Director of Public Prosecutions v Miller
[2024] VCC 269
•12 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01800
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE MILLER |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2024 | |
DATE OF SENTENCE: | 12 March 2024 | |
CASE MAY BE CITED AS: | DPP v Miller | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 269 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Burglary; Prohibited person possess a firearm; Theft of a firearm; Theft; Commit Indictable offence whilst on bail; Unlicensed driving; Disposal of a firearm
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Total effective sentence: 30 months' imprisonment. Section 6AAA: Four years and four months’ imprisonment with a minimum of three years before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Zubreckyj | Office of Public Prosecutions |
| For the Offender | Ms S. Buckley | Chris McLennan & Co |
HER HONOUR:
1Jamie Miller, you have pleaded guilty on indictment to two charges of burglary and to single charges of prohibited person possess a firearm, theft of firearm and theft.
2You have also pleaded guilty to summary charges of commit indictable offence whilst on bail, unlicensed driving and disposal of a firearm by an unlicensed person.
3In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
· Burglary - 10 years’ imprisonment.
· Prohibited person possess a firearm - 10 years’ imprisonment.
· Theft of a firearm - 15 years’ imprisonment.
· Theft - 10 years’ imprisonment.
· Commit indictable offence whilst on bail - three months’ imprisonment.
· Unlicensed driving - six months’ imprisonment, and
· Disposal of a firearm - two years’ imprisonment.
4These maximum penalties reflect the seriousness with which Parliament regards these offences.
5The circumstances of your offending are set out in a document entitled 'summary of prosecution opening for plea' dated 12 February 2024. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
6I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred over two distinct episodes approximately six weeks apart – one on 24 May 2023 and the other between 16 and 21 June 2023, at which time you were 32 years of age.
7The victims in this matter are Aletta Chen and Yifan Cai, neither of whom were known to you.
The Offending
Incident 1
8On 4 May 2023 at approximately 4.15 pm, you and a male co-accused attended Porter Road, Balwyn, where the victim Aletta Chen resided.
9When there was no answer at the door you forced the garage roller-door open and gained entry into the home by then also forcing a locked timber door between the garage and the dwelling. (Charge 1 – Burglary)
10You entered the master bedroom, rifled through the bedside drawer and you and your co-offender then exited the residence. CCTV captured the two of you leaving the scene in a silver sedan. By this stage an internal alarm had been triggered.
11Nothing was stolen.
Incident 2
12Victim Yifan Cai had been away overseas for an extended period and allowed family to occasionally stay in his house, located at The Nook, Balwyn.
13On or around 17 June 2023, Cai’s cousin phoned him to advise that items inside the house had been disturbed.
14Cai assessed the CCTV from both inside and outside the property and provided these files to the police.
15The CCTV showed that between 16 and 19 June 2023, you had attended the residence on up to four different occasions with a different co-accused.
16On one of the occasions, you had entered the premises and located a key which unlocked a purpose-built manufactured gun safe that was bolted to the concrete floor in the garage. (Charge 2 – Burglary)
17You found and took five long-arm rifles from that safe which were particularised in the crown opening. (Charge 4- Theft of Firearms)
18At the time you took possession of the firearms you were deemed a prohibited person under the Firearms Act. (Charge 3 – Prohibited Person Possess a Firearm)
19A Google Home Nest and vacuum were also stolen from the property. (Charge 5 – Theft)
20Your co-accused in this burglary, Melissa Sofokleous, has also been charged with burglary and theft with her charges presently listed in the Magistrates Court.
21At the time of your second set of offending, that is in June of 2023, you were on bail for charges of burglary, handle stolen goods and unlicensed driving, which you had entered into on 30 May 2023. (Summary Charge 7- commit indictable offence whilst on bail)
Investigation and Arrest
22On 21 June 2023, Senior Constable John Wallington viewed the footage provided by the victim from the second burglary and immediately recognised your distinctive tattoos.
23Police went searching for you and observed you in the driver's seat of a black Audi, registered to your brother. Police followed you driving the Audi for a short time (Summary Charge 8 - Unlicensed Driving) until you stopped the car and exited the vehicle. Police then arrested you and conveyed you to the Boroondara police station.
Record of Interview
24During your record of interview, you made fulsome admissions and police described you as being of a good demeanour towards the investigators and that you understood the gravity of your offending.
25You provided a detailed account of how you forced entry, what details you could recall about the premises and that your plan was to get money to 'Feed [your] drug habit'. You had deliberately chosen premises to enter that you had made efforts to determine were empty. You told police that you thought taking the firearms was a 'Bad idea' but that you were under 'Peer pressure from a desperate person,' referencing your co-accused.
26You were cooperative with all enquiries made of you. This is all very much to your credit.
Follow Up Investigation
27You had almost immediately on-sold the firearms stolen from The Nook address. Upon your arrest you attempted to assist investigators to recover the outstanding firearms by contacting the person you sold them to and asking that person to leave them in a safe place. You did not identify who you sold them to but made that phone call in the presence of investigators. (Summary Charge 11 – Disposal of Firearm).
28Police apparently then sought your phone call records to identify the person you had called. It was not until October 2023 that police recovered one of the stolen firearms during a search warrant executed at a Glenburn address identified through their own enquires. That gun had been sold to an individual who was prohibited from possessing a firearm. That individual was remanded by police in relation to that and other offending.
Victim Impact Statement and offence gravity
29This is serious offending. You had been released from prison approximately four months prior to the burglary in May of 2023 having been sentenced to six months' imprisonment by the Magistrates Court on 12 August 2022 for charges of obtaining property by deception, possess amphetamine, burglary, theft and two charges of committing an indictable offence whilst on bail. 41 days had been reckoned as served.
30You were released from that sentence on 27 January 2023 and maintained drug abstinence for about three months before relapsing into substance abuse. It is clear that your offending occurred in the context of this relapse.
31You were on bail for offences of dishonesty, which included burglary, at the time of the second burglary the subject of Charge 2. This shows a disrespect for court orders and is the subject of separate summary charge of committing an indictable offence whilst on bail.
32Whilst no victim impact statements have been tendered this does not equate with your victims being unaffected by your actions.
33You have chosen to enter private dwellings with an intent on stealing on each of the occasions before me. Your offences were committed in the company of others and the second burglary involved you attending the premises a number of times before the burglary which is the subject of charge 2. Whilst I accept that you took some care to ensure each premises was unoccupied, it is not uncommon for owners/occupiers to still feel somewhat violated, compromising their ability to feel safe in their own home.
34Sentencing submissions from the Crown refer me to the victim of the second burglary stating that: 'The most devasting thing was the mess they left' and 'It was very upsetting for my wife and family to see our house like that.'
35Your decision to take the firearms is particularly concerning. This is reflected in the maximum penalty of 15 years' imprisonment, over and above the maximum penalty for theft simpliciter which is 10 years' imprisonment. The maximum penalty has its foundation in ensuring public safety and peace and in the protection of the community.
36The Crown conceded there is no evidence to indicate that the firearms taken were associated with ongoing criminal activity. They accept the account you gave to police in your record of interview. Whilst described as opportunistic rather than targeted offending, a description which I accept, five firearms, nevertheless, entered the community.
37To your credit, I accept that you showed some willingness to assist police to locate the weapons which you had disposed of, but they made their own investigative enquiry such that the search of relevant premises took place some four months after your arrest. I accept there is no evidence of the working capacity or otherwise of the firearms you stole.
38The fact that one has been recovered in the hands of someone who was also a prohibited person highlights community concerns and fears as does the fact that four of the firearms, which you admit you sold to the same person, have not been recovered .
39The theft of firearms can increase the illegitimate flow of them into the community and, as time has shown, may lead to very serious criminal activity. Sentencing principles of general deterrence, that is sending a message to others, denunciation and protection of the community do loom large
40I accept that the charge of theft of the firearms, prohibited person possess firearm and disposal of firearms, whilst separate offences, have some commonality and crossover. Care needs to be taken in sentencing you for these offences to ensure that there is not double punishment.
Plea of guilty
41The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty pleas. This matter resolved by way of straight hand-up brief at committal mention on 13 October 2023, representing a plea made at an early opportunity given the need for negotiations and the charges and facts to be resolved between the parties. This, I understand, is conceded.
42There is clear value in saving the victims of the need to give evidence and utilitarian value in saving the community the expense of contested proceedings.
43Although the court's criminal trial lists are no longer overwhelmed, your decision to plead guilty occurred at a time when the court was on the cusp of still responding to the COVID-19 pandemic and therefore has some additional utilitarian value in providing certainty and finality to all parties in circumstances where the court's operations had been significantly disrupted.
44Based on the materials before me, I am satisfied that you are remorseful for your actions.
45These factors will all be taken into account in your favour.
Personal Circumstances
46Turning now to your personal circumstances, which were outlined helpfully in the defence submissions and the psychological report of consultant psychologist, Ian Mackinnon, dated 20 February 2024.
47You were born in Victoria and are currently 33 years of age. You identify as First Nations Australian.
48Your mother, Tanjil, gave birth to you when she was 17 years of age. She currently resides in Warburton and you maintain contact with her and speak to her weekly on phone from prison. You report having met your biological father on two occasions and do not have any ongoing contact with him.
49You have four younger half-siblings, two brothers and two sisters. There are three separate fathers between your sibship of five. One of your brother’s biological fathers assumed the role of stepfather for some years and your mother remains in a relationship with him today.
50Your childhood was characterised by instability with constant uprooting of home addresses and schools. You were raised in central eastern Victoria, including Yarra Junction, Healesville, and Woori Yallock and have attended four or five different primary schools which made it difficult to forge friendships.
51I accept that these early years were not without their difficulty and I take them into account in a general sense.
52You eventually moved to Deniliquin in New South Wales when you were 13 years of age where you lived with your maternal grandfather. This marked a period of stability in your life where you resided in a safe and secure home environment and would play football and go to school.
53You left school after Year 10 and began a plumbing apprenticeship for approximately 10 months, however, fell into a negative social group and began experimenting with drugs and alcohol.
54You started drinking at the age of 16 years with peers after football games. Around age 17 you began taking drugs, namely cannabis, ecstasy and amphetamine.
55When you were 18 years of age your grandfather passed away with a heart attack. This precipitated your descent into chronic substance abuse and the ensuing offending behaviour thereafter. You report 'Going off the rails' after your grandfather’s death and would use drugs to self-medicate and to 'Numb yourself'. You injected amphetamine and used magic mushrooms, LSD and benzodiazepine on occasions.
56Over the past few years methylamphetamine has been your primary substance of abuse (both smoked and injected) and prior to being remanded you had started using GHB on a habitual basis.
57During the period of offending, you report you were injecting 0.5 grams of ice and using up to 20 mils of GHB a day.
58Unfortunately, you have spent much of your adult life in and out of prison. Mr Mackinnon reports that you sometimes fail to manage your emotions appropriately and in response to relationship difficulties you repeatedly react with criminal and other destructive behaviours and, in effect, sabotage yourself. This cyclical process has been exacerbated by your substance abuse. You told Mr Mackinnon that you can be doing well, then little things such as family things will bring you down and that you will self-medicate with drugs.
59In terms of your family life, you are currently single and have a daughter, Matilda, who is two years of age. Matilda lives with her mother in Montrose in Victoria and you report being on good terms with her mother. You were in custody when Matilda was born as well as for both of her birthdays. You have chosen not to disrupt Matilda in any way until such time that you are better equipped to be involved in her life. Your daughter does have monthly contact with your mother which does give you some comfort.
60You have worked on and off throughout your life. You do not have any financial assets and have lost all of your personal property as a result of your transient lifestyle and being incarcerated. You report a cycle of getting out of jail, getting a job, doing really well for a while and then relapsing.
61In the past you have worked tree-lopping, labouring, and you have also worked at abattoirs, a sawmill and at an apple orchard. You told Mr Mackinnon that once released you should be able to gain employment again at the orchard and that they are aware of your past.
Criminal history
62Your criminal history from New South Wales, Queensland and Victoria has been provided. You have what can only be described as an extensive criminal history which does contain relevant offending.
63In New South Wales, between the years of 2009 and 2013, your offending mainly ranged from dishonesty, driving and drug offences, for which you predominantly received financial penalties. In 2012 you received two separate terms of imprisonment for driving offences.
64In Queensland between the years of 2014 and 2019, your offending primarily contains dishonesty offences including stealing, receiving tainted property, fraud, unlawful possession of weapons, obstructing a police officer and failing to appear in accordance with an undertaking. You predominantly received financial penalties for your offending.
65You did receive a term of imprisonment for 12 months on 5 September 2018 at the Maroochydore Magistrates Court with a parole release date listed as 4 October 2018 for charges relating to theft, fraud, unlawful possession of weapons and assaulting or obstructing a police officer.
66Your criminal history in Victoria spans the years 2009 until the matters before me.
67You first appeared at the Swan Hill Magistrates Court on 18 August 2009 for charges of theft of motor vehicle, drive in a dangerous manner, go equipped to steal, unlicensed driving, handle stolen goods, recklessly cause injury, threaten to inflict serious injury, unlawful assault and having the prescribed concentration of alcohol in your breath within three hours of being in charge of a vehicle. You were convicted and placed on a community-based order for a period of 12 months. This order included community work, treatment conditions and programs to reduce offending. Your licence was also disqualified for six months.
68You appeared at the Frankston Magistrates Court on 20 October 2014 for breaching that community-based order, as well as for new offending for charges of theft, attempt to commit an indictable offence, going equipped to steal and fail to answer bail. For that new offending you were sentenced to a term of imprisonment for six months and your licence was disqualified for 12 months. The contravention was proven and you were resentenced to a term of imprisonment for a period of one year and two months, with a six month non-parole period. You were also fined $700.
69You appeared before the Ringwood Magistrates Court on 12 February 2021 for driving offences, theft, attempted theft of a motor vehicle, breach of a family violence intervention order, criminal damage, burglary, committing an indictable offence whilst on bail, possess dangerous article in a public place, possess controlled weapon without excuse and possession of cannabis, GHB and methylamphetamine. You were fined $3,500 with conviction and your licence was cancelled for 12 months.
70On 20 October 2021 you appeared at the Melbourne Magistrates Court for charges of dangerous driving whilst being pursued by police, contravening a family violence intervention order, unlicensed driving, intentionally damaging property, commit indictable offence whilst on bail, criminal damage, possession of GHB and methamphetamine, possess prohibited weapon without exemption, retention of stolen goods, obtain property by deception, negligently deal with the proceeds of crime, fail to answer bail, make false document and possess cartridge ammunition without approval. At that time, you received a sentence of eight months' imprisonment in combination with an 18-month community corrections order, with conditions to complete treatment for drugs and alcohol, mental health, programs to reduce offending and you were directed to undergo assessment in an Aboriginal rehabilitation facility. Your licence was disqualified for 12 months.
71You again appeared before the Melbourne Magistrates Court on 21 September 2022 for breaching that community corrections order and for new offending. The new offending related to charges of obtaining property by deception, commit indictable offence whilst on bail, possess amphetamine, burglary and theft. You were sentenced to six months' imprisonment and the breach was found proven.
72Whilst briefly outlined, your criminal history would indicate that relatively short terms of imprisonment have not deterred you, nor to date, have supervisory orders assisted you.
73Whilst you are not to be punished for your criminal history a second time, it is relevant to assess the weight to be given in sentencing to the important principles of specific deterrence, denunciation and protection of the community, all of which are relevant to your sentencing. Your history is also a mechanism with which to assess your moral culpability and your prospects for rehabilitation, to which I now turn.
Prospects of rehabilitation
74Your criminal history and regular relapse into drug use raises obvious concerns for your future prospects.
75You were arrested for the matters before me on 21 June 2023 and have remained in custody since.
76On 21 December 2023 you were sentenced to three months' imprisonment by the Magistrates Court for charges which included driving offences, burglary, handle stolen goods and others. No pre-sentence detention was declared. The offending dealt with on that occasion occurred in May 2022 and May 2023.
77Your pre-sentence detention directly referable to the matters before me pursuant to s18 of the Sentencing Act 1991 is 183 days.
78The principle of totality has obvious relevance to your sentencing, not only between the charges on the indictment and the summary offences, but also in relation to the sentence imposed on you by the Magistrates Court in December of 2023.
79During this time in custody, you have maintained ongoing contact with your mother and sister, and your sister is present for your sentencing today, as is another family member. You intend to reside with your mother upon your release. To date you have been disconnected from your First Nations heritage. This is something that you wish to address into the future.
80Whilst on remand you have been prescribed Buprenorphine to deal with your drug addiction and you have found this helpful.
81As referred to earlier, tendered on your behalf was a report authored by Ian Mackinnon, consultant psychologist, dated 20 February 2024:
82Mr Mackinnon was of the view that you presented with a high level of remorse and showed insight in relation to your decision-making and your ability to 'Self- sabotage.'
83Whilst in custody Mr Mackinnon opines that:
'Despite suffering significant depression over being incarcerated, Mr Miller has apparently benefited from being remanded in that he has started Sublocade treatment, established relative psychological integrity and has improved his physical health.'
84You would appear to be at a stage of your life where you are showing insight and wanting a more positive lifestyle. You are motivated by the fact that you are sick of the life you have been leading and ultimately you want a relationship with your young daughter. Your level of cooperation with the police at the time of your arrest and decision to plead guilty is perhaps reflective of this.
85Mr Mackinnon opined that you suffer from mixed depression and anxiety disorder and substance abuse disorder, with your substance abuse disorder currently in a stage of partial remission.
86In my assessment your overall prospects of rehabilitation do remain guarded but if you can remain drug free and maintain your current insight your prospects may well improve.
Sentencing submissions
87The C crown submitted that the overall gravity of your offending in the context of a lengthy criminal history is such that a head sentence with a non-parole period is reflective of all relevant sentencing considerations.
88Your counsel submitted that the court can properly consider the imposition of a term of imprisonment in combination with a community corrections order.
89In order to be better informed I have had you assessed as to your suitability for a community corrections order.
90A report from the Mental Health Advice and Response Service (MHARS) dated 4 March 2024 recommended that there be ongoing assessment or treatment for your mental health should a Corrections order be imposed.
91A court assessment report dated 29 February 2024 found that you were suitable for a Corrections order.
92Overall, however, in light of the gravity of your offending, particularly the weapon- based offending, in the context of your prior history, I am not of the view that a term of imprisonment in combination with a community corrections order would sufficiently reflect the sentencing considerations relevant to your case.
Sentencing Principles
93I do make the ancillary order in the terms sought for forfeiture of scheduled items.
94The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim. I am also required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
95I have taken into account the sentencing purposes referred to in section 5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty.
96Can I just check with each of you whether any matters have arisen in terms of the matters I have referred to.
97MS ZUBRECKYJ: No, Your Honour, not that I can identify.
98MS BUCKLEY: No, Your Honour.
99HER HONOUR: Thank you.
100Mr Miller, turning now to sentencing.
101For the summary charge of unlicensed driving, you are convicted and sentenced to two months' imprisonment.
102For the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to one month imprisonment.
103In the interests of totality and the relative minor nature of this offending, despite your relevant criminal history, these two sentences will be concurrent with each other and with the sentence to be imposed on the indictment.
104For the summary charge of disposal of firearms, you are convicted and sentenced to four months' imprisonment.
105I now turn to the indictment.
106For Charge 1, burglary, you are convicted and sentenced to 12 months' imprisonment.
107In relation to Charge 2, burglary, the second in time in the context of multiple attendances, you are convicted and sentenced to 18 months' imprisonment.
108In relation to Charge 3, prohibited person possess a firearm, you are convicted and sentenced to eight months' imprisonment.
109In relation to Charge 4, theft of firearms, you are convicted and sentenced to 20 months' imprisonment. This is the base sentence.
110In relation to Charge 5, that of theft, you are convicted and sentenced to eight months' imprisonment.
111One month of the summary charge of disposal of firearms, two months of Charge 1, three months of Charge 2, three months of Charge 3 and one month of Charge 5 are cumulative on each other and the sentence imposed on Charge 4.
112This does comprise a total effective sentence of 30 months' imprisonment. 183 days are reckoned as having already been served.
113I am of the view that you are presently at a crossroads and there is a basis to consider an extended period of supported transition into the community. This presents a means of fostering your rehabilitation and therefore a mechanism to offer community protection.
114I therefore order that you are to serve 18 months before you are eligible for parole.
115Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty you would have been sentenced to a total effective sentence of four years and four months' imprisonment with a minimum of three years before being eligible for parole.
116Now hopefully my math serves me correctly, it has let me down in the past.
117COUNSEL: It's correct on my calculations, Your Honour.
118HER HONOUR: Good, thank you. With that in mind, I thank you both for your assistance. As I said during the plea, the written work from each of you was to a very high standard and I am very grateful for that assessment both in written form and orally. I will depart now, Ms Buckley, and leave you the chance to speak with your client and his family.
119MS BUCKLEY: I am grateful, Your Honour, thank you.
120HER HONOUR: Thank you. Close the court until 2.15 tomorrow.
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