Director of Public Prosecutions v Milne
[2021] VCC 1099
•12 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00122
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE MILNE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 20 April 2021 | |
DATE OF SENTENCE: | 12 August 2021 | |
CASE MAY BE CITED AS: | DPP v Milne | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1099 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – aggravated burglary - sentencing conversation – Koori Court – powerful mitigating factors – early plea of guilty, genuine remorse, genuine participation in the sentencing conversation, positive engagement with programs addressing underlying offence behaviour, application of Bugmy and Verdins’ principles, reasonable prospects of rehabilitation. Successful rehabilitation demonstrated through participation in programs during the deferral of sentence – combination sentence imposed
Cases:The Queen v Steelie Morgan [2010] VSCA 14; Honeysett v The Queen (2018)
56 VR 375 DPP v Heyfron [2019] VSCA 130; Bugmy v R (2013) 249 CLR
571; Akoka v The Queen [2017] VSCA 214; Boulton v The Queen (2014) 46 VR 308.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Davison | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Ms J Dodd | Victorian Aboriginal Legal Service |
HER HONOUR:
1 Jesse Milne, you have pleaded guilty on indictment to one charge of aggravated burglary.
2 The charge is serious, and that is reflected in the maximum penalty that is prescribed by Parliament namely 25 years’ imprisonment.
3 You have also admitted your prior limited criminal history. There are two previous court appearances on the 17 October 2019 and the 15 April 2020.
4 The first appearance relates to a consolidation of charges that were dealt with at the Geelong Magistrates Court. You were convicted of affray and other charges of violence as well as theft, criminal damage, drunk in a public place and contravene family violence safety notice and you were placed on a 12-month Community Correction Order with conditions including supervision, treatment and rehabilitation for drug and alcohol abuse and offending behaviour programs.
5 Due to being remanded for this offending you did not complete that Community Correction Order and contravention proceedings are on foot.
6 On 15 April 2020 you were dealt with for robbery and fail to stop vehicle on police direction for which you received a combination sentence of 136 days being time already served.
Circumstances of offending
7 I will proceed to sentence you based on the Summary of Prosecution Opening dated 22 March 2021 filed in this proceeding.
8 You were aged 26 at the time of the offending. You are now aged 27.
9 The victim is Elyse Payne. You had been friends for some time prior to the offending and for about three weeks you had been in an intimate relationship together. You had separated approximately one day before the offending that took place on 27 October 2020.
10 On that day at about 11.30pm you attended Ms Payne’s address uninvited. You sought to enter the home but were told by Ms Payne that she had no desire to see you anymore and that the relationship with you had ended.
11 The context to the offending was that you believed that Ms Payne was being unfaithful with another male called “Luke”. You attended the victim’s home and intended to find “Luke” and fight with him.
12 You were refused entry to the home and were told that Ms Payne was alone, and that Luke was not present.
13 In a fit of anger, you ripped the locked mesh security door off its hinges and forced your way into her home, repeatedly asking, “Where is he?”
14 Ms Payne told you to leave, or she would call the police. You immediately left the home.
15 The incident was of short duration lasting approximately one minute. Fortunately, you did not physically touch the victim.
16 You were arrested the following day. You were co-operative with police and made full admissions in the formal record of interview.
17 You confirmed that you went to the victim’s house believing that she had been unfaithful to you and your intention was to find ”Luke” and fight him.
18 You admitted breaking the security door and that you did not have permission to enter and damage the victim’s property.
19 At the time of the offending, you were intoxicated under the influence of illicit drugs and alcohol. You had not slept the night before. Whilst explaining your actions these circumstances do not excuse your actions.
20 On behalf of the community, I must condemn your behaviour. Ms Payne is entitled to feel safe in her own home and, she has the right to decide with whom she chooses to have relationships with and further, you ought to have respected her decision to discontinue your relationship.
21 I accept that your acts were impulsive. To your credit when asked you were asked to leave you did so immediately.
22 I accept that the nature of the offending is such that it falls at the lower end of seriousness for this type of serious offence.
23 Ms Payne was asked but declined to make a Victim Impact Statement. Common sense dictates that she would have been upset by your unwanted intrusion.
Sentencing conversation
24 On the 20 April 2021 your matter proceeded in the Koori Court Division, Melbourne and a sentencing conversation was held with Aunty Lyn McGuiness and Uncle Rodney Jackson, Elders and Respected Persons.
25 You consented to your matter being heard in the Koori Court Division so that you could speak directly to the elders about your offending behaviour.
26 The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1]
[1]See The Queen v Steelie Morgan [2010] VSCA 14 at page 11
27 You genuinely participated in the Sentencing Conversation. Both elders admonished you for your behaviour and told you that what you did was wrong and was not acceptable.
28 Uncle Rodney and Aunty Lyn both encouraged you to continue to make good your expressed intention to seek help for your drug addictions through the proposed Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program. You were encouraged to find stability and seek out employment opportunities for the future.
Background and personal history
29 You are a Wakka man. Your Aboriginality is through your mother. Her country is located north of Brisbane in south east Queensland.
30 Mr Jeffrey Cummins, Consultant Psychologist, in his report dated 31 March 2021 comprehensively sets out your history and background.
31 You have been diagnosed with numerous mental health conditions including Autism Spectrum Disorder (ASD), Attention Hyperactivity Disorder (ADHD) and Auditory Processing disorder, diagnosed during childhood and diagnoses of depression, anxiety, and drug induced psychosis as an adult.
32 You have a history of suicidal ideation and self-harm. You are especially vulnerable when using substances.
33 Mr Cummins diagnosed that you are most probably suffering from complex PTSD a clinical condition where you are suffering from multiple PTSD’s triggered by a combination of stressors.
34 You were born in Maryborough, Queensland and are the second eldest of four boys. You cannot recall your parents living together and you rarely have contact with your siblings. There are 5 half-siblings from your father’s relationships with two other women.
35 There is a strong family history of Bipolar Mood Disorder and schizophrenia.
36 You had a highly dysfunctional upbringing and you have experienced complex traumas. During childhood you were subjected to significant physical and sexual abuse and emotional neglect perpetrated by various family members.
37 You did not have any significant relationship with your father growing up. Your relationship with your mother and stepfather was fraught. During childhood because of their abuse, you spent significant periods in foster care arrangements. I do not propose to repeat in full the detail set out in Mr Cummins report.
38 Briefly, you were aged 9 you were first removed from your mother’s care. You returned home but because she was unable to properly care and protect you from harm you were further removed on multiple occasions. Eventually at age 16 you absconded from your mother’s care and experienced instability with periods of couch surfing and homelessness.
39 You struggled to progress at school. You were diagnosed with ASD and ADHD when you were about 10 and placed in a special school. There was a history of considerable behavioural difficulties including inability to control anger and explosive episodes.
40 You left school part way through year 10 due to homelessness. You have marked literacy problems. Notwithstanding that you have been able to complete Certificates 1,2 and 3 in Engineering and have a White card and a Forklift licence. You have worked for 2 years in commercial fishing in Queensland and recently some casual concreting work.
41 You are on the Disability Support pension. This was granted due to marked literacy problems.
42 You have a long history of polysubstance abuse. You started abusing alcohol and drugs as early as 14 years of age. You have abused prescription medications and cannabis and have had a significant intravenous methylamphetamine addiction for the past 10 years.
43 Significantly you have never undergone any residential drug or alcohol detoxification/rehabilitation.
44 You moved to Melbourne when you were aged 24 for a fresh start. You settled in the Bellarine region and have often experienced homelessness. You were receiving some assistance from the Salvation Army for housing at the time of the offending.
45 Ms Anna McLaren in her neuropsychological report dated 8 March 2021 confirms following her testing and assessment that your current neuropsychological profile would be consistent with persistent ADHD symptoms. She comprehensively details your cognitive impairments.
46 I have taken into account all the matters put in mitigation.
47 I accept that the plea of guilty was entered at the earliest stage at the committal mention and has real utility. That is so particularly in these times when the court’s operations have been disrupted by the covid19 pandemic. [2]
[2]Worboyes v The Queen [2021] VSCA 169, [39], Priest, Kaye and T Forrest JJA
48 You have saved the court time and the inconvenience of a trial. That is significant in a case such as this where the witness, Ms Payne has been spared the further trauma of having to give evidence and be cross-examined. You have facilitated the course of justice.
49 You have shown that you accept responsibility for your wrongful conduct through the plea of guilty and your full admissions made during the formal record of interview. You will receive a demonstrable discount in sentence. There are good policy reasons to do so to encourage others to make like admissions.[3]
[3]R v Doran [2005] VSCA 271 at [14] per Buchanan, JA
50 I accept that you genuinely participated in the sentencing conversation.[4]
[4]See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.
51 During the sentencing conversation you expressed your shame for offending on Wathaurong country to the elders and stated that you felt bad about what had happened. You said that you are sorry for your actions and that you do accept what you did was wrong and that you needed to be more respectful in your relationships in the future.
52 You showed real insight into why you offended and committed to addressing your addiction and other complex problems.
53 You are still a relatively youthful person and your ultimate rehabilitation is important to you individually as well as for the protection of the community.
54 I have taken into account as a mitigating factor that the abuse of drugs and alcohol has its genesis in being exposed to drugs in your formative years and the kind of dysfunction to which you were subjected in your early years.
55 I accept that your offending reflects your level of immaturity, inability to control impulsive actions at times and lack of insight and judgement.
56 Rehabilitation is an important sentencing consideration. Your genuine participation in the sentencing conversation is of itself rehabilitative. You are at an important stage of your maturation. Whilst in custody you appropriately reflected on your behaviour and through your post-offence conduct you have shown that you are open to and capable of reform. Your rehabilitation is in the community’s interest, in part because effective rehabilitation will protect the community from future offending.
57 I accept that there is a link between your dysfunctional upbringing in your formative years with exposure to physical and sexual assaults and drug and alcohol abuse. The impact of such has not diminished overtime and has been given full weight in the determination of the sentence.
58 I have applied both the Bugmy[5] principles and the Verdins’ [6]principles. I have reduced your moral culpability and moderated the need to emphasise general and specific deterrence.
[5]Bugmy V The Queen (2013) 249 CLR 571
[6]R vVerdins & Ors [2007] VSCA 102
59 I have taken into account your cognitive deficits and complex post-traumatic stress disorder conditions in formulating the appropriate sentence.
60 I have also had regard to the fact that you spent 175 days in pre-sentence detention during the pandemic with all the restrictions that apply to protect the health and safety of prisoners.
61 You underwent a 14-day quarantine on your reception into prison during which time you were isolated and in addition, whilst held at the Melbourne Remand Centre (3 November 2020 to 5 December 2020) you experienced half-day lockdowns. You were not able to access any programs and as an Aboriginal man you are from a particularly vulnerable section of the community. All those factors mean that imprisonment has been more burdensome, and I have taken that into account.
62 It is accepted that the current situation concerning the pandemic and the related restrictions is causing additional stress and concern for prisoners.[7]
[7]Brown (AKA Davis) v The Queen [2020] VSCA 60 at [48] per Priest and Weinberg, JJA
63 Your sentence was initially deferred pursuant to s83A of the Sentencing Act 1991 so that you could undertake the Odyssey House Victoria’s Therapeutic Community Residential Rehabilitation Program.
64 The purpose of the program was to provide to you a safe and culturally supportive environment so that you could address drug issues through active participation in programs that have been designed to assist with developing living skills, strengthening cultural identity and spiritual well-being, as well as addressing addiction issues.
65 You were screened for the program and accepted to participate in the program. The conditions of the program were very strict and must be complied with otherwise you faced being exited from the program.
66 Unfortunately, you were unable to remain at Odyssey House because of concerns raised following some interactions with other program participants and so you were exited on 7 May 2021.
67 The Court of Appeal recognised in Akoha v The Queen[8] that the punitive nature of time spent in a residential rehabilitation facility post offence and pre-sentence was a form of detention that should be credited in the sentencing exercise.[9]
[8]Akoha v The Queen [2017] VSCA 214
[9]Ibid [105],[109]
68 I have taken into account the time that you have spent at Odyssey House into account in accordance with the principles enunciated in Akoha. [10]
[10]Akoka v The Queen [2017] VSCA 214
69 Following your discharge from the Odyssey program you returned to Geelong. Your bail conditions were varied to reflect the changed circumstances.
70 You are strongly connected to the local Wathaurong Aboriginal Co-op and were transferred into the Towards Home Plus program. You are supported by Ms Emily McDonald, Aboriginal Health Worker at Wathaurong who works in partnership with the NEAMI Towards Home Plus program.
71 You have been continued to be supported by Ms McDonald. You have successfully secured tenancy of a unit and you are managing well with independent living. Given your history of chronic homelessness this is significant. It is the first time that you have had a stable and secure residence since you were 16.
72 You have maintained abstinence from illicit substances.
73 When released on bail following the deferral of sentence an additional condition was imposed that you adhere to the Court Integrated Services Program (CISP). Ms Sahar El-Achar, Advanced Case Worker has been involved supporting you and liaising with your various program supports.
74 Ms El-Achar has been supporting you to seek a National Disability Insurance Scheme (NDIS) Plan so that you may obtain further assistance with your activities of daily living and to address issues of literacy and financial management.
75 The court has received CISP progress reports dated 25 June and 30 July 2021. The reports have set out your engagement with Ms El-Achar and your other programs.
76 The reports are comprehensive and show that you have been fully engaged and committed to making real progress.
77 You have been engaging in weekly Alcohol and Other Drug (AOD) counselling with Mathew Ladner, AOD worker, Men’s Family Violence Worker, Mark Thompson, Wathaurong Health Service GP, Dr Kevin Chang, and the Wathaurong Men’s group for cultural activities and support.
78 There is now a strong suite of culturally supportive treatment and programs and services being employed to support you in the community to which you have appropriately responded.
79 Importantly, you are pleased with your progress and acknowledge the importance of maintaining those supports. You have highlighted to Ms El-Achar the importance of engaging with Koori treatment and support providers.
80 You now enjoy a real sense of connectedness to culture that is important to your well-being and stability.
81 Having observed you during the Sentencing Conversation, I consider that you show promise and evolving maturity. You have made great strides in addressing your underlying offending behaviour notwithstanding the significant hurdles that have beset you because of your traumatic childhood.
82 The fact that you have made the most of the opportunities available to you whilst on remand and following release on strict bail conditions reflects well on your rehabilitation prospects.
83 Overall, I consider that you do have reasonable rehabilitation prospects.
84 In formulating the appropriate sentence, I have had regard to the written submissions filed by both the Prosecution and Defence adopted at the plea hearing.
85 It was submitted by both parties that a disposition that combines a term of imprisonment to be followed by a Community Correction Order is appropriate. The Prosecutor submitted whether time served is sufficient is a matter for the court.
86 Defence submitted that a term of imprisonment not exceeding that already served combined with a Community Correction Order ought to be ordered. Such an order can achieve all the purposes of sentencing in this case.
87 I accept Ms Dodd’s submissions in respect to sentence.
88 I consider that to return you to jail at this time would likely be harmful to your mental health and would be very disruptive and could potentially undo all the hard work that you have put into your reformation.
89 Following adjournment, you have been assessed as being suitable for a Community Correction Order.
90 As was made clear in the guideline judgment of Boulton,[11] in an appropriate case, a Community Correction Order does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.
[11]Boulton v The Queen (2014) 46 VR 308
91 A Community Correction Order can be fashioned to address your circumstances, the causes of offending and minimise the risk of reoffending by promoting your rehabilitation.[12]
[12]Ibid, 338 [131]
92 You have demonstrated through your progress on strict bail conditions that you can regularise your life without being dependent on the negative influence of drugs and other harmful substances. This is significant given the entrenched nature of your addictions from a tender age. You are now in stable housing and have strong community supports.
93 I accept the recommendations made by Kiayia Louch in her Community Correction Order assessment outcome report dated 12 August 2021.
94 In all the circumstances, I consider that a Community Correction Order in the terms proposed and discussed with you is just punishment and provides for your rehabilitation and for the safety and protection of the community.
95 You have given your verbal consent to the making of such an order. You have had the core conditions explained as well as the special conditions of the proposed order and have indicated to the court that you understand the consequences of a contravention of such an order.
96 In sentencing you I must have regard to deterrence suitably moderated for your circumstances, impose just punishment, and provide for community protection.
97 The formal court orders are -:
98 In relation to the charge of aggravated burglary you will be convicted and sentenced to 175 days imprisonment to be followed by a Community Correction Order of 12 months with the following special conditions namely, supervision, treatment for drug and alcohol and you must participate in programs to reduce the risk of re-offending as directed.
99 I make the following s6AAA declaration but for your plea of guilty I would have imposed 18 months imprisonment.
100 I make the following declaration of pre-sentence detention namely 175 days and direct that the declaration be entered into the records of the court.
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