DPP v Miller

2 For the purposes of sentencing you for that offence, it is necessary to outline, in a little detail, the background circumstances to your offending.

3 At the time of the offence, you were living with your co-accused, Jacinda Brown, in Kensington. Both you and Ms Brown were frequent users of the drug heroin. On the evening of 10 October 2020, she and you attended together in King Street, Melbourne outside the Ibis Hotel. At that time, the Ibis was providing accommodation for homeless people during the COVID-19 pandemic. Ms Brown and you attended there on that date for the purpose of purchasing some heroin. Ms Brown was carrying a bag which contained, among other items, a black handled Mint knife that was 24 cm in length.

4 At that time, your three other co-accused, Benjamin McCartin, Candice Harper and Jamie Holt were living in the Ibis Hotel. At about 8:00 pm, McCartin was involved in an altercation with the victim, Ricky Rowlands, outside the front entrance of the hotel. Rowlands got the better of McCartin in that altercation, and threw him onto a parked motor vehicle, causing him to suffer some discomfort to his ribs and his nose.

5 Ricky Rowlands was then living in Princes Hill. Some years previously he had suffered a head injury. Following that, he formed the habit of drinking alcohol to excess, and, when intoxicated, he would travel to the central business district, where he would become involved in violent altercations with other people. On some occasions, during the period immediately preceding 10 October 2020, Rowlands had attended outside the Ibis Hotel in such a state.

6 On the evening of 10 October, Rowlands was plainly in such a condition. The evidence of the witnesses, and of the CCTV footage, depicted him pacing up and down the footpath outside the Ibis Hotel, demanding to be permitted to enter it, and making threats to assault McCartin, Harper and Holt, who were then inside the hotel

7 At about 9:25 pm, you took hold of the knife that had been in the bag carried by Jacinda Brown, and entered the Ibis Hotel with it on your person. At the trial, the prosecution contended that you entered the hotel for the purposes of meeting up with McCartin, Harper and Holt. Consistent with the verdict of the jury, I am not satisfied that that was the purpose for which you entered the hotel. Rather, I am satisfied, on the balance of probabilities, that you went inside the hotel in order to attempt to purchase heroin for yourself and Ms Brown. While you were in the hotel, you did at one point meet with Holt, who was Candice Harper's then partner.

8 You then returned outside the hotel where you remained with Jacinda Brown. A short time later, you were joined by Harper and Holt, and then by McCartin. You were a long-standing friend of Harper, who you described as your 'mate'. During that time, Rowlands was walking up and down along the footpath of King Street near the Ibis Hotel. The CCTV footage depicts you showing your knife to Harper, and it would appear that you were offering it to her.

9 Shortly after that, Holt took possession of the knife. He and McCartin then walked purposefully in the direction of Rowlands, who was north of the Ibis Hotel. An altercation then ensued between Harper, Holt and McCartin on the one hand, and Rowlands. In the first phase of the altercation, Holt brandished the knife at Rowlands, who backed out onto King Street. The confrontation came temporarily to an end when it was interrupted by traffic which was trying to drive past the participants. Then, in what was described as the second phase of the incident, McCartin took hold of the knife, and stabbed Rowlands three times with it, while Rowlands was being restrained by Harper and Holt. As a consequence, Rowlands collapsed on the footpath, bleeding profusely. On the following morning, he died in hospital as a result of the stab wounds inflicted by McCartin.

10 Immediately following the incident, McCartin and Holt made their way back towards the Ibis Hotel. As they did so, McCartin handed the knife to you. It is your conduct in taking possession of the knife, and what you did with it, that constitutes the offending for which you are to be sentenced.

11 Having taken possession of the knife from McCartin, you accompanied Holt and McCartin back into the hotel. You then parted company from them, and you and Ms Brown then walked south down King Street and turned right into Little Collins Street, where you placed the knife on a window ledge. You and Ms Brown then made your way home. The knife was subsequently located by police on the same ledge.

12 At about 3:45 pm on the following day, 11 October, you telephoned the Moonee Valley Police Station from a public telephone box. You told police that you were worried about an incident that had occurred in King Street earlier that morning. You gave the police your name and date of birth, and said that you were calling from a pay telephone within the Newmarket train station. You said that you would leave a bag with a jacket in it by the pay telephone. Police later attended, but the bag of clothing was not located by them.

13 Subsequently, on 11 November 2020, Ms Brown and you were arrested at the house at which you were residing in Kensington. When you were interviewed by police, you said that you did not see what had occurred in the incident, and you did not see Rowlands bleeding on the ground. You also said that after the incident you found a knife in your bag, which, you assumed, McCartin must have placed there. You told police that you had taken hold of the knife and put it on the shelf. Plainly, by its verdict, the jury did not accept your version of the events.

14 As I have stated, at the trial you and Ms Brown were each charged with the manslaughter of Ricky Rowlands. That charge was based on the proposition that you had each provided the knife to Holt with the intention that it be used by Holt and McCartin together to unlawfully stab Rowlands. By its verdict, the jury was not satisfied beyond reasonable doubt of your guilt on that charge. Thus, you are not to be sentenced on the basis of your conduct in providing the knife to Holt, nor are you to be sentenced in respect of any aspect of the incident in which McCartin fatally stabbed Rowlands. I have briefly summarised those circumstances because they are a relevant context to your offending, under charge 3 of the indictment, for which you are to be sentenced.

15 In essence, the prosecution alleged, on the alternative charge, that you were guilty of assisting an offender, because, when you received the knife, you knew that McCartin had committed the criminal offence of intentionally causing injury to Rowlands, and you received the knife and attempted to conceal it for the purpose of impeding the apprehension of McCartin for that criminal offence. At your trial, the principal issues, in respect of that charge, were whether the jury could be satisfied beyond reasonable doubt, first, that, when you took possession of the knife from McCartin, you knew that McCartin had stabbed Rowlands with it, and, secondly, that you took possession of the knife and concealed it for the purpose of impeding the arrest of McCartin for the offence of intentionally causing injury to Rowlands. By its verdict, the jury was satisfied beyond reasonable doubt of each of those two key elements of the charge of assisting an offender.

16 Accordingly, I am to sentence you on the basis that, at the time at which you took possession of the knife from McCartin, carried it to Little Collins Street, and concealed it on the window ledge there, you knew that McCartin had unlawfully used the knife to stab and injure Rowlands, and that you had taken possession of the knife, and attempted to conceal it, in order to impede the arrest of McCartin for that criminal offence.

17 The maximum sentence, for assisting an offender who has committed the offence of intentionally causing injury to another person, is five years' imprisonment. Your offending in the present case was a serious instance of such an offence. Based on the verdict of the jury, and on the CCTV evidence, it is clear that you had observed at least the part of the incident in which McCartin had used the knife to stab Rowlands in the chest and upper body. Your conduct in taking the knife from him, and concealing it, in those circumstances, was reprehensible. You may have been motivated, in part, by a degree of panic, arising from a concern that you yourself might have been implicated in the serious offence which you had observed being committed by McCartin. Nevertheless, by your conduct, you endeavoured to assist McCartin to avoid being arrested for a callous act of criminal violence.

18 In mitigation, it is to your credit that, on the following day, you did telephone the Moonee Valley Police Station. In view of your background and circumstances, your conduct in doing that does point to some degree of concern and insight by you into the gravity of what you had observed and what you yourself had done.

19 You do have a very lengthy and substantial criminal history, dating back to 2001. A substantial part of your previous history consists of offences for dishonesty and minor drug offences. However, you do also have previous convictions for possessing a controlled weapon without excuse, recklessly causing injury, intentionally causing injury, and assault.

20 You were first sentenced to a term of imprisonment in May 2009. On that occasion, you were sentenced to an aggregate sentence of 3 months' imprisonment on charges that included eight charges of theft from a shop, a charge of recklessly causing injury, and a charge of breach of an intervention order. Subsequently, you have received a number of further custodial sentences. In October 2012, you were sentenced by the Sunshine Magistrates' Court, in respect of a number of dishonesty offences, to an aggregate term of 10 months' imprisonment. In January 2014, you were sentenced by the Bendigo Magistrates' Court to an aggregate 6 months' imprisonment for offences that included intentionally causing injury, theft and going equipped to steal. In July 2016, the Bendigo Magistrates' Court sentenced you to a further aggregate term of 3 months' imprisonment on charges that included threatening serious injury, unlawful assault, theft from a shop, and committing an indictable offence while on bail. I also note that you were on bail at the time at which you committed the offence for which I am to sentence you.

21 In respect of your personal life, you were born on 10 February 1982, and you are forty years of age. Your father passed away when you were a young child, and you were raised by your mother in your home in Werribee, together with your twin sister and older brother. It would appear that you were diagnosed with Attention Deficit Hyperactivity Disorder when you were a child, and you did not progress well in your formal education. When you were approximately ten years of age, you were involved in an accident, as a result of which you suffered traumatic burn injuries which required a substantial period of hospitalisation.

22 You lived with your mother and two siblings in the family home in Werribee until your mother passed away in 2007. Since that time, you effectively became homeless until you were able to secure permanent housing in a Department of Health and Human Services unit shortly before your arrest on this matter. You have only worked intermittently during your adult life. On occasions you have been employed as a track rider or jockey, and you have performed casual hospitality work. Your most recent form of employment was as a window washer.

23 The most prominent feature of your background is the fact that you have been a long-term user of the narcotic heroin for approximately twenty years. From time to time, you have been able to abstain from using it, but you have been unsuccessful in remaining permanently off it. Your heroin use escalated significantly after your twin sister passed away in March 2018, and you were using the drug frequently at the time of the offending. The fact that you were involved in heavy drug use at the time is not a factor in mitigation of your sentence. However, it does explain how you came to have the kind of lifestyle which culminated in the tragic circumstances in which you became involved on the night of the offending. During your recent time in custody, you have made commendable effort to try and wean off heroin, and recently you have been reducing the doses of methadone which has been prescribed for you to enable that to occur.

24 You have informed your legal representatives that you have an acquired brain injury which you sustained in a motor vehicle collision some twenty years ago. I have not been provided with a report confirming that diagnosis. However, the Bendigo Magistrates' Court, when sentencing you in July 2016, noted that you had an acquired brain injury. A similar notation was made in the records of the Melbourne Magistrates' Court in April 2021 when you were sentenced for a number of offences for which you were before the court at that time.

25 Your counsel, Mr Terry, has correctly acknowledged that there is insufficient material for me to take that condition into account for any of the purposes specified by the Court of Appeal in The Queen v Verdins.[1] Nevertheless, that aspect of your history does shed some light on the lifestyle which you have lived, and the background circumstances which led you and Ms Brown to attend outside the Ibis Hotel on the night of the offending.

26 In sentencing you, I take into account, in mitigation, that during the last two years you have been held on remand, in respect of a principal offence for which you were ultimately acquitted, in the particularly restrictive circumstances which have been necessitated by the current COVID-19 pandemic. It is well understood, by the courts, that during the last three years, the circumstances of those in custody have been rendered particularly onerous, due to the restrictions that have been required to be imposed in order to protect prisoners from becoming infected with the virus. In addition, as a result of threats which have been made to you while you were in prison, it has been necessary for you to be held in protective custody during the last 15 months. Consequently, you have served your time in custody, over the last two years, in more stringent and difficult conditions than would otherwise be the case. I take that consideration into account as a mitigating factor in your favour.

27 In addition, I take into account that, before the committal proceeding, an offer was made on your behalf to plead guilty to the offence for which you were ultimately convicted, on the basis that the prosecution would withdraw the charge of manslaughter on which you were ultimately acquitted. That offer is a mitigating factor, as it constituted a willingness, by you, to take responsibility for the offence for which you were ultimately convicted. In the circumstances of the case, it was appropriate, for legitimate tactical reasons, for you not to plead guilty to that charge when you were arraigned before the jury.

28 For completeness, Mr Terry provided me with a number of previous decisions of the courts in which sentences have been imposed for the offence of assisting an offender. In a case such as this, those previous decisions are of limited value, in light of the unique and different circumstances of each case. However they do provide some broad assistance in determining the current sentencing range, which is one factor which is relevant to take into account in determining the sentence to be imposed on you.

29 In determining your sentence, it is necessary that the sentence be such as to express the condemnation by the Court, and the community, of your wrongdoing. It is also important that the sentence be sufficient to deter other persons from committing the kind of offence for which you have been convicted. In view of the fact that you have already been held in custody for more than two years, I do not consider that the sentencing purpose of specific deterrence has any further work to do in your case.

30 In conclusion, then, you have been convicted of a serious instance of assisting an offender who has committed the offence of intentionally causing injury to another person. You have limited mitigating factors in your favour. They do include the onerous circumstances in which you have served the last two years while you were on remand, and your offer of a plea of guilty. I also take into account that the lifestyle, which led you ultimately to become involved in the events that unravelled on 10 October 2020, was in part due to the difficult circumstances of your upbringing, together with, it would seem, the consequences of the acquired brain injury that you sustained some 20 years ago.

31 Taking those matters into account, I therefore sentence you as follows. On the charge of assisting an offender, you are sentenced to 18 months' imprisonment.

32 I note that you have now been held in custody since 11 November 2020, which is a period in excess of 25 months. Therefore, pursuant to s 18(4) of the Sentencing Act, I shall declare that you have already served the period of 18 months as pre-sentence detention. I shall cause that declaration to be noted in the records of the Court.

[1] (2007) 16 VR 277.