Director of Public Prosecutions v Milner

[2016] VCC 2040

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 16-01572

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN GORDON MILNER

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 December 2016
CASE MAY BE CITED AS:	DPP v Milner
MEDIUM NEUTRAL CITATION:	[2016] VCC 2040

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms S. Flynn
For the Accused	Mr M. Brugman

Pages 1 - 8

 

 

HIS HONOUR: 

1Justin Milner, you are to be sentenced for one charge of reckless conduct endangering life.  The maximum sentence is ten years' imprisonment. 

2You pleaded guilty before me on 24 November.  When interviewed by police on the day of offending, 10 March 2016, you denied having been knowingly complicit in the offending.  However, when re-interviewed on 15 April you made admissions.  You also made a police statement in accordance with that.On 9 September, committal went by hand-up brief and you entered a plea of guilty.  The matter was then listed for plea hearing in this court. 

3You receive the benefit of your plea of guilty and the level of co-operation that short history of the proceedings shows.  You have facilitated in the interests of justice and your plea expresses remorse.  You pleaded guilty in this court eight months after the offence. 

4At your plea hearing,  also on 24 November,  Ms Flynn for the Crown tendered a written summary of prosecution opening, a CCTV footage log,  two booklets of photographs mainly depicting the relevant firearms, scenes and aftermath of the offending.  Ms Flynn played parts of the CCTV footage.  Mr Brugman for you, tendered the forensic psychological report of Warren Simmons dated 20 October 2016. 

5The circumstances of your offending are comprehensively described in the tendered Crown opening, Exhibit A.  My own summary may therefore be relatively short. 

6You are the nephew of Bruce and Selwyn Savage.  You assisted Bruce Savage in a shooting episode which occurred in daylight hours of 10 March in the streets of Corio and Norlane.  Others were involved including your other uncle Selwyn Savage. 

7In the approximate two years prior there seems to have been developing grievance between Bruce Savage and a man named Aaron Burnie.  The Crown opening states that this was related to drug trade within the Geelong area.  I do not find that you are involved in drug trading. 

8Soon after 5 pm on that day, you and your partner went to the home of Bruce Savage in  Dearborn Parade,  Corio.  It was a social visit.  Other relatives were there.  You were driving a maroon Holden Berlina which you had borrowed that afternoon from a mechanic repairing your own vehicle.  Before you arrived there had been activity at the address relating to firearms.  This involved at least Bruce and Selwyn Savage.  I do not find that you were involved or knew about this. 

9There were comings and goings.  Things accelerated at 6 pm. Bruce Savage, Selwyn Savage and another man left in a Ford Sedan.  Bruce Savage had a long arm rifle.  You were in the maroon Holden at the end of the driveway with your partner car.  CCTV footage does not readily show you to be involved at this time.  I do not find beyond reasonable doubt that you then knew about the firearms or what was going to happen.  You left with your partner.

10Very soon after you were seen with your uncle and another outside an address in Donnybrook Road.  This seems, although I am not clear on this, to be the premises or premises related to Burnie.  At least one firearm, a long arm,  was seen.  At 6.12 pm the CCTV footage shows you driving the maroon Holden in Dearborn Parade.  Bruce Savage is your passenger.  As subsequent events play out, it is clear that he had  the long arm rifle.  You must have known that at least by the time he got into your car shortly before and presumably at Donnybrook Road.  I so find beyond reasonable doubt.  At 6.14 pm an orange utility driven by Burnie with a passenger named Graham is seen stationary in Dearborn Parade.  Your car pulls up next to it and slightly forward.  There is verbal altercation.  Bruce Savage discharges the rifle striking the windscreen of Burnie's car.  Almost immediately you drive off quickly. 

11Paragraphs 23 and 24 of the Crown opening state as follows.

"Bruce Savage and the accused were chased by Burnie and Graham in the utility through residential streets in Corio and Norlane where numerous shots were exchanged between both vehicles by Bruce Savage and Graham as Burnie and the accused drove the vehicles.  Witness or witnesses [it is not clear] reported seeing the vehicles driving at high speed and hearing the gunfire."

"The accused returned to Donnybrook Road and dropped Bruce Savage off at his daughter's address at approximately 6.19 pm.  The accused drove around the corner into Anakie Road where he was intercepted by police.  A search of his vehicle resulted in three fired bullet casings being located.  The accused was arrested and conveyed back to the Geelong police station for interview."

12After your arrest,  and therefore not involving you, there was further shooting between the two cars. 

13A man named Deery, Burnie and Graham were the perpetrators.  Arrests were made soon after, Bruce Savage the following day.  Firearms, ammunition, spent casings were located.  Both vehicles had sustained bullet damage.  Firearms and ammunition were located at or near to Bruce Savage's home on 11 March.

14I have attempted to make findings consistent with the principles of R v Storey and with your plea of guilty to this offence.  You knew of Bruce Savage's firearm when you drove back to Dearborn Parade and assisted in the shooting there by  positioning of the car and quickly driving it away.  You were driving the car subsequently as he shot at Burnie's car and as Graham shot at yours.  I accept that you were influenced by Bruce Savage and felt under pressure to so assist. 

15As I understand, your co-offenders face committal hearing and accordingly have not been sentenced. 

16You are a 26-year-old man awaiting this sentence in custody.  I have been advised by Mr Brugman subsequent to the plea hearing that you were sentenced in the Geelong Magistrates' Court to four months' imprisonment   for a number of offences including intentionally causing injury and threatening to kill. That sentence was on 24 November.   That offending occurred in mid-April of this year about one month after the offending before me.  In dealing with this, Mr Brugman described some of the circumstances of the offending and stated the context of heavy drug use which led to hospitalisation for overdose. 

17You spent your early life in Geelong.  Your parents separated when you were five and after that you lived with your mother and a number of her partners in northern New South Wales.  Your father committed suicide in 2015. You had fragmented contact with him over that time.  You have two younger sisters, both in their early 20s.  You are close to them.  Your mother suffered mental health problems and,  at a time, drank heavily.  Some of her partners were abusive.  Schooling was not successful.  You went to a number of primary schools and needed additional assistance,  given a  reading and writing disorder.  There was a diagnosis of attention deficit hyperactivity disorder and treatment by medication. 

18You left school and home at about 13. That led to periods of homelessness.  You worked in a motorbike shop in Sydney, a butcher's shop as a powder coater and in a cabinet making business.  In the context of  growing drug use, you have not worked for about ten years.  You have a stable relationship with a young woman.  You have been together for about nine years.  She has a son, aged 12, whom you help raise. 

19You began using cannabis at 12.  You then used ecstasy, amphetamines and methamphetamine.  You were smoking methamphetamine heavily, up to 7 grams a day at the time of this offending.  Psychologist Warren Simmons states that you suffer conditions of anxiety and depression.  He also states toward the end of his report:

Mr Milner's childhood experiences predisposed him to substance abuse, going on to report ongoing use of drugs influenced primarily by his peers; but maintained by the fact that drugs wipe out many of his feelings.  He appears to use drugs as a coping mechanism and has used quite high amounts over the years."

20Your criminal record filed with the indictment states four prior court appearances between August 2010, when you were 20, and June 2015.  There is some duplication.  For example, the return and then, curiously, after that what seems breach of a good behaviour bond.  These appear to relate to the same offending.  Broadly described, there are drug offences, driving offences and, in June 2015, you were placed on a community corrections order for offences of violence.  Some seem to be the same or at least very similar offences for which you received the subsequent four-month sentence I have referred to earlier.  It is not clear.  Your prior offending is not as serious as that now before me.  It is a matter adverse that this offending occurred whilst you were subject to the community corrections order. 

21Simple description emphatically states that this was particularly serious and dangerous offending, a bad example of this crime. It occurred in daylight hours  and along residential streets.  A child is seen on the CCTV footage not long before it began.  It also occurred in a quite sinister criminal context.  In saying that, I bear in mind that I do not find that you were actively involved in drug trafficking.  The perpetrators showed contemptuous disregard for the safety,  wellbeing and peace of the community.  You have some relevant prior offending albeit not extensively so. 

22The circumstances here make relevant sentencing considerations of deterrence  (both specific but particularly general deterrence) moral culpability, a strong need to condemn and the need for appropriate punishment.  I accept that the circumstances which developed your relationship to your uncles and that there was some at least implicit intimidation of you reduce to an extent the subjective criminality of your offence.  However, ultimately, your sentence must reflect that you participated, performing an important role,  in extravagantly antisocial,  criminal behaviour.  Public protection is also raised.  You and particularly others should be deterred from such conduct to protect the community's wellbeing. 

23There must be imprisonment of some severe length. 

24I take into account mitigating and/or moderating factors.  They include the following. 

(1) Your plea of guilty and co-operation.

(2) Your personal history and  circumstances. Your upbringing should be seen as compromising chances for a functional adulthood.  It made you vulnerable to drug use and placed you in its milieu.

(3) In the way I have stated,  the circumstances of and leading to your involvement. 

(4) Mr Brugman raised that you had been placed in a protection part of the prison system.  That seems to have been connected to your perceived assistance in this case.  That is,  your perceived assistance to authorities.  For that time in detention, you had approximately 20 hours of lockdown conditions.  You state that you have been threatened in custody.  I should see  imprisonment as being harder for you than for others. 

(5) One is necessarily guarded about prospects for rehabilitation. However, you are still relatively young and have the support of your now long-term relationship.  You have undertaken rehabilitation programs in custody.  While not discounting the difficulties you may confront, I do not utterly discount rehabilitation for you.

(6) I also recognise the need for moderation in itself.  The maximum sentence for this offence is ten years' imprisonment. 

25These mitigating factors,  all or most personal to you,  should go to reduce the length of your sentence compared to what the objectively viewed circumstances would require. 

26Having considered and weighed up what I perceive to be  the relevant matters,  I sentence you as follows.  Stand up please.

27On one charge of reckless conduct endangering life, I sentence you to three years' imprisonment. I set a minimum term before you are eligible for parole of 18 months. I declare, under s.18, 223 days of custody already served. If you had not pleaded guilty, I would have imposed a sentence of four and a half years with a minimum of two and a half years. Under s.89A of the Sentencing Act, I disqualify you for applying for a licence for a period of two years. Is there anything else?  Sit down, please.

28MS FLYNN:  Yes, Your Honour.  There is an application for a 464, an intimate sample.

29HIS HONOUR:  I will make that.  You do not oppose it?  No.

30MR BRUGMAN:  No, Your Honour, it is by consent.

31HIS HONOUR:  The seriousness of the offending in this case demand it, and in fact, it may well have been a useful tool had the accused not made admissions.  What will happen is at a time to be arranged you will have to give a sample of saliva  by putting a cotton swab inside your mouth.  It does not sound difficult and if you cooperate in that, that is the end of it.  If you do not, a sample of blood would be  taken and reasonable force used.  You heard what I said about my reasons for making this order, your prior convictions are also relevant.  Take a seat.  I will sign the order.

32I will give you an opportunity to speak.  Just wait for that please. 

33OFFENDER:  Thank you, Your Honour.

34HIS HONOUR:  I have signed that order and I will hand it down.  Is there anything else I need to do? 

35MS FLYNN:  No, thank you, Your Honour.

36MR BRUGMAN:  As Your Honour pleases.

37HIS HONOUR:  All right.  You may speak to him briefly, if you would supervise that, Mr Brugman.

38MR BRUGMAN:  Sure.

39HIS HONOUR:  It must be for a brief time.  I will wait here whilst that happens.

(At this stage the court proceeded with another matter.)

40Thank you. 

41OFFENDER:  Thank you, Your Honour.

42HIS HONOUR:  Mr Milner needs to be taken into custody.

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