DPP v Miller
[2002] VSCA 137
•26 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 138 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| RUSSELL VICTOR MILLER |
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JUDGES: | WINNEKE, P., CHARLES and VINCENT, JJ.A. | |
WHERE HELD: | MILDURA | |
DATE OF HEARING: | 26 August 2002 | |
DATE OF JUDGMENT: | 26 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 137 | |
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Sentence - Crown appeal against sentence - Aggravated burglary, causing serious injury intentionally and arson - Respondent's offences committed in act of vigilantism - Respondent's exceptional character evidence and good record - Powerful mitigatory factors - Sentence of 3 years' imprisonment, all but 9 months suspended held inadequate - Respondent resentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, QC (DPP) and Ms S.E. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr H.T. Mason | L.B. Oldham |
WINNEKE, P.:
I will invite Charles, J.A. to deliver the first judgment in this appeal.
CHARLES, J.A.:
On the evening of Friday, 25 May 2001 Russell Miller went to the home in Warracknabeal of a friend, Daniel Parfitt, who was employed as an Aboriginal Integration Officer at the local secondary college. Miller, then aged 39, had lived in Warracknabeal for the last 18 years and worked as a nurse at the local hospital. After some drinks, Miller and Parfitt went to a nearby gathering of friends where a considerable quantity of alcohol was drunk. Miller then began to talk about what he considered to be "undesirable" residents in the town, saying that there were a few "dickheads in town" and that he was "going to drive the scum out of Warrack". He asked the others to assist him. Save for Parfitt, all the others at the house declined his invitation, and Miller shortly afterwards left in a car accompanied by his 16-year-old daughter Jessica and Parfitt. Miller directed Jessica to drive them to an intersection near to where the intended victim (R.C.) lived with his 10-year-old son and a boarder, Darren Clark. The house was a three-bedroom weatherboard house with an attached carport. R.C.'s white Sigma Scorpion car was parked in the driveway beside the house. R.C. had lived in the house for two years previously.
R.C. and his son and a friend had watched television that evening until 10.45 p.m., at which time the son had gone to bed in the front bedroom of the house nearest the driveway. R.C. and the friend talked for a while, the friend leaving at around midnight. R.C. usually slept in the lounge room on a mattress and at or about midnight got into bed with the television playing and the lounge room light still on and began to doze. The back door was locked with a key-operated deadlock.
Miller and Parfitt arrived at the house shortly after midnight and heard the television. They broke into the house through the back door and then kicked in the sliding lounge room door, causing the door to lift up and forcing off the pelmet, which resulted in vases and ornaments falling and breaking. As the vases and ornaments fell to the floor together with the lounge room door, R.C. saw Miller come through the door with Parfitt and said, "What's going on here?" Miller said, "We don't want any drug dealers in Warracknabeal or around here", and then kicked R.C. in the stomach. Miller dragged the victim off the bed by his hair so that he was on his hands and knees. As the victim was trying to protect himself by covering his head with his hands, Miller punched him a number of times to the head and chest. Although Parfitt was standing beside the victim, he was not seen to be assaulting R.C., and in the later criminal proceedings the judge found that Parfitt was not directly involved in the severe beating that Miller proceeded to inflict upon the victim.
While R.C. was trying to cover himself his left ribs were being kicked and he felt them crack. He put his left hand onto his ribs and felt the bones poking out at the bottom. He was having difficulty breathing, but Miller continued to punch him to the sides of his head, his ears and his stomach. Meanwhile, the son had been woken by the noise and came into the lounge where he saw his father being brutally beaten. He saw Miller "whacking" his father's head into the cupboard in the room and heard him say, "People in our town don't sell drugs. Now get out of town and never come back." The son screamed at the offenders to stop the assaults and R.C. told his son to leave the house. Miller hit the victim again before telling him that he had five days to leave town or he would return with a gun and also burn his house down.
Miller and Parfitt then left by the back door and R.C. too left the house hoping to find his son. At this point Miller grabbed the victim and told him to go back into the house but R.C. ran past him into the street, where he saw a late model station wagon parked nearby. He found his son in a nearby telephone box, crying and calling the police. They went into hiding inside the grounds of a nearby football oval before they walked to a friend's house and called the police and the ambulance service which arrived shortly after and took the victim to the Warracknabeal Hospital.
R.C. was examined at the hospital before being transferred to the Wimmera Base Hospital at Horsham. He was admitted and his injuries were treated, and he was discharged on 28 May. His injuries included fractured ribs, bruising to his face, chest and rib area and multiple scattered abrasions all over his body and trunk. He was suffering severe pain. Although the victim has no long-term physical injuries, both he and his son suffer ongoing psychological trauma.
Immediately after leaving the victim, Miller and Parfitt returned to Miller's car and were driven by Jessica back to the gathering at Craig Avenue from which they had come. Miller and his daughter then left for home. Miller however decided to return to R.C.'s house and was driven back there by Jessica. He entered the victim's house through the open rear door and went to the laundry at the rear of the building where he set fire to a piece of clothing on the floor. He saw to it that the clothing had caught fire before leaving the premises. Before leaving the house he did not call out to see if anyone else was in the house or check any of the rooms for other residents. When later asked by police officers if there was a possibility that any other person was in the house he replied, "It could have been possible, but no I don't think there was." Once the fire was alight he returned to his car and went home.
Some 20 minutes later R.C.'s neighbours discovered that his house was well ablaze. The local Country Fire Authority arrived and attempted to extinguish the fire, but the house was unable to be saved, the damage being extensive, and the house was gutted at the rear. The victim's Scorpion was also damaged and both the house and the car were totally unsalvageable, neither being insured. R.C. valued the cost of the damage to the house, its contents and his car at in excess of $80,000.
On 30 May 2001 Miller went to the Warracknabeal police station where he surrendered himself to police. He made extensive admissions and was co-operative throughout the interview. He admitted his part in the events already described saying that he had yelled at the victim to leave town because "he's a known drug dealer". When questioned as to the basis of his belief, however, he stated that it was based solely on hearsay around town and that he was unable to say what type of drug the victim had been trafficking. There was no evidence before the court to suggest that the victim had in fact been engaged in trafficking in any kind of drug. Miller admitted that he had been three parts drunk at the time of the offences. He gave as his reason for committing his invasion of the victim's premises that "I don't like drug dealers" and, for setting fire to the house, his explanation was "total stupidity". Miller was then charged by the police.
On 8 May 2002 Miller, now the respondent, pleaded guilty to a presentment alleging three charges, count 1 - aggravated burglary, count 2 - causing serious injury intentionally, and count 3 - arson, arising from the events previously described. The maximum penalties were, for aggravated burglary, 25 years', for intentionally causing serious injury, 20 years' and for arson, 15 years' imprisonment respectively. The respondent admitted previous convictions on 12 November 1979 for assault occasioning actual bodily harm and using indecent language in a public place, for which he was sentenced in each case to a fine. The sentencing judge properly treated these matters as irrelevant in sentencing the respondent.
During the plea on 8 May evidence was called on behalf of the respondent from seven witnesses, six of whom were witnesses as to the respondent's character and personal and professional life. As the judge said, they could not have spoken more highly of him and his contribution to the local community. They left the judge in no doubt that the respondent was a well-respected man who had made a very large contribution to those around him, and who was a committed family man to his wife and children. The seventh witness was a consulting psychologist, Ms Wendy Northey, who also provided a report. The thrust of Ms Northey's evidence was that the respondent had had a difficult childhood with an abusive alcoholic father and his mother had died when he was only nine. The respondent and his siblings have all suffered alcohol problems, and his life had been spent protecting others and dealing with their emotional needs rather than facing his own. This background together with excessive alcohol had caused him on this night to explode and completely lose control of his anger. Ms Northey's evidence was to the effect that as a result of some six months' counselling the respondent had developed insights into his problems and had strategies to deal with them, and that, at the time of sentencing, he had not drunk alcohol since July of the previous year. Ms Northey stated that the respondent had a very low risk of re-offending.
On 10 May 2002 the judge sentenced the respondent on count 1 to 2 years and 6 months' imprisonment, on count 2 to 12 months' imprisonment and on count 3 to 18 months' imprisonment. The judge directed that six months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 3 years' imprisonment. Her Honour directed that 2 years and 3 months of such sentence be partially suspended for a period of 2 years and 3 months, leaving the respondent to serve 9 months' imprisonment before release.
The Director of Public Prosecutions now appeals against the sentences imposed upon the respondent on three grounds, that first the individual sentences and secondly the total effective sentence are in each case manifestly inadequate and thirdly that the judge erred in ordering partial suspension of the total effective sentence. The notice of appeal includes as particulars of these grounds that the judge failed to take into account sufficiently the seriousness of the offences, general and specific deterrence, the effects and consequences of the offences upon the victim and the respondent's vigilante-style behaviour, and that her Honour gave too much weight to factors going to mitigation.
In his very sensible submissions to this Court Mr Mason for the respondent emphasised the need for the Crown to demonstrate specific error in an appeal against sentence; Dinsdale v. The Queen[1]. It was submitted that since specific error is not here alleged, the Crown must show such inadequacy as to demonstrate error in point of principle, something which it was submitted would only arise in a rare and exceptional case; Everett v. The Queen[2]. Counsel submitted that powerful mitigating circumstances had been demonstrated on behalf of the respondent including the fact that the respondent had surrendered to the police, together with pleading guilty at the earliest time, an indication both of his remorse and his acceptance of what he had done. Her Honour had found that the respondent was otherwise "a decent man" well-respected in the community for his exemplary contribution, who had spent his life protecting others and dealing with their emotional needs. He had overcome a difficult and deprived childhood with an abusive alcoholic father and had carried a difficult and debilitating emotional burden until he underwent counselling with Ms Northey. The judge had accepted that the respondent was "not the sort of man who would be expected to be involved in such offences", with a low risk of re-offending. It was argued that the assault was also not at the top end of the scale of injuries and that the victim had no long-term physical injury. To these matters might be added the fact that the sentencing judge appears to have accepted that there had been an orchestrated campaign in the local media (in Warracknabeal) at the time of the offences, designed at ousting non-locals who were said to be taking advantage of the local community, a quite irresponsible campaign couched in disparaging and inflammatory terms. In all the circumstances counsel submitted that the judge had understood the gravity of the offences and properly considered the necessity for general and specific deterrence. On the other hand, it was argued that her Honour had been justified in concluding that the need for specific deterrence was reduced. Further, it was put that any immediate custodial sentence would itself amount to condign punishment having regard to the respondent's exemplary character and the likelihood that any such penalty would put seriously at risk his occupation as a nurse. We were reminded that the discretion of sentencing judges should not be unduly circumscribed; Lowndes v. The Queen[3].
[1](1999) 202 C.L.R. 321 at paras. [58]-[62].
[2](1994) 181 C.L.R. 295 at 300.
[3](1999) 195 C.L.R. 665 at [15].
Mr Mason's principal argument was that this case represented a very difficult and quite exceptional situation for the sentencing judge. Her Honour was required to balance very powerful competing interests. On the one hand, there was the seriousness of the offences, the destruction of property, and vigilantism. On the other hand, the respondent was a person of absolutely exemplary character. The character evidence was exceptional, showing a man not just of good character but one who has built his life up from very difficult beginnings to a position of great respect and contribution to the community. Mr Mason also argued that, this being a Crown appeal, it had been put by counsel for the respondent during the plea that a partially suspended sentence was appropriate and counsel for the Crown had never said that the Crown opposed a suspended sentence. I do not think that this last argument can be made good, since in my view the Crown never in terms accepted more than that there could be a substantial differential between the head sentence and the minimum term.
It must, however, be said that the respondent's offences were particularly serious. The respondent had gone to the victim's premises specifically to assault him, and had attempted to recruit others to join in the attack. He must have known that the victim had a young son who was likely to be on the premises at the time of any such attack. The assault had been vicious and sustained, resulting in serious injuries to the victim and necessitating his admission to hospital. The respondent had then endeavoured to "reinforce his message" by returning to the house and setting fire to clothes in the laundry, realising the probability that the house would catch fire. The return to the victim's house and setting fire to it were clearly serious aggravating features of the offences. Arson is itself a very serious offence, on this occasion aggravated by the fact that when the respondent set fire to the victim's house, he had not first checked and was unaware whether there was any other person asleep or still in the house. The respondent's actions had left the victim with serious physical injuries, destroyed his home and car and left him and his son understandably with ongoing psychological problems.
In sentencing reasons, the judge had referred to the circumstances of the respondent's offending as "an episode of vigilante-ism based on no more than rumour and innuendo against the victim" and her Honour went on to say that "the offences represent a serious attack upon the proper system of law and order in the community and must attract serious penalty", statements with which I entirely agree. The courts have said on repeated occasions that vigilante enterprises will not be tolerated and must be suppressed; Whiteside and Dieber[4]; Sheekey[5]; Re A-G's Reference (Nos. 17 and 18 of 1994)[6]; Kennedy[7]; Demittis[8].
[4]114 A.Crim.R. 234 at [20]-[21] per Winneke, P. and at [23]-]24] per Brooking, J.A.
[5][1996] E.W.C.A. 385.
[6](1995) 16 Cr.App.R.(S) 418 at 421.
[7][2000] Q.C.A. 48 per McMurdo, P.
[8]Unreported, Court of Appeal, Qld, No. 122 of 1997, 22 May 1997 at pp.5-6.
There was ample evidence in the depositions before the judge to justify the conclusion that the respondent's behaviour was a vigilante enterprise. There were at least four statements from among those who had been with the respondent on the night of the attack recalling him talking about "scum and ferals" or "dickheads" who were to be driven out of Warracknabeal. The assault upon the victim and the burning of his property were both deliberate and vicious and carried out with a desire to punish the victim for behaviour in which the respondent believed the victim was involved. These actions displayed a desire to avenge and punish the victim with the respondent taking the law into his own hands and without proper justification.
Had the respondent's actions ceased at the end of his first visit to the victim's house, it is possible that the sentence imposed might have been regarded as at the very lowest end of the appropriate sentencing range. But the respondent continued on to reinforce his message by returning to the victim's house, setting fire to it and destroying his home and his car. In all these circumstances it seems to me, with great respect, that it is clearly established that the sentences failed adequately to reflect the seriousness of the offences, failed sufficiently to take into account general and specific deterrence, gave insufficient weight to the effects and consequences of the offences upon the victims and gave too much weight to factors going to mitigation. In my view, therefore, the Director's appeal must succeed and the sentences imposed below must be set aside.
Bearing in mind that any re-sentencing by this Court must be moderated to take into account the element of double jeopardy and the powerful factors of mitigation to which the judge referred in her sentencing reasons, I would re-sentence the respondent as follows: upon the first count, 3 years' imprisonment; upon the second count, 12 months' imprisonment; and upon the third count, 2 years' imprisonment. I would direct that 12 months of the sentence imposed on the third count be served cumulatively upon the sentence imposed on the first count, resulting in a total effective sentence of 4 years' imprisonment. I would fix a non-parole period of 18 months.
WINNEKE, P.:
I agree with the reasons which Charles, J.A. has given for allowing the Director's appeal. I also agree in the orders which his Honour proposes.
VINCENT, J.A.:
I also agree that this appeal should be allowed. I do so for the reasons advanced by Charles, J.A., and I agree with the disposition of the matter as proposed by him.
WINNEKE, P.:
The formal order of the Court is that the appeal is allowed.
The sentences imposed by the judge below are quashed and in lieu thereof the Court imposes the following sentences:
on count 1 - 3 years' imprisonment;
on count 2 - 12 months' imprisonment;
on count 3 - 2 years' imprisonment.
We direct that 12 months of the sentence imposed on the third count be served cumulatively upon the sentence imposed on the first count, resulting in a total effective sentence of 4 years' imprisonment. We fix a period of one year and six months before the respondent will become eligible for parole.
The Court declares pursuant to the provisions of s.18 of the Sentencing Act 1991 that the respondent has served 111 days pursuant to the sentence that we have imposed and we direct that the details of that declaration and the fact that it has been made be entered in the records of the Court.
Pursuant to the relevant legislation we direct in favour of the respondent that a certificate for the costs of this appeal be granted.
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