R v Miller
[2010] VSC 326
•28 July 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0033 of 2010
| THE QUEEN |
| v |
| ANDREW GILBERT MILLER |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2010 | |
DATE OF SENTENCE: | 28 July 2010 | |
CASE MAY BE CITED AS: | R v Miller | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 326 | |
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CRIMINAL LAW – Causing Serious Injury Intentionally – Making threats to kill – Assault on partner – Guilty Plea - Effect of alcohol on offending – Prospects of rehabilitation – Sentenced as a Serious Violent Offender – R v Verdins, Buckley & Vo (2007) 16 VR 269 – Sentencing Act 1991 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Payne | Office of Public Prosecutions |
| For the Accused | Mr A.J. Lavery | Victoria Legal Aid |
HIS HONOUR:
Mr Andrew Miller, on 21 April 2010, you pleaded guilty to one count of intentionally causing serious injury and one count of making a threat to kill. On 7 June 2010, I heard your plea in relation to those matters.
The circumstances of the offence need to be stated in some detail, and I call heavily upon the Crown opening, which was read in Court and became Exhibit 1 on the plea.
Facts
On Friday 26 June 2009, you and your then partner drove from Bacchus Marsh to Ballarat in a silver Mitsubishi Nimbus wagon belonging to your partner’s mother. It was registered in Queensland. At about 6.00pm whilst en route, your partner contacted the Peter Lalor Hotel on her mobile telephone and booked a room in her name. Between about 7.30pm and 8.00pm you arrived at the hotel and informed the barman of your presence. The hotel was extremely busy and you were forced to wait before being able to access your room.
The two of you decided to have a few drinks while you waited. At about 9.20pm you both approached the publican, Kerrie Carney, and enquired about the room you had booked. You were then registered in Room No.6 and your partner paid cash for the room for two nights. The publican showed you both around the bar area and then you alone followed the publican upstairs where you were shown the accommodation. Your partner remained in the bar area awaiting your return.
Shortly after your return to the bar area, you met with your partner and you both proceeded to go out and get your belongings from the car and bring them to the room. After that, you went to the beer garden area of the hotel and recommenced drinking. Your partner consumed approximately six beers with vodka shots. You were drinking Jack Daniels and had consumed approximately 10 to 15 drinks at the hotel, in addition to come Jack Daniels cans during the drive.
Whilst in the beer garden, your partner was socialising with other patrons present. It was the Crown allegation that at that point you became agitated and jealous due to your partner speaking with other males. You then her and an argument ensued within the beer garden, you telling your partner to come back inside and accusing her of flirting.
Your partner chose to leave and went upstairs to the room and you followed her. About 11.15pm, the publican walked upstairs to enter the office area and, as she walked past the open door to your room, she heard you and your partner having an argument. What took place thereafter forms the basis of the charges to which you have pleaded guilty. You pinned your partner on the bed and told her you were going to kill her, but that first, she was going to feel pain.
At various times throughout the altercation, your partner, Ms Johnson, tells of being struck about the head. You put your hand over her mouth, stopping her from breathing. You repeatedly told her you were going to kill her. You claimed you wanted her to feel what it was like to suffer like you had, and to feel what it was like to die.
You covered her mouth when she tried to yell, and at various times also covered her nose so she could not breathe, and she started to pass out. It is claimed that you attempted to strangle her, all the while continuing to strike her. It should be noted, however, that in relation to the question of strangulation, there was no physical evidence that indicated that had taken place.
One of the things about the factual circumstances of this case is that your memory, affected by the alcohol you had consumed, has created a series of difficulties, and the other is that many of the things attested to by Ms Johnston, are as much matters of perception as they are of fact.
At one point Ms Johnson pretended to have passed out and you slapped her across the face, telling her, “Wake up, bitch, you’re not dead yet.” You later told the police, “I put the fear of death into her, I don’t know why, I just tried to kill her, I strangled her, I put my hands around her throat, I brought her back to consciousness and revived her and took her back to the point of unconsciousness and revived her, continuously. I wanted to kill her and I wanted to die myself.” It is remarks such as that, that have to be read in the context of the remarks I made earlier.
At one stage, Ms Johnson attempted to bite your hands. To prevent her doing so, you had apparently attempted to jam your fist into her mouth, which caused the crown or cap on her tooth to break free. You then forced her jaws apart, causing extreme pain. You bit her on the ear and nose and then held your hand over her mouth in an attempt to stop her from breathing. With your free hand you grabbed a pillow and smothered her face with it. Ms Johnson lost the plate in her mouth and it was at this point she claims she thought she was going to die. You then grabbed the doona cover from the bed and wrapped Ms Johnson’s head in it. She thought she was being suffocated.
You then, believing that you had killed Ms Johnson, left the hotel and drove her mother’s vehicle to the Ballarat Railway Station, where you collided with a bollard. Shortly after the collision, you exited the vehicle and walked to the Ballarat Police Station. You entered the foyer there at approximately 2.15am on Saturday, 27 June 2009.
There, you spoke to a uniform police officer, Leading Senior Constable Ryan. You provided Ryan with your name and further stated your partner’s name and you believe that you had killed her. You were then arrested and placed in a holding cell due to your apparent state of intoxication. In the meantime, Ms Johnson had regained consciousness and requested an ambulance to attend the hotel.
Ambulance officers, Peter Risstrom and Kylie Nash, arrived at the scene at 1.39am and attended Ms Johnson in Room 6 at 1.40am. They obtained a brief history from her, during which she stated she had been assaulted by her partner and he had tried to kill her by suffocation. That he had hit her with his fists and bitten her ears. Ms Nash states she observed two very minor cuts, one on each ear, a scratch on Ms Johnson’s nose, significant swelling to her face and some bruising. She was conveyed by ambulance to the Ballarat Base Hospital for treatment.
Two other police officers arrived at the hotel at 1.46am and then attended the Base Hospital at 1.55am. They made observations of injuries received by Ms Johnson, which included swelling to her lips, lacerations to her left and right ears, bite marks, a small cut to the bridge of her nose, swelling to both cheeks and a missing tooth, and I have already explained the circumstances surrounding the tooth. No injuries were observed on her neck. Photographs were taken. She was treated before being later released and placed in emergency accommodation.
You underwent a breath test at 3.45am, which disclosed a reading of 0.124 per cent and were subsequently held in police custody pending interview in relation to the incident. From our knowledge of these things, it seems safe to assume that nearly four hours earlier your blood alcohol reading would have been much more substantial than that.
On Saturday, 27 June at 10.37am, a formal record of interview was conducted and you told the police you had been drinking all day and all night and were extremely intoxicated. You knew what you were doing and that anger makes you know what you are doing. You had been back and forth and “watching different cunts talking to her” and you confronted her about being a flirt. You further made admissions to slapping her, sticking your hands into her mouth to stop her from biting you, which resulted in her tooth being broken in the process and also trying to suffocate her. You further claimed that you needed money so that you took $150 from her and left.
As I have already stated, I regard you as being a somewhat unreliable historian in relation to some of your conduct and I have set out the matters that I am prepared to accept.
If I could indicate, there were some matters included in the opening which purported to set out other episodes of violence. They do appear in the written opening. They were not relied upon by the prosecutor in the final event because the admission of them was opposed by your counsel.
It does seem, though, that on the reading of Ms Johnston’s statement, without accepting the detail of those matters, there were some difficulties between you from time to time in the relatively short relationship that had.
The maximum penalty for causing serious injury intentionally is 20 years’ imprisonment and for making a threat to kill, 10 years.
In relation to the count of making a threat to kill Ms Johnston, you fall to be sentenced as a serious violent offender if, as is inevitable, I impose a sentence of imprisonment with respect to Count 1. The consequences of that are that I may impose a disproportionate sentence on that charge. I do not intend to do so and it was not urged upon me that I should.
I must have regard to the proposition that the principal purpose for which the sentence is to be imposed on that count is the protection of the community. There is also a general presumption in favour of accumulation of the two sentences but I will, for the reasons set out later in these reasons, make an order for partial concurrency.
I received a victim impact statement from Ms Johnston. It is fair to say that she has made a full recovery from her physical injuries, but she continues to suffer very significant psychiatric consequences which affect the whole of her life. She says that it has led to her abusing alcohol in combination with prescription medication, although it is fair to say on your behalf that she already had problems in relation to alcohol at the time she was in the relationship with you. Yet this must have been an absolutely terrifying experience for her and will have at least long-term consequences relating to the way she will be capable of living the rest of her life and in relation, particularly, to the way that she will be capable of having fulfilling relationships with other males.
Background
Your background is a difficult one. You have 64 prior convictions from 34 appearances. They fall into four main groups: dishonesty, driving offences, street offences and domestic violence offences. You have been sentenced to many terms of imprisonment, the last of those in May 2008 for breach of a domestic violence order. I should make it clear that when I say you have prior convictions for domestic violence offences, they are prior convictions for breach of domestic violence orders, although one of those, as I will refer to in a moment, is associated with a count of assault.
I observed on the plea that your record does reflect the drinking problems which you have had for the whole of your adult life and confirmed the fact that you are an alcoholic. Although you do not appear ever to have been on parole, you have had many community-based dispositions, none of which appear to have been successfully completed.
Two sets of prior convictions do not appear on your record. Your record shows that on 20 January 2003 you were dealt with for breach of a suspended sentence imposed for driving whilst disqualified in August 2002. Also, that on 12 April 2005, you were dealt with for breach of an intensive corrections order for driving whilst disqualified on 23 November 2004. Neither of those convictions appear on your record.
I reflect, however, that it is a matter of little regard when I look at your record as a whole and there can be no debate, and it would be readily accepted, that when it comes to driving motor cars during periods of disqualifications and when affected by alcohol, you are simply a serial offender.
For present purposes, it is more important to note that between January 2003 and May 2008, you had been convicted eight times for breach of domestic violence orders and two breaches of bail conditions. One of the breaches of a domestic violence order had a charge of assault occasioning actual bodily harm associated with it. I know no details of that event, I simply make that observation.
I observe, however, that between 1 November 2005 and 27 June 2009 when you committed these offences, you were dealt with for a total of four offences and that, although you spent 20 months in gaol, during that period in prison, you appear to have been in less trouble with the authorities. I am prepared to accept that you were making a genuine attempt to refrain from alcohol.
On the plea, I received a report from Mr David Ball, an experienced forensic psychologist, dated 21 May 2010. He had seen you in the Metropolitan Remand Centre for a total of two hours. He usefully sets out your background.
You are 43 years of age, you were born in Tasmania, you are the youngest of four children with two brothers and a sister. Your father was an exploration driller in the mining industry and the family moved regularly including some time spent in Africa.
It followed that your schooling was disrupted. Your father was a violent alcoholic and took it out on the family. It is a regrettable matter to observe, Mr Miller, but many people who find themselves in your situation do so particularly as a result of what has happened to them in their own childhood.
Your parents separated when you were about 15 and you were sent to live with your father because you were regarded as uncontrollable, and your schooling had, it was said, “completely collapsed”. Not long after you went to live with your father, you were employed in the Gosford abattoir. By the time you were 16 you were drinking in hotels with your father on a regular basis, and by the time you were 19 you were an alcoholic.
At that age, you commenced a relationship with your partner, Dianne, which was to last until 2002 or 2003. There are six children of the relationship, three sons and three daughters. Mr Ball says about it:
Mr Miller said he lost everything in the separation and remains profoundly grief stricken over the loss of his relationship and family. He said with the exception of his oldest daughter, who now has a family of her own, all his children live in Queensland with her mother. Further, Mr Miller said he met the victim, Kerrie, in Queensland and had been a relationship for about six months. He described the relationship as turbulent.
There are a number of other matters relevant to my consideration reported by Mr Ball. Under the heading, “Mental State Examination”, Mr Ball said:
Mr Miller’s mental state examination was characterised by signs and symptoms of depression and anxiety. He said that his appetite was normal, he feels physically fit and that his sleeping was disturbed by terminal insomnia. He presents with dysthymic mood relating to unresolved grief from the separation of his first partner and children, and to a lesser extent the relationship with the victim. Mr Miller’s mental state was also affected by significant self-defeating personality features and crushingly low self-esteem. He said he had suffered high anxiety over the lengthy remand, loss of relationship and seriousness of the charges. He said, ‘I’m disgusted at myself. This is not who I am’. He wept openly when describing his remorse and self-loathing. Mr Miller exhibited no signs of frank mental illness such as psychotic ideation, hallucinations or delusions in his speech or demeanour. His immediate recall, short-term memory and long-term memory appeared to be intact in clinical interview, and he was orientated to time place and person. Mr Miller said that he was stabbed by ‘Kerrie’s (victim) ex-boyfriend in Queensland’ in May 2009, a fact confirmed by his medical records. He reported no symptoms related to post-traumatic stress disorder and has recovered physically from the attack. He said the attack ‘plays heavily on my mind. I should have known better’. Mr Miller impressed me as a man who exercises generally poor judgment which deteriorates rapidly when affected by alcohol. He expressed insight into his offending behaviour and some insight to his general psychological functioning. I would estimate his IQ to fall within the normal range.
Later Mr Ball said, when speaking about “Current Situation”:
Mr Miller explained the charges and said he was deeply in love with the victim. He said she was an alcoholic and would start drinking at 6.00am. She was drunk and flirting with other patrons in the hotel. ‘I had drunk at least half a litre of Jack Daniels mixers. Probably more, I was pretty drunk’. Mr Miller said he remembered the assault on the victim and lost control of himself under the effects of alcohol. Mr Miller expressed what I judge to be genuine remorse and regret for his offences, and has written a letter of apology to the victim. Complicating his remorse is a significant self-defeating behaviour and equally significant self-loathing, and he has repeated throughout both clinical interviews, ‘I’ve become like my father, a violent alcoholic. I deserve to be shot for this. I hate myself. She copped the backlash of all the shit in my life’.
Then under the heading, “Professional Opinion” he said:
In my view Mr Miller is significant affected by unresolved grief or bereavement for the loss of his family to separation and his own self-defeating behaviour and alcoholism. Bereavement, according to DSM4TR, is characterised by the grieving for the loss of a loved one, not necessarily through death, which may bring with it symptoms of a major depressive episode including feelings of sadness, insomnia and appetite disturbance. The DSM4TR states that: ‘The duration and expression of bereavement may vary from person to person and may also be influenced by a person’s culture’. Mr Miller remains angry, self loathing and guilt ridden over the actions he took and did not take leading to the loss of loved ones through separation. He maintains a morbid preoccupation with his own worthlessness and suffers prolonged and marked functional impairment. Clearly, Mr Miller’s unresolved grief underpins some of his negative affect, anger at himself and the world and consequent self recrimination and episodes of dysphoric (sad) mood. My view is that Mr Miller’s recent offences stem from his unresolved grief and grief related anger at himself and the world for the separation of his family. Mr Miller’s anger and grief has remained simmering under the surface in daily functions. This was unleased in a burst of fury when he was disinhibited by alcohol and found his then partner flirting with men in the bar, aggravating and igniting the paranoid and competitive features of his personality.
Although you had told Dr Ball that you had stopped drinking when you separated from your wife and had only recommenced it “on the night of this offending”, I am not prepared to accept that that was so. The description by Ms Johnston of your drinking cans of Jack Daniels and Coke in the car, without it being a matter of any surprise to her, seems to undermine that assertion, as do some of the other things that were said to Mr Ball.
I do accept that you do have some insight into the causes of your offending. I accept that you are remorseful. I accept that you have tried to communicate your apology to Ms Johnston by sending her a letter through the informant. I accept that if you are able to avoid alcohol in the future, you have reasonable prospects of rehabilitation.
I have regard to the fact that, although your mother has been present in Melbourne to support you, that may not remain the permanent position and that you have little other support. You do not appear to do well in the prison system, but I regard much of that as being matters within your own control.
I was urged, because of the matters set out by Mr Ball, I should have regard to the principles in R v Verdins[1] when sentencing you. That case makes it clear that psychiatric conditions which lead to impaired mental functioning may lead to a reduction in sentence. Although I am prepared to accept and take into account your psychological condition, I do not accept that the Verdins principles can be applied in your case. I say that because at the very root of your offending is your addiction to alcohol. You know where excessive drinking leads you. It may be that in certain circumstances such a position would be a matter of aggravation. I have not been urged to do so and I do not do so.
[1](2007) 16 VR 269.
I observed on the plea, and I find, this is not a particularly serious example of the offence charged, that is, the offence of intentionally causing serious injury, but it must have been a very harrowing, very frightening and terrifying experience for Ms Johnston. I suspect that you are a formidable person when out of control.
I take into account, and I regard it as an important feature of the case, that you have pleaded guilty, because it does reflect the desire that you have to make some amends for those things that you have done. It is nonetheless a very serious offence in our series of offences, and you do have a significant criminal history which I am obliged to take into account.
In relation to the count of making a threat to kill, I have decided that since that offence occurs as an essential part of the first offence, and is bound up inextricably with it. This is particularly so in relation to the fact that the injury which must constitute the serious injury in this case has as much to do with Ms Johnston’s psychological reaction to these events as it has to do with anything else, which did include the numerous occasions on which you uttered words that involved making a threat to kill.
If you would stand up please.
On Count 1, causing serious injury intentionally, you are sentenced to be imprisoned for four years and six months.
On Count 2, the count of making a threat to kill, you are sentenced to be imprisoned for one year.
I order that six months of the sentence on Count 2 be served concurrently with the sentence on Count 1, that is a total effective sentence of five years. I direct that you serve a non-parole period of three and half years before being eligible for parole.
There is some tension that arises in that regard. I had been urged to impose a longer than usual non-parole period. I did not, in the final analysis, accept that submission. I think that a non-parole period of up to 18 months will be as helpful as it can be to you on the one hand and will not provide too long a period of risk to you on the other of re-offending, and that is why I have fixed that particular non-parole period.
I declare that in relation to Count 2 you are to be regarded as a serious violent offender, and I direct that the declaration and its details be entered in the records of the Court. I state that, had it not been for your plea of guilty, I would have sentenced you to have been imprisoned for seven years with a non-parole period of five years, and I order that that statement and its details be entered in the record of the Court.
I declare that 396 days be reckoned as already served under this sentence and order that the declaration and its details be entered in the records of the Court. I confirm that on the occasion of the plea, I signed orders both for a DNA sample and orders under the Confiscation Act, so those orders have already been made.
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