Director of Public Prosecutions v Miller
[2020] VCC 164
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01732/33
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEBORAH MILLER KEEGAN WAGNER |
---
| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 27 February 2020 |
| CASE MAY BE CITED AS: | DPP v Miller & Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 164 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence, aggravated burglary, common assault, co-accused, fail to answer bail, plea of guilty, combination sentence
Legislation Cited: S6AAA Sentencing Act (Vic)
Cases Cited:R v Verdins [2007] VSCA 102, Bugmy v The Queen [2013] HCA 27
Sentence:15 months imprisonment and Community Corrections Order for 18 months
S6AAA Declaration: 3 years and 6 months with a minimum 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Potter | Office of Public Prosecutions |
| For Accused Miller | Mr C. Terry | Balmer & Associates |
| For Accused Wagner | Mr S. Ranjit | Papa Hughes Lawyers |
HIS HONOUR:
1Deborah Miller, you have pleaded guilty to one charge of aggravated burglary and three charges of common assault. You also pleaded guilty to a summary offence of failing to answer bail.
2Kevin Wagner, you have pleaded guilty to one charge of aggravated burglary and one charge of common assault. You too pleaded guilty to a summary offence of failing to answer bail. The maximum penalties are as follows:
3Aggravated burglary - 25 years' imprisonment, common assault - five years' imprisonment, failing to answer bail - two years' imprisonment.
Circumstances
4The facts of this matter are set out in the prosecution opening which was tendered as Exhibit 1 on the plea. They can be briefly stated as follows:
5The three complainants in this matter are Gary Kerrigan, who was aged 51 at the time of the offences, John Perry who was aged 48 at the time of the offences, and Aaron Lutkins who was aged 36 at the time of the offences.
6They lived together at a rental property in Yarra Junction and they were all friends. Mr Wagner, you knew Mr Lutkins and Mr Kerrigan. The third complainant, Mr Perry, only knew you by sight. You, Ms Miller, did not know any of the complainants in this matter.
7On the evening of Thursday 14 March 2019, the three complainants were all home together in the evening. Mr Lutkins was standing in the kitchen and Mr Perry and Mr Kerrigan were sitting on the couch watching the television.
8You both arrived at the house in Yarra Junction at around 8.20 pm. You went there because you, Mr Wagner, believed that Mr Lutkins was responsible for stealing your tent.
9On arrival, you knocked at the front door. Mr Kerrigan heard the knocking and in response, opened the sliding door rather than the front door. The sliding door is covered by a long blind and opens out onto a veranda onto the side of the property.
10When he opened the sliding door, he did not move the blind. Once the door was partially open, you, Mr Wagner, barged inside, pushing Mr Kerrigan out of the way in the process. You, Ms Miller, followed close behind.
11Mr Perry stood up from the couch and saw the two of you inside. You, Mr Wagner, went straight up to Mr Lutkins and started yelling at him, saying, 'Where's my tent?' Mr Lutkins was standing in the hallway at that time. Mr Wagner, you then leaned forward and grabbed both of Mr Lutkins' arms before headbutting him to the face, striking his nose and his face with your forehead which caused his nose to start bleeding.
12At around this time, you, Ms Miller entered the kitchen area and you took a knife from the kitchen drawer. You then waved the knife at all the occupants, making verbal threats that you would stab and kill them and yelling at them to stay away from Mr Wagner. They were in fear they would be stabbed.
13At one point, Mr Perry saw the knife close to Mr Kerrigan's neck while you were waving it around. Mr Kerrigan picked up his blue Heeler puppy fearing that you might stab it. You, Ms Miller, noticed this and then became more agitated, yelling at Mr Kerrigan to, 'Stop hurting the dog' and, 'If you touch the dog, I'll fucking stab you.'
14Mr Kerrigan stood his ground and he started yelling at you. At one point, when Mr Perry tried to move past you Ms Miller, you stabbed the kitchen bench with the knife, causing a puncture mark.
15Mr Lutkins fled the house during the incident. The two of you remained in the house briefly until Mr Perry told you that he had called the police. You then left.
16After you left, Mr Lutkins did, in fact, call the police who arrived a short time later with an ambulance. Mr Lutkins was treated at the scene. There were no breaks or fractures. When Mr Lutkins spoke to the police he told them that you, Mr Wagner, had confronted him a week earlier about your missing tent, accusing him of having stolen it. Mr Lutkins told you on this occasion that he had no idea what you were talking about.
17You were both arrested the following day at the Alpine Retreat Hotel in Warburton. You, Ms Miller, denied participating in these offenses and gave an exculpatory version of your conduct on the evening of the offences.
18For you, Ms Miller, the failure to appear on bail relates to your non-attendance on 8 February 2019 at the Ararat Magistrates' Court and for you, Mr Wagner, it relates to a non-appearance on 12 March 2019 at the Stawell Magistrates' Court, both for unrelated matters. You were both remanded in custody on 15 March 2019 in relation to these matters.
Objective Gravity
19Aggravated burglary is a very serious offence as indicated by the maximum penalty of 25 years' imprisonment. It was submitted on behalf of both of you that there is no evidence of any cogent pre-planning nor was there any ruse used to enter the property, and that, in fact, the door had been opened by one of the occupants.
20Counsel accepted that there was a plan to assault but submitted that this was at a basic level. I accept the matters put forward by Mr Terry and Ms Drago that the offence lacked planning and some of the aggravating features in more serious examples of aggravated burglary.
21I accept that this offending was an impulsive episode committed by the two of you when you were living in desperate circumstances in a tent somewhere in the Warburton area.
22I do not view the explanation for the conduct to confront Mr Lutkins over the stolen tent to be mitigating. It simply highlights the irrational thinking that caused this offending.
23This was an aggravated burglary of a private residence, in company, in the evening, to commit an assault. Whilst Mr Perry might have opened the sliding door for you Mr Wagner, you entered by barging through the blind and pushing him out of the way, followed closely by Ms Miller.
24These factors are all matters that mark out the seriousness of this particular instance of aggravated burglary, in line with the analysis set out by the Court of Appeal in the case of Meyers and applied in the case of Bowden cited by the prosecutor on the plea in this matter.
25Once inside the house, matters quickly escalated with the head butt to Mr Lutkins taking place soon after entry. Neither of you entered with a weapon and although you Mr Wagner are not charged in relation to Ms Miller's assaults with the knife inside, that behaviour the knife does illustrate the volatile nature of an incident such as this where offenders are affected by drugs and highly agitated. Ms Miller, your conduct with the knife heightened the fear felt by the occupants who were the subject of those assaults.
26Although there are no victim impact statements, in assessing the gravity of this offending, I have not overlooked that the occupants of the house were understandably very scared by your behaviour.
27Mr Lutkins was head-butted in his home at night and the two occupants remaining in the house were menaced with the knife by you, Ms Miller.
28Ultimately, because the intent in this case involved committing an assault, and the premises was a private residence, I cannot categorise this conduct here as falling to the bottom end of the spectrum of seriousness for aggravated burglary, but I do find it is a lower level example of an aggravated burglary involving intent to assault.
29Wherever this offence might be placed on the spectrum it was serious criminal conduct. There was a contested committal in this matter and the victims were cross-examined. However, you were both initially charged with aggravated home invasion and it was alleged that you had a weapon, namely the knife when you entered.
Guilty plea
30The charge of aggravated home invasion has not been proceeded with and the prosecution have made some concessions on the facts since the committal.
31Therefore, the shape of this matter has changed considerably since the contested committal and I must have regard to this matter when assessing the stage at which you both pleaded guilty. In the circumstances of this case, I am prepared to classify the plea of guilty in this matter as an early one.
32I have had regard to the utilitarian value of the plea, saving the time and expense of a trial, and sparing the witnesses from having to give evidence again. I also find that your guilty pleas are indicative of some remorse for this offending.
Ms Miller
33I turn now to your personal circumstances, Ms Miller. You are now aged 45, you were 44 when you committed these offences. You have an unfortunate background. I am told your father was a violent man and a drinker, and your mother neglected you. You told Mr Ball, the psychologist who assessed you, that your father was:
'Drunk every night and mum would be sleeping with his mates when he would pass out.'
34You were subjected to physical punishment for mistakes and misbehaviour. You had two siblings. When you were a child you were sexually abused by a friend of your father's when he was babysitting you. This went on for some years. When you disclosed this to your parents, they accused you of lying.
35Your parents eventually separated and your mother re-partnered. Your step father also physically abused you. Despite your dysfunctional upbringing, you got to Year 11 at school. You have not really worked in your adult life, relying mainly on the disability support pension which you receive because of your epilepsy. You have two adult daughters, aged 26 and 29. One of your daughters lives in Queensland and you have lost contact with the other since you went into custody for this matter. As I understand it, you have not received visits from your family since you were remanded in custody.
36At the time of this offending, you were leading a transient lifestyle. You were homeless and living in a tent in Warburton with the co-offender.
37I am told that in recent times, you have been abusing diazepine medications which you may have been prescribed, as they gave you some assistance for your epilepsy. Whether you were taking them on a prescription or not, you were abusing this medication.
38I am told that the abuse of diazepam played a role in this offending to the point where your memory is compromised about what happened, and you have been unable to give a coherent version. Your behaviour was entirely consistent with someone grossly affected by drugs.
39Ms Miller, you suffer from epilepsy. Mr Terry submitted that this has increased the burden of your imprisonment because in custody you have suffered an increased number of fits due to the stressful nature of the prison environment.
40I am told that you have had over 100 fits in your time on remand for this matter. You are currently medication on Epilim for your epilepsy, Zoloft, Olanzapine, a mood stabiliser, and valium.
41I accept that your imprisonment has had a deleterious effect on your epilepsy and increases the burden of imprisonment. I have taken this into account in fixing the sentence in this matter.
42Ms Miller, your criminal history extends back to 1994 in New South Wales after which there was a gap until 1999 when you were sentenced to a community-based order for trafficking heroin.
43Since then, you have prior convictions for a range of criminal offences, including assaulting police, dishonesty offending, threats, affray and others. You have never been sentenced to a period of immediate imprisonment, but you did receive a suspended sentence in 2014 which was breached but not restored. All of your previous charges have been heard in the Magistrates' Court as I understand the prior convictions. The offences in this case are the most serious you have faced.
44In assessing this criminal history, I have viewed it in the context of the deprivation in your background, but it clearly has relevance to the weight to be given to specific deterrence and for the assessment of your prospects of rehabilitation.
45Mr Terry emphasised two things which he said are positive factors in favour of your rehabilitation. Firstly, while you have been in custody, you have converted to Buddhism. This is giving you added focus and meaning in your life. I accept that this is a matter likely to assist you in your rehabilitation if you continue down this path once you are released.
46Secondly, whilst you have been in custody, you have involved yourself in the Koori art program and some of your work is to be exhibited at a gallery in St Kilda. When you are released, you intend to link up with the program. Mr Terry tendered some examples of your work and it is evident that you have artistic ability.
47Again, if you can lead a stable life once released from prison, and stay away from the abuse of drugs, I accept continued involvement with the gallery and the art program can only be a positive step towards rehabilitation.
48On release from prison you intend to live in Doveton with a friend of yours named Angela Farrar who has leased a Ministry flat and who is employed.
49A psychological report from Mr Ball was tendered and marked as Exhibit DM1. Mr Ball said that you presented as an individual with low self-esteem and poor coping skills.
50He said that the environment in which you grew up resulted in an insecure attachment style and fear of abandonment. He said that this has led to a pervasive patterns of instability of inter-personal relationships and as a result, you have developed anxiety and episodes of lowered mood. In his view, you:
'Suffered significant trauma and childhood neglect which has resulted in psychological distress and the development of borderline personality disorder.'
51He said that your borderline personality disorder is associated with long-standing impulsivity and effective instability including rage reactions.
52In his written submissions, Mr Terry argued that your personality disorder can give rise to Verdins considerations and he relied on the decision of Herman to support this argument.
53In both the written and the oral submissions, Mr Terry also relied on the decision of Bugmy relating to the deprivation in your upbringing.
54In oral submissions before me, he suggested that an application of Bugmy factors was an alternative path by which I might take into account your personality disorder.
55In his submission, your deprived background is a contributing factor to your personality disorder and therefore I should treat it as a by-product of your social deprivation. He argued that on this basis I can take a more favourable view of your moral culpability for this offending.
56I accept that yours was a very difficult upbringing contributing to what Mr Ball describes as your borderline personality disorder. In my view, your lifestyle as an adult involving drug abuse, homelessness and instability is intertwined with your upbringing and personality features and I am satisfied these matters played a role in the offending.
57I have therefore taken into account your upbringing as reducing your moral culpability for the offending, and I have moderated the weight to be given to denunciation and just punishment accordingly.
58However, your instability, your personality disorder and its' consequences are matters which inevitably negatively affect my assessment of your prospects of rehabilitation, as does your continued abuse of drugs, a causal factor in this offending which I do not ignore.
59Ultimately while there are some positives on the horizon for you, it is difficult to take more than a guarded view of your prospects of rehabilitation.
Mr Wagner
60Mr Wagner, I turn now to your personal circumstances. You are aged 27. You were born and raised in Ballarat. You are an only child. Your parents separated when you were a very young and you had little contact with your father growing up. Your mother re-partnered. Your childhood was difficult, as you did not get on with your mother's partner, Rob, and you were subjected to excessive physical punishment.
61At the age of seven, you were diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and Obsessive-Compulsive Disorder.
62You were also diagnosed with Autism Spectrum Disorder, but in the psychological report tendered in your behalf at the plea, Mr Simmons, who assessed you, seems to view this as a misdiagnosis and suggests that your symptoms are in fact consistent with social phobia.
63You were taken into the care of the state at the age of seven, and you spent most of the following years until you were 17 living in residential units.
64You spent around 12 months in a foster home when you were aged 13, but this placement broke down eventually. You told Mr Simmons that you have not lived in any one place for longer than six months and you have lived on the streets from time to time. You went to multiple primary schools, but you did not fit in and you never attended high school at all.
65You did however, go to TAFE where you completed the equivalent of Year 10 level. Your employment history has been sporadic and you have not worked for the last six years. In that time, you have been receiving a Disability Support pension.
66You have a long history of drug use commencing with cannabis and you have abused all types of drugs including diazepine, Xanax, Endone, ketamine and methyl amphetamine.
67Mr Simmons says that you meet the criteria for poly-substance use disorder, which is in remission at the moment, due to your incarceration. You have attended many drug treatment programs including residential units without success. You were abusing drugs in the time frame of this offending.
68In the community corrections assessment report, you disclosed drug and alcohol use at the time of the offending. You have a relatively lengthy criminal history for a wide-range of offences, including various assaults, robbery, threats, attempted burglary and breaching community correction orders.
69You have received one previous gaol sentence in 2018. As with Ms Miller, I have viewed your prior convictions in the light of the deprivation in your background, but they clearly have relevance to specific deterrence and to your prospects of rehabilitation.
70You told Mr Simmons you have had a number of admissions to psychiatric units. According to the report of Mr Simmons, you have been treated over the years with Seroquel, Zyprexa, Ritalin, Mirtazapine, Zoloft and Valium. You told Mr Simmons you experience intrusive thoughts about your treatment by your stepfather, and you disclosed to him symptoms of hyperarousal and hypervigilance, consistent with post-traumatic stress disorder.
71Mr Simmons offered the opinion that your childhood left you vulnerable to substance abuse, particularly your time in welfare services. You have been very unstable since your childhood. He noted that you were homeless prior to your incarceration and he said you were almost certain to be homeless upon your release. However, during the plea on your behalf, Ms Drago indicated that you have accommodation available to you with a friend in Cranbourne North.
72In the community correction order assessment, you confirmed this, but indicated you want to go and live in Lilydale to be close to your mother and your siblings with whom you were trying to reconnect before being placed into custody for this offending.
73Ms Drago relied on several matters in mitigation, including your mental health. She indicated during the plea she relied on the Verdins principles in your case.
74In my view, there is insufficient material as to your psychiatric state or its nexus to this offending for any application of the Verdins principles.
75However, as was the case for Ms Miller, your background appears to have been one of significant deprivation, resulting in instability, homelessness and polysubstance abuse. Those problems are the context in which this offending took place.
76Accordingly, in my view, there is a reduced level of moral culpability in your case, and a resultant moderation of the weight to be given to denunciation and just punishment.
77As was the case with Ms Miller, these longstanding issues negatively affect my assessment of your prospects of rehabilitation and are relevant to the issue of community protection as well.
78In relation to your prospects of rehabilitation you are still a relatively young man, and this is the longest period you have spent in custody. It is encouraging that you want to reconnect with your family. The author of the community correction order assessment report believes you are developing a good level of insight into your offending and that your time in custody has allowed you to reassess your life.
79There is still clearly hope for your rehabilitation even though your drug abuse and the instability in your life are well-entrenched. In the end, as with Ms Miller, I can only take a guarded view of your prospects of rehabilitation.
Respective roles and parity
80In relation to the aggravated burglary and the common assault constituted by the head-butt, Charge 2, I have imposed slightly higher sentences on Mr Wagner to reflect my view that you, Mr Wagner, were more culpable in this offence.
81The issue that led the two of you to commit the offences was yours, Mr Wagner. This is plain from the incident a week before with Mr Lutkins over the tent. Additionally, you barged into the house first, and you started the verbal confrontation inside the house over the tent and you committed the physical acts that make up Charge 2, with Ms Miller in a supporting role.
82However, Ms Miller was solely responsible for the assaults with the knife and in the end result, I intend to impose the same period of imprisonment for each of you and identical community correction orders.
83Finally, I have had regard to comparative cases that I was provided during the course of the plea and to sentencing practices for this type of offending.
Sentence
Ms Miller
84In relation to you, Ms Miller, I ordered a community correction order assessment in this matter to assist me in considering whether a combination sentence is appropriate in your case. You have been assessed as suitable. You told the assessor that you want to put this episode behind you and lead a pro-social life. You have been assessed as a high-risk for general re-offending which is not surprising.
85However, in my view, the sorts of conditions that are available on a community correction order, may benefit you and I intend to impose a combination order in your case. However, I have formed the view that the period that you have served on remand is not sufficient to reflect the seriousness of the offending and the sentencing objectives that are relevant in this matter, including deterrence, both general and specific.
86The combination sentence I will impose allows extended supervision and is designed to promote your rehabilitation. If you could stand Ms Miller:
87On Charge 1, the aggravated burglary, the sentence is ten months' imprisonment;
88On Charge 2, the common assault, the sentence for you is four months' imprisonment;
89On Charges 3 and 4, I am imposing an aggregate sentence of six months' imprisonment;
90On the Charge of failing to answer bail, seven days' imprisonment.
91I order that two months of the sentence on Charge 2 and three months of the aggregate sentence on Charges 3 and 4, are cumulative on each other and on the sentence for Charge 1. This is a total effective sentence of 15 months, but I order that 351 days is to reckoned as time served to be deducted from the sentence that I have imposed.
92That means that you have less than 12 months to serve, in fact, you have just got over three months to serve. So I intend thereafter that you be placed on a community correction order Ms Miller. I can only do this if you consent to such an order. The order that I propose is an order that would run for 18 months.
93It would have the following special conditions: a supervision assessment and treatment for drug abuse or dependency as directed; assessment and treatment for alcohol abuse as directed; a mental health assessment and treatment as directed, and participating in programs related to your offending, offending behaviour programs as directed. They are the special conditions.
94In addition to those, there are a number of core conditions on any community corrections order. You cannot commit another offence involving imprisonment. You must comply with any obligations as directed by the community corrections, you must report and receive visits from Corrections.
95You have to attend within two clear working days of when the order starts, and that will be at the time you are released Ms Miller, and if you change your address, you have got to let Corrections know. You cannot leave Victoria without getting permission and you have to obey all lawful instructions. So they are the core conditions. Are you prepared to consent to such and order?
96OFFENDER MILLER: Yes, I am.
97HIS HONOUR: All right. I will just - before we get you to sign that, I will turn to the sentence for Mr Wagner.
Sentence
Mr Wagner
98Mr Wagner, you were also assessed for a community correction order and you have been assessed as suitable. As with Ms Miller, it is my view that you would benefit from an extended period of supervision so the sentence that I impose for you Mr Wagner:
99On Charge 1, the aggravated burglary, I sentence you to 12 months imprisonment;
100On Charge 2, the common assault, being the head-butt, I sentence you to six months imprisonment;
101For the failing to answer bail, seven days' imprisonment, and I order that three months of the sentence on Charge 2 is to be served cumulatively on the base sentence for Charge 1, which makes a total effective sentence of 15 months imprisonment.
102As with Ms Miller - sorry, did I say 351? I meant to say 349 days for Ms Miller. That is a mistake. As with Ms Miller, the pre-sentence detention in this matter is 349 days. Do you understand?
103OFFENDER WAGNER: Yes, Your Honour.
104HIS HONOUR: Again, I can only impose a community correction order if you consent to such an order. Do you so consent?
105OFFENDER WAGNER: Yes.
106HIS HONOUR: In your case, the special conditions are exactly the same as those with Ms Miller. I do not propose to read them all out again. Were you listening when I read them out to Ms Miller?
107OFFENDER WAGNER: Yep.
108HIS HONOUR: Look, briefly drug abuse testing and treatment, mental health testing and treatment, alcohol abuse testing and treatment, and offending behaviour programs as directed. They are the special conditions as well as supervision. The order lasts for 18 months. It will commence on your release and it has got the mandatory terms as well.
109Now in the case of Ms Miller, the reporting correctional office is Dandenong. Is that right? Is that right? Yes. And the nominated address for you Mr Wagner, is Lilydale.
110OFFENDER WAGNER: Yep.
111HIS HONOUR: Is that where you are going to be living?
112OFFENDER WAGNER: Yes.
113HIS HONOUR: Yes, all right. Well what I might do now is, if you could take those to your clients and get them to sign the orders. Whilst that is happening, this means the - the sentence is 15 months minus your pre-sentence detention, which leaves you being released. You should finish this sentence on 14 June this year, is that right? Ms Potter, that's when this sentence should conclude.
114MS POTTER: If it is 15 months.
115HIS HONOUR: Fifteen months. They went in on 15 March. Another three.
116MS POTTER: Three months from now, May?
117HIS HONOUR: No, no, because it is a bit more than three months.
118MS POTTER: A bit more than ‑ ‑ ‑
119HIS HONOUR: Because they went in on March 15. Mr Terry and Mr Ranjit, this sentence should finish on 14 June, that's on my calculations?
120MR TERRY: I do not have any reason to dispute that.
121HIS HONOUR: Yes. Yes, well they went in on 15 March last year and I have given them 15 months.
122MR TERRY: Yes, so it is March to March and then another three months.
123MR RANJIT: So there will be three and a half months to go, Your Honour.
124HIS HONOUR: Close enough, yes, close enough.
125MR RANJIT: Just under three months.
126HIS HONOUR: Do you understand that? You have got about three and a half months to serve and then you are released. So rather than impose a parole period where you would have to be assessed and classified as to whether you are suitable or not, I have given you a release date, and then there is supervision for 18 months. But if you breach the orders, then all of this gets vacated and potentially you can be re-sentenced for the whole thing. Do you understand that?
127That is one of the options, so if do not do these conditions or you re-offend, then you can be breached, brought back to court before me and one of the options open is to vacate really all of this and re-sentence you for the lot of it. Do you understand? All right. Was there anything else?
128MR TERRY: No.
129MADAM PROSECUTOR: I think 6AAA? I am just trying to confirm, Your Honour.
130HIS HONOUR: 6AAA yes. A three and a half with a minimum two and a half.
131MR TERRY: If I could just briefly approach my client, Your Honour.
132HIS HONOUR: Yes, of course, just - could Ms Miller just come back in for a moment, is that all right?
133MR TERRY: Thank Your Honour.
134HIS HONOUR: All right, thanks.
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