Director of Public Prosecutions v Mills-Oppy
[2020] VCC 689
•22 May 2020
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00558
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABRAHAM MILLS-OPPY |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2020 | |
DATE OF SENTENCE: | 22 May 2020 | |
CASE MAY BE CITED AS: | DPP v Mills-Oppy | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 689 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of armed robbery – Offender was in company and armed with a knife – Offender entered takeaway food outlet and made demands – Schedule 2 offence enlivening s 5(2H) of the Sentencing Act 1991 – Substantial and compelling circumstances not made out – Offender has demonstrated some insight and remorse – Circumstances of COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Sentence: Imprisonment for 18 months, with a non-parole period of 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Office of Public Prosecutions |
| For the Accused | Mr W May | May Lawyers |
HIS HONOUR:
Introduction
Abraham Mills-Oppy, you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment.
You have also admitted your prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 2 December 2019 at approximately 9.30pm, you and your co-offender Jesse Milne, arrived in your car at the KFC store in Eaglehawk. Your car was reverse parked in the car park. The inside of the store was visible from where the car was parked. Beverley Harrison arrived after you and parked next to your car while she waited for her daughter to finish her shift.
There were six staff working at the KFC store at the time. The assistant manager on duty, the primary victim in this matter, was Joshua Hickmott who was aged 20 at the time. There were five other staff aged under 18, the youngest being 15. Mr Hickmott was packing orders for a drive through customer and Klowee Benbow was mopping the floors when Mr Milne, who was undisguised, entered the store. What then took place was captured on CCTV.
Mr Milne told Mr Hickmott that he was a member of the Stolen Generation and said that he had no money and wanted ‘all the chicken that was going to go out tonight.’ Mr Hickmott initially thought he wanted the chicken that would go to waste. Mr Milne repeatedly referred to the Stolen Generation and said he needed enough food to feed his family. He threatened to ‘jump the counter and start smashing everything’ and also threatened to pull Mr Hickmott over the counter if he did not start packing the food.
Mr Hickmott started to pack some chicken and chips. Mr Milne then screamed ‘this is a robbery’.
The front counter worker Ainsley Smith observed Mr Milne shouting at Mr Hickmott and called 000. Another worker, Liam Broad, had approached the counter to press a button under the register which alerted police. When he did this, Mr Milne demanded food from him. Mr Broad walked to the back of the store where other staff were debating whether to run from the store via the back door.
While this was occurring, you remained in the passenger seat of the car. You then got out and walked first to the back, then the side of the car, hesitating and looking at
Ms Harrison who was parked in the car nearby. You then opened the boot and took out a white cloth which you wrapped around your head, covering everything except your eyes before grabbing a knife from inside the car and quickly wrapping it in cloth. You then tucked the knife into the side of your jacket and entered the store.
You approached the counter and started yelling at Mr Hickmott, demanding food.
As Mr Hickmott was packing the chicken, he saw you reaching across your body towards the knife. He heard Mr Milne tell you that he did not need the knife.
Mr Hickmott did not see the knife, however Klowee Benbow and Ainslee Smith did.
Mr Hickmott then poured you and Mr Milne two frozen drinks, putting all the food on the counter. You collected the buckets of chicken and drinks but left the chips behind.
You both left the store and returned to your car. You saw Ms Harrison smoking and asked her for a cigarette. She declined. You both entered your car and Mr Milne drove away.
Patrolling police observed the car a short time later and followed it for a period of time before Mr Milne pulled over. Police activated their lights and pulled in behind your car to intercept it, however Mr Milne then drove off at speed. The car was located, and you and Mr Milne were arrested at the car park of the McDonald’s store in Eaglehawk just before 10.30pm. Police found a hunting knife measuring approximately
30 centimetres and stolen food items inside the car.
You and Mr Milne were transported to Bendigo Police Station for interview. The interview was conducted on 3 December 2019.
Mr Milne stated in his interview that he was drunk ‘on a whole cask of wine’. He recalled telling you he would go into the store and get some chicken. He said you did not know he planned to rob the store, but that you knew that he had no money. He admitted telling Mr Hickmott that he would drag him over the counter if he did not give him chicken, and at that point you walked in with a knife, which he said was ‘a bit silly’. Mr Milne was angry at you and said, ‘Why’d you bring your knife?’
In your interview, you said you and Mr Milne had become hungry the night of the offending and so you went to KFC. Initially, you said you thought Mr Milne was buying food, before later conceding you thought Mr Milne would not pay because you did not have enough money. You said you ‘went a bit silly and walked in there with my hunting knife’ to see how long Mr Milne was going to be. You said you were not guilty of armed robbery because you had demanded chicken and not money, and the chicken was ‘already coming’ when you walked in with the knife. You said you pulled out the knife ‘for a second’ and admitted that Mr Milne had told you to put it away because you were going to scare the workers. When shown pictures of the knife, you admitted that the knife was yours and said that besides walking around with it on the night of the offending, all you had ever done with it was cut onions, chop sausages and cut food. You admitted that you concealed your face with a tee shirt because you were ‘being an idiot’ but also to conceal your identity. You said you were ‘drunk’, ‘running around like a dickhead’ and ‘ashamed’ of your behaviour. You said ‘all I wanted was the chicken. I did not want the money. I wasn’t gonna hurt nobody’.
As Mr Milne entered the store without a weapon and that there was no agreement to use a knife, his matter resolved on a charge of robbery, not armed robbery.
Nature and gravity of the offending
Armed robbery is a very serious offence which is reflected in the maximum penalty of 25 years imprisonment.
When your co-offender Mr Milne initially entered the shop and made demands, he was not in possession of a weapon, although he did make violent threats and indicated to Mr Hickmott that ‘this is a robbery’. However, your conduct escalated the incident. You took steps to arm yourself, you concealed a weapon and you covered your face before entering the store. Thus, what was already undoubtedly a frighting experience for the young employees, became a more serious and confronting experience upon seeing you enter the store with your face covered, yelling demands. Further, two of the employees witnessed the knife you were carrying.
While on one view this offending appears to be amateurish, it is at the end of the day an act of violence directed at a soft target, in this instance a take away food store, at night, where the employees present were young people aged between 15 and 20 simply going about their work.
While it is difficult and somewhat unhelpful in the sentencing task to label the offending on a scale, in this instance the offending could not be characterised at the higher end of examples of armed robbery. Your counsel submitted that in the circumstances the offence falls at the lower end. The prosecution do not take issue with this assessment and also accept that the offending was somewhat unsophisticated. While I accept the offending may be toward the lower end, it is still by its nature serious offending.
A victim impact statement was prepared by Klowee Benbow. Ms Benbow speaks of the fear she experienced at the time of the incident, worried that she would be hurt. At the time, Ms Benbow was completing Year 10 and had to take time out of school. As a result, she missed important events in relation to the transition into Year 11. This is an example of the very real impacts that crimes like yours have on individuals and how in addition to the immediate psychological impact, there are consequent long term effects and disruption to people’s lives.
Personal circumstances
You are a 24 year old Indigenous man of the Palawa people.
You were born in Victoria and your parents separated in the week after you were born. You have two step brothers and two step sisters however you have limited contact with them. Following your parents’ separation, you stayed with your mother throughout your childhood and adolescence. In your younger years you moved frequently in country Victoria and parts of the east coast of Australia.
As you were moving regularly, you had difficulty settling into school and establishing friendships. You attended four primary schools and three high schools, ultimately leaving school after Year 10.
Following school, you were employed in various low paid positions, working at supermarkets stacking shelves and pushing trolleys, as a kitchen hand and also assisting your mother in her cleaning business. You have completed some courses in relation to land management including undertaking some voluntary work in that field. You would like to work in that field in the future.
As to your drug history, you began to use cannabis at the age of 11, LSD at age 15 and methamphetamines in your late teens. You left home at age 20 as you did not wish to be around your mother in a drug affected state. As a result, you became homeless, staying temporarily at various acquaintances homes, all of which featured drug use. You have participated in detox programs in the past and state that you have used the time in custody to focus on your rehabilitation.
A report was prepared by David Ball, forensic psychologist, and tendered on the plea. Mr Ball provided a detailed history. Mr Ball references historical material confirming your previous diagnosis of paranoid schizophrenia. He notes that you have minimal insight into your psychological functioning and your offending behaviour. You stated to Mr Ball that at the time of the offending you had consumed about a two litre cask of white wine. Further, that you were uncertain as to whether you were compliant with your medication at the time of the offending.
Mr Ball opined that you were ‘poorly compliant, and most likely non-compliant’ with your medication at the time of the offending. It seems that on that basis Mr Ball concluded the following:
'Mr Mills-Oppy’s dull normal intellect and frank mental illness were operating during the commission of his offences. There is a clear nexus between his mental illness and non-compliance with his medication that underpins and is connected to his offending'.
As discussed during the plea hearing, in my view the connection Mr Ball draws is not available on the evidence. Mr Ball could of course only act on the limited information he had, together with your responses in interview where you were unable to state whether or not you had been compliant with prescription medication. As such, while I accept that your diagnosis of schizophrenia is real, the evidence does not allow for the conclusion drawn by Mr Ball in making a causal connection with the offending, a connection that would in any event be made more difficult as a result of your significant intoxication at the time.
Mr Ball is of the view that it was your illness (and lack of medication) that led to poor judgement, poor consequential thinking and inability to interpret social ques together with impulsive acting out. While these behaviours may be characteristic of your general personality and part of your illness, they are therefore important matters to be taken into account. However they do not meet the threshold of being able to be used to reduce your moral culpability and enliven Verdins principles in this instance. Rather, on your own admission your behaviour on this night may best be described in your own words when you said ‘Alcohol. Hunger and stupidity. I was homeless at the time. It wasn’t the best decision but I did it’.
Also tendered on the plea was a report from Bendigo Health which documents your mental health history including your diagnosis of paranoid schizophrenia since 2015. You have had registrations with various psychiatric services since 2015 and in February 2015 you had an admission into an acute psychiatric unit.
The Bendigo Health report also documents the review of Dr Douglas Bell of Forensicare conducted on 23 March 2020. Dr Bell found that you were difficult to assess given your reluctance to engage but was of the view that you had a resolving psychosis of uncertain origin although evidence of a chronic psychotic illness was limited.
References were tendered from your mother and father. Your mother confirms that you are able to live with her upon your release and she will endeavour to offer you work in her cleaning business. Your father who is a youth worker, also offers you his full support including assisting you in connecting with appropriate support services.
Relevant sentencing considerations
I take into account your plea of guilty which was made at the earliest opportunity at the committal mention. Your plea has saved court time and expense and the need for the witnesses to have to give evidence. Thus, in the circumstances your plea demonstrates a willingness to facilitate the course of justice and should be taken into account in your favour.
Over and above the plea of guilty, in my view you have also demonstrated some insight and remorse. As noted, you accepted in the record of interview that you were drunk and ashamed of your behaviour. You also stated that ‘no-one should have to go through that’ in reference to one of the 18 year old employees.
General deterrence, denunciation and just punishment are also relevant sentencing considerations in this instance. A message must be conveyed that conduct such as yours will not be tolerated and will result in terms of imprisonment. Take away food outlets generally employ young people as was the case here and they are entitled to feel safe while at their workplace.
In my view despite your limited prior criminal history, some weight must also be given to specific deterrence. Because you now have some insight into why you behaved the way you did on this evening, you must appreciate that despite the difficult personal circumstances you were facing at the time, you simply cannot resort to this type of conduct without consequences.
I also take into account your relative youth. You are 24 years of age and while not a ‘young offender’ for sentencing purposes, it is apparent from Mr Ball’s report that you are relatively immature which creates its own difficulties when also battling with mental illness, substance abuse and homelessness.
As to your prospects of rehabilitation, in my view they are able to be assessed positively. As noted above, you have developed some insight into your offending and from your responses in the record of interview and to your psychologist, it is clear that you appreciate the connection between your excessive alcohol use on the night and your subsequent poor decision making. Further, you have the continued support of your mother and father who have offered to assist you with accommodation, employment and support services.
I take into account the current circumstances surrounding the COVID-19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. Applying these matters to your specific personal circumstances, allows for a discount in your sentence.
As you have pleaded guilty to a Schedule 2 offence (an armed robbery in company), pursuant to s 5(2H) of the Sentencing Act 1991, the court must impose a term of imprisonment that is not able to be combined with a community correction order unless you are able to satisfy the court on the balance of probabilities that you fall within one of the exceptions. In this instance your counsel initially sought to rely on s 5(2H)(c)(i) which requires you to prove a causal connection between impaired mental functioning and the commission of the offence that substantially reduces your culpability. For the reasons noted above in relation to Mr Ball’s report, in my view the evidence is not capable of supporting that connection to the requisite standard.
The evidence also does not support the exception in sub-s 2H(c)(ii) that your impaired mental functioning would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment. Indeed, it seems from the report of Mr Ball that you have done reasonably well in custody applying yourself to your own rehabilitation, detoxing and attending alcohol and narcotics anonymous meetings. As you stated to Mr Ball, ‘In gaol I have been staying clean and trying to do the good things in life that make it good’.
Subsection 2H(e), is able to be enlivened if it is able to be established that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order pursuant to s 5(2H). What then follows are a number of matters that must be considered in determining if substantial and compelling circumstances are to be established including whether the cumulative impact of the circumstances of the case justify a departure from Parliament’s intention that a sentence of imprisonment without a community correction order should ordinarily be made. Your counsel sought to rely on a combination of matters to establish this exception which largely include the matters raised above in relation to your personal history and difficulties you continue to face.
On this issue I note the second reading speech that introduced the legislative changes in June 2018 where it was stated:
'The Bill clarifies what courts are to consider in deciding whether circumstances in a case are substantial and compelling. The Bill substantially increases the threshold to be met before substantial and compelling reasons can be found. The circumstances must be so exceptional and rare as to justify departing from the requirement to impose a custodial order'.[1]
[1] Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2018, 2136 (Martin Pakula, Attorney General).
While I accept that you have had many difficulties in the past that you will continue to struggle with including homelessness and battles with drugs and alcohol, and taking into account the circumstances of the offending, in my view they do not amount to substantial and compelling circumstances.
Therefore a term of imprisonment with a non-parole period is the most appropriate sentence in order to meet the relevant sentencing considerations. However, in my view in all the circumstances you would benefit from a longer than usual non-parole period.
Sentence
Mr Mills-Oppy please stand.
Abraham Mills-Oppy, on Charge 1, armed robbery you will be convicted and sentenced to 18 months imprisonment.
I direct that you serve 9 months imprisonment before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 172 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 2 years imprisonment with a non-parole period of 14 months.
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