IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

CR-22-00318

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
CODY MILLER		

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JUDGE:	HIS HONOUR JUDGE MAIDMENT	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 November 2022	
DATE OF SENTENCE:	23 November 2022	
CASE MAY BE CITED AS:	DPP v Miller	
MEDIUM NEUTRAL CITATION:	[2022] VCC 2069		

REASONS FOR SENTENCE
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Subject:	Plea – sentencing
Catchwords:		Armed robbery - cause injury intentionally - possess drug of dependence - possess controlled weapon
Legislation Cited:	
Cases Cited:	Bugmy v The Queen [2013] 249 CLR 571
The Director of Public Prosecutions v Cody Herrmann [2021] VSCA 160
Postiglione v the Queen 189 CLR 295
Miller v R [2015] NSWCCA 86
Worboyes v The Queen [2021] VSCA 169

Sentence:	5 years and 3 months' imprisonment, 3 years and 5 months non-parole

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APPEARANCES:
	Counsel	Solicitors	
For the DPP at hearing
For the DPP at sentence	Ms E. Dane
Ms D. Shivakumar	Office of Public Prosecutions	
			
For the Accused	Ms A. Wong	Victoria Legal Aid	

HIS HONOUR:

1	Cody Miller, you have pleaded guilty to each charge on the indictment containing six charges.  There are three charges, Charges 1, 2 and 4, of armed robbery which carry a maximum term of imprisonment of 25 years and one charge, Charge 3, of causing injury intentionally for which the maximum term of imprisonment is 10 years.  You have also pleaded guilty to Charge 5, which alleges possession of a drug of dependence, namely cannabis, for which the maximum penalty is five penalty units and to Charge 6 of possessing a drug of dependence, namely Ritalin, for which the maximum penalty is imprisonment for one year or 30 penalty units.
2	You have also asked me to take into account and have pleaded guilty to a related Summary Charge No.14, which alleges that you possessed a controlled weapon on 3 July 2021.  The maximum penalty for that offence is imprisonment for 
one year.
3	You have admitted a prior criminal record which contains a number of offences committed in South Australia and in New South Wales.  I will deal with some of those in more detail in due course.
4	The prosecution tendered and relied upon a summary of prosecution opening for plea, which is Exhibit A.  That sets out the circumstances of the offending and I do not propose to read it in full.  Suffice to say that the offending is said to have occurred during a three-hour period between the late evening of 2 July 2021 and the early hours of 3 July 2021.  You were at that time living in a boarding house in North Melbourne, along with the alleged co-offender in relation to Charges 1 and 2 on the indictment of armed robbery, Mr Alan Ball.
5	You were aged 27 at the time of the offending and Mr Ball was aged 37.  You were known to each other and you went out together with a view to committing armed robberies.  They were directed at obtaining money or other items of property from persons you encountered in the street in order to sell the items of property and presumably obtain some relatively small sums of money.
6	Your offending involved an attack by the two of you upon a person you encountered near the vicinity of Elizabeth Street and Therry Street in the Melbourne CBD.  There, you and Mr Ball were together.  Mr Ball attacked the victim with a skateboard he was carrying and struck him on the head causing him to fall down.  He was then told by Mr Ball to stay down.  The two of you took an Apple iPhone from him and he was then able to get to his feet and run away.
7	As a result of the incident he suffered lacerations and grazing to both his knees and the knuckles of his right hand.  He also suffered soreness to his face and head, as well as a lifted and bleeding fingernail.  He was saved from further aggression from you and Mr Ball by other people in the street who sought to give him assistance.
8	The next offending occurred at about 11.30 pm on 2 July, when you and Mr Ball were together.  You attacked a second male victim.  It is not clear who was wielding the knife but, between the two of you, you had with you a knife.  The victim was attacked in Blair Street in Coburg.  He was struck to the back of his head.  You then grabbed hold of his jacket and punched him 10-15 times to the head and neck.  He lowered himself to the ground and covered his face and head with his arms in order to defend himself and he dropped a blue tote bag that he was carrying.
9	You and Mr Ball continued to punch him to the face whilst going through his belongings in the tote bag.  Between the two of you, you stole from him a wallet, Victorian learner's permit, Myki card, Apple AirPods and a black iPhone.  You then found items within his wallet.  You asked him for the PIN code for his mobile phone.  He stated that he could not remember the PIN code and a knife was dragged along his torso.  He was told by you or Mr Ball, 'Unlock your phone or I'll stab you.'
10	He input his PIN into his mobile phone and you then retained the phone.  There was some argument between you and Mr Ball about whether an ambulance should be called for your victim.  However, you and Mr Ball left, running towards Sydney Road in Coburg.  Police arrived shortly afterwards.  An ambulance attended and the victim was conveyed to The Royal Melbourne Hospital for treatment.  
11	He suffered multiple injuries including a broken nose, multiple stitches to areas of his face and a deep knife wound to the webbing of his left hand between his thumb and index finger.  Those injuries are the subject of Charge 3 on the indictment of intentionally causing injury.
12	The total value of the property stolen from that victim was approximately $500.
13	At about 12.40 am on 3 July 2021 the third victim, a delivery scooter rider, and was collecting an order from a restaurant in Victoria Street, West Melbourne.  At that time you were alone.  You approached the victim and without warning pushed him off his scooter.  The scooter fell over.  You then produced a large knife which the victim described as having a blade 20 to 25 centimetres long.  You demanded that he give you money.
14	He stood up and told you that he had no money.  You took various other items of property from him and you attempted to remove his mobile phone from the handlebars of his scooter whilst brandishing the knife.  You stole from that victim an Apple iPhone, a portable phone charger and a wallet retrieved from the scooter.  It had no money in it.  You demanded the passcode for the victim's mobile phone.  He and you input the code into the phone and then turned off the security settings in the phone, including location services.  In demanding his wallet, you threatened to steal his delivery vehicle if he did not provide it.
15	You were in the process of demanding the PIN code for his Commonwealth Bank debit card when another delivery driver arrived on the scene.  You ran away, pursued by your victim and that other delivery driver.  You hid in the laundry of the house nearby and evaded police for a short period of time.  The total value of the property stolen from your third victim was about $1,500.
16	Police made a search of the area, assisted by a police dog and you were found to be hiding in the laundry room to which I have just referred.  You were arrested and searched and various items of property that had been stolen from the victims the subjects of Charges 1, 2 and 4 were found in your possession.  Also found in a bag that you had with you were two Staysharp black-handled kitchen knives and sheaths, one of which was stained with what appeared to the police to be blood.  
17	Those two knives are the subject of the related summary offence to which I have referred and to which you have pleaded guilty.  Also found in your possession was a Ritalin tablet which appeared to have been prescribed to Mr Alan Ball.  That is the subject of Charge 6 on the indictment.
18	You were also found in possession of a small amount of cannabis.
19	Your third victim made a victim impact statement, which is Exhibit B on the plea hearing.  That sets out in his own words the ongoing emotional effects of the attack upon him.  Not surprisingly he is particularly wary of strangers he encounters during the course of his work and he is now scared during his working hours.
20	Turning to matters personal to you.
21	Your counsel provided me with an outline of his submissions, which is Exhibit 1 on the plea hearing, a neuropsychological report from Dr Brewer dated 30 September 2022 which is Exhibit 2, a report from Dr Nina Zimmerman, Consultant Psychiatrist, dated 21 April of 2022, Exhibit 3, a medical report from a Dr Jonathan Ho of Wagga Wagga which is dated 15 November 2021 and that is Exhibit 4 on the plea hearing, and a Corrections Victoria remand report and comprehensive prison history, which is Exhibit 5.  
22	I was also provided with seven certificates of achievement that concerned the rehabilitative courses you have undertaken during the period that you have been remanded in custody since your arrest - that bundle is Exhibit 6 on the plea hearing.  Finally, I was given a letter from you in your own handwriting which I mark as Exhibit 7 on the plea hearing.
23	I might say that I do not normally place much weight on letters from an offender at a plea hearing.  However, I can give it some weight I think, given the circumstances of your offending, and it does express remorse.  I take it into account in your favour as part of the instinctive synthesis.
24	I found the outline of plea submissions particularly helpful and I take the opportunity of commenting that it was carefully prepared, nuanced, well-balanced and accepting of a number of features of the prosecution case that need to be given proper weight in this case, as well as referring to the matters that must be taken into account in your favour.  I should also pay tribute to the responding submissions from the prosecution which I thought were equally well prepared and nuanced.  It is particularly helpful when one receives well-balanced and carefully prepared submissions from counsel, particularly in cases where the sentencing exercise is difficult.  This is one such case.
25	Your counsel began by noting that the three armed robberies were committed within that three-hour period to which I have referred already.  I would characterise the offending as planned to the extent that it seems likely that you and Mr Ball went out looking for victims from whom you might steal whilst armed, with a view to obtaining whatever they had in the way of property which you could then sell.
26	I would characterise the offending otherwise as opportunistic in the sense that the victims had not been specifically selected other than on a random basis apparently as you encountered them in your movements around the City of Melbourne in the late evening and early hours of the 2nd and 3rd July 2021.  The sort of property that you might have expected to obtain was property of relatively small value.
27	Armed robbery can never be said to be a low-level crime in any circumstances where people are put in fear and where they are threatened with or assaulted with weapons.  The robberies themselves are towards the relatively low end of the scale, although it must be noted that in each of the cases violence was used to varying degrees.  The violence used in the armed robbery the subject of Charge 2 was significant.  It is reflected in Charge 3 on the indictment of intentionally causing injury.  
28	I need to be careful to avoid double punishment as between Charge 2 on the indictment and Charge 3.  But the use of actual violence to varying degrees does aggravate the offending albeit that the armed robberies come towards the low end of the scale of crimes of that nature.
29	It is put, and I think fairly, that your plea to Charges 1 and 2 is tendered on the basis of complicity.  Indeed that also applies to Charge 3, where both of you were involved.  
30	The most significant aspect of the sentencing submissions on your behalf focused on your background and the sentencing principles that arise from a deprived background.  Your background was attended by substance abuse and mental health issues as well as issues concerning physical health, particularly a condition of your cervical spine and an injury that arose from a motorcycle accident when you were 14 years of age, where you suffered an injury to your shoulder.  You continue to be in significant pain which requires treatment for pain relief.
31	I need to identify the features of your background that bear upon sentencing in this case, so that the sentences that I have selected can be understood as being supported by the authorities which deal with persons from a deprived background.  Those features are dealt with in some detail in the reports of Dr Nina Zimmerman and Associate Professor Warrick Brewer.  They are well summarised in the outline of the defence submissions from paragraph 9.  I am going to read some of those paragraphs, because I think it is important to put them on the record.  It seems to me they properly and fairly summarise the essence of the histories taken by Dr Zimmerman and Associate Professor Brewer.
32	You are the eldest of seven children born to your mother Sasha Miller.  You have never met your father - you believe he lives in Queensland.  Your mother has Italian and Aboriginal heritage, but you did not identify as Aboriginal and have never been connected to Aboriginal community or culture.  Your mother was 14 years of age and homeless when you were born.  You were born in Broken Hill but the family moved frequently between Broken Hill and Adelaide.  You lived in poverty and you recall not being given enough food, stealing baby formula to feed your younger siblings and going through bins for clothes and anything of value.
33	Your mother abused illicit substances including methylamphetamine and she neglected her children.  She taught you how to steal for her, so that she could buy drugs.  She suffered from mental health conditions including PTSD and bipolar disorder and she communicated directly to Associate Professor Brewer during the compilation of his report.  He reports that she told him that she was regularly 'Bashing the shit out of you from early childhood.'  And that she felt, 'No attachment to you'.  She had a number of violent partners who were emotionally abusive to you.
34	Your mother was incarcerated when you were between seven and nine years of age.  You lived with your maternal grandmother in Broken Hill and during that time were separated from your siblings who went into foster care.  You enjoyed a few years of stability, where you attended school regularly and developed a bond with your grandmother.  
35	When you were around 10 years of age, you were asked whether you wanted to visit your mother in Adelaide.  You recall wanting to see your mother and believed that you were probably meant to have returned to your grandmother's care, but instead you remained with your mother in Adelaide.  You now resent the choice that was placed on you at such a young age and consider that your life would have turned around differently if you had stayed with your grandmother.
36	You were exposed to further neglect, drug abuse and violence upon your return to living with your mother in Adelaide.  You rarely went to school, and stopped going altogether a few months into Year 8.  When you were around 11 years of age, you started using alcohol, cannabis and Valium and began running away from home.  You recall your mother giving you a Valium to try to stop you from running away in the middle of the night.  By the age of 12 you were living on the streets.  When you were around 13 years of age you lived with friends.  When you were 14 years of age you began using methylamphetamine and living at an Anglicare boarding house, where you stayed for about two years.  You had limited contact with your family from this point and they saw you as the 'black sheep' of the family.
37	In your late teenage years you began moving back and forth between Adelaide and New South Wales in an attempt to reconnect with your grandmother in Broken Hill.  However, she did not want to associate with you, due to your criminal record and drug use at that stage.  In 2013, when you were 19 years of age, you were incarcerated in New South Wales for offending that was committed when you were 18 years of age.
38	You developed a Suboxone addiction whilst in custody.  You were released from parole in June 2018 when you were 24 years of age.  You lived in Newcastle where you had rental accommodation.  You describe a period of stability where you did not use drugs and continued to take Suboxone prescribed by your GP, Dr Outridge.
39	You struggled to form intimate relationships and had a history of self-harm, and you were unfortunately the subject of a catfishing connection with a person that you fell in love with.  You discovered that the person concerned had set a fake online profile.  That led to a suicide attempt in 2019 by cutting your wrist.
40	You moved to Wagga Wagga in attempt to make a fresh start.  You lived in a small rented room and received treatment from your GP Dr Ho, who has provided the report which is Exhibit 4 on the plea hearing.  In his report Dr Ho states that you had shown initial stability and meaningful engagement with services.  In early 2021, you moved to Victoria and experienced homelessness again.
41	That is a background which supports the submission of your counsel that sentencing principles arising from the High Court decision in the case of Bugmy v The Queen [2013] 249 CLR 571 should be applied.  In addition, your counsel relied upon the report of Dr Zimmerman, particularly that she diagnosed that you suffer also from a condition known as borderline personality disorder.  In her report she says about that,
“Mr Miller's lack of stable and nurturing family environment and the presence of violence around him as a child was linked to him developing a borderline personality disorder and contributed to him learning to respond to perceived provocations in an angry and dysregulated manner.”
42	It was submitted by your counsel that that diagnosis by Dr Zimmerman was consistent with the report of Associate Professor Brewer.  That submission was, to some extent, challenged by the prosecution.  Although Associate Professor Brewer said that he was not ruling out that you had borderline personality disorder, he was not prepared to make that diagnosis without have a more significant therapeutic connection or attachment to you.  In other words, he didn't have sufficient material upon which to base such a diagnosis.
43	The principles arising from the case of Bugmy, to which I have referred, were the subject of analysis and acceptance by the Court of Criminal Appeal in New South Wales where, after you had been sentenced for serious offences committed in company with two other persons, you appealed to the Court of Criminal Appeal against the severity of your sentence.  Amongst other grounds of appeal, the Court found that the sentencing judge had erred in failing to have proper regard to your deprived background and that the sentence imposed was manifestly excessive.  
44	Both of those grounds were upheld by the Court of Appeal, which accepted the details of your deprived background which were provided to them in the course of the hearing and had also been provided to the learned sentencing judge.
45	The ultimate sentence you received on appeal was an aggregate sentence of seven years' imprisonment with a non-parole period of four years and nine months which commenced on 2 September 2013.  
46	So, it is clear that the Court of Appeal in New South Wales and perhaps to some extent the sentencing judge had accepted the fact of your deprived background in similar detail to that which I have sought to outline today from the summaries of the psychiatric and psychological reports provided helpfully by your counsel.
47	There were other aspects of your history in the judgment of the Court, which I do not need to go into, which further underscore the deprived nature of your upbringing.
48	The prosecution has not sought to challenge the application of the principles arising from Bugmy v The Queen.  Although they do challenge the proposition that there is a link between the deprived background and the offending, or perhaps to put it more clearly, challenge the absence of evidence that would clearly support the existence of that connection.
49	I was also referred by your counsel to the decision of the Court of Appeal in Victoria in The Director of Public Prosecutions v Cody Herrmann [2021] VSCA 160, where they discuss at some length not just the application of the Bugmy principles but, in paragraph 45 of the decision, the Court said,
“The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus.”  
50	The Court was referring to the nexus to which I have referred between the deprivation and the offending conduct.  And I return to the quotation from paragraph 45, where the court went on to say,
“As Victoria Legal Aid pointed out in its helpful submission as amicus curiae, ‘the impact of disadvantage is complex, multi-layered, non-linear and not easily “diagnosed” or measured’.”
51	The court went on further to say, 
“The High Court's recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.”  
52	And they quoted Justices Dawson and Gaudron from what they said in another case before the Court, Postiglione v The Queen 189 CLR 295, where those two judges said,
“Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.”
53	The Court then went on in paragraph 46 to say,
“It is a mark of a humane society that the moral judgement expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.”
54	I do not think I need to quote further from that part of the judgment.  There was also some important consideration of the relationship in sentencing principle between the principles arising from the Bugmy v The Queen and that in the 
well-known case of Verdins.  Beginning at paragraph 79 of the judgment in Herrmann, the Court said,
“A common feature of those two sets of principles is that they permit the court to view an offender's moral culpability as reduced where, through no fault of the offender, his or her psychological functioning or personality structure has been impaired.  The impairment maybe the result of some endogenous condition (such as schizophrenia) or of damage occasioned by neglect or violence or abuse during the offender's developmental years.”
55	The Court essentially said, you cannot separate those two principles and that they both play a role in sentencing and need to be taken into account in the instinctive synthesis in assessing the weight to be given to the evidence in relation to each of the sentencing principles.
56	The deprived background was accepted by the Court of Criminal Appeal in New South Wales in Miller v R [2015] NSWCCA 86, handed down on 6 May 2015.
57	I take those principles into account in assessing your moral culpability and the degree of need to hold you up as an example, under the principle of general deterrence.  However, it is recognised also by the courts that personality issues and Bugmy principles give rise to a higher risk of recidivism and high risk of committing offences in the future, particularly crimes of violence.  There is a need also for proper weight to be given to the need for protection of the public.
58	That is not an easy balance to make and it is one that courts have to recognise and grapple with when they are faced with history such as that which is clearly relevant to your case.
59	I accept, as the Court of Criminal Appeal in New South Wales did, that those principles apply in determining the appropriate sentence in your case.  I conclude that, given your criminal history and in particular the offending which gave rise to the Court of Criminal Appeal decision to which I have referred, proper weight must be given to protection of the public and to individual deterrence.
60	Your counsel referred me to your history of substance abuse and the fact that you have at times been prescribed and have become addicted to Suboxone or Buprenorphine.  You are not receiving that treatment now, but you are being given methadone whilst in custody to manage your chronic pain.
61	As to your prospects of rehabilitation, your counsel put it that the risk of future offending assessed, as it has been by Associate Professor Brewer, as moderate to high, has to be guarded as best.
62	It is submitted on your behalf that a meaningful parole period should be imposed to encourage your reform and hopeful rehabilitation.  I agree with that submission.
63	Your counsel further submitted that I must take into account your guilty plea, occurring as it does in COVID times following the principles enunciated by the Court of Appeal in the case of Worboyes v R [2021] VSCA 169 and also the fact that your period in custody thus far has been attended by the onerous restrictions imposed by the Corrections system in Victoria as a result of the pandemic.  You will continue to serve time in custody during continuing restrictions, although perhaps not as onerous as they have been in the period since you were remanded in custody in July 2021.
64	You have little contact with the outside world apart from occasional phone calls with your mother.  You have not received any visits during your period on remand.  I accept that your time in custody will be harder as a result of your mental and physical conditions.  That needs to be given proper weight in the sentencing process.
65	It is conceded that I am required to impose a term of imprisonment which would require the imposition of a non-parole period and that I should give proper weight to the totality principle in determining the degree of concurrency and cumulation as between sentences.
66	You have been in custody now for some considerable period of time, a total of 508 days.
67	I am bound by the mandatory sentencing regime under Part 3 of Division 2 of the Sentencing Act.  And there is no dispute about that or as to how those principles should be applied.
68	It is necessary to denounce your offending, to punish you for your offending conduct, and to give proper weight, albeit with due consideration to the Bugmy principles and the Verdins principles, to the need for general deterrence.  I need to consider the protection of the community and individual deterrence.  I have already assessed your prospects of rehabilitation as no more than guarded at this stage.
69	You have long-term drug habits to contend with and it is difficult to see how your prospects of rehabilitation can be improved above that of guarded until you get to grips with your long-term drug problems, arising as they do from the deprived background that I have outlined in detail.
70	Doing the best I can to give proper weight to all of those sentencing considerations, I am now ready to impose sentence upon you.
71	Cody Miller, on Charge 1 on the indictment, you are convicted and sentenced to imprisonment for a period of three years and six months.
72	On Charge 2 on the indictment, you are convicted and sentenced to imprisonment for three years and six months.
73	On Charge 3 on the indictment of intentionally causing injury to the victim the subject of Charge 2, you are convicted and sentenced to imprisonment for 18 months.
74	On Charge 4 on the indictment of armed robbery, which I note was the one armed robbery of the three that you committed alone, armed with a knife, you are convicted and sentenced to imprisonment for a period of four years.
75	On Charge 5 on the indictment of possession of cannabis, you are convicted and discharged.
76	On Charge 6 on the indictment of possession of a drug of dependence, namely Ritalin, being one tablet, I dismiss the charge pursuant to s76 of the Sentencing Act.
77	In relation to the summary offence of possessing a controlled weapon, I note that it seems one of those weapons was used during the offence the subject of Charge 4.  I convict you and sentence you to three months' imprisonment for that offence.
78	The sentence on Charge 4 of four years’ imprisonment is the base sentence.  I order that six months of the sentence on Charge 1, six months of the sentence on Charge 2 and three months of the sentence on Charge 3 be served cumulatively on one another and on the sentence of four years on Charge 4.
79	The total effective sentence is therefore imprisonment for five years and three months.  
80	I fix a non-parole period of three years and five months.
81	I declare that 508 days pre-sentence detention is to be reckoned as time served on the sentences that I have imposed and deducted administratively, and I order that this is to be noted in the records of the court.
82	But for your pleas of guilty, I would have sentenced you to imprisonment for a period of seven years and six months, with a non-parole period of five years and three months.
83	I make the order for disposal of property in accordance with the draft I have been provided.  Are there any other matters, counsel?
84	MS WONG:  No, Your Honour.
85	HIS HONOUR:  Thank you.
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