Director of Public Prosecutions v Millington
[2018] VCC 825
•1 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00562
CR-18-00563
Indictment No. C1711476
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA MILLINGTON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 21 May 2018 | |
DATE OF SENTENCE: | 1 June 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Millington | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 825 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of affray, one charge of armed robbery – three summary offences uplifted from the Magistrate’s Court.
Legislation Cited: Crimes Act 1958, s195H, s75A; Criminal Procedure Act 2009, s145; Bail Act 1977, 30A(1), s30B.
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43
Sentence: Total effective sentence 2 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Lenthal | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R Thyssen | Matthew White & Associates |
HIS HONOUR:
1 Joshua Millington, you have pleaded guilty to the following offences:
Charge 1 – that you, at Brookfield in Victoria on 14 September 2017, used unlawful violence in circumstances where your conduct would have caused a person of reasonable firmness to be terrified, and that you intended to use violence, or was reckless as to whether your conduct involved the use of violence.
The offence of affray is contrary to s195H of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – that you, at St Albans in Victoria on 27 December 2017, robbed Jun Zhang of certain property, namely, cigarette packets, and at the time had with you an offensive weapon, namely, a machete.
The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
2 Pursuant to s145 of the Criminal Procedure Act 2009, the following Summary Charges were transferred to this Court:
Charge 8 – that you, at Brookfield in Victoria on 14 September 2017, having been granted bail, did, without reasonable excuse, contravened a conduct condition, namely, not residing at 13 Wills Road, Melton South, and failing to sign on at the Melton South Police Station, imposed on you by police. You also pleaded guilty to such offence, which is contrary to s30A(1) of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment or 30 penalty points.
Charge 9 – that you, at Brookfield in Victoria on 14 September 2017, did commit an indictable offence, affray, whilst on bail. You have pleaded guilty to such offence, which is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment or 30 penalty points.
Charge 3 – that you, at St Albans in Victoria on 27 December 2017, did commit an indictable offence, armed robbery, whilst on bail. You have pleaded guilty to such offence, which is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment or 30 penalty units.
The circumstances of the offending
3 Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening upon Plea”, setting out the circumstances surrounding your offending in relation to the various charges. Such Summary has been marked as an exhibit (exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
·You were born on 22 September 1998 and are currently nineteen years old. At the time of the offending you were aged between eighteen and nineteen.
Offending – the first offence on the Indictment
·The complainant is Majur Magok (“Magok”), who was eighteen years old at the time of the offending. In June 2017, he made a statement to police where he mentioned, by name, an associate of his, Kuac Dut, after which he became the target of threats, harassment and violence from other Sudanese young men from the Tarneit area for being a “rat” or “snitch”.
·You were an associate of these other young men.
·On Thursday, 14 September 2017, Magok went to the Sunshine Railway Station to catch a train back home to Melton, and when waiting on the platform he recognised another young man, Santino Mayer (“Mayer”), who he knew to be close with the group of men who had been targeting him. Magok saw Mayer looking at him and then speaking on a phone.
·Magok boarded the train, as did Mayer, and with Magok disembarking at the Melton Railway Station and then got on a bus. At the train station, you were there in your car with two other young men, and also picked up Mayer. Together, you followed the bus in which Magok was situated.
·Magok, realising that he was being followed, got off the bus earlier than normal and attempted to avoid the car, which you had been driving.
·Ultimately, when about 50 metres from his home, Magok saw the young group of men who had been threatening him, including Mayer. All of these young men wore hoods and when they saw Magok started yelling “We finally got him” and calling him a “snitch ass nigger”.
·As this was occurring, you did a U-turn at a nearby round-a-bout and came towards the group.
·One of the group held Magok’s hands by his side while another hit him to his face, with others hitting, kicking and stomping on Magok, including knocking him on the head. At one point they tried to drag Magok back towards some bushes near the creek, but Magok forced them off. Magok was again knocked to the ground and thought he blacked out, and when he got up, he saw the men running back towards your car (Charge 1 – affray).
·Magok got up and ran home with bleeding from his nose and lip, and suffering from a headache. Ultimately, he was taken to the Royal Melbourne Hospital, where he received two stitches to his face and his front tooth was chipped.
·At the time of this offending you were on bail (Summary Charge 9 – commit indictable offence whilst on bail).
·It was a condition of your bail that you reside at 13 Wills Road in Melton South and report to the Melton Police Station. On the day of the affray, you failed to report to the Melton Police Station and was found to not be residing at your bail address (Summary Charge 8 – contravene conduct condition of bail).
·Six days later, on 25 September 2017, you were arrested and transported to the Melton West Police Station, where you participated in a recorded police interview. You told police, among other things, that you knew Mayer, and that you picked him up at the Melton Railway Station on the relevant night. There were four of you in the car and you were told that they just wished to “talk” to Magok and sort everything out.
·You drove them to Brookfield and dropped them off. You dropped the boys off near the Magok’s house and then drove off to look for Magok, and on your return you found Majok being hit by the other boys. You assert that you ran to them and said:
“Leave him alone, just chill, talk to him.”
Finally, Magok was left and some of the boys got into your car and others ran off.
·You were charged and remanded in custody to appear at a filing hearing the following day, and was subsequently granted bail on 23 October 2017.
Offending – the second offence on the Indictment
·On 27 December 2017, at about 2.00pm, you attended the Lily Jun Milk Bar in St Albans with three unidentified co-offenders. You had driven them to a nearby car park and parked there.
·The milk bar is a family-run business which has an attached rear dwelling, where the business owners reside. On this day, Ms Yuanmei Ji (“the complainant”), was working, but at that time, sitting in the back residence.
·You and your co-offenders entered the milk bar wearing hooded jumpers with your faces covered. You were carrying a wooden-handled hunting machete, and another co-offender was carrying a black-handled machete.
·The other three co-offenders jumped over the milk bar counter while you waited at the counter flourishing the machete.
·The co-offenders filled a tunnel bag with cigarettes and handed it to you, and one co-offender tried to break open the cash register without any success.
·When you and your co-offenders entered the milk bar a doorbell rang to alert the owners that someone was inside the milk bar. The complainant had started to walk from her bedroom towards the store. Before entering the store, she heard a loud noise, which alerted her that something was wrong. When she opened the adjoining door to enter the milk bar, she saw one of the co-offenders about 30 centimetres in front of her, inside the corridor that links the residence to the milk bar, and the co-accused was holding a machete.
·The complainant screamed and pushed the co-offender in the stomach, causing her husband, Yifan Wang, and mother-in-law, Jun Zhang, who heard her screaming, to run to the door where the complainant was. Together, they pushed the co-offender so they could close the door, separating the milk bar from the house. They locked the door and pressed the emergency button, which set the alarm. At this time, one of your co-offenders started hitting the door with his weapon.
·You and your co-offenders ran from the shop back towards your car and drove away.
·At the time of this offending you were on bail (Summary Charge 3 – commit indictable offence whilst on bail).
·Some three weeks later, on 15 January 2018, police executed a search warrant at your address in Cairnlea, locating clothing and weapons used during the armed robbery.
·On the same day, you were arrested and attended the Sunshine Police Station, and participated in a recorded police interview in which you made full admissions in relation to the armed robbery. At that time, you were charged and remanded in custody to appear at a filing hearing the following day. You have remained in custody since that time.
4 The circumstances surrounding the armed robbery were captured on closed circuit television (CCTV) and the Court viewed two films depicting the armed robbery (See exhibit 3).
5 Both matters involved on the Indictment resolved at the first committal mention on 15 December 2017 and 15 March 2018. You entered pleas of guilty in both matters which proceeded by way of a straight “hand-up brief”.
6 When arrested on 25 September 2017, you were remanded and subsequently bailed on 23 October 2017, having spent twenty-nine days in custody. You were then arrested on 15 January 2018, and remanded in custody thereafter.
7 On 5 March 2018, you were sentenced at the Dandenong Magistrate’s Court to a period of six months’ detention in the Youth Justice System, with forty-six days of pre-sentence detention declared and reckoned as already served. Accordingly, I was informed that, as at the date of the plea, you had thirty-two days of pre-sentence detention.
Victim Impact Statements
8 Counsel for the prosecution read the following Victim Impact Statements:
(a)statement of the complainant (Ms Yuanmei Ji), declared on 4 May 2018 (see exhibit 6);
(b) statement of Jun Zhang, declared on 4 May 2018 (see exhibit 4);
(c) statement of Yifan Wang, declared on 4 May 2018 (see exhibit 5).
9 In her statement, the complainant, describes how one of your co-offenders stood in front of her, his face covered with a white mask and sunglasses, and holding a machete. She further describes that the offender was much higher than her.
10 In particular, the complainant describes how her husband and mother-in-law came to her assistance, and they tried to push the co-offender away from the door leading to the residence, and ultimately closed the door between the shop and the living area. She describes each of them as being “terrified”.
11 Since then, the complainant describes that even little sounds make her feel nervous and she has to sleep with the light on. If she has to go outside, she makes sure there are at least two people at home.
12 The complainant details how her mother-in-law spent a lot on security, such as roller shutters, grills, a new lock, more cameras, and a dog. Furthermore, they have a lock on the shop door so when customers come, the door has to be opened for them.
13 The husband of the complainant, Yifan Wang, also describes how he was terrified when confronting one of the co-accused with the machete. He confirms that for the first few weeks after the robbery, neither his mother or wife would sleep very well and this situation persisted until the new security was installed in the shop. He also confirmed that the door to the shop was now secure, so that when people came to the shop, the door had to be opened for them. He notes that they have lost some custom because of this. The mother-in-law of the complainant, Jun Zhang, describes that she had run the milk bar for many years, but what happened on the day of the robbery not only caused “economic loss”, but also “damaged all our spirit”.
14 Ms Zhang asserts that she will never forget how her heart beat so quickly and how frightened she was at the time of the robbery. Since then, she has been awakened by "all kinds of robbery dreams”, and she also confirms that after about two months about $10,000 was spent to improve security at the shop.
Your criminal record
15 Counsel for the prosecution tendered your Victoria Police Criminal History Record (see exhibit 2).
16 I note the following:
(a)on 8 November 2016, at the Melbourne Children’s Court, you were found guilty of robbery, unlawful assault, attempted robbery, dishonestly receiving stolen goods, and aggravated burglary with a person present. No convictions were recorded and you were released on a youth supervision order for a period of ten months to 7 September 2017;
(b)The earlier offences involving attempted robbery, attempted theft, and intentionally causing injury, and unlawful assault were also the subject of a youth supervision order made on the same day.
17 I was informed that the sentence handed down at the Dandenong Magistrate’s Court on 5 March 2018 (a period of detention for six months in a youth justice centre) was in relation to a charge of robbery.
Your background and circumstances
18 Your counsel tendered the following material:
(a)the report of the clinical psychologist, Ms Carla Lechner, dated 23 April 2018, in respect of an examination on 28 March 2018 (exhibit “A”);
(b) a document headed “Defence Submissions on Plea” (exhibit “B”).
19 Based on such material and the various submissions made by your counsel, I note the following:
·You are the eldest of three children who grew up in the Deer Park/Cairnlea area, attending the Cairnlea Primary School from Prep to Grade 6.
·You informed Ms Lechner that your learning ability was “pretty good” and that you were literate. However, you had no friends at school, did not like talking to people, and preferred to do your own thing.
·You then attended the Victoria University Brimbank college for Year 7 and part of Year 8, but after getting into a fight you were expelled and you were then transferred to Keilor Downs Secondary College for Year 9 (2014). You commented to Ms Lechner that you were not doing much in class and was “smoking, drinking, wagging and got kicked out because I failed”.
·During 2015, you informed Ms Lechner that you did nothing and commenced to mix with African youths living in the area.
·During 2016, you described to Ms Lechner that you were:
“… drinking heaps and smoking weed every day … I was couch-surfing and started doing robberies to get money for food … it wasn’t good, pretty shit”.
·During that time you were in custody at the Parkville Youth Justice Centre for about two-and-a-half months, and this also caused you to be “kicked … out of home … because I was still in trouble.”.
·During 2017, you informed Ms Lechner that you were working a bit cleaning at the horse-race track, at an airport factory sorting parcels, and then at a party hire place. You estimate that you worked for about four-and-a-half months, after which you relapsed to drug use and commenced Ice, and the subject offending occurred in this context. You formed a relationship with Akot, who is eighteen years old, and that you have a newborn daughter, Aalia, who is a couple of months old.
·You informed Ms Lechner that you had been smoking Cannabis for the past five years and estimated that you smoked about 4 grams a day. You further informed Ms Lechner that you had used LSD “once” and Ecstasy “a fair bit in 2016”, and “a bit” of Cocaine. Ice was commenced in November 2017, and you continued to use that because the feeling “was good”, to the extent that you were smoking .5 gram of Ice a day.
·With respect to alcohol, you informed Ms Lechner that you were drinking two straight bottles a day, which commenced in 2017, and before that, two to three times a week. In particular, when you found out that your girlfriend was pregnant, you were “stressed out”.
20 Your mother, one of your aunts, together with Acot and your newborn daughter, Aalia, attended Court during the plea hearing. When describing the offending behaviour, you informed Ms Lechner that, in relation to the affray, you were there because you were with your friends and they said they wanted to talk to Magok and “one thing led to another”. You appreciated that Magok “got beaten up bad”.
21 In relation to the armed robbery, you informed Ms Lechner that “I needed money and we decided to rob this place … probably had the machete so we can be sure to get money”. You informed Ms Lechner that you had used Ice “to get an adrenalin rush and hyped up”. In particular, you also informed her that you should have not done it, and regret it, and that if you had been thinking straight you would not have done it. You also acknowledged that the victims of the armed robbery “were traumatized” and it is “not” okay what you did.
The evidence of Ms Lechner
22 Ms Lechner was of the opinion that you had long-term learning and social problems at school, and also is of the opinion that you had symptoms and behaviours consistent with a diagnosis of ADHD. Ms Lechner also noted that you had a tendency to “zone out” when there is too much, or complex information to process. She considered that it is likely that you rely on others for decision making and follow their lead, and will make decisions based on only “bits of information”, without considering and evaluating the long-term consequences.
23 Formal testing indicates that your verbal intelligence was in the “borderline” range.
24 In particular, Ms Lechner states:
“In respect of his offending, Joshua reports that he wanted money to support his drug and alcohol habits. He readily engaged with group behaviour without thought of the consequences. His already immature judgement and reasoning skills would have been further adversely affected by his substance intoxication. In retrospect he is able to appreciate the seriousness of his actions both in terms of the outcome for himself and the trauma caused to the victims.”
25 Ms Lechner recommended that you would be suitable for serving time in a youth justice facility, as this would provide you with a greater level of support, and prevent contamination from an older set of offenders and avoid the risk of you being manipulated in the adult system.
Matters in mitigation
26 Your counsel submitted that the following matters are relevant to mitigation of sentence:
(a)you pleaded guilty to the subject offending at the earliest opportunity. Such a plea has significant utilitarian value as it obviates the need for a trial (and a committal was not required) and it also obviates the need for the complainants to give evidence at a trial involving this offending);
(b)that based on what you have told Ms Lechner, you have shown some remorse for your offending;
(c)considering that you are only nineteen years of age, you have the potential for rehabilitation and, in this respect, reference was made to the well-known decision of R v Mills [1998] 4 VR 235, wherein it was held that in respect of a youthful offender, rehabilitation is usually far more important than general deterrence because punishment may, in fact, lead to further offending. Furthermore, such decision established that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effect of his past criminality.
27 Your counsel submitted that in all the circumstances, any sentence of detention should be served at a Youth Justice Centre, taking account of your age and, indeed, that you are presently serving a sentence at such a facility in Malmsbury.
The response of the prosecution
28 Counsel for the prosecution submitted that the offending involving the affray and armed robbery was very serious offending involving violence. Counsel for the prosecution accepted that your role in the affray was not as active as the other offenders in attacking the complainant, Magok.
29 However, in particular, counsel for the prosecution submitted that your offending involving the armed robbery was particularly serious offending as it involved preplanning (to the extent of having sleeves covering your hands so there would not be fingerprints), violence and terrifying the complainants.
30 Counsel for the prosecution also submitted that the subject offending must be seen in the light, also, of prior offending involving violence.
31 Ultimately, counsel for the prosecution joined with your barrister in supporting that any period of incarceration should be served at a Youth Justice Centre would be appropriate, given your age, but the period of incarceration should be “lengthy”, reflecting the seriousness of the offending.
Conclusion
32 The offence of affray is a serious offence manifested by the maximum penalty of ten years’ imprisonment. The subject affray amounted to a gang attack on one person who was seen to be disloyal by communicating with the police. The attack was vicious, involving hitting, kicking and stomping on the complainant, Magok.
33 I do accept that your role was a lesser role, in that you were the driver of the vehicle, with the other boys as passengers looking for Magok after he got off the train, and that those boys had been dropped off near the house of Magok while you were searching in your car. When you returned, the other boys had commenced to bash Magok. Ultimately, you drove some of them home after the attack.
34 In the circumstances, I do not accept that you thought that the search for Magok was only to “talk” to him about his talking to the police about other matters. Be that as it may, there is no evidence that you were particularly involved in the hitting, kicking or stomping on the complainant.
35 The offence of armed robbery is a very serious offence, again, as manifested by the maximum penalty of twenty-five years’ imprisonment. I accept the submission of counsel for the prosecution that such offence did involve preplanning and was violent, involving the use of machetes and attempting to attack the complainants by entering the door from the shop to the private premises behind the shop.
36 The Victim Impact Statements and the video recording paint a dramatic picture of how terrifying the armed robbery was for the family who ran the shop and who lived in premises behind the shop. Furthermore, as you have stated to
Ms Lechner, you had the clear intention of robbing the premises to obtain money to support your drug and alcohol habits.
37 Of course, the subject offending must be seen in the context of your police record, which involved attempted and actual robberies and offences involving violence.
38 In mitigation, I do accept that your pleas in relation to this offending were at the earliest opportunity. Furthermore, I accept that, based on what you informed Ms Lechner, you have some limited remorse and limited insight into your offending – particularly the armed robbery.
39 Your counsel has submitted that relying on the principles enunciated in Mills (op cit), and bearing in mind your age of nineteen, the paramount sentencing consideration should be rehabilitation.
40 In this respect, I also refer to the well-known decision of Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43, wherein, at paragraph 38, the Victorian Court of Appeal held that in the same year as Mills (op cit) was decided, the Court of Appeal recognised that there would be cases in which factors such as youth and rehabilitation would take a “back seat” to other sentencing considerations. Paragraph 38 made reference to a number of those decisions.
41 Perhaps the ultimate position is best summarised at paragraph 44 of Azzopardi (op cit), where the Court of Appeal states:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
(Footnotes omitted.)
42 Notwithstanding your past offending and, indeed, the severity of the subject offending, I do consider that as at the age of nineteen there is scope for rehabilitation and, indeed, in part, for that reason, I consider it would be appropriate to sentence you to a period of incarceration at a Youth Justice Centre. However, I am also of the opinion that given the nature of your offending that some weight has to be attached, also, to concepts of general and specific deterrence, denunciation, just punishment and protection of the community.
43 Subdivision 4 of Part 3 of the Sentencing Act 1991, deals with youth justice orders (see ss32 – 35 of the Sentencing Act 1991). Section 32(1) of the Sentencing Act 1991 provides that a court may make a youth justice centre order if it has received a pre-sentence report and the court believes:
(a)there are reasonable prospects for the rehabilitation of a young offender; or
(b)the young offender is particularly impressionable, immature, or likely to be subjected to undesirable influences in an adult prison.
44 A report was obtained from Youth Justice, dated 25 May 2018, where Youth Justice deemed you to be a suitable candidate to be placed in a Youth Justice Centre.
45 It was noted in that report, as already recorded, you are presently serving a six-month sentence at the Youth Justice Centre as a result of being convicted of robbery at the Dandenong Magistrates’ Court on 5 March 2018. The officers who wrote such report have noted that you have recently commenced engagement with youth health and rehabilitation services for individual counselling and have demonstrated a strong level of commitment to date.
46 The Court also notes that s33 of the Sentencing Act 1991 act provides (subject to some irrelevant qualifications), that every term of detention imposed on a young offender by court, must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of detention or imprisonment imposed on the young offender, whether before or after that time.
47 I am going to convict you of each of the offences on the Indictment and also the summary offences. I am going to treat the armed robbery as the most serious offending, but also intend to cumulate, partially, the sentence in relation to the affray, as I consider this is appropriate given that the two offences are completely separate and distinct and, also, bearing in mind your past offending.
48 I note that one of your co-offenders involved in the affray, Mabiel Riak, was sentenced to a total effective sentence of four months in relation to the subject incident of affray, and also a second affray involving the same complainant. Your counsel accepted that issues of parity would be difficult without knowing the precise circumstances of the other offending.
49 Please be upstanding:
(a)in relation to Charge 1 on Indictment C1711476, you are convicted of the offence of affray and will be detained for a period of six months’ at a Youth Justice Centre;
(b)in relation to Charge 2 on Indictment C1711476, you are convicted of armed robbery and will be detained for a period of twenty-four months’ at a Youth Justice Centre;
I direct that such sentence be the base sentence, and further direct that four months’ of the sentence in relation to Charge 1 be served concurrently, giving rise to a total effective sentence of twenty-six months;
(c)in relation to Summary Charge 8, you are convicted and will be detained for a period of one month at a Youth Justice Centre;
(d)in relation to Summary Charge 9, you are convicted and will be detained for a period of one month at a Youth Justice Centre;
(e)in relation to Summary Charge 3, you are convicted and will be detained for a period of one month at a Youth Justice Centre;
50 The sentences in relation to the summary matters Charge 8, Charge 9 and Charge 3, will be served concurrently with each other and with the sentence in relation to the charges on the Indictment. The total effective sentence will be twenty-six months’ detention in a Youth Justice Centre. Such sentence will be concurrent with any other sentences presently served by you at the Youth Justice Centre.
51 I declare that thirty-two days of pre-sentence detention is to be administratively deducted from this sentence as time already served.
52 Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty in relation to the offending on the Indictment, I would have sentenced you to three-and-a-half years of detention.
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53 HIS HONOUR: Anything to say?
54 MR THYSSEN: No Your Honour.
55 MS LENTHALL: Just one matter Your Honour. During Your Honour's remarks I think you noted when Mr Millington was sentenced in the Dandenong Magistrates' Court 56 days were declared as pre-sentence detention - it was actually 46 days.
56 HIS HONOUR: Sorry - what did I say? Where was that?
57 MS LENTHALL: When Your Honour referred to Mr Millington being sentenced in the Dandenong Magistrates' Court.
58 HIS HONOUR: Yes I didn't actually go and say any about that though (indistinct words) - - -
59 MS LENTHALL: I understand Your Honour has indicated that 56 days had been declared as pre-sentence detention on that matter and it's actually 46 days. I think it's close to the beginning of Your Honour's remarks.
60 HIS HONOUR: Well I first - wait a minute - I refer to that Dandenong Magistrates' Court two times. Based on the youth justice report, I said, "It was noted in that report, it was already recorded, you are presently serving a six-month sentence at a youth justice centre as a result of being convicted of robbery at the Dandenong Magistrates' Court on 5 March 2018".
61 MS LENTHALL: Yes.
62 HIS HONOUR: I don't say anything further there about time.
63 MS LENTHALL: No, I think it's the first reference Your Honour.
64 HIS HONOUR: Maybe the first reference. What I've got here - "I was informed that the sentence handed down at the Dandenong Magistrates' Court, on 5 March 2018, a period of detention for six months at a youth justice centre, was in relation to a charge of robbery". Is that - I don't remember saying anything about pre-sentence detention there.
65 MS LENTHALL: I'm not sure, I just made a note of it that, it may have been earlier than that, there was another reference.
66 HIS HONOUR: I don't think I raised it.
67 MS LENTHALL: It's in relation to the pre-sentence detention for this matter.
68 HIS HONOUR: Sorry, you are right. Paragraph 7, "On 5 March - you were sentenced at the Dandenong Magistrates' to a period of six months detention with [yes] - with 56" - so 46 is it?
69 MS LENTHALL: It should be 46 Your Honour, yes.
70 HIS HONOUR: I apologise, yes, thank you.
71 MS LENTHALL: Thank you, Your Honour.
72 MR THYSSEN: There's only one other matter Your Honour. Because the matter's legally aided, I'm obliged to ask for a certificate for yesterday.
73 HIS HONOUR: Yes by all means and I hope the parties understand, we did not receive the report from youth justice until 4 pm or something.
74 MR THYSSEN: Yes. I was driving back from Shepparton and I only got to Melbourne at 5.30 Your Honour, so I responded straight away.
75 HIS HONOUR: And the other thing I was going to point out - not that it's relevant to the - nothing turns on this in how I sentence the young man but - I think the maximum period's four years - is it not - under the Youth Justice?
76 MR THYSSEN: I think it's three years Your Honour.
77 MS LENTHALL: My understanding was three years but - - -
78 MR THYSSEN: In that County Court in third - paragraph 3, 32(3), three years, Your Honour.
79 HIS HONOUR: Are you looking at reprint?
80 MR THYSSEN: 7 December 2016, is my reprint Your Honour.
81 HIS HONOUR: And what section are we looking at again?
82 MR THYSSEN: Thirty two, sub-s.3, three years.
83 HIS HONOUR: Sorry, 132?
84 MR THYSSEN: Thirty two, sorry Your Honour.
85 HIS HONOUR: Two, sorry yes.
86 MR THYSSEN: Subsection - 32(3).
87 HIS HONOUR: Sorry - section?
88 MR THYSSEN: Thirty two, sub-s.3.
89 HIS HONOUR: Sorry I've got the wrong. Sorry, I've got the wrong act that's why it's - - -
90 MR THYSSEN: I'll hand up my act Your Honour it might be quicker (indistinct words). Page 149, Your Honour.
91 HIS HONOUR: What reprint did you say you've got?
92 MR THYSSEN: Mine's 7 December 2016.
93 HIS HONOUR: Does it say the reprint though, the number?
94 MR THYSSEN: Number 49 of 91.
95 HIS HONOUR: No.
96 MR THYSSEN: Reprint 18, sorry.
97 HIS HONOUR: See I've got reprint 19 and there's - wait I'll just find it. I think I got this right - You never do know though do you? And you're looking at thirty - - -
98 MR THYSSEN: Two, sub-s.3.
99 HIS HONOUR: Three, B?
100 MR THYSSEN: B.
101 HIS HONOUR: Yes if the court is the County Court, the Supreme Court four years.
102 MR THYSSEN: (Indistinct words) only three. It's amazing Your Honour. I'll make a note.
103 HIS HONOUR: Yes, I just - yes see - three reads, "The maximum period for which a court may direct that a young offender be detained in a youth justice centre or a youth residential centre is, (a), if the court is a Magistrates' Court - two years and, (b), if the court is the County Court or the Supreme Court, four years.
104 MR THYSSEN: And the internet's still showing three, Your Honour - HONOUR: And it says it was amended - looks like by act 43 of 2017.
106 MR THYSSEN: (Indistinct words). Thanks, Your Honour.
107 HIS HONOUR: In any event if it has been amended I dare say it would only apply to - of the events after the amendment - the increase. In any event it's - I only raise it as a matter of interest I suppose, no more than that.
108 MR THYSSEN: Yes, no, I'm - I'm surprised.
109 HIS HONOUR: Yes, anything else to raise?
110 MR THYSSEN: Thanks Your Honour.
111 MS LENTHALL: No Your Honour. Sorry Your Honour, I'll just hand up that red penned amendment.
112 HIS HONOUR: Yes I better make that formally - that order - hadn't I? Yes. Without opposition the prosecution seeks to amend Summary Charge 9 which has been uplifted to this court by deleting the date of 19 August 2017, and inserting the date 14 September 2017, and that order will be made. Yes, anything else?
113 MR THYSSEN: No Your Honour.
114 HIS HONOUR: No. Is family here?
115 MR THYSSEN: Yes, Your Honour.
116 HIS HONOUR: Look, I'll allow family to approach the accused just briefly.
117 MR THYSSEN: Thanks, Your Honour.
118 HIS HONOUR: As I understand it, that can't be done downstairs can it?
119 MR THYSSEN: No, no.
120 HIS HONOUR: No, look, I'll allow just the family to come to the - so if you want to approach the young man, you can go and speak to him now. Yes, take the prisoner, thank you. Yes, I thank you both for your assistance in a no doubt difficult matter for all concerned. Yes, thank you. Now - they're outside are they?
121 ASSOCIATE: They are outside.
122 HIS HONOUR: Look, I'll stay here. Just go and get them. Yes you can be excused.
123 MR THYSSEN: Thanks Your Honour.
124 MS LENTHALL: Thank you, Your Honour.
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