R v McMillan
[2018] VSC 819
•19 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0332
| THE QUEEN |
| v |
| DARIAN McMILLAN |
---
JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 October 2018 |
DATE OF SENTENCE: | 19 December 2018 |
CASE MAY BE CITED AS: | R v McMillan |
MEDIUM NEUTRAL CITATION: | [2018] VSC 819 |
---
CRIMINAL LAW – Sentence – Murder – Plea of not guilty to murder and guilty to manslaughter – Victim’s head repeatedly smashed into bitumen – Multiple serious injuries including traumatic brain injury – Accused suffered from major depressive and substance abuse disorder – Difficult background – Prior violent offending – Guarded prospects of rehabilitation – Sentenced to 19 years imprisonment with a non-parole period of 16 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Brown | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr C F Morgan | Sullivan Brown |
HIS HONOUR:
Darian McMillan, on 24 July 2018, after a trial that lasted five days, you were convicted by a jury of the murder of Brett Thomas.
At the time of his death you and Brett Thomas had been friends for about a year. You had both lived at the Rosedale caravan park. On 28 February 2017, you and Brett Thomas spent the evening drinking at a mutual friend’s house. You had been having issues with your partner and told the group that you had been kicked out of your home. You and Brett left your friend’s house together at about 9.50 pm. You left on foot as you were both too intoxicated to drive. There was apparently no animosity between you at that point.
Once you had reached the road outside your friend’s house the two of you got into an argument about Brett supposedly owing you oxycodone pills. You punched him to the head and he fell to the ground. You then smashed his head into the bitumen road a number of times.
A witness recalled seeing you walking back and forth in the middle of the road yelling and swearing. You appeared to be picking up an object from the road with both hands, then shoving it back down again with force.
A witness also saw you jump in the air and land on two feet. The witness was not able to tell if you were landing on the object, which by that stage the witness and her husband had identified as the body of a person.
You then walked off leaving Brett lying unconscious on the road. You later went to his caravan and searched it for oxycodone pills and generally behaved in a drunken and an obnoxious manner.
Neighbours who had heard the argument out in the street called emergency services. Paramedics arrived about half an hour later and, having recognised that Brett had suffered a very serious head injury, arranged for him to be flown by air ambulance to the Alfred Hospital. He died the following morning from the catastrophic injuries he had sustained.
After leaving Brett Thomas on the road and searching his caravan, you eventually ended up back at your own home. Your partner observed you as having blood all over your hands and clothing. After a short argument there you left and went to another friend’s house where you fell asleep on the couch.
At 1.45 am, police attended the house where you were asleep and they arrested you. You were taken to the Sale Police Station where a record of interview was conducted. The interview commenced at 2.52 am. You told the police that Brett had got ‘lippy’ with you on the walk home. You admitted that you had punched him to the side of the face. You said that the punch knocked him unconscious but that you had caught him as he fell to the ground. You said you then punched his head several times while he was on the ground. You told the police that at some point while he was on the ground he regained consciousness and became lippy again. You then got on top of him and grabbed him by the hair and smashed his head into the road at least half a dozen times. In the video interview, you graphically demonstrated what you had done and showed signs of great anger.
I accept that when first apprehended by the police you had no recollection of these events but after some time, your recollection of the events returned to you. In the record of interview you also said that you did not feel threatened by Brett and that he did not have any opportunity to fight back. You told police that you had not intended to kill Brett but thought that rendering him unconscious was as bad as it would get. Accordingly, when arraigned, you pleaded not guilty to murder and guilty to manslaughter and your trial was conducted economically in accordance with that plea.
Dr Matthew Lynch conducted a post mortem examination of Brett Thomas. He observed bruises, abrasions and lacerations to the head, as well as fractures to the skull and jaw. Internally, he observed a traumatic brain injury with multiple haemorrhages, contusions and swelling. He opined that those injuries were likely to be the result of blunt force trauma involving a severe degree of force.
In addition to the head injuries, Dr Lynch observed some chest and abdominal injuries. He noted a fractured sternum and multiple rib fractures in addition to significant lacerations and internal damage. He opined that the injuries were likely to have been caused by the application of significant compression force to the abdomen. The actual mechanics of the cause of the abdominal injuries is otherwise unclear. Dr Lynch accepted that the chest injuries, that’s the sternum injuries might well have been caused by medical intervention.
You were 37 years old at the time of the offending. You were raised in the Latrobe Valley. Your parents separated when you were six years old. You stayed with your mother for some time until you were 13 when, as a result of a conflict with your step-father, you moved to live with your father.
While living with your father, you had issues with your step-mother. You were placed in a home for troubled young people. You completed school until year ten but were expelled for fighting in year 11.
You have a very limited and intermittent working history. From an early age you worked as a circus clown. You later commenced a baking apprenticeship but did not complete it. You later worked for a fuel salvage business. After some time being unemployed, you worked for an engineering business. You eventually left that job due to difficulties with co-workers. Thereafter you had various casual forms of employment, including as a painter for a period of about three years.
At the time of the offending, you were on disability support pension because of your anxiety problems. You have described difficulty working with others. You have reported that you have worked only about 35 per cent of your adult life.
Earlier this year your younger brother Troy committed suicide. You have one other younger sibling and three half siblings. You have been in a relationship with your current partner for four years but prior to that you have never been in a long-term relationship and have no children of your own. Your earlier relationships appear to have been relatively short and broke down because of your drinking and associated paranoid behaviour.
Reports from psychologist Carla Lechner, dated 2 October 2018, and from psychologist, David Bruce dated 26 July 2012 (prepared for an earlier matter), were both tendered on the plea and they detail some of your personal background.
Ms Lechner notes that as a child you were bullied and experienced significant chronic domestic violence. You were both the receiver of abuse by your step-father and witnessed the abuse of other family members, particularly your mother. You reported to Ms Lechner that your step-father was a big man who would repeatedly hit you and your brother Troy with a belt. You recalled that on one occasion your mother was so severely assaulted that she had two black eyes but no police or medical involvement was sought through fear of reprisal from your stepfather.
Ms Lechner opined that you now suffer from a major depressive disorder. Until being remanded into custody you also suffered from a substance abuse disorder. You abused alcohol, opioids and cannabis. In light of your upbringing Ms Lechner wrote that your mental health and substance use issues were related to complex developmental trauma, chronically low self-esteem, a high level of anxiety, hypervigilance and poor interpersonal relationships. That being said your relationship with your present partner continues so you have some hope of stable and ongoing support from her. According to the submissions made on the plea, you also have the support of her children.
I turn now to your criminal history. Your record is reasonably significant although it does not include a great deal of serious violent offending. You first came into contact with the criminal justice system in 1996 as a child. Between that year and 2001 you appeared before the Magistrates’ Court on five separate occasions for theft and alcohol related offences. In 1999, you received a 12 month Community Corrections Order for theft. The following year you received a sentence of five months’ imprisonment that was wholly suspended for multiple counts of theft. In 2001 you were sentenced to a three month Community Correction Order for intentionally damaging property and being drunk in a public place. You appeared to have completed that Community Correction Order and you did not appear before the court again for another five or so years.
In 2006, however, you were charged with alcohol related offending, namely being drunk in a public place, behaving offensively in a public place, using indecent language and acting in a disruptive manner. You were again charged with similar offending in 2010 and also in 2011. You received a series of fines and were imprisoned for a total period of eight days on those charges.
More relevantly, in 2012 your offending escalated. You were convicted of aggravated burglary and recklessly causing injury. That offending occurred as a result of you having approached the house of a friend whom you believed owed you money, on one version of events, and having a fight with him. You were sentenced to two years’ imprisonment with a non-parole period of 13 months. You were granted parole but ultimately served the whole of your sentence in custody as a result of you having breached parole. I will say more about this offending later in these reasons.
Your most recent criminal convictions occurred in August 2016, about six months prior to the murder of Brett Thomas. You were convicted of theft, arson, throwing a missile to damage property, entering a private place without excuse, making a threat to kill and making a threat to inflict serious injury, stalking, assault and using a carriage service to menace and harass. The bulk of that offending also occurred subsequent to you having an argument with your partner. You were drunk and approached a vacant property. You broke in, intending to spend the night there, but instead set fire to the premises and burnt it to the ground. A magistrate imposed a two year Community Correction Order for that offending. When you murdered Brett Thomas you were still on that Community Correction Order.
You therefore have limited prior convictions for violent offending but the convictions from August 2012 are particularly relevant. I also notice that you managed at times to go for periods, even approaching some years, between offending. You have a significant history of alcohol and drug abuse going back over many years and involving many illicit substances. At the time of the offending you were probably addicted to OxyContin, which was connected to your offending. You were also addicted to alcohol and had been so addicted for many years. You were last abstinent from alcohol for about six months in 2005.
Ms Lechner considers that your prospects of re-offending are guarded. She opined that you present a moderate to high risk of violent behaviour. That risk can be reduced through abstinence from drugs and alcohol and through psychological assistance. She regards you as having reasonable rehabilitation prospects. Again, if you engage with treatment programs, abstain from alcohol and drug abuse and retain the support of your parents and your partner, Ms Lechner regarded you as being motivated to reform.
Lastly, you have used your time spent on remand constructively. You have held the relatively trusted position of working in the prison kitchen and trained in a formal hospitality qualification. At the time of the plea you had attained your Certificate II and were working towards your Certificate III. Whilst in custody you have been prescribed Cipramil, and later, Doxepin, but you told Ms Lechner that the medication had not been of much help to you.
I regard your prospects in general, and of rehabilitation in particular, as being guarded at best because it is so difficult to predict the future. You will be in custody for a very long time. Upon your release you will be more mature and hopefully abstinent from alcohol and drugs and have support on parole for some years.
Brett Thomas was 46 years old at the time of his death and he had two young children. In 2003 he had suffered a serious back injury in a workplace accident and had been on a disability pension for a number of years. He was heavily reliant on pain management medication.
I received victim impact statements from Nena Mackenzie, Brett Thomas’ mother, Terry Wykes, his stepfather, Catherine Armstrong and Cheryl Ashman, Brett Thomas’ aunts. Those victim impact statements were either tendered or read on the plea. They described Brett as a cheery and loving man who was very dedicated to his family and who will be much missed. I take into account the impact that the death of Brett has had on his family and those around him. The victim impact statements detail the significant pain and trauma which continues to result from the offending, and particularly the circumstances of it.
Although you pleaded not guilty to murder and a trial took place, it proceeded on one issue only, that of intent. You made admissions to having caused the injuries which caused Brett Thomas’ death in that you pleaded guilty to manslaughter. By virtue of that plea you have shown some insight into your offending and I have taken that concession, and the economic way in which the trial was conducted, into account.
According to Ms Lechner you are deeply regretful for your actions. You express general empathy for the victim and his family and I accept her report.
Emphasis was also placed on your demonstrated ability to keep out of trouble for long periods. Some reliance was placed upon Ms Lechner’s diagnosis of major depression. As I have already said, I take that diagnosis to be at the time of the report. I accept that you have the support of your partner and I have taken into account the circumstances of your upbringing and the difficulties that you suffered as a young person.
The Crown conceded, and I accept, that your actions were not premeditated. As you have since described it, you ‘snapped’. The Crown described your offending as brutal and a relatively sustained attack. The seriousness of the offending was aggravated by the fact that you walked away and left Brett Thomas alone, unconscious on the road. It was further aggravated by virtue of the fact that you were completing a Community Corrections Order at that time.
The circumstances of the 2012 offending are of great concern. As I have already said you were convicted in the County Court here, on 14 August 2012, of aggravated burglary and recklessly causing injury, and sentenced to a total effective sentence of two years’ imprisonment with a non-parole period of 13 months.
That offending involved an attack on a friend who you thought had changed his allegiance away from you to another friend. Although you also claimed to be owed money, you were mostly driven by matters of personal affront. You were armed with a knife when you came to the home of your friend and attacked him. You told the police that you tried to stab the victim in the throat and in the chest. You were quite persistent in your attack and had to be restrained by others. You were under the influence of alcohol.
At that time, as set out in the report that was tendered on the plea, Mr Bruce suggested that you were suffering from an intermittent explosive disorder, which in the presence of alcohol he regarded as a dangerous problem. He thought that you might, for general medical reasons, reduce your alcohol intake after that, which might improve things. You appear to have learnt nothing from that experience.
In the circumstances, the fact that you were released on a Community Corrections Order for your offending in 2016 was remarkably lenient. It was yet another example of your behaving on uncontrolled impulse. It is likely that you had kept out of the hands of the authorities for about two years between the offending in 2012 and the offending in 2016. You were in custody for two of the years, but you did not appear to have re-offended in the other two years. So there had been a glimmer of hope, and I suspect that is the reason for which the magistrate imposed a Community Corrections Order, designed in part to give you assistance with your alcohol and drug problems. That assistance came to nothing.
Your failure to take advantage of the opportunities offered to you makes this a more serious example of the crime of murder than it would otherwise have been. This is not an isolated outburst.
I am obliged to have regard to just punishment, denunciation, protection of the community, and both general and specific deterrence.
Although I was asked on the plea to consider a period of parole which was longer than usual, I have considered the matter and have not done so. I do not regard that as an appropriate course. The non-parole period must of itself serve all the purposes of sentencing.
If, however, you progress to the point that you are, after a quite long sentence, released on parole, I am satisfied that the period I have fixed is sufficient time for you to be supported within the community by the parole board.
Would you stand up please.
Darien McMillan, you are sentenced to be imprisoned for 19 years and I fix a period of 16 years before you will be eligible for parole.
I declare that you have by way of pre-sentence detention served 658 days. I order that this declaration be entered in the records of the court.
- - - - -
0
0
0