Director of Public Prosecutions v Miller

[2020] VCC 1056

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00157

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM MILLER

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2020
DATE OF SENTENCE:	17 July 2020
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2020] VCC 1056

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:                   DPP v Dawson [2015] VSCA 166; Lord v R [2018] VSCA 52
Sentence:  28 months imprisonment, NPP 18 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Singh	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Sullivan Braham

HIS HONOUR:

1Adam Miller, you have pleaded guilty to the following offences which carry the following maximum penalties: 

Charge Nos.	Charge	Max Penalty
1	Armed Robbery	25 years
2	Destroying Property	10 years
3	Attempted Burglary	5 years

2You have admitted some prior convictions from 2004.  I do not consider them particularly relevant to your sentence for these offences.

3The Crown tendered the prosecution opening for plea as Exhibit A.   A summary of your offending is as follows.

4On 26 September 2019, you drove to Sale, after finishing work in Traralgon.  While in Sale, you paid $50 at the United Petrol Station on Foster Street (which you had previously been unable to pay), withdrew a total of $1400 from two ATMs, had some alcoholic drinks at a friend's place and ended up at the Star Hotel, where you consumed further alcohol and spent the money you had earlier withdrawn on a poker machine.

5Upon leaving the Star Hotel at about 7 pm, you drove your car down the street and into an alleyway.  You entered a car park not visible from the street, but from which you could see the United Petrol Station you had stopped at earlier.

6You turned a pair of tracksuits pants in your car inside out, you put them on over your pants, you put on a black hooded jumper, and put on differing gloves on your hands.  You used a T-shirt to cover your face, biting two eyeholes into the T-shirt. Finally, you grabbed a blue jemmy bar and left your vehicle.

7Using the jemmy bar, you opened a gate leading to the rear of the Midtown Motel, crossed a car park and then used an upside down pot plant to climb the fence into the United Petrol Station.  You waited for the vehicle currently at the petrol station to leave.

8At 7.34pm you entered the petrol station and immediately pulled down a shelving unit, which fell into the door and prevented it from closing.  You approached the attendant, Anmol Kaur, smashed the EFTPOS and the counter with the jemmy bar, and demanded Ms Kaur open the till (Charge 1 – Armed Robbery) (Charge 2 – Destroying Property).

9Ms Kaur opened the till and gave you the notes inside, totalling $700.  You took the notes, along with the coin tray from the till, you returned to your car and dropped a $50 note while scaling the fence on your way back.

10You proceeded to drive your car back to the Star Hotel, and removed your clothing and face covering.  You fed all the notes you had taken into a poker machine and lost the lot that you had just stolen on that machine.

11You drove to your friend Lauren Timmerye's house, arriving at 8.05pm, and had a couple of drinks.  When you for a third drink, Ms Timmerye refused to provide it and encouraged you to leave.  You left the house at 10.30pm, intending to drive back to Traralgon on the back roads, given you had consumed alcohol.

12However, upon arriving in Rosedale, you saw the United Petrol Station on the Princes Highway and parked your car.  You put on the tracksuit pants, the hooded jumper, gloves and covered your face.  You approached the station with your jemmy bar.  As the station was locked, you attempted to break the pad lock and the bolt on the door.  When this did not work, you hit the glass door, breaking it and causing an alarm to go off, at which point you fled (Charge 3 – Attempted Burglary).

13You drove back to Traralgon and attempted to enter the Star Hotel in Traralgon, where you were denied entry.  During this time, police located your vehicle, and when you returned to your vehicle at 2.40am, you were arrested

14You were interviewed around 10 am on the same day, 27 September, but could recall very little of the events. On 28 September, you participated in a further interview, where you made comprehensive admissions to the offending and provided considerable detail as to what had occurred.

15It is apparent that you not only made admissions, but you supplied police with the detail of the facts of your crimes.

16You were remanded in custody after your initial arrest.  You pleaded guilty to the charges on indictment at the second committal mention on 4 February 2020.  The Crown accepts that you pleaded guilty at an early stage.  In my view, the plea has utilitarian benefit and should be used to mitigate your sentence.

17You have now served 294 days in custody by way of pre-sentence detention, excluding today's date.

18I turn now to consider the objective gravity of and your moral culpability for your offending.

19The maximum penalty of 25 years' imprisonment marks the seriousness of the offence of armed robbery.  It is an offence of both dishonesty and violence.  In this instance, you used a partial disguise, and then you pulled down a shelf, and used a jemmy bar to smash the EFTPOS machine to emphasise your demand for cash.  Your actions in confronting the young female sole worker at the service station were objectively frightening, violent and cowardly.  You told the police that you took the jemmy bar up to the counter as a 'scare factor'.  Although there is no victim impact statement filed in this matter, I can only conclude from all the circumstances that your actions were objectively terrifying and would stay with that young worker for a long time to come.

20Your crime was inflicted on a classic soft target.  People in the wider community rely heavily on the services provided by evening and night-time convenience stores.  Often, as on this occasion, they are staffed only by a single worker. The community and those workers are entitled to expect their work environment and the service they provide to be safe and without fear or threat of such attacks.

21Your motive for committing these crimes was, in the first instance, to provide funds with which to gamble.  I shall say more about your offending against the background of your personal circumstances.  However, I can say at this point there is nothing in the submissions made on your behalf which actually explains or mitigates your criminal conduct.

22Together, the factors I have outlined make your offending a serious example of the crime of armed robbery.  Your moral culpability is very high.  Although your offending was not marked by long detailed planning, you certainly had sufficient presence of mind in choosing your target, timing, the use of a disguise and choice of a weapon, to enable me to conclude that you were astute and single-minded in your criminal objective.

23The offence of attempted burglary is likewise a serious example of this offence.  It followed after you had gambled away the money you had stolen only hours before the armed robbery.  Accordingly, your moral culpability for this offence is also high.

24Your offending must be met by principles of deterrence, denunciation, just punishment and protection of the community.

25I turn now to consider your personal circumstances.

26You are 37 years of age and you were born on 7 January 1983.

27At the time you were born, your father was working in Papua New Guinea.  Your mother gave birth to you in Australia and then returned to Papua New Guinea, where you live until civil war broke out when you were five.  Upon returning to Australia, your parents separated and you lived in Newborough with your father, while your mother and sisters, Belinda and Jessica, moved to Maroochydore.  Your parents briefly reunited between 1994 and 1995; however, when they separated, you again stayed with your father whilst your mother and sisters moved to Warragul.

28You have been involved throughout your life in motorcycle sport racing and you hold both Victorian and Australian titles as a child and adult.

29You completed your schooling until the end of Year 10 in Newborough.  At the age of 15, you started an apprenticeship with your father as a motor mechanic.  You left this apprenticeship when you were 18 years of age.

30You have since worked predominantly in the drilling industry, working in both on and offshore drilling rigs whilst engaged on a fly-in-fly-out basis.  You worked between Longford and Papua New Guinea on a month-on-month-off basis for five years between 2011 and 2016, and then in Kuwait between 2016 and 2018.  During this period, you would occasionally use cannabis to relax between your stints on the rigs.  Similarly, Mr Anderson told me that you would often put $50 through the pokies and have a couple of beers to relax; however, your gambling in the past did not cause any financial issues.

31You met Corinna Miller around 2002/2003, and later you both married.  You were together for 16 years, with the relationship ending in 2019, and you have two children aged 15 and 11.  I was told you pulled back from riding motorcycles following the birth of your first child, although you had recently recommenced riding more actively.

32You purchased a 40-acre property with Ms Miller in Longford.  Mr Anderson told me you enjoyed exploring the property with your sons during the 'month-off' periods from work.  Around 2018, your long absences while working on the rigs became an issue in your relationship, and after being rejected for a job at the Longford Gas Plant, you found further FIFO work, on a week-on-week-off basis in the Bass Strait.  Your cannabis use increased in this time; however, you always stopped smoking cannabis when you were working on the rig.

33Following a family violence incident in 2019, Ms Miller took a family violence protection order out against you.  You moved in with your sister, Belinda, in Traralgon, allowing your family to remain at the house in Longford.  You left your job in the Bass Strait and commenced an adult apprenticeship in plumbing.  Mr Anderson described how you felt at this point like you had hit 'rock bottom'. 

34Your counsel submitted that at the time of the offending, you felt that you had lost your work success, your position as a father and as a mentor to your children and your identity as the sole provider for your family.  It is apparent that you valued your time in Kuwait, as it gave you real meaning and a sense of achievement and identity.  Your perception of your identity and self-worth plummeted when you left all this work and has plummeted further since you have been remanded in custody. 

35Up to the point of your offending, you instructed that you gambled as a pastime, but it had never been a problem.  You had increased your use of marijuana, as I have observed, but not to the point where it interfered with your work.  You had used some MDMA on the day of the offending, but you do not seek to shift the blame for your crimes onto either gambling or drug use.  There is no suggestion that you suffer from any mental illness.

36Since you have been in custody, you have remained drug-free.  Before the onset general lockdown caused by the COVID-19 pandemic, you had engaged in a number of vocational and self-reflective courses.

37I received character references from your sisters and your mother.  Your siblings and mother speak of your childhood as being very difficult at the hands of your father, who was a stern disciplinarian.  All speak of the love and support you have given to each of them.  Your family speak of the great sacrifices you made by working overseas contracts to provide so well for your former wife and boys until the pressure placed on your relationship caused you to scale back and scaled down your work to lower paid, locally based jobs and then, finally, an adult apprenticeship.

38When seen against your work history and your family support, I consider your prospects for your rehabilitation after this offending to be very good; perhaps even excellent.  You have some prior convictions but, as I say, they were driving matters in 2004; I do not consider them relevant to this offending or to the prospects of your rehabilitation.  The comprehensive admissions you made to police provided them and the prosecution with much of the detail which forms the basis for the charges against you.  I take this as a comprehensive acknowledgement that you understand the wrongfulness of your actions.

39Thereafter, I look at the detail provided by your counsel and your sisters and your mother of your life, your dedication to your family and the pride you took in your achievements through your working life.  It seems to me that your overall history, the existence of solid prosocial networks upon your release from custody and your actions whilst in custody provide a solid foundation for your prospects for your rehabilitation.

40I recognise the effect of the lockdown and restrictions in Victorian prisons caused by the COVID-19 pandemic.  Prisons have imposed and operate under considerable restrictions on the freedom of movement around the prison; vocational and educational courses have been severely restricted, if not stopped altogether; work opportunities have been significantly limited.  There has been, and I accept in the cases that I have heard, that there is a heightened concern of fear amongst the prison population of the possibility of an outbreak of the virus.  Moreover, most of the prison population fear for the safety of their own families, which whom they cannot be with and protect.  I accept that all these factors operate to your time in prison presently onerous.

41Mr Anderson, who appeared on your behalf, submitted that I should impose a combination sentence; that is, I may impose a sentence of under 12 months' imprisonment in combination with a community corrections order.  Mr Anderson referred to the case of DPP v Dawson, where a sentence of 12 months' sentence of imprisonment was combined with a 22 month CCO was handed down.  This sentence was upheld on appeal.  There are some similarities between your circumstances and those of Mr Dawson (see [37] of judgement in that case).

42Ms Singh, who appeared on behalf of the prosecution opposed the imposition of such a sentence and submitted that your offending warranted a term of imprisonment with a non-parole period.

43Ms Singh referred to the Court of Appeal case of Lord.  I am mindful of the principles laid down by Lord, and in particular those by President Maxwell at [11] of the judgement in that case, but note also that the offence of armed robbery can be committed in a variety of ways. 

44I do not consider the circumstances of this offence to be comparable to the severity of those in Lord, nor is there any similarity between the circumstances of the offender in Lord and you. 

45I was referred to the Sentencing Advisory Council Sentencing Snapshot of
April 2020 for armed robbery.  I have had regard to the information contained in the snapshot.  In the end, however, I must impose a sentence which takes into account the circumstances of your offending and your personal circumstances.  I must impose a sentence which is appropriate to you and not simply slavishly follow statistical information or sentences imposed in previous cases. 

46In the end, I have decided that the principles of sentencing and your rehabilitation are both better served by the imposition of a non-parole period and the opportunity provided by parole if it is granted to you.  In my view, if you are granted the opportunity for parole, then it will provide both the support and framework for your reintegration back into the community.  An assigned parole officer will decide what, if any, programs are required to help you with your reintegration.  It should not impede your ability to move back immediately into the workforce.

47Mr Miller, I will sentence you now. 

48On the charge of armed robbery, you are convicted and sentenced to a period of 27 months' imprisonment.

49On the charge of intentionally damaging property, you are convicted and sentenced to four months' imprisonment.  I have considered the matter carefully; I have decided not to accumulate any portion of this sentence.  In my view, it forms an integral part of the overall scenario of the armed robbery.

50On the charge of attempted burglary, you are convicted and sentenced to four months' imprisonment.  I order that one month of this sentence be accumulated on the other sentences.

51The total effective sentence in this case is therefore one of 28 months.  I order that you serve a non-parole period of 18 months before you are eligible for parole.  I declare the period of 294 pre-sentence detention reckoned as already served. 

52But for the plea of guilty in this matter, I would have imposed a sentence of four years, with three years to serve. 

53Mr Anderson, is there any - do you have anything to say on the forfeiture order?

54MR ANDERSON:  No, that is not opposed, Your Honour.

55HIS HONOUR:  All right, I will make the order in chambers.

56MR ANDERSON:  As Your Honour pleases. 

57MS SINGH:  As Your Honour pleases.

‑ ‑ ‑