you were fulsome in terms of making admissions with respect to your offending. You identified yourself on TV and you allowed the police to photograph the tattoos on your back.
19I have noted your past criminal history. You did not have any prior convictions for robbery but I noted there were two appearances for unlawful assault in 2011 and 2014 and on both occasions, you were dealt with without convictions being recorded.
20You contravened family violence orders in 2014 and 2015 and you have subsequent offences for which you are yet to be dealt with in respect to burglary and theft charges that pre-dated this offending. They will be dealt with tomorrow at Melbourne Magistrates' Court.
21I note that you have recently served a term of 47 days gaol with respect to breach of a family violence intervention order relating to your former partner. That sentence was imposed by the County Court following an appeal that was successful on 21 September 2015.
22I note that you have experienced real hardship whilst on remand. Following the July 2015 riots, it has been the situation that prisoners have been held in very difficult conditions and there have been significant restrictions on all prisoners including lockdown conditions, 23 out of 24 hours on occasion and restricted time out on other occasions. It is your first time in custody and you have found the experience very hard.
23You spent some time at Fulham Prison, four months at the Melbourne Remand Centre and you have been transferred to Port Phillip for one week.
24You have been isolated within prison. You have had no visitors and in total you have spent 225 days in custody of which, only 178 days represents pre-sentence detention for these offences.
25You have utilised your time well in gaol. It has been very productive for you. You have learnt to read and write. You have done English as a second language program. You have been working in horticulture and the prison kitchen and as you have just indicated to me, you have undertaken a number of courses whilst in gaol including a 24 hour course on alcohol rehabilitation.
26OFFENDER: Six hours, Ma'am.
27HER HONOUR: Six hours, sorry. (Nice to know you are listening). I have had regard to your difficult family history and background and years of serial neglect as a child during your formative years and that is fully set out in all the exhibited material and your counsel's written submissions on the plea. I do not propose to canvass this aspect any further.
28As a consequence of your deprivation as a child, you have had little by way of formal education. I noted that you repeated Year 10 twice and you were successful in finishing Year 11, but you only have basic reading and writing skills.
29Insofar as work is concerned, you have done some work labouring, furniture removal, unloading containers, driving trucks and lawn mowing.
30In the past you had counselling with Darren Turner when he was working at the Darebin Community Health Centre in early 2015 as a Men's Health worker.
31A short reference from him has been obtained and he confirms that in his time working with you as a Men's Health worker, he found you to be very responsive to working on sorting through some of the issues that you have and wanting to better yourself as a person.
32He has written that he feels that with the support of himself and the community, you would benefit greatly as a human being. He will offer you support around finding work because he is now working in the training and recruitment area. He will assign a mentor to help with your growth and also he has sorted out some accommodation for you to reside for as long as you need. That is at the William T Onus Hostel at 75 Westgarth Street, Northcote and he will be your contact person for your residential stay. He has undertaken to provide that assistance for you. That is all good in terms of providing you with a stable place to live when you are released.
33Overall, I consider with the support of Mr Turner and your stable accommodation, your prospects for rehabilitation are reasonable.
34On behalf of the community, I must formally denounce your behaviour. I accept that general and specific deterrence ought be appropriately moderated because of your seriously deprived background.
35I am mindful of what was said in the guideline judgment of Boulton v The Queen[3]. The Court of Appeal accepted that a Community Correction Order is intrinsically punitive and capable of deterring others and providing for specific deterrence.
[3] [2014] VSCA 342.
36I further note that the Court did confirm that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. It further stated that:
"A sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, affording the best prospects of rehabilitation."[4]
[4] Ibid at paragraph [131].
37As has been said by courts in the past, a sentencing court must look to the future as well as to the past and there is a real benefit to the community at large as well as to individuals themselves and their immediate families if future criminal activity can be avoided.
38What I propose to do, with respect to the one charge of armed robbery, is to convict you and order that you be sentenced to gaol for the time served and that is 178 days. To follow a three year CCO with the conditions that I have outlined.
39That is, that you be under supervision of a community corrections officer for three years;
40You must undergo assessment and treatment including testing for drug abuse or dependency;
41That you undergo any mental health assessment and treatment that may be required;
42That you participate in programs or courses to address your offending behaviour. That would include such things as support for you to develop work skills or educational programs.
43Finally I make the ancillary orders sought and make the compensation orders sought. I make the order sought pursuant to s.464ZF(2) of the Crimes Act 1958, for the taking of a forensic sample.
44I declare 178 days pre-sentence detention.
45So I need to tell you about the forensic sample ‑ ‑ ‑
46OFFENDER: Do you mean the swab?
47HER HONOUR: Yes. Is there an issue, sorry?
48MR HUYNH: No, I was just - it is the s.6AAA declaration which I am sure that Your Honour ‑ ‑ ‑
49HER HONOUR: Yes, I have not done that yet.
50MR HUNYH: Sorry, Your Honour.
51HER HONOUR: Yes. I am just talking to your client about the DNA sample. So you understand they will give you a little cotton bud to put in your mouth?
52OFFENDER: Yes, they will get me to do that.
53HER HONOUR: All right. So provided you co-operate with them, that is not a problem. But I do have to tell you if you do not, then police may use reasonable force to enable that forensic procedure to be done. All right?
54OFFENDER: I understand.
55HER HONOUR: But it should be fine. The other order that I must make is to declare what I would have sentenced you to if you had not pleaded guilty. The s.6AAA declaration is, but for your plea of guilty, I would have imposed a term of imprisonment of five years, to serve three years. All right, so I think that covers everything now.
56MR HUNYH: It does, Your Honour.
57HER HONOUR: Yes. I have signed the order. Could you please take that to Mr Huynh and get the offender to sign please. All right, so that completes today.
58MR HUNYH: Thank you, Your Honour.
59HER HONOUR: My associate will provide you with a copy of the order that has been signed. So that completes your matter, Mr Miller. You can be taken downstairs. Thank you.
60MR HUNYH: Thank you, Your Honour.
61HER HONOUR: All right, we can adjourn.
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