Director of Public Prosecutions v Milton (a pseudonym)
[2022] VCC 1068
•11 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLENN MILTON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 July 2022 | |
CASE MAY BE CITED AS: | DPP v Milton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1068 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | |
| For the Accused | Mr N. Mutton |
HIS HONOUR:
1 Glenn Milton[1], you have pleaded guilty before me to charges contained in two indictments. The first indictment, Indictment M11810147.1, contains charges - one charge of possessing a drug of dependence, one charge of trafficking in a drug of dependence and one charge of attempted trafficking in a drug of dependence. The second indictment, Indictment L12514318, relates to charges of possessing substances and materials, documents or equipment for trafficking in a drug of dependence, one charge of trafficking in a drug of dependence and one charge of being a prohibited person in possession of an imitation firearm. You have also pleaded guilty to the summary offence of dealing with property suspected of being the proceeds of crime.
[1]A pseudonym.
2 The very detailed prosecution openings in relation to each indictment are annexed to these sentencing remarks as exhibits. In very short compass, proceeding firstly with the charges on Indictment M11810147.1, police commenced an operation into organised crime in the northern suburbs. The investigation ultimately centred upon three offenders. They were your co‑offenders.
3 The evidence was obtained by police essentially via intercepts placed on one of your co-offender’s phones. As a result of conversations overheard by police between 11 April and 21 June 2020 the charges on that indictment rose. They related to the possession of ice by you, the discussion of trafficking drugs, which involved you setting up customers for other persons, involving the sale of ice at $7,500 per ounce, and an attempted trafficking between 13 and 21 June where you set up customers who did not arrive.
4 The prosecution stance in relation to those charges are that you received two ounces or 56 grams of methylamphetamine to sell and you were offered seven grams for your own use. You are not alleged to have received that seven grams. It was planned offending and overall involved on-selling to both end users and to street level dealers.
5 In relation to Indictment L12514318 this involved a separate police investigation. Police essentially discovered that you were running a clandestine laboratory in the backyard of a co-accused, who rented out the shed at the back of his home, you paying him in methylamphetamine. Evidence again was gained by police placing an intercept on your telephone. You were heard discussing equipment needed and repairs to be done.
6 On 23 October 2020 police executed a search warrant at your co-offender’s home and in the garage discovered the equipment and methylamphetamine in fact made by you. In the process they also located an imitation Smith & Wesson revolver. Further items regarding trafficking ice and the manufacture of ice were seized from your home.
7 The prosecution position is that you were the cook in this operation and that you had the capacity to make about 88 grams of ice. It was clear that you intended to sell the product and a further 87.6 grams of ice were also seized.
8 In a record of interview with police once you were arrested you were extremely open about your activity, in particular, seeking to exonerate your co-offender from the clandestine laboratory. You were also very open in relation to the other offending involving drug trafficking and you setting up customers.
9 The matter resolved before committal. A plea of guilty was entered and it is a plea which is to be regarded as an early plea in the circumstances. The maximum penalty for possessing a drug of dependence is five years or 400 penalty units. The maximum penalty for trafficking a drug of dependence is 15 years' imprisonment. The same penalty applies to attempted trafficking of a drug of dependence. The maximum penalty for possessing substances and equipment for the manufacture of a drug of dependence is 10 years' imprisonment. The maximum penalty for being a prohibited person in possession of an imitation firearm is 10 years' imprisonment or 1,200 penalty units. The maximum penalty for possessing property suspected of being the proceeds of crime is two years' imprisonment.
10 I now turn to your personal circumstances. You are 46 years of age and it is quite clear on the abundant material tendered on the plea that you have endured an incredibly difficult life. It began by being born as the only child of parents who separated when you were about 10. You told psychologist Carla Lechner, whose report was tendered on the plea, that your parents were emotionally distant. For example, they would leave for work before 7 before you went to school, leaving $2 on the table for lunch, and would return home well after you had got home from school.
11 They eventually separated and divorced when you were nine or 10 and you virtually never saw your father again. Your mother re‑partnered with a violent man who was a prison officer who assaulted both you and your mother. When you were 13 you were assaulted by this man when you attempted to defend your mother from his violence and you simply left home and never went back. You ended up at the notorious Bayswater Boys' Home where you were repeatedly the subject of sexual violent assaults by a prison guard there.
12 When you eventually left that boys' home you went on to lead a life which involved very little paid employment and essentially a life where drugs dominated your existence. You in that process engaged in serious criminal offending going back to 1993. Virtually every year since you have been dealt with by courts for charges of theft, burglary, handling stolen goods, theft from motor vehicles, obtaining property by deception, loitering with intent, possessing regulated weapons, possessing ammunition, shop theft, intentionally causing injury, possessing the proceeds of crime, possessing dangerous articles.
13 In 2000 you appeared before the County Court on a charge of armed robbery for which you received a sentence of 30 months. You have appeared before the courts on numerous occasions for trafficking in a drug of dependence. In 2006 you received a sentence of imprisonment of four years, with a minimum sentence of two years, on charges of conspiracy to commit a burglary and trafficking amphetamine. In 2009 you received a sentence of five years, with a minimum of three, for trafficking in a commercial quantity of drugs, trafficking in a drug of dependence and handling stolen goods.
14 In 2014 you were again gaoled in relation to charges including possessing a firearm, possessing ecstasy, unlicensed driving and possessing a controlled weapon.
15 It is quite clear that your life since your early teens has simply been a round of non-stop drug use accompanied by offending. The cycle hopefully was going to break in 2018 where in May of that year you were placed by the Magistrates' Court on a drug treatment order on charges of handling stolen goods, possessing amphetamine and possessing cannabis. There were some glitches on that order. On a number of occasions you obtained sufficient sanctions so that you spent seven days in gaol here and there, but overall I was informed you engaged well.
16 Unfortunately fate intervened - if I can put it that way. You fell through a roof and received very serious injuries, including the loss of part of your hip joint. You were bedridden for three months and in that time morphine was used to control your pain. You had early in your life become entirely dependent on heroin. You were on methadone for a number of years and you said after a tortuous effort weaned yourself off that, but you then turned to use of amphetamine and methamphetamine, although it appeared your drug of choice has been amphetamine.
17 In any event, you were reintroduced to an opiate. Then when you were released home very tragically you were in an empty house with your stepson who was then living with you and your partner after his own relationship ended and was in a state of depression. Whilst in that house he touched live wiring, was electrocuted before your eyes - if I can put it that way. To this day you are not certain whether or not it was an accidental touching by him or, in fact, a suicide attempt.
18 In any event, the agony of that particular incident was heightened by the fact that when the ambulance arrived the ambulance officers were not able to attend inside the house until the electricity was disconnected and by that stage your stepson had died.
19 Your inability to participate in the drug treatment order because of the injuries you received meant that the order was cancelled and in the aftermath of that the lack of support, the fact that you were no longer receiving the support of that order and your stepson's tragic death led you to completely relapse into drug use and it was in that context that you involved yourself in the offending that has brought you before the court today.
20 Unsurprisingly, you have been diagnosed as suffering post-traumatic stress disorder, both because of your terrible experiences at Bayswater Boys' Home and also because of your stepson's death. You suffer depression, you suffer anxiety and I received a most moving letter written by you to the court. Judges often receive letters written by accused persons with some trepidation. They can turn out to be self-serving exercises. By contrast I found the letter that you wrote to this court extraordinarily moving, genuine and extremely honest.
21 You described yourself as in a state of emotional despair and difficulty. You said the only time you felt that there was a break in the path that your life had taken was when you were placed on the drug treatment order. It was there for the first time you learned to speak about your terrible experience at Bayswater Boys' Home. Can I say the fall for you was a tragedy in many ways, not least, however, because it interrupted what had otherwise been an extremely positive engagement by you on that order. For someone who has been involved in very serious offending and organised crime, and chronic drug use in the decades that you had been before being placed on this order, I want to compliment you on the way in which you engaged in that order.
22 One of the difficulties of being involved in that sort of life for so long is that reverting to behaviour which has become a survival mechanism is common for people on drug treatment orders and I was entirely unsurprised that on occasion you ended up getting seven days here and seven days there, Mr Milton. You were assessed, both by the case manager and the drug treatment clinician, as suitable for placement on a DATO. The prosecution conceded that in the circumstances of your case I could impose a sentence which would bring you within the ambit of a drug and alcohol treatment order in the County Court and it was conceded by the prosecution that you were eligible for the order.
23 I might add that it is clear also, in my view, that your continued detention in custody, which has been the case for you since your arrest, has been one where your post-traumatic stress disorder has been aggravated so that service of this time, particularly through COVID, has been more difficult for you than the ordinary prisoner, notwithstanding that you could be said to be experienced in serving terms of imprisonment. I noted in the case manager report incidents within the gaol and they clearly seemed to me to be deriving back to your post-traumatic stress disorder.
24 Notwithstanding the immense personal distress that has been a constant in your life since 2020, you have nevertheless managed to find some consolation in fine arts and a number of examples of your art were tendered, and I find them to be extraordinary pieces of work showing a real talent by you in that area and it is to your credit that you have been able to concentrate and use that form of expression in that way in the midst of your personal distress.
25 Ultimately what I am saying to you, Mr Milton, is that I have no hesitation placing you on the drug and alcohol treatment order. I need to explain to you what it is and the conditions of it. I can only place you on that order with your consent. Before I move to doing so I need to formally impose the appropriate sentences in relation to your offending and I will do that now.
26 I will begin with Indictment M11810147.1. On Charge 1 you are sentenced to 12 months' imprisonment, on Charge 2 you are sentenced to two years' imprisonment, on Charge 3 you are sentenced to 12 months' imprisonment, and on the summary charge of possessing the proceeds of crime you are sentenced to six months' imprisonment. The base sentence on that indictment will be the sentence imposed on Charge 2. I order that four months of each of the sentence imposed on Charges 1 and 3, and one month of the sentence imposed on the summary offence, be served cumulatively on Charge 2, giving a total effective sentence of two years and nine months.
27 In relation to Indictment L12514318, on Charge 1 you are sentenced to two years' imprisonment, on Charge 2 you are sentenced to 18 months' imprisonment and on Charge 3 you are sentenced to eight months' imprisonment. The base sentence will be the sentence imposed on Charge 1. I order that six months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 are to be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of two years and eight months.
28 I order that 12 months of the sentence imposed on Indictment L12514318 be served cumulatively to the sentence imposed on Indictment M11810147.1, giving a total effective sentence of three years and nine months. All right. Thank you.
29 The DATO - and it is called a DATO as opposed to a DTO in the Magistrates' Court, Mr Milton, because it includes the term 'alcohol' - has the following parts: firstly, it has the treatment and supervision part and that treatment and supervision part has core conditions which are placed on any order. These are that you are not to commit any offence punishable by imprisonment, either inside or outside Victoria. You are to attend the Drug Court when required by the court to do so. You are to report to Melbourne Drug Court House or any other specified place after the order is imposed.
30 You are to report to and accept visits from members of the Drug Court. You are to undergo treatment as directed. You are to give notice of any change of address and you may not leave Victoria without the permission of the Drug Court team and you must obey all lawful instructions of the Drug Court team. So those core conditions will remain in force for the period of three years and nine months.
31 There are also then the following program conditions and that is the second part of the order. You must submit for drug and alcohol testing as directed. You are to attend detoxification or other drug treatment specified in the order as directed. You are to attend vocational, educational and employment programs as directed. You are to submit to medical, psychiatric, psychological treatment as directed. You are to comply with any curfews. You are not to use a drug of dependence without lawful authorisation.
32 Let me just check - I am sorry. You must adhere to an alcohol ban. That is, you may not use alcohol. The curfew involves that you remain - you must comply with a curfew that you remain at an address deemed suitable by the court until further notice. I should add that your partner resides at an address which is outside the residential zone which applies to a DATO and you will be placed in emergency accommodation. I understand that your appointment is made this afternoon for you to attend.
33 You must do or not do anything else that the Drug Court considers necessary or appropriate regarding your drug or alcohol dependency or the personal factors that the Drug Court considers contributed to your criminal behaviour. Does that all make sense to you, Mr Milton?
34 OFFENDER: Yes, Your Honour.
35 HER HONOUR: Thank you very much. So pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of six years and a minimum term of four years. Now, I do not declare the PSD, although I will note - what is the PSD just so we know?
36 MR MUTTON: 626 days.
37 HER HONOUR: 626 days. That comes into operation if the DATO is cancelled and you have to served any outstanding period of time at the end, Mr Milton. All right?
38 OFFENDER: Yes, Your Honour.
39 HER HONOUR: Have you got any questions?
40 OFFENDER: No.
41 HER HONOUR: All right, then, sir. So that is the situation. I will be sitting in the Drug Court in October. I look forward to seeing how you are going, Mr Milton.
42 OFFENDER: Yes, Your Honour.
43 HER HONOUR: May I say that in sentencing you I have taken into account your early plea of guilty which I regard as a genuine sign of remorse. I take into account your open and honest cooperation with police. I take into account your incredibly traumatic background. I regard the principles of Bugmy, that is, that early trauma can lead to an inability to learn from life's lessons, if you like it that way, so that, generality speaking, moral culpability is lessened, have application to your case. I also take into account the circumstances surrounding the cancellation of the drug treatment order imposed by the Magistrates' Court and subsequent tragic events in your life. And I wish you well on this order, Mr Milton, and I hope that it assists you in the way it is meant to, not just for your own reform and protection of the community, but because of the enormous distress and difficulties that you have undergone in recent times. Is that all I need to attend to?
44 MS MALOBABIC: Your Honour, there was some orders requested.
45 HER HONOUR: Yes, I have these. So the orders are made today. Those orders are that there will be a suppression order made in relation to these proceedings. The contents of the order speak for themselves. And I have made that order. And do I give that to you or do we keep it and send you copies, Ms Malobabic?
46 MS MALOBABIC: I'm instructed the court has to keep a copy but you can take a copy as well.
47 HER HONOUR: All right. We'll forward those to you at the appropriate time.
48 MS MALOBABIC: Thank you.
49 HER HONOUR: All right. Thank you both.
50 MS MALOBABIC: There's also, Your Honour, a forfeiture of the drugs and paraphernalia.
51 HER HONOUR: Now, what have I done with that forfeiture order? We'll sign that and send that to you.
52 MS MALOBABIC: Thank you, Your Honour.
53 HER HONOUR: Thank you. All right. Thank you very much. We'll get you to sign that order. Thank you. That's everything I think. Thank you. Good luck, Mr Milton, and I will see you in October.
54 OFFENDER: Thank you, Your Honour.
55 HER HONOUR: Thank you. You'll be dealing with Judge Higham and Judge Sexton in the meantime. All right.
56 OFFENDER: Thank you.
57 HER HONOUR: Thank you very much. Yes, we'll adjourn till 9.30 tomorrow morning. Thank you very much.
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