Director of Public Prosecutions v Miller
[2013] VCC 290
•14 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00869
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MILLER |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 March 2013 (Trial); 6 March 2013 (Plea) | |
DATE OF SENTENCE: | 14 March 2013 | |
CASE MAY BE CITED AS: | DPP v Miller | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 290 | |
SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Intentionally causing injury – Common law assault
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Bleazby | Office of Public Prosecutions |
| For the Accused | Mr S. Ginsbourg | Simon English |
HER HONOUR:
1 Daniel Miller, you have pleaded guilty to one charge of intentionally causing injury which has a maximum penalty of ten years' imprisonment and one charge of common law assault which has a maximum penalty of five years' imprisonment.
2 Your offending was opened as follows:
3 The complainant is a young woman to whom I shall refer as "HA". This is done out of respect for her privacy and there is no disrespect paid to her at all by me in referring to her by that acronym. She was born on 1 January 1991 and suffers from a learning disability. She is deaf in one ear and has moderate hearing in the other. At the time that you offended against her, she was 20 years old.
4 You were born on 21 November 1989. At the time of the alleged offences, you were 21 years old. You lived at a unit in suburban Melbourne, together with others to whom I shall refer as "SA", "BJ" and "WS".
5 The complainant had known WS for some time and it was through her that she came to meet you. WS and you had been in a sexual relationship prior to 24 July 2011. The complainant had known you for about four months before the date of the offending.
6 During the evening of Saturday 23 July 2011, the complainant received a phone call from you. During that call, you said that you would pick her up from her home the following morning. At about 9.30 am, on Sunday 24 July 2011, you drove to the complainant’s home and picked her up, taking her to your home. When you arrived with the complainant, all your other housemates were in the kitchen. You all sat around and talked for some time. BJ then left the house with you; the complainant, WS and SA, remaining.
7 After you cooked yourself a meal, you left the kitchen area and went to your bedroom. You removed your clothes and got into bed. WS and SA also entered the bedroom as did the complainant. SA pulled back the bed covers and you were seen to be naked in the bed. The covers were then replaced and the complainant sat on the side of the bed. You told SA and WS to leave and then removed the complainant’s clothing. You then pushed the complainant onto the bed and proceeded to engage in sexual activity with her. The form that this took is disputed as between you and the prosecution, but it is agreed that there was some form of sexual activity that then ensued.
8 When the complainant expressed her unwillingness to engage in this, you became violent and angry. You placed your forearm across her throat with force. Then you bit her hand. This gives rise to Charge 2, intentionally causing injury.
9 After this event, there was further sexual activity between you and the complainant. The complainant’s clothes had been thrown out the front. At her request, they were retrieved by SA. Her phone had been taken and placed on top of a wardrobe in your room. Her scarf, necklace and shoes were also missing. After the sexual activity, the complainant showered and dressed and entered WS’s bedroom. You were sitting on the bed together with WS and SA.
10 The complainant then left the bedroom where she went to a corridor area. You picked her up and carried her back to WS’s bedroom and threw her onto the bed. She bounced off and hit a window with considerable force. This gives rise to Charge 4, Common Assault.
11 The complainant asked for her personal items to be returned; in particular, her phone. Eventually these items were returned to her. You and WS then drove the complainant back to her home at about 1.30 pm.
12 At about 4.30 pm, the complainant and her father attended a police station where the matter was reported. Later that evening, the complainant and her father attended Maroondah Hospital where she was examined by a Dr John Lindsay.
13 In respect of the injury which the complainant sustained, I was referred to p.172 of the depositions where Dr Lindsay’s report indicates that she had a "curvi-linea erythema"; that is, redness on the back of her left hand. No specific injury was sustained as a result of the common law assault, although I was told that the complainant indicated to Dr Lindsay that the knock against the window caused her to have a sore lower back.
14 Originally, this matter was listed for trial before me, and you were facing two charges of rape in addition to the charges to which you have now pleaded guilty. You entered pleas of not guilty in respect of all charges when arraigned. However, after a Basha hearing in respect of a relevant, perhaps key Crown witness, discussions ensued between the parties which led to resolution of the matter on the present basis. You were then re-arraigned in respect of Charges 2 and 4 and the Crown led no evidence in respect of Charges 1 and 3, whereupon I directed that Charges 1 and 3 be dismissed.
15 In sentencing you, I give you the full benefit of the acquittals in relation to the rape charges, as I am bound to do. The sexual activity, which is contained in the prosecution opening, was led for the purposes of context only and I do not sentence you in respect of any other offences, save for those to which you have pleaded guilty. However, the offences which you have committed were nasty and cowardly, and showed a contempt for the complainant’s wellbeing. You exploited her vulnerability and her inequality of strength and intellect. In your record of interview you acknowledged to some extent that you had taken advantage of the complainant. Clearly, you had - and treated her in an appalling fashion. It would seem that you have a problem with controlling your anger, which is seen in this sorry episode and in some subsequent offending for which you are presently undergoing sentence. If you fail to address your problems with anger, Mr Miller, you face the very real prospect of spending a good deal of your life in prison.
16 I was told that you had commenced an anger management program before going into custody but this was interrupted by that event. It is very much in your interests and in the interests of the community that you do undertake and complete such a program and that you behave in a responsible and law abiding fashion in the future.
17 I take into account the victim impact statements which were provided by the complainant and her parents, but bear in mind that the impact that they describe may well also encompass the alleged offending in respect of charges which have now been dismissed. However, on any view of it, the offences that you have committed have had a traumatic and distressing impact upon the complainant and her parents, as indeed they would.
18 You only have one prior matter, being a handle or receive stolen goods, which was dealt with at Magistrates’ Court level on 4 October 2010. You received a fine without conviction. Your lack of criminal history goes in your favour. However, on 29 March 2012 at the Melbourne Magistrates’ Court, you were convicted of a number of offences which were committed on various dates between 22 April 2011 and 17 January 2012. These matters include making a threat to kill, recklessly causing serious injury, reckless conduct endangering serious injury, intentionally causing injury, driving in a manner dangerous, assault with an instrument, recklessly causing injury and unlawful assault.
19 I was told that in relation to some of these matters, they arose from a road rage incident. I was also told that some related to violence perpetrated upon your father. The offending for which I now sentence you has occurred during this apparent spate of criminal offending.
20 In relation to the matters to which I have just referred, you were convicted and sentenced to two and a half years' imprisonment with a non-parole period of 12 months. There was a declaration of 22 days pre-sentence detention which means that you have now served the non-parole period of that sentence. However, the question of parole has been placed on hold, pending the outcome of the matters before me.
21 In sentencing you, I bear in mind the principle of totality. That is, that you have been in gaol for a little over 12 months now. In fact, I was told that you became eligible for parole on 1 February 2013 and that the head sentence of 2 years 6 months would expire in August of next year.
22 You are still a young man. Your IQ has been assessed as being within the average range but I was told that it may be that you have specific learning disorders in view of your educational history. In that regard, you initially took a VCAL course at a secondary college, but having failed English, you then completed your education at a TAFE. You embarked on an apprenticeship in carpentry but did not complete this, as you found the educational component too difficult.
23 You are the eldest of two children and your parents, who are fully supportive of you, were in court at the plea hearing. Both of your parents work, with your mother running a small business at a shopping centre. In the past, you have encountered difficulties in your relationship with your father and there have been incidents of mutual violence between you in the past. I was told that your father was violent towards you throughout your childhood, but you had now reconciled your differences with him. While in gaol, both your parents and your younger brother, as well as your friends, have regularly visited you.
24 When released, you propose to live with your parents. No doubt, if you wish to remain in that situation you will need to continue to work on your anger management and you and your father will need to continue to work on your relationship with each other. I was told that following the uncompleted carpentry course, you went to work as a gardener, which was interrupted by you being remanded. You continued to work as a gardener when released on bail and prior to your sentence in March last year.
25 I was told that you are optimistic that you can return to this employment, having made contact with your former employer. However, if you are unable to return to this job, you will help your mother in her business. The support of you parents and a preparedness to work when you are released, as well as the support of your friendship group, are positive factors in respect of your prospects of rehabilitation. I say this providing that your friendship group are peers that you can turn to in order to assist you with your rehabilitation.
26 Although you pleaded guilty at a late stage, this should be seen in the context of more serious charges which you were facing, although I was told that all matters were the subject of contest at the committal stage and the complainant was not spared cross-examination in respect of all charges including those to which you have now pleaded guilty. You instructed your counsel that you were always prepared to plead guilty to the charges. I was told that a discontinuance application in respect of all charges had been submitted to the Director of Public Prosecutions by previous trial counsel. However, Mr Ginsbourg indicated that the present outcome was "a more palatable" one for all concerned.
27 Notwithstanding that the complainant was cross-examined in relation to all matters at committal hearing, I was told, and I accept, that cross-examination of the complainant was handled in a most contained and responsible fashion by Ms Gwynn of counsel.
28 Therefore I take into account the stage at which you pleaded guilty but I also take into account all of the matters to which I have just referred. In pleading guilty, you have saved the complainant the trauma and time of giving evidence at trial and you have saved the community the time and expense of contesting matters at trial. In all of the circumstances, I will allow for a not insignificant discount in the sentence that you would otherwise receive for facilitating justice in this way, but bearing in mind that your offer to plead guilty to the charges for which I now sentence you came at a late stage.
29 You have lived with your parents most of your life. However, when you formed a relationship with WS, you left the family home in late 2010. It was at about this time that you had a fight with your father and you moved from your parent's home to rented accommodation. It would appear that after you left home, your accommodation and life generally has been unsettled. This may help to explain the spate of criminal activity which you embarked upon, having had minimal criminal history leading to this time.
30 In your case, I must impose a sentence which serves to punish you and denounce your conduct, but in doing so, recognise that you have already been in prison for over 12 months.
31 In light of your subsequent offending, I must have regard to the need to protect the community and place some weight on specific deterrence. I must place significant weight on general deterrence. Again, all of these matters ought be seen against a background of you having been in gaol for a significant period already.
32
It is agreed between the Crown and defence that a period of imprisonment to be immediately served is warranted but that having regard to your lack of prior convictions, your youth and the principle of totality, a short period of imprisonment with no non-parole period is warranted. I agree that this is an appropriate disposition in your case. As you have already served your
non-parole period in respect of the Magistrates' Court sentence, and in view of the principle of totality and the law regarding the order of serving sentences, I shall impose a sentence to be served immediately, which, as I understand it, may have the effect of postponing your eligibility for parole in respect of the Magistrates' Court sentence.
33 Would you please stand up, Mr Miller.
34 In relation to Charge 1; you are convicted and sentenced to 3 months' imprisonment.
35 In relation to Charge 2; you are convicted and sentenced to 1 month imprisonment.
36 The sentences are to be served concurrently with each other producing a total effective sentence of 3 months' imprisonment. The sentence is to be served immediately which will have the effect of postponing your eligibility for parole under the Magistrates' Court sentence to my understanding.
37 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 months' imprisonment to be served immediately.
38 I declare that you have already served 8 days as part of my sentence. I also record that in sentencing you, I have taken into account that you have served the non-parole period in respect of the Magistrates' Court matters.
39 I make a disposal order in relation to the sponge only, as I understand that the registration plates, which were the subject of the disposal order, were in fact not found or had any connection with the offending for which I sentence you. The disposal order, as I understand it, is not opposed by you.
40 Take a seat please for a moment.
41 Is there anything arising from that?
42 MR GINSBOURG: So that's concurrent with each other, the three months?
43
HER HONOUR: Concurrent with each other and concurrent with the sentence he's undergoing but I just wanted to make it clear that I intend that that sentence is to be served immediately and it's up to the Parole Board at what stage they then have a look at his situation as I understand it,
Mr Ginsbourg.
44 MR GINSBOURG: Thank you, Your Honour. And 6AAA?
45 HER HONOUR: I did give a 6AAA indication.
46 MR GINSBOURG: Sorry I missed that, Your Honour.
47 HER HONOUR: If not for your pleas of guilty I would have sentenced you to a total effective sentence of 6 months' imprisonment.
48 MR GINSBOURG: Thank you, Your Honour.
49 HER HONOUR: Is there anything further?
50 MS BLEAZBY: No, Your Honour.
51 HER HONOUR: All right, thank you. Yes, you may remove the prisoner.
52 (PRISONER REMOVED.)
53 HER HONOUR: We will now adjourn. Thank you.
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