Director of Public Prosecutions v Schaeffer, Ian Joshua and Millington, Harry Jackson
[2013] VCC 743
•28 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IAN JOSHUA SCHAEFFER and HARRY JACKSON MILLINGTON |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 7 and 27 May 2013 | |
DATE OF SENTENCE: | 28 May 2013 | |
CASE MAY BE CITED AS: | DPP v Schaeffer, Ian Joshua and Millington, Harry Jackson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 743 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery and possessing a firearm whilst prohibited
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | |
| For Accused Schaeffer (Plea) (Sentence) For Accused Millington | Mr A. Marshall Mr A. McCaughey Ms D. Price |
HIS HONOUR:
1 Ian Joshua Schaeffer and Harry Jackson Millington, you have each pleaded guilty to one charge of attempted armed robbery. Mr Schaeffer you have also pleaded guilty to one charge of possessing a firearm whilst prohibited.
2 The prosecutor, Mr Pirrie, opened the circumstances of the offending and the written ‘Summary of Prosecution Opening’ from which he read was tendered.
3 You were both arrested near the intended target of the offending, a liquor store in Beechworth Road, Wodonga. You had been observed by police earlier when conducting what seems to be reconnaissance of the premises. You were suspected of planning a robbery and steps were taken by police to remove staff from the premises but otherwise to give the impression that the store was still open. Just after 10pm, on 28 September 2012, you both put stockings over your heads and tried to enter the premises. Having failed you returned to your car where you were arrested by members of the Special Operations Group. Each of you had been armed. Mr Schaeffer, you had been armed with a loaded .22 revolver. Mr Millington you had been armed with an imitation pistol. Each of you had gloves. Essentially, you both made no comment concerning the allegations.
4 Both of you must benefit from your pleas of guilty. They save time, expense and the need for witnesses to give evidence.
5 Both of you pleaded guilty at the committal hearing in February this year, utilising the Hand-up-Brief procedure. Both of you had indicated earlier in the year that you intended to plead guilty.
6 Each of you has consented to me making orders for the taking of forensic samples and other orders for the forfeiture and disposal of items used in the offending. I need to advise you that a police officer may use reasonable force to obtain the forensic sample. I will make the orders and my reasons for making the order relating to the taking of a forensic sample will appear in the order.
7 You have both indicated that you wish you had not made the decision you did to commit the robbery.
8 In each of your cases only immediate imprisonment is appropriate however, I am conscious that you are both still young men.
9 Mr Schaeffer, you will turn 23 on 26 June 2013. Mr Millington, you are still 21 and will not turn 22 until 17 December 2013.
10 You both have criminal histories. Indeed you were both found guilty of being a prohibited person in possession of a firearm on 3 November 2011. The weapon was a sawn off .22 rifle. It belonged to you, Mr Millington, and was found in your bedroom, Mr Schaeffer. Sentences of imprisonment were imposed.
11 Mr Schaeffer, as part of an aggregate sentence, you were sentenced to 12 months imprisonment with a non-parole period of 6 months. The additional offending consisted of handling the weapon, which was stolen, handling a motor bike, harassing a witness and recklessly causing injury. You were released from prison on 23 March 2012 and so the current offending comes about 6 months after your release from prison and very soon after the completion of your parole.
12 Mr Millington, as part of an aggregate sentence, the additional offending being handling the weapon, you were sentenced to 6 months imprisonment, wholly suspended for 2 years. Accordingly, the current offending breaches that sentence.
13 You both have other criminal histories but the current offending is a serious elevation of your criminal histories. However, neither of you has a history of drug or alcohol abuse related offending. Mr Schaeffer, you have used ecstasy at nightclubs.
14 Mr Marshall appeared for you Mr Schaeffer. You come from a close family and family members attended court to support you. Your mother, sister, auntie and paternal grandfather all were present at the plea when it began, your mother was here yesterday also and I can see that there are a considerable number of people in court with whom I infer are part of your family.
15 Your parents came to Wodonga when you were about 11 but your parents soon separated with your father leaving the family. About 2 years later he was convicted of murder and still has about 2 years to serve before he can be released from prison. Your counsel emphasised the absence of a male figure to guide you from about the age of 12. Your father’s imprisonment over the last ten years or so has meant you have had limited contact with him.
16 You finished year 10 at school and have had good employment in a variety of jobs. Your employment has been interrupted by youth detention and prison. You have worked as a plasterer but prior to the current offending you were working as a painter in the building industry in Melbourne, where you had formed a relationship. You were living with a paternal aunt in Hoppers Crossing. A downturn in that industry meant you were not actively employed at the time of the current offending.
17 Plea submissions were adjourned on 7 May so that you could be psychologically assessed by Jeffrey Cummins.
18 On the resumption of the plea submissions yesterday, Mr Marshall referred to a serious eye injury you suffered when 17. This has affected your self-esteem. There are pending operations which it is hoped you will undergo in custody.
19 Mr Marshall also tendered a helpful psychological report from Mr Jeffrey Cummins as well as written ‘Outline of Plea’.
20 Mr Cummins thought your immaturity, depression and low self-esteem played a role in your offending. Mr Cummins considered that, at the time of the offending, you were suffering from depressive symptomatology as part of an Adjustment Disorder with Depressed Mood. This constitutes a mental illness which Mr Cummins thought compromised your perception, judgment and reasoning at the time of the offending. Accordingly, it was submitted that your moral culpability was reduced. I accept this submission.
21 You would benefit from ongoing psychological treatment and antidepressant medication in custody.
22 Mr Millington, you have no prior history for violence although you have a worrying history of housebreaking in NSW, when very young resulting in restrictions on your liberty. You have also been detained in a youth facility for dangerous driving just before you turned 18. You were last released from custody probably in late 2009. It seems however, that you have never been incarcerated in an adult prison until being arrested on the current offending.
23 Through your counsel you admitted that you knew Mr Schaeffer had a loaded gun at the time of the armed robbery.
24 Your counsel said you have been reflecting on your life whilst in custody. She submitted that I should regard you as having good rehabilitation prospects or at the very least she submitted that I could not exclude rehabilitation potential. You have been focussing on your health and fitness in prison. You seem to have ability as a boxer and were about to fight your first amateur bout before incarceration prevented that. You are keen to be sentenced so you can obtain forklift and motor vehicle licences in custody.
25 You were educated to year 10. You have a good work history although it has been disrupted by incarceration. You were working as a concreter before the current offending but were not actively employed at the time of the offending. On release you want to make a new start and move to live with a relative in Greensborough.
26 Your parents separated when you were about 2 or 3 however, you have seen your father recently. The rest of your family, although supportive, were unable to attend court to support you because of their work obligations. They have been telephoning and writing to you in prison.
27 To your credit you relinquished any rights you may have had to the motor vehicle used in the armed robbery. It seems you had bought it from a friend without knowing that it was stolen. It can now be returned to the owner.
28 At the resumed hearing yesterday, Mr Pirrie submitted that the offending was serious. That is obviously so. He noted the planning and ‘casing’ of the premises in particular. The car used was not directly connected to either of you. The circumstances of your arrest put both of you and others at serious risk. Several police units were involved. The prior conviction of both of you in November 2011 for possessing a firearm whilst being a prohibited person resulted in sentences of imprisonment being imposed on each of you, although your sentence, Mr Millington, was wholly suspended. None of these matters outlined by Mr Pirrie was disputed.
29 In your case, Mr Schaeffer, the prosecution submitted that a total effective sentence of between 5 and 7 years with a non-parole period of between 3 and 5 years should be imposed.
30 In your case Mr Millington, the prosecution submitted that a total effective sentence of between 4 and 6 years with a non-parole period of between 2½ and 4 years should be imposed.
31 Neither defence counsel argued against these sentencing range submissions.
32 I accept in both your cases that your youth remains an important sentencing issue, despite the seriousness of the offending before me and your criminal histories. The sentences need to recognise that you each still have rehabilitation prospects that need to be fostered. However, the offending is clearly very serious.
33 In your case Mr Schaeffer, I intend to impose an aggregate sentence. On charges 1 and 2 you will be sentenced to an aggregate term of 6 years imprisonment. I fix 3 years and 9 months as the period you must served before being eligible for release on parole.
34 Had you not pleaded guilty the sentence would have been about 7 years and 6 months imprisonment with a non-parole period of about 5 years and 3 months.
35 Mr Millington, you will be convicted and sentenced to 5 years imprisonment. I fix 3 years as the period you must serve before being eligible for release on parole.
36 Had you not pleaded guilty I would have sentenced you to about 6 years and 6 months imprisonment with a non-parole period of about 4 years and 6 months.
37 You have each served 242 days in presentence detention. This time is to be reckoned as time already served on the sentences I have imposed.
38 I have signed all the orders that were provided, Mr Pirrie, and I'll hand them down. Is there anything that needs correcting or that I overlooked that counsel can identify?
39 MS PRICE: Only one matter is that the date of Mr Millington's conviction for possessing a weapon as a prohibited person was on a different date to that of Mr Schaeffer. The date of his conviction was 28 August 2011.
40 HIS HONOUR: All right. Yes, you're right.
41 MS PRICE: That's the only matter, Your Honour.
42 HIS HONOUR: All right, thank you.
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