STATE OF TASMANIA v PHILIP MAXWELL MILBURN 26 JUNE 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Milburn, the defendant, pleaded guilty in the Magistrates Court to one count of aggravated armed robbery, and appears in this Court for sentence. I am also dealing with his plea of guilty to an associated charge of aggravated burglary. These charges arise out of events on 2 November 2018. The course of events started at about 11.30pm. The defendant and a woman, J, went to the home of the complainant, Mr Taylor, in Deloraine. Mr Taylor knows the defendant, as the defendant had previously been in a relationship with his daughter. It appears the defendant had told J that the complainant had a lot of money, and J had the idea of robbing him. At the complainant’s home, J rang the front doorbell. She was wearing a bandana over her face. The defendant was standing behind her holding a pillow case so that it covered the lower part of his face. When the complainant opened the door, J made to go inside, but the complainant kicked out at J, pushed her out the door, and shut and locked it. The complainant contacted police. He said he did not know who the people were. Early the next morning, the defendant and J enlisted the support of another man, H. The three of them went back to the complainant’s home. J climbed in through an unlocked window at the back of the house, and then let the others in. The house was in darkness. At the time the defendant had a wooden baseball bat and was wearing a balaclava. H had a tee shirt wrapped round his face, and J was wearing the same bandana. She was also in possession of a torch. Mr Taylor woke up, and seeing the torchlight in the lounge room, went there where the defendant grabbed him to stop him from moving. Mr Taylor was then struck on the head and face about four to five times by either the baseball bat or the torch. He was knocked to the ground. Mr Taylor was unable to identify who hit him, although he describes J as the main aggressor and leader. When he was on the ground, J told H to tie Mr Taylor up, which he did with rope. While lying on the ground, he saw J and the defendant ransacking his house, with H standing guard. Mr Taylor briefly lost consciousness for a time and when he came to, he noticed he was in a large pool of blood and vomit. The three offenders removed property from Mr Taylor’s house and put items in both the vehicles they had used to get there – the defendant’s mother’s vehicle – as well as Mr Taylor’s vehicle. A large amount of property was taken. It includes a mobile phone, hand tools, power tools, household electronics including a television, jewellery, cameras, Mr Taylor’s wallet and his keys. After the offenders had left, Mr Taylor managed to untie himself and, being without a mobile or landline phone, he used his computer to send a message to a friend. Police arrived a short time later. Mr Taylor was then taken to hospital. He received a two centimetre laceration to the scalp which was stapled, a one centimetre laceration between his eyebrow which was stitched, and bruising to his body. Later in the morning of the same day, police went to the defendant’s home. J was there. All of Mr Taylor’s property was located there with the vehicle being found some 300 metres away. The defendant was arrested. When interviewed he admitting bragging to J about the complainant’s wealth. He admitted going to the home on the first occasion. After that, he said he thought that they were going home but J said they were going back and collected H, as J wanted a stronger person to go with her. Among further admissions made included an allegation that it was J who hit Mr Taylor on the head with either the bat or the torch. The defendant said he stood in the corner of the room and panicked. The State does not accept that this was his state when Mr Taylor first entered the room, although it is conceded that at one point the defendant stood in the corner, panicking. The defendant said he did not remember speaking; he was trying to keep his distance and keep quiet so Mr Taylor would not recognise him. He denied assaulting Mr Taylor at all. He admitted to being high on ‘ice’ at the time of offending. He said he felt bad for what happened and asked police if Mr Taylor was alright. The State asserts that the defendant is criminally responsible for all acts of violence as the three were “acting as part of a joint criminal enterprise”. On the basis of how that was explained, it means that each is said to have committed the crime by virtue of s 3(a) of the Criminal Code. I have a victim impact statement from Mr Taylor. As to the actual events, he said he was terrified. While bleeding from the head wound and tied up, he felt completely helpless and thought he was going to die. The stitching and bruising caused him pain and discomfort for quite a time. As at February 2019, he said that he suffers anxiety, particularly at night time if there are unusual and unexplained noises. Sometimes his fear and anxiety are such that he has to call upon a friend to sit with him until he can relax. His sleep pattern remains disturbed. He has had to seek counselling to provide him with strategies to help overcome his trauma.
The defendant is now 37 years old, a single man but a father of three children, the eldest of whom is an adult. As well as submissions from his counsel, I have a detailed pre-sentence report dated 20 September 2018. This was prepared for a magistrate in relation to a number of drug offences. The defendant has a recorded history of offending going back to 2001. Predominant are traffic offences and drug offences, although there is some history of dishonesty and violence; in particular, two convictions for aggravated burglary in 2006. Drug offending is a recurrent theme. Before this incident he was convicted of assault in 2004, and since this incident has been convicted of three counts of assault in a family violence context, those offences having been committed before the present ones. The significance of the latter is that he was on bail for those matters at the time of the present offending. Moreover, for drug offences, the defendant was sentenced on 27 September 2018 to three months’ imprisonment the execution of which was wholly suspended on conditions. This offending puts him in breach, and there is an application to activate that sentence. The defendant does not seek to show cause and does not argue that its activation is unjust. The defendant had something of a disrupted upbringing, being raised by his father until he was 6, when his father died. He then spent some time with his aunt and grandmother but then in foster homes, before being returned to the care of his mother. It seems that he then lived between the homes of his mother and grandmother. His drug abuse started with experimentation with cannabis at the age of 15, and he has been a regular and heavy user since. Additionally, he has used morphine from the age of 17 years, and has also been an occasional user of amphetamines, tending to binge on the drug spending large amounts of money. He has been diagnosed with schizophrenia and is currently receiving medication for that condition. Of some significance in relation to his drug abuse is his entry into a residential rehabilitation program in about March 2018. When interviewed by the probation officer, the author of the report, the defendant’s case manager had some very positive things to say about his insight into his problems and his desire to rehabilitate himself. He applied himself well in group therapy sessions, and in counselling and case management. Unfortunately, in September, he was discharged from the program after he went to a function and consumed alcohol. He had to re-apply for entry which he could not do until 28 days had elapsed. I am told that the defendant regrets making comments to J about the opportunity that presented itself in terms of robbing Mr Taylor. It seems he was initially willing to go along but became concerned when the violence escalated, and he was more or less an unwilling participant from that point. I take into account his lesser role in the physical violence but he was largely instrumental in the planning and pursuit of what happened. At the same time, I accept that he did not think that any violence would be at the level that actually occurred. He pleaded guilty on his second appearance in the Magistrates Court; 27 November 2018. He has not applied for bail. He is entitled to credit for his early plea of guilty and I accept that his conduct since his arrest evidences remorse. That is relevant to the factors of specific deterrence and rehabilitation. I note that he has not previously served any actual time in prison, but has had the benefit of three suspended terms.
Mr Milburn, this was a serious instance of what is often called a home invasion. Such conduct needs to be strongly condemned. It was premediated and persisted in after one failed attempt. You were in company with two others, both of whom were armed in one form or another. You are criminally responsible for a high level of violence causing injury and trauma, although not the actual perpetrator. Much property was taken but ultimately recovered. I note you have shown some significant motivation to rehabilitate yourself from your drug problem, and I will make allowance for that in the form of a parole period. First, I activate the suspended sentence of three months. That will take effect on 2 November 2018. You are convicted of the crimes before me and sentenced to three years and nine months’ imprisonment cumulative to that term. I order that you not be eligible for parole until you have served one half of those two terms.