Director of Public Prosecutions v Miller

[2020] VCC 712

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00526

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL JAMES MILLER

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2020
DATE OF SENTENCE:	27 May 2020
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2020] VCC 712

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Mr J. Gullaci	Tony Hargreaves & Partners

HIS HONOUR:

1Samuel James Miller, you have pleaded guilty to three charges of misconduct in a public office.  This offence carries a maximum penalty of 10 years' imprisonment.  The general circumstances of this offending are set out in Exhibit 1, the prosecution plea opening.

2Between 7 October 2014 and 9 April 2018 you were a member of Victoria Police.  You had attained the rank of detective senior constable and you were stationed at Bendigo CIU.  During this period you were allocated three investigations involving serious indictable offences.  In each investigation you perceived the victim was not cooperating.  You made entries into the Interpose investigation reports that the victims had withdrawn their complaints and in two of the investigations you manufactured statements of, 'No complaint'.

3Charge 1 concerned an investigation into an assault upon the victim, Darren Fisher.  He was seriously injured in this assault.  He was initially uncooperative and abusive to police.  He subsequently made a detailed statement.  You falsely stated the victim wished to withdraw his complaint and provide a statement of no complaint.  This resulted in the termination of the investigation.

4Charge 2 also involved an investigation into an assault.  This time it was upon a 14 year old victim, Mason Rogers.  You were involved in this investigation.  You believed that the victim was not being completely truthful with you and you developed a bias against him.  On 22 January 2018 you made the following entry in the Interpose investigation report, '18 January 2018, DSC Miller, victim, Rogers.  Howden has recanted statement.  Would appear he knew offenders prior to incident and is most likely a disputed drug transaction.  Documents to be uploaded to shell and investigation closed'.  You uploaded a statement of no complaint to the investigation database.  You created a false statement of no complaint purportedly made and signed by the victim, Rogers, with the intent that your supervisor would accept it as a legitimate, original document, causing him to complete the investigation and no ensure further police action would be taken.

5On 18 April 2018 the victim, Rogers, made a statement advising that he had not withdrawn his complaint and he never signed a statement of no complaint.  As far as he was concerned the investigation was still ongoing.

6The final charge, Charge 3, involved an investigation into an assault and aggravated burglary on the victim, Jessica Jackson.  This victim did not wish to withdraw her complaint.  You made a false statement of no complaint purportedly signed by Jackson.  Once again you created a false statement of no complaint and purported that it had been made and signed by the victim, Jackson, with the intent that your supervisor would accept it as a legitimate, original document, causing him to complete the investigation and no further police action would be taken.

7You were arrested on 16 April 2018 in relation to the Jackson matter.  You made full admissions.  You stated that you believed Jackson was an uncooperative victim and not worthy of you spending your time investigating her matter and you just wanted to get rid of the matter from your workload.  You did state that this was the only occasion upon which you had engaged in this kind of conduct.  Further investigations by Professional Standards Command investigators, however, established that you had also engaged in similar conduct in respect of Fisher and Rogers.  On 3 July 2018 you were arrested in relation to those investigations.  You were interviewed and made full admissions.

8Once again you admitted creating the statement of no complaint, purportedly signed by Rogers, in order to get rid of this matter from your workload, as you perceived that Rogers was being untruthful and uncooperative.  You also took it upon yourself to write the file off in relation to Fisher.

9I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  You made full admissions to authorities.  I accept that you are genuinely remorseful.  You have no prior convictions.  I sentence you as a person of previously good character.  There has been significant delay in this matter so it has been hanging over your head and there has been no further offending.  You have been employed by Victoria Police since 2006.  You are currently suspended without pay.  Your employment with Victoria Police will be terminated as a result of this offending.

10I have been told something of your personal circumstances and these matters are set out in the defence plea submissions and in the psychological report of Mr Newton tendered on your behalf.  You are 36 years of age having been born on 5 June 1983.  You are separated and have two young children.  You were educated to Year 12 level.  You have a good work history having been employed in a brick factory and as an apprentice electrician before joining Victoria Police in 2006.  As I have stated you rose to the rank of detective senior constable.

11The psychological report of Patrick Newton dated 17 March 2020 provides a comprehensive assessment of your personal circumstances, educational and occupational history, relationships and mental health.  You provided Mr Newton with a frank explanation for this offending.  This offending did arise in a circumstance whereby you had been experiencing depressive symptoms in the context of ongoing marital and family problems.  You explained that in this context you had a number of outstanding but inactive files which needed to be finalised or handed over to other police members.  You had made efforts to contact various parties but without success and you had become increasingly frustrated.

12You explained that in your view the official process for closing files was cumbersome and time consuming.  Against this background you engaged in these acts of misconduct.  You explained to Mr Newton, 'Mr Miller said that looking back on his conduct it seemed foolish and ill-conceived.  He said, "Looking back I don't think I was thinking clearly.  A statement is an official document.  What was I thinking?  It's just stupidity.  It feels like I was in the height of what I was going through and not thinking clearly at all (at the time).  I didn't really understand the full ramifications of what I was doing.  I just wanted to save my colleagues some time"'.  Mr Newton has provided his opinion on your mental state.  You have symptoms of mild depression and you satisfy the diagnostic criteria in respect of adjustment disorder with depressed mood.

13I have taken these opinions into account as part of your personal circumstances.  I note that you have been seeking and receiving appropriate psychological treatment.  I have been provided with material in relation to this treatment.  It is not submitted on your behalf that any of the well-known principles enunciated in Verdins' case apply.  A large bundle of references and testimonials were tendered on your behalf.  I shall briefly refer to this material.  Your father describes your excellent past work history.  He describes you now as a shattered man as a result of this offending.  Your family were totally shocked by the offending.  It was your father's opinion that it was totally out of character.  You retain strong support from family and friends.

14Colin Grenfell has provided a reference.  He served in the Victoria Police for
36 years.  He is now retired.  He worked with you and described you as a particularly hard working police officer.  He was of the opinion that as a police officer you were diligent, focussed and tenacious.  He was shocked and disappointed to hear of this offending, as this conduct was contrary to the person he knew.  He described you as a fantastic father and friend to many.

15A close longstanding friend, Brad Dickson, describes you as being an intelligent young man with a great work ethic.  He believes you to have been an honest and good person who will learn from this costly error of judgment.  A longstanding personal friend, Jessie Webb, has also provided a reference in which she has expressed similar sentiments to those of Brad Dickson.  She has described your character in these terms:  'Sam has been very honest about the situation and he's displayed devastation, extreme remorse, depression and anxiety as a result'.  It was her view that you were trustworthy and loyal, thoughtful, caring and generous'.

16I assess your prospects of rehabilitation as being good.

17Against these matters in mitigation, however, your actions were very serious indeed.  You have effectively set yourself up as investigator, judge and jury.  You have breached the fundamental obligations owed by members of Victoria Police.  This offending, in my opinion, involved a gross breach of trust.  I must emphasise that the offence of misconduct in public office is a serious matter.  However, the circumstances of this offending are particularly unusual.  I accept the submission made on your behalf that you did have a perception that the victims were not cooperating.  I accept the explanation provided on your behalf, which has been succinctly summarised in the written submissions in these terms:  'Miller sought to, "write off", three criminal investigations which he was conducting, due to a lack of interest/cooperation from the respective, "complainants".  The method and approach he used was clearly and obvious inappropriate.  He did this:  (a) to save time; (b) for convenience; and (c) as a shortcut.  He was frustrated by the attitude of the complainants in these respective investigations'.

18Whilst you may have formed a perception about the victims and you may have experienced frustration in the course of your employment I must emphasise that the offending is of a very serious nature and, as I have already stated, involves a breach of the fundamental obligations owed by members of Victoria Police.

19As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is less relevant as you have no prior convictions and I sentence you as a person of previously good character.  General deterrence is, however, of considerable importance in a case such as this.  This type of offending must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

20It was submitted on your behalf that the appropriate disposition was a community correction order alone.  It was submitted on behalf of the prosecution that the issue of sentencing was ultimately a matter for me however in the unusual circumstances of this case it was open to me to consider the imposition of a community correction order alone.

21I have already said, and I do emphasise, that the circumstances of this offending are most unusual.  There is strong plea material before me in relation to your personal circumstances.  In these unusual circumstances I did consider that a community correction order may be appropriate and, accordingly, I obtained an assessment outcome report.  That report has been provided to the parties.  I will just formally mark it as an exhibit and it will be given an exhibit number, seven.

22The report was prepared by the assessing Community Corrections officer, Darren Pianta, on 25 May 2020.  He assesses you as suitable for a community correction order.  He recommends one additional condition, namely the performance of community work.  He does make some useful observations.  In particular you are assessed as being low risk of reoffending.  You are also receiving appropriate support from your general practitioner to monitor your mental health.  In these circumstances he does not recommend the inclusion of any treatment or rehabilitation condition for mental health as you are currently addressing symptoms of depression with appropriate support.

23I accept the opinion of the assessing Community Corrections officer.  I note that the terms of any proposed community correction order were explained to you by that officer and you did consent to the making of such an order.  It is, however, necessary for me to formally explain the terms of a community correction order and the effect of that order to you and obtain your consent before I am able to make such an order.

24Having regard to all appropriate sentencing principles and the unusual facts in this case, I do propose to convict and sentence you to an 18 month community correction order, which will contain a component of community work.  You must complete 100 hours of unpaid community work.  I have prepared a draft of the proposed order and I will just ask your solicitor to go through that draft with you now in court.  Danny, can you provide that?

25ASSOCIATE:  Yes, Your Honour.

26HIS HONOUR:  Mr Miller, you will see that the order commences on this date and lasts for 18 months. There is a requirement that you attend at the Bendigo Community Correctional Services within two clear working days after the commencement of this order.  There are mandatory terms that apply to every community correction order.  I will not read them out but your instructor and you can read through those.  There is an additional condition that you perform 100 hours of unpaid community work.

27I have to explain to you that this order will be in effect for 18 months.  If you breach this order you are liable to be brought back before me to be dealt with in respect of the breach of the order and the offences for which I am sentencing you today.  I do want to stress one fact to you, Mr Miller, and that is that I regard the making of a community correction order as an extremely serious matter and I regard your consent to the making of such an order to be an informed consent.  Should there be any breach of this order you should be under no illusion that I will regard that as a most serious matter, it being a breach of an order that I have made today.  Do you understand all of that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  Do you consent to the making of the order?

30OFFENDER:  I do, Your Honour.

31HIS HONOUR:  If you would please just sign it where there is a spot for the signing of the order.  So the formal order of the court is conviction and sentenced to an 18 month community correction order with the usual mandatory conditions and then the additional condition of 100 hours of unpaid community work.  There is nothing further, is there?  Can I just check, just before I adjourn, I will go to you first, Mr Gullaci, because you are on the screen.  Nothing further that you wish to add, is there?

32MR GULLACI:  No, Your Honour.  No.

33HIS HONOUR:  Thanks for that, and similarly, Mr Fisher, can I just check with you?  Nothing further the Crown needs to add is there?

34MR FISHER:  No, nothing further.  Thank you, Your Honour.

35HIS HONOUR:  Yes, thanks very much to both of you for your assistance in the matter and for enabling this to proceed over the WebEx facility so expeditiously.  Thanks a lot to your instructor too, Mr Gullaci, for attending court today.  So I will just adjourn until 10.30 tomorrow morning.  There is nothing else is there, gentlemen?

36MR GULLACI:  If Your Honour pleases.

37HIS HONOUR:  All right, thanks.

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