Director of Public Prosecutions v Milne
[2016] VCC 296
•17 March 2016
| Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-16-00056 & CR-16-00058
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN MILNE |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 17 March 2016 |
| CASE MAY BE CITED AS: | DPP v Milne |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 296 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. G. Hughan | Office of Public Prosecutions |
| For the Accused | Mr. C. Farrington |
HIS HONOUR:
1Benjamin Milne, you have pleaded guilty to two charges of threat to inflict serious injury, one charge of aggravated burglary and one charge of threat to kill. Those crimes carry maximum penalties of five years, 25 years and 10 years respectively. You have also pleaded guilty to uplifted matters, one of breach of an Intervention Order and one of carrying a prohibited weapon. In respect of each of those, the penalties are two years and one year. I say at the outset, bearing in mind the overall circumstances of this, I intend to sentence you to seven days on each of those two charges to be served concurrently with the aggregate sentence that I will be imposing in a short period of time.
2You are now 28 years of age. You pleaded guilty to a settled indictment and I take those matters into account. You have purported to express remorse and I, for these purposes, accept that. You must also, of course, get the utilitarian benefit of that plea of guilty. The situation is that pursuant to s.464ZF of the Crimes Act, you are to provide a saliva sample for DNA purposes. I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.
3The circumstances of the offending are that you had been in a relationship for a period of time with the complainant, and had one child with her and had effectively been a step-father of her other child.
4The offending arises between 1 August 2015 and 11 August 2015. On 1 August 2015, the complainant describes how she had been arguing with you on the phone on multiple occasions throughout the day. During the course of a phone call being conducted at approximately 3.15 pm that day, you said, "If you don't listen to me, I'll come around to your house in the middle of the night and stab you to death."
5There was a series of text messages after that, in which you sought to make that out as a threat to slap her. I have had the opportunity of looking at those text messages, and note with some interest in that you say that you have now been dealing with your temper. I am not going to buy into what had happened at all prior to this day and you are certainly not about to be sentenced for what occurred in a relationship. But in any event, on 1 August, these are the charges that you face.
6On that day or around about that day, police obtained a Family Violence Order, and that was served on you on 4 August 2015. As I understand it, you were granted bail to appear at Latrobe Magistrates' Court on 6 August.
7On 6 August, an Intervention Order was made by consent, pursuant to the Family Violence Protection Act and I have dealt with the breach of that, so certainly by 6 August you knew that a court order was in place, and what the circumstances of that order were.
8At approximately 11.30 pm on 10 August 2015, the complainant retired to her bed at premises in Traralgon. Her two children, P and X were also asleep in the house in separate bedrooms. Sometime after falling asleep, she was awoken by you. You placed your hand over her mouth. You said to her, "Do not scream, I've got a knife, and your phones have gone, and if you try to alert anyone, I will kill you. We need to talk." That gives rise to the charge of aggravated burglary, that is assault with a person present, and Charge 3 of threat to kill. You then showed her the knife which she recognised as her blue handled steak knife. I therefore, obviously, accept that upon your entering into the premises, you did not have a knife with you.
9You then ordered her into the lounge room. She followed you there. You then talked to her about her trying to take away your children. After some further comment, you said to her, "This is going to go three ways." This is what is in the opening. "Option 1, if you try and fight me on this I will stab you and I will stab P" - P being the child. That gives rise to Charge 4 of threat to inflict serious injury.
10You then said to her, "It doesn't matter which option you choose, this will be the last sunrise you see." The complainant said that you went on to say that you had to go outside to collect a bag and some shoes, and that the victim should accompany you, and that you would not kill her outside. You said, "I'll bring you inside and you can beg me then."
11Upon returning inside of the kitchen, the victim ran to the front door, opened it and ran to a neighbour's house. When she got to the house, she banged on the windows and alerted them to what had occurred. Later, in the early hours of the morning, you went to where your brother was and told him that "fucked-up" as I understand it. You exercised your right to basically not answer police questions.
12The complainant, or victim, has made a victim impact statement which was read out in court. That victim impact statement outlines clearly the "Overwhelming fear" that she suffered in the circumstances where you had that knife. That victim impact statement goes on to say that the ongoing consequences and the sheer terror and fear of basically sleeping by herself, in circumstances where there is the concern about you and obviously I take that victim impact statement very much into account in this sentencing process.
13The nature of what you did is abhorrent. The community has a real concern about domestic violence, and this is a gross example of it. To threaten not only her, but threaten to stab the child beggars description Mr Milne. The offending is obviously serious and calls for general and specific deterrence, denunciation and appropriate punishment. In my view, the active custodial sentence together with a Community Correction Order is open, and that is what I propose to do. It was my suggestion that a non-parole period would be more appropriate, but you have apparently instructed your counsel to not go down that path.
14Accordingly, in terms of looking at the circumstances of all this, I look at the matters personal to you. There is a report from Mr Cummins, a forensic psychologist, and references from your family. There is also a reference from the gaol where you have been on remand. I have had you assessed for a Community Corrections Order and you have been found to be acceptable.
15Your counsel provided a very helpful, if I might say so, chronology in terms of the submissions on sentencing. It goes through your childhood. Your father apparently passed away when you were around 13 years of age. You have a good work record. You have done reasonably well at school and you had a number of jobs.
16On the evidence before me, you became depressed in the three or four months leading up to all this, and it has been described as severely depressed. I do not consider that the principles in the full sense of Verdin's apply to all this, but I accept that the offending occurred in circumstances where you were depressed. I am told that some weeks prior to the offending, you had suicidal ideation and were taken to Latrobe Hospital where it seems that very little was done for you, if anything.
17The psychological report of Mr Cummins says that at the time of the offending, your perception, judgment and ability to think rationally were impaired. That may well be so, but it is a situation where I think that the seriousness of the offending is such that full weight certainly cannot be given to that.
18You were arrested some hours after making the admissions to your brother. You do have family support and you have been visited regularly by family in gaol and that augers well for your prospects of rehabilitation.
19You are on anti-depressant medication and now have been for some time. Importantly, in my view, since you have been in custody and I have seen the reports for these, you have undertaken numerous courses, you have been employed in the woodwork area of the gaol and you were using your time in custody very wisely. That view is confirmed by the report of Ms Hills from the Fulham Correctional Centre.
20In the end, you fall to be sentenced as a person with no prior convictions. It is obviously important that you had been in a situation of making the threat that you ultimately purported to be going to carry out some week beforehand and were at the time of this, on an Intervention Order and had been clearly alerted and made aware of what you could and could not do.
21As I said, balanced against that, is a person of your age with no priors. I think that the prospects of your rehabilitation should be good. I find that this offending was indeed situational, although abhorrent, and therefore the risk of you re-offending in this particular way should be limited. Were you to breach a Community Corrections Order by any offending of a violent nature, the consequences for you, Mr Milne, would be dramatic indeed.
22The Crown have conceded that a period of custody followed by a Community Corrections Order is within range and as I discussed with your counsel the other day.
23Accordingly, on the charges on the indictment, you are sentenced to be imprisoned for a period of 16 months. I direct that 219 days be reckoned as having been served under that sentence. Upon your release, if you agree, you will be placed on a Community Corrections Order with a conviction, for a period of three years.
24The conditions of that Community Corrections Order will be:
25Treatment and rehabilitation medical,
26Treatment and rehabilitation mental health,
27Treatment and rehabilitation programs to reduce re-offending, and supervision.
28That PSD was right, wasn't it?
29MR HUGHAN: It was, Your Honour, yes.
30HIS HONOUR: Yes, I thought it was about seven months, a bit over, yes. Do you want to go down, Mr Farrington, make sure.
31MR FARRINGTON: If I might.
32HIS HONOUR: All right, that Community Corrections Order is made.
33Yes, Mr Milne, can I indicate, we talked about this the other day, if you were to breach parole, there is a fixed amount that you do. Breach a Community Corrections Order and the whole sentencing starts again, all right? As long as you clearly understand that. There are no limits on it. All right?
34I will just stand down.
35MR HUGHAN: If Your Honour please.
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