The prisoner, Shayne Miller, appears today for sentence in relation to an offence for which he was committed for sentence to the District Court. He pleaded guilty at the Local Court. In my view, he is entitled to a discount of 25% upon the otherwise appropriate sentence to represent the utilitarian benefit of the plea of guilty being entered at the first reasonable opportunity.
The offence that he pleaded guilty to is an offence contrary to s 111(2) Crimes Act 1900. That offence, I am told by the Crown, has a maximum penalty of 14 years imprisonment and has no standard non-parole period. I am also required to take into account on a Form 1, which I have signed, an offence of recklessly or intentionally destroy or damage property; an offence contrary to s 195(1)(a) Crimes Act 1900, which, I understand, ordinarily has a maximum penalty of five years imprisonment.
I should point out from the outset, as the facts make clear, that this is not a case as discussed by the Court of Criminal Appeal in the guideline judgment in relation to Form 1 matters, in 2002, where, in taking into account matters on the Form 1, it may be appropriate to substantially increase the sentence for the principal offence.
Having regard to the character of the matters on the Form 1, in my view the offence on the Form 1 is intimately bound-up with the facts relating to the principal offence. The two offences occurred at the same time, and, in my view, this is not a case calling for greater weight to be given to retribution and deterrence by reason of the presence of the matter on the Form 1.
The prisoner has been in custody since 14 March 2014 thus, the sentence I impose will commence from that date. The particulars of the offence are that the prisoner entered the dwelling house of a woman situated at Rivett Place, Kelso, with intent to, to paraphrase it, "intimidate" people or a person in circumstances of aggravation; namely, that he knew that there were persons within the said dwelling house.
R v Miller [2019] NSWDC 910 | Case summary | Zoe
I should also point out in relation to the consideration of the aggravating circumstances that, again, to my mind, they do not significantly or substantially increase the objective seriousness of the offending, if the offence had been pleaded absent the circumstance of aggravation, simply because the factual matrix reveals the presence of one-or-more persons at the time really is of little significance. Its main relevance is to simply explain how things unfolded.
The prisoner was born, as I understand it, in January 1982; thus, at the time of the offending, he was 37 years of age. The facts of the matter in the Agreed Statement of Facts note that the offender, with his then‑girlfriend and another person, went to the premises at Rivett Place, Kelso, where a number of people were present for a perfectly legitimate purpose; that was to discuss the sale of a quad bike by the person in company of the prisoner, Mr Budge (as said), and a person who was occupying the premises at Kelso.
Whether it was known to the prisoner or not is not entirely clear, but it turned out that the prisoner's girlfriend had a previous relationship with one of the occupants of the premises. The prisoner has given evidence before me about the circumstances of the offending largely consistent with the agreed facts, although, some aspects of chronology don't exactly match-up.
The essence of it all is that when the prisoner arrived at the premises, an argument broke-out between the prisoner's girlfriend and her former boyfriend, and both persons were apparently yelling insults at one another through a closed and locked flyscreen door.
To be fair to the prisoner, he returned to the vehicle in which he had arrived at the premises. But, as the facts state, he got "agitated" at the insults that he perceived were being uttered by the ex-boyfriend to his then current girlfriend. He told me in his evidence that he actually got "angry". He returned from the car, rather unwisely, and proceeded to try to gain entry to the premises.
The occupants were obviously very concerned because they endeavoured to stop his entry into the premises. The prisoner was kicking and pushing on the front door. The front screen door eventually came off the frame and fell on the floor as a result of the prisoner kicking it and continued to kick the glass door of the premises until it shattered inwards, at which point the person that his girlfriend had been arguing with and another person, fled to the rear of the house.
I should point out the prisoner is a fairly formidable individual; he is a big man. He looks like a fit man, and, no doubt, presented a formidable presentation to those persons inside the premises, although I have not seen their physical proportions.
The prisoner came into the premises. One of the occupants saw the prisoner inside the property, and, after a while, began yelling at the prisoner to get out of the house as there were children upstairs.
I should point out, amongst the occupants were children, although there is no suggestion that the prisoner's actions were directed towards the children or that, in fact, he may have appreciated the presence of children upstairs. But he was told that there were children upstairs, and, to his credit, he then left the premises.
He turned around as he left the premises and said, "I'm sorry, Crystal, I'll replace the door next week", which is, to be fair, an immediate expression of contrition. However he undid that good work to a limited extent, I suppose, when he turned around and said, no doubt in anger to another resident, "If you tell the cops I'll come back and stab you in the neck", a matter about which he did not give evidence yesterday.
It can be seen by that presentation of facts that this offence was entirely unplanned, and, thus, one of the mitigating factors arising under s 21A(3) Crimes (Sentencing Procedure) Act 1999, herein after to be referred to as "the Act", which is relevant to the assessment of the objective facts, arises. I am satisfied, on balance, there was a degree of "provocation" to the extent that there were insulting things said in the presence of the prisoner about his girlfriend. But the provocation was not directed at him, personally, and was a minor matter. It certainly, to some extent, explained the reason for him becoming angry.
The prisoner's criminal history does not assist him. I gave some thought to whether I should find it as an aggravating factor. I would be entitled to do that, but, ultimately, I have concluded that I should see it as a matter not entitling the prisoner to any particular leniency.
In the context of the evidence he gave about his background which I will come to shortly, and some matters in the psychological report, Mr Miller has offences that go back to the early part of the century. For him that is probably a long time, for me it is not such a long time, and, interestingly, his first conviction is for damaging property dealt with in the Local Court, but the particulars of that are not made known to me.
The time is coming, of course, when the judge, for sentencing purposes, will have the facts for every conviction recorded on a fingerprint record. I am not criticising the Crown in this matter. But I have been asking for years and years for the facts in relation to at least District and Supreme Court sentences occurring on prior occasions to be provided. There is no reason why they cannot, and eventually we will be fully informed as to the character of the offending.
The offender, for that matter, was dealt with by way of a s 9 bond in April 2002, and the prisoner was convicted of another offence, as I would understand it, at Fairfield Local Court of damage property, at about the same time. Therein after there are a number of offences. There are breaks, however, in that offending.
The prisoner, consistent with the history he gave me, was convicted of possessing a prohibited drug back in 2004. He has another conviction back at Oberon Local Court for damaging property in 2009 and possessing a prohibited weapon, for which he was placed on a s 9 bond.
He has convictions at the Bathurst Local Court in relation to a range of offences, coinciding, of course, with his migration from Sydney to the Bathurst region, as set-out in his personal history contained within the psychological report.
I just point-out a few of those convictions that are pertinent: he has a conviction in 2017 at the Local Court for common assault for which he was sentenced to six months imprisonment. On the same occasion in January 2007, he was sentenced for a recklessly cause grievous bodily harm, an offence dealt with, apparently, summarily, for which he was sentenced to 1 year six months imprisonment with a non-parole period of nine months.
He has convictions in 2018 after those sentences were served, for dishonestly obtain property by deception, and taking and driving a conveyance without the consent of the owner. Receiving and disposing of stolen property, and shoplifting, for which he variously received short terms of imprisonment, up to six months, and/or s 10a convictions.
He has a conviction at the Bathurst District Court on 5 April 2017 for aggravated breaking and entering and commit serious indictable offence in company, for which he was sentenced to 26 months imprisonment commencing on 2 October 2016 with a non-parole period of 14 months. That non‑parole period, as I calculated from the information available to me, concluding on 1 December 2017. There was a finding of special circumstances.
He has a conviction in December 2018 in the Local Court of possessing, or attempting to possess, a prescribed, restricted substance and he has some other driving convictions which are not of great moment; thus it can be seen by reference to the criminal history, that he has prior findings of guilt for violence, illegally entering a premises. He has been given the benefit of both good behaviour bonds, terms of imprisonment with non-parole periods, and the like.
It is not an ingrained or sustained history of criminal conduct, but, certainly the prisoner's offending has escalated in seriousness. Over the last three-or-four years, it has increased in intensity, which may be explained in part, it might be said, by some of the matters raised in his evidence.
The prisoner's evidence adopted the detail of the history provided in the psychological report which I will come to in a moment. He gave evidence in relation to the facts of the matter about which I have commented. As I said, his evidence about the offending not only revealed the lack of planning and the impulsivity of the offending, consistent with some aspects of the assessment of the psychologists, but also revealed the susceptibility of the offender to behave impulsively.
In the context of the evidence he gave and the history provided, what I understand of the matter is that his father was a violent man and abusive towards the prisoner and his mother. The prisoner, in fact, has memories of violence up until the age of six but then ceased to have contact with his father from the age of six to 26 years. His father's conduct has apparently ameliorated or reduced in intensity since they have re-established contact.
His mother developed an addiction to heroin after his parents separated and had struggled with drug issues between his sixth birthday and the age of 12, and for some period of time he lived with his maternal grandparents. They sought to provide him with opportunities in terms of education and the like; however, the prisoner had some problems with his own behaviour, referred to in the psychologist's report. One of the problems he had was that, on returning to his mother, he had difficulties with receiving guidance and direction from her.
He left school in year 11. He had, on his own account to the psychologist, a number of disciplinary problems in school; although, as I would understand it from his evidence, his grandparents sought to provide him with an opportunity at a school in Sydney at St Patrick's College.
For a period of time after leaving school he had an apprenticeship. That apprenticeship lasted for approximately two years, but he had difficulties with accommodation and had substance-use issues and then became homeless. He did have stable employment between the ages of 24 and 30, which, as I said, is somewhat reflected in the criminal history.
He was working as a builder's labourer in Bathurst during that period of time, and I take it from the chronology of events, he had come from Sydney to Bathurst in his early 20s. His criminal history certainly suggests that, and I understand that since the age of 30 he has had an ongoing struggle with drug abuse and dependency.
Whilst in custody on this last occasion, he has been involved in some employment and he has been endeavouring to complete courses and participate in some programs that might assist him on his release from custody.
His drug use had escalated from the age of 21 to 24. He then had a break from the use of drugs but relaxed again when he was 30, and that continued over a period of time and perhaps reflects, as I said, the greater intensity of his offending in recent years.
He has completed the MERIT program in Bathurst in 2010, 2011 and has had some involvement with Narcotics Anonymous. I think one of the most important things that flows from the psychologist's report is that she notes, as I understand it, a previous diagnosis of Attention Deficit Hyperactivity Disorder, or ADHD, and the opinion of a psychologist is this condition, which he, no doubt, has had for many years back to his school days and childhood, has contributed to a degree of impulsivity, which is reflected in this offending behaviour.
Also it is reflected in his use of restricted or illegal substances and self-harming behaviours. For example, there is reference to the fact that the prisoner had a very serious motor bike accident. As I understood his evidence, in 2007, he told me that, in fact, he was riding on a dirt road at 150 kilometres‑per‑hour. Small wonder that there would be a serious accident from which he suffered injuries.
He has had other injuries; I do not know what the circumstances of it are, but he cut an artery in his left arm requiring multiple blood transfusions in 2010. He has also disclosed what he described as "multiple head injuries", having lost consciousness on more than ten occasions. To be fair, he was frank enough to identify these 'lack of consciousness' events arising from his involvement in fights.
I have noted the limited psychological testing that was undertaken. I should say that the psychologist's report is more of a presentence report than really something that adds to the picture in a medical or scientific way, acknowledging, of course, the psychologist is not a medical practitioner.
But I am prepared to act upon the formulation of the psychologist in that the psychologist notes his dysfunctional family upbringing and disadvantages of his upbringing, his drug use arising out of that, and his ADHD.
The psychologist said,
"It is my opinion that Mr Miller had likely been susceptible to developing drug-use issues as a result of his 'family' history in addition to his propensity towards impulsivity associated with his ADHD diagnosis. It should be noted that research has also indicated a link between ADHD and subsequent substance use and offending behaviours".
A common factor in these situations the psychologist said were "impulse control problems". Clearly impulse control is a contributing factor to the offender's behaviour.
The psychologist also noted the history of head injuries; the evidence is obviously incomplete. The psychologist has not provided sufficient neuropsychological data to assist me, but she opines that the background given by the prisoner reflects, perhaps some cognitive deficits that require further analysis. In fact, she specifically said that it was recommended that he be assessed by a neurologist or a neuropsychologist.
I bear in mind those matters, but, as I said, there is no diagnosis available. The assessment of the psychologist was that, by reference to DSM‑5 criteria, he currently met the "diagnostic criteria" for a "stimulant‑use disorder, et cetera, et cetera." I acknowledge the relationship of his upbringing and ADHD issues to that situation.
The psychologist noted on a positive basis that the prisoner had managed to live drug-free in the community for up to six years in that period of time that I identified between 24 and 30, and she claimed that he was motivated for treatment with some support from his mother who apparently is still alive and a "half-brother", although I did not hear much evidence from the prisoner about those aspects of the matter.
The submissions of counsel for the prisoner were most helpful. He provided very detailed written submissions, and I will deal with those in the context of acknowledging the scholarship and the detail contained within them, but for reasons I'll come to in a moment, there is not a great need for me to analyse some of the matters that were raised on behalf of the prisoner.
I have already indicated as relevant factors in assessing the objective seriousness of the principal offence: the presence of some provocation, the impulsivity of the offending, the lack of planning of it, and the fact, as was pointed out, the offending was over a very short period of time.
Of course, the threatening of somebody to stab them in the neck does the prisoner no credit; although I perceive that as not a realistic or heartfelt threat, but it certainly would have been very frightening for the person the subject of the threat.
The prisoner did apologise to one of the victims almost immediately after he had gone on the short-lived rampage, the subject of the charge, and I note that. He has expressed his regret and remorse. I am prepared to find as a mitigating factor under s 21A(3) of the Act, that the prisoner has relatively demonstrated his remorse, both by his immediate reaction to his own conduct and his evidence in this Court, as well as his plea of guilty.
The submissions of counsel for the prisoner reflected upon the "circumstance of aggravation" that arise, and related to that is, of course, the relevant indictable offence pleaded as relevant to the principal charge. It is well known through decisions such as that cited by counsel for the prisoner, Huynh v R [2005] NSWCCA 220, and other cases such as Harris v R [2005] NSWCCA 204, that the circumstances of aggravation, as well as the character of indictable offences in cases of breaking, entering and stealing or enter in dwelling premises with intent to commit an indictable offence, will vary in intensity and seriousness.
Of course, the offence identified of intimidation is clearly not at the upper‑end of the range of serious indictable offences that might be contemplated by the provision to which the prisoner has pleaded guilty. Likewise, the circumstance of aggravation, as I earlier pointed‑out, is not as serious as other circumstances of aggravation that might be pleaded, and, of course it was very intimately bound-up in the character of the prisoner's conduct and the contextual matters.
It is not a matter where it could be seriously claimed that the prisoner sought to commit the offence fully aware of the fact that people were inside and he could maximise the threat that he posed to the community by threatening more people within the premises rather than a single person alone. He knew that there were people inside the premises, of course, but, ultimately, it was an incidental issue to the offending behaviour.
So far as the subjective matters to be taken into account: I have noted his background of exposure to domestic violence, his history of drug use, the significance of ADHD is a matter for learned papers by people far more qualified than I. It certainly could explain his susceptibility, as the psychologist said, to drug usage.
But, frankly, in relation to this matter, these background issues, which I accept are present, seem to be they have very little significance in assessing the objective facts. They may be relevant in the consideration of the fixing of the non-parole period, the need for special assistance on release from custody. But, to my mind, this case primarily, as I explained to learned counsel for the prisoner, is one to be seen by reference to the character of the objective offending.
Having regard to those mitigating factors I have identified, and having regard to the character of the damage and the short-lived nature of the prisoner's anger out-burst, to my mind it is an offence at the lower end of the scale of seriousness of offences of this particular type.
It was sought to identify the use of drugs as a contributing factor to the prisoner's conduct. That may be so; there is insufficient evidence for me to include that. The prisoner said that he had used, as I understand it, two points of methylamphetamine earlier in the day, but how that contributed to his anger or otherwise, I cannot say.
It seemed to me, listening to the prisoner's frank account of what happened, that his anger was directly related to the circumstances of the confrontation between his girlfriend and her ex-boyfriend. I did not hear him really express anything that suggests that his use of amphetamine earlier in the day may have significantly or substantially contributed to his loss of control.
Of course, I am mindful of the fact that the use of amphetamines can make people more alert or more, to use a colloquialism "hyper", in particular stressful situations. But to my mind it is a background matter that really does not explain the offending.
As to the significance of any acquired brain injury, and the like, the evidence is incomplete. Yes, there is a history that suggests the presence of some acquired brain injury, but that is a matter that requires further examination, and clearly the evidence available to me is not complete and the extent to which it is significant in explaining the prisoner's behaviour, or, the extent of which it may reflect upon the future of the prisoner, is not able to be identified from the evidence available to me.
I accept, as a general proposition the prisoner's background of disadvantage and early experiences he has been through, particularly as a young child and a teenager, have had an influence upon his life; but it is also to be pointed-out on his own account that he has been able to break free of the effects of that dysfunction from time to time.
He has been able to be drug‑free for six years, he has been able to find employment for periods of time, so, to my mind he has the potential for rehabilitation, and he has the potential to avoid offending. He also is not, to my mind, captive by the circumstances of his background, having been able to take a path of lawful life and productivity in the past. It is just in the last number of years he has fallen by the wayside.
I accept as a general proposition that he has a background that might reflect upon him having fewer "emotional resources to guide his or her behavioural decisions", citing one of the judgments, quoted by counsel for the prisoner, that is the decision of Millwood [2012] NSWCCA 2. I accept as a general proposition that the so-called "Bugmy" principles that are referred to in the written submissions (Bugmy v The Queen [2013] HCA 37 at [40]) have some relevance in a general sense; background of disadvantage is a matter that will weigh upon a person throughout their life.
A background of disadvantage will usually be a relevant matter in the consideration of all the issues that a judge or a magistrate has to take into account in sentencing an offender. The significance of a background of disadvantage will very much be determined by both the extent of the disadvantage and the way in which that disadvantage arises.
It is to be fairly said that the type of disadvantage contemplated in the case of Bugmy, is significantly greater than the disadvantage suffered by this offender. I note, for example, notwithstanding the violent character of his father and the difficulties that his mother had, that the prisoner, on his own evidence, had the opportunity, albeit only for a short period of time, to come under the guidance of grandparents who were loving and disciplined.
It is no fault of the prisoner that he was taken away from that environment. But this prisoner has had opportunities such as attending a school in Sydney that a person like Mr Bugmy in Wilcannia could not even dream of having in a million years.
The disadvantages of Aboriginal people living in remote communities such as Wilcannia could not be fully understood unless one went there and saw for oneself the difficulties those people have to confront. I bear in mind, as I said, in the matter of Bugmy from which the so called "Bugmy" principles arise is to be seen in the context of very, very significant history of disadvantage that individual faced, and the relationship of that disadvantage for the circumstances which gave rise to the offending.
In any event, the extent to which there is a causal link, so-to-speak, between the background of disadvantage of this prisoner and the offending is, to my mind, something of an academic point. Yes, the background of disadvantage, the use of drugs, all those matters probably are capable of explaining why the prisoner was at that place on that particular day with the people with whom he was in company.
But it is quite clear to me that his actual criminal conduct was a reaction to a very human situation; yes, because of his ADHD and other factors he may be more susceptible to impulsivity and losing his temper, and the like, but that is the reality of the matter. He was offended, he took offence in a practical way, he got angry, he committed these crimes, and then he desisted, and that is just the fact of the matter.
So far as his substance abuse is concerned, as I said, it is a relevant contextual matter, but his own evidence does not seem to me to suggest a particular causal connection. It has long been recognised, at least definitively since the 1998 decision of R v Henry (1999) 46 NSWLR 346, the guideline judgment in relation to armed robbery matters, that drug intoxication or particularly "addiction" is not a mitigating factor in sentencing for particular classes of offences.
I am mindful of the fact that post-Henry, that observation has been extended to a range of offending behaviour where drug addiction may have some contextual relationship. The extent of the prisoner's drug addiction, of course, is not entirely clear. I accept that he was a regular user of the drug methylamphetamine, and I am prepared to accept he used it on the day, but, as I said, it does not seem to strongly explain his conduct; far less so, I must say, than the actual factual circumstances available from the agreed facts.
Be that as it may, drug addiction or dependency can be relevant in the sentencing exercise; for example, in the way that Wood J explained at [273] of the judgment of Henry, and the matter is, as I said, to my mind in this case, more an issue relevant to the assessment of special circumstances and, thus, the fixing of the non-parole period.
Having regard to the fact that I have concluded as a mitigating factor that, given his capacities demonstrated in the past that he has good prospects of rehabilitation, and having regard to the recent offending that seems to be closely related to drug use, I have determined, as other judicial officers have recently determined, there should be a finding of 'special circumstances', pursuant to s 44 of the Act. I have determined that I should adjust the relationship of the non-parole period to the balance of the sentence in the manner I have foreshadowed.
I am prepared to accept the prisoner has endeavoured whilst in custody to try to positively approach the circumstances in which he now finds himself. I have taken into account that he does have support on the outside; but it has got to be said by reference to, for example, the offer from his mother for support that I, I am sure she has been there to support him over the last five‑or‑six years, as well.
That has not prevented him from offending in the past, but I believe, in the circumstances, noting that the character of the offending is not so serious as to give up hope on the prisoner, that the prisoner, as I said, should have the benefit of an extended period of supervision, within reason, of course. The matter is governed, of course, by the appropriate table sentence to be imposed, having regard to all the objective circumstances and the subjective circumstances, the relevant mitigating factors that arise.
The plea of guilty is a mitigating factor as well. The prisoner gets the benefit of the discount, of course, for the utilitarian benefit for the plea of guilty. I must say, somewhat contradictorily, whilst I am prepared to accept that he has prospects of rehabilitation, I cannot find positively that he is unlikely to re-offend.
He is at risk of re-offending; certainly if he turns to drug-use and I think it is inevitable he will, and, therefore, he will have to make a choice in terms of the path that he seeks to pursue when he is released from custody, because he must understand that to return to drug use, as difficult as it may be to avoid that will inevitably lead to his return to custody.
In my view, he needs an extended period of supervision to adjust to community living, although he has not been in custody for a great deal of time, comparative to other people. He also will need professional guidance and assistance in relation to drug rehabilitation programs, and/or counselling.
As to the issue of institutionalisation, as it has been raised in the written submissions, I do not believe that is a realistic issue in this particular sentencing exercise. The prisoner's criminal history is not so bad, and his terms of imprisonment have not been so significant as to suggest that he is at risk of institutionalisation. The extent to which he is comfortable in custody is not entirely clear to me, but I am sure that the prisoner has had enough of life experience without offending to realise that time in gaol is really wasted time in his life.
To come back to just one other aspect of this sentencing exercise. All the matters that I have taken into account to my mind do not greatly impact upon the assessment of moral culpability of the prisoner. The fact that he may be inherently impulsive might suggest a greater need to be placed upon personal or specific deterrence. The character of the offending is not a matter where, notwithstanding the relevance of the various purposes of sentencing pursuant to s 3A of the Act, that I should prolong the term of imprisonment to give greater weight to personal deterrence.
There must be some element of general deterrence, people just cannot go around to other people's houses and kick-in doors simply because they have lost their temper, and threaten people, even if it is a half-hearted threat or immediately followed by an apology. Obviously the intimidating conduct of the prisoner was enough to cause two people to flee the house, but, as I said, the prisoner is a very formidable person in his physical presentation.
The sentence must have some element of personal deterrence, although I note the prisoner has been in custody since March and they had plenty of time to reflect upon his conduct. His conduct must be denounced, he must receive adequate punishment.
On the other hand, I must also endeavour to promote his rehabilitation. As I said, he has been able to make a contribution to the community before and he can again, so his opportunities for reformation have not passed, but he is the person who has to take responsibility for his behaviour in the future. I think he understands that, he impressed me when he gave his evidence as having a realistic understanding of his circumstances, and I have taken that into account.
Thus, Mr Miller, having regard to all that has been skilfully put on your behalf by your counsel, and having regard to the submission of the Crown, I have determined that I should sentence you to a term of 18 months imprisonment, I am going to fix a non‑parole period of nine months. I am going to take into account all the time you have had in custody.
It is up to you what you do when you are released, but you know as well as I do, it is inevitable if you want to commit further offending you will end up back in custody again; so, you have got to make a choice. Even though you have issues arising out of your background, and, perhaps your personality and the like that have contributed to your offending and they are matters that you are not necessarily responsible for in a direct sense, you have got enough intelligence to understand that you have to take active steps to control yourself when you are in the wider community.
In relation to the matter to which you pleaded guilty, taking into account the matter on the Form 1, you are convicted. You are sentenced to a term of imprisonment of nine months non-parole to commence on 14 March 2019, expiring on 13 December 2019, with a balance of sentence of nine months to expire, on my calculation, on 13 September 2020.
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Decision last updated: 10 June 2020