Director of Public Prosecutions v McMillian

[2020] VCC 1227

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00234

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN MCMILLIAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2020
DATE OF SENTENCE:	12 August 2020
CASE MAY BE CITED AS:	DPP v McMillian
MEDIUM NEUTRAL CITATION:	[2020] VCC 1227

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Using carriage service to procure a person  under the age of 16 years (Commonwealth charges 1 and  2) – Possess methamphetamine (State charge 3)  - Aboriginal background -  History of substance abuse – History of mental illness – Major depressive disorder – Good prospects of rehabilitation

Legislation Cited:    Crimes Act 1914 (Commonwealth)

Sentence:Convicted and sentenced to 2 years and 6 months’ imprisonment (Charges 1 and 2) to be released after serving 6 months’ imprisonment on a Recognisance Release Order to be of good behaviour for a period of 4 years – Convicted and sentence to 7 days’ imprisonment (Charge 3) to be served concurrently with the sentence on Charges 1 and 2 – 3 days’ pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Sex offender registration for a period of 15 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Skjoblar	Commonwealth DPP
For the Accused	Mr B. Newton	Dribbin & Brown Criminal Law

HER HONOUR:

1Sean Michael McMillian, you have pleaded guilty to two charges of using a carriage service to procure a person believed to be under the age of 16 years with the intention of engaging in sexual activity, and one charge of possessing methamphetamine, which is a state charge.

2The first mentioned offence has a maximum penalty of 15 years' imprisonment, whilst the state offence of possessing methamphetamine has a maximum penalty of five years' imprisonment.

3The maximum penalties reflect the seriousness with which the Commonwealth and State Parliaments respectively regard the offences and the maximum penalty is one of the matters which I must take into account when sentencing you.

4You were 26 and 27 at the time of the offending.  Charges 1 and 2 relate to sexualised chatlogs which you had with a 'Lily' and a 'Sienna', each of whom you believed to be under 16 years, but who were in fact police covert operatives, who were investigating online child exploitation.

5The basis for Charge 1 is that between 26 September and 16 October 2019, you communicated with 'Lily', who told you she was 14 years old, via Kik, an instant messaging service.  The service allows people to retain a good deal of anonymity as an account can be set up without the need to submit a mobile phone service during the set up stage.

6You commenced the conversation with Lily as follows:  you, where your name has been referred to as  'Seany Mack',  said,

·'Hey there, what's your ASL...26, M, Altona here'. (This communication was on 26 September 2019).

·Lily, 'Hi, I'm 14, Melb'.

·'Seany Mack, 'You're young, sorry for messaging you'.

·Lily, 'Lol, that's okay'.

·'Seany Mack, 'You just here to chat, meet up, looking for some fun?'  The last remark made by you was on 16 October 2019.

7Using a slightly different online name on 1 November, you sent a picture of yourself to Lily.  You were lying on a bed and wrapped in a towel.  On
4 November you offered to send an image of your genitals to lily.  Lily told you that she would get into trouble for receiving such an image.  You responded that you would not get caught on the Kik application and you told Lily that she ought delete such an image and any related messaging.

8On 4 November you sent to Lily two images of yourself exposing your erect penis and a video of yourself lying on a bed masturbating.

9Subsequently, on that same date and 5 November, you communicated with Lily.  The prosecution opening referred to the following extract at paragraph 8:

·      Lily, 'I've never had sex before so I don't really know what to do'.  That communication being on 4 November.

·       Seany, 'You want to have sex?'

·      Lily, 'You don't care that I'm only 14?'

·      Seany, 'Do you care?  Maybe not have sex but would you like oral?  Feed you my cock.  Make sure delete chat'.

·      Seany, 'You played with yourself?' 

·      Lily, 'Yeah'.  'Seany, 'So you know what orgasm feels like?'

·       Seany, 'If you can get house for morning or afternoon, pick you up from school in lunch break.  So tomorrow morning?'

·      Lily, 'Yeah, what do you want to do?'

·       Seany, 'What do you want to do?  What time's house free or not at the house?'

·      Lily, 'About 10 is good.  I'm not sure, I haven't done much sex stuff before'.  'Seany, 'You sure you want to do this?'

·      Lily, 'Do you?'  'Seany, 'As long as you're okay with it cause don't want this to come back on me somehow'.

·      Lily, 'What do you mean?'

·      Seany, 'If someone else was to find out'.

10On 5 November you sent two images of yourself exposing your erect penis.

11You also sent five videos to her:  one of these depicted you lying on a bed masturbating; three videos were of an adult female performing oral sex on a male; one video was of an adult female inserting a vibrator into her mouth while touching her breasts.

12I was taken to a further extract of things that you said to Lily online on
5 November, which were as follows (paragraph 9 of the prosecution opening):  Seany, 'You want me to make you orgasm?  You had one of those Cyclone ice poles before?  Like suck on one of them like sucking on a lollypop'.  And again, 'Seany’, 'And how you want to do it?  Want me to lay back and let you enjoy yourself or want me to be more forceful?'  And further you said, 'I'll bring condom.  If you want it in you then you can slide on top of me'.

Charge 2

13I now come to the basis for Charge 2.

14The basis for charge 2 is that on 30 October 2019, you used a third slightly different username to the first two and communicated via Kik, with 'Sienna', who you believed was a 15 year old girl.

15The prosecution referred me to the following extract of communications between you and 'Sienna' at paragraph 11 of the opening:

Seanie M	"Hey how's your day going...Hi 27 altona here" (30 October 2019)
Sienna	"1m 15 near dandy" (1 November 2019)
Seanie M	"What are you looking for" (1 November 2019)
Sienna	"1dk just chat-tin" (1 November 2019)
Seanie	"So just chattin...No meet up no fun" (1 November 2019)
Seanie	"So you got a pic of urself" (after face pic sent by Sienna) "We keeping pics pg haha" (4 November 2019)
Sienna	"Wat else wuld they be lolz" (4 November 2019)
Seanie	"Ones they aren't so pg...You want anything non pg from me" (4 November 2019)
Seanie M	"Did u want to see anymore? More revealing maybr" (4 November 2019)
Sienna	"Urnm lolz no" (4 November 2019)
Seanie M	"So meeting up isnt on your list of things to do then hey...Would u meet for fun" (4 November 2019)
Seanie M	"You ever hooked up with anyone" (4 November 2019)
Sienna	"No neva"
Seanie	"So you've never been played with or played with someone else...U seen a male part...Pics...Or in person.... You want to do more than just see one" (4 November 2019)
Seanie M	"In other words im asking if u would like to see mine and play with it" (4 November 2019)
Seanie	"And if u would be interested in meeting up and seeing and playing with it...And if u want to have some naughty fun. Not sex but I would play with u" (5 November 2019)
Sienna	"Idk wuld u meet me? Hav u ever met a girl my age b4?" (5 November 2019)
Seanie	"Yes" (5 November 2019)
Sienna	"2 hav sex?" (5 November 2019)
Seanie	If that's what they want (5 November 2019)

16On 5 November, you sent an image of a male pulling down his pants and showing his exposed erect penis.

17On 5 and 6 November, you made arrangements to meet with Sienna in North Melbourne on 12 November, telling her that you would rent an Air BNB or 'drive somewhere secluded' like a car park.

18You gave her your phone number and on 12 November you communicated with her via SMS, using this phone number.  Subsequently, you sent her messages about the car you would be driving to collect her in and on 12 November you told her your 'eta'.  You then told her where you were parked.

19Shortly after this, you were arrested by police.

20When you were arrested, police found a small quantity of methamphetamine on you, which was less than 1 gram.  This gives rise to Charge 3 on the indictment.

21When you were arrested, police seized your mobile phone, and, apart from the methamphetamine, to which I have just referred, found the following items in your car:

a.Condoms

b.Massage oil and towels

c.A glass pipe

22Police later interrogated your phone which revealed the images and conversations to which I have previously referred.

23You took part in a record of interview, in which you made some admissions.  Parts of the record of interview were referred to in the prosecution opening, as follows:  you admitted to chatting with Lily.  You said you could not recall her age but you knew she was under 16.  You admitted to knowing the age of consent was 16 and that Lily was underage.  You could not recall sending images of your penis to Lily.  You said you could not recall asking Lily if she wanted to have sex.  You said you accessed Kik via your Samsung mobile phone, which was protected by a passcode, fingerprint and face verification technology and that no one else had access to your mobile phone and no one else knew the passcode.

24You admitted to chatting with Sienna.  You said you were aware of Sienna's age but you did not see any harm in just chatting with her.  You thought Sienna looked 17 from her photos.  You admitted the chats with Sienna were sexualised but you made no comment about the details.  You said that after you picked Sienna up you were going to take her for a drive and 'see what she was comfortable with'.  When asked to elaborate further on what you planned to do with Sienna if she felt comfortable, you answered 'no comment'.

25You admitted to sending images of your penis to Sienna, but said that at the time you were high and not in the right mindset.  You said you sometimes used ice to help concentrate and to give you energy and at other times this made you not think about what you were doing.

26Mr McMillian, your offending is serious and I must impose a sentence of a severity which is appropriate in all of the circumstances.  I must impose a sentence which serves to adequately punish you for your offending.

27You communicated with two different people who you believed were underage girls-  one of whom you believed to be 14 and the other, you believed to be 15 years old- knowing full well that this was against the law.  You did what you could to procure each of the 'would-be victims’ to engage in sexual activity, transmitting lewd images along the way and testing the water in respect of what each of them was prepared to do.  It was readily apparent to you from very early on that each of the 'victims' were sexually inexperienced, but this did not stop you from pursuing them.  Moreover, in the case of Sienna, you actually went to meet with her, intending to engage in sexual activity with her.  The fact that you had condoms in the car suggested that the nature of the sexual activity that you had in mind was penile penetration.

28You were obviously conscious of the fact that you were engaging in illegal conduct from the outset as you made clear to Lily that she needed to delete messages which might incriminate you.

29Your conduct was deliberative, and focused, enduring over a period of about six weeks on my calculation.  Your offending in respect of each of the ‘would-be victims’ partially overlapped, so it was not even as if you were particularly enamoured with one person.  But the fact that you were communicating with more than one victim in an overlapping period is relevant to your moral culpability, which I find is high.

30The fact that you were abusing methamphetamine at this time is not mitigatory, nor is it aggravating.  It is one of the circumstances in which your offending occurred but it does not completely explain why you behaved as you did.

31The fact that there were no actual victims is more a case of your good fortune rather than anything else.  This is not a matter in mitigation.  If there had been actual victims then your offending would be even more serious than it already is, but it is serious enough in any event.  The fact of the matter is, that you were prepared to behave in this abhorrent fashion toward two underage girls, who were, to your knowledge, about 12 years younger than you.

32In assessing the seriousness of your offending, I have also factored in that you did not lie about your age nor did you go to great lengths to conceal your identity, as can often occur in cases such as this-  Although, it appears that you were banking on your communications being kept secret by the recipients.

33In sentencing you, I take into account your background:

34You were born in country New South Wales to loving parents who are still together and supportive of you which was evident at the plea hearing.  Your mother is English and your father is Aboriginal.  You are the oldest of three children.  Your father was a member of the armed forces, and progressed through the ranks to the position of Major.  Unfortunately, his work meant that you and your family were constantly on the move, and he was absent for significant periods on tours of duty or postings during a number of your formative years, which impacted severely on your experience of childhood.  However, your mother was always there for you.  Your father, when present, although also loving, was a strict disciplinarian.  Your regular school changes led you to be the constant object of bullying.

Substance Abuse History

35In late 2013, you commenced using ice on weekends in social gatherings.  After three months of this, you became addicted to it.  You regularly smoked the drug up to October 2014, but tried to break the habit by flying up to your family in Townsville in November that year.  You remained abstinent for a while.  In
July 2015 you underwent residential drug treatment in Wagga Wagga and were well supported by your uncle and aunt.  You completed two detoxification programs in a row and were able to remain fairly abstinent until October 2018; however, you relapsed into drug use at this time.  You admitted yourself to a residential 28 day drug and alcohol program at Wyndham Clinic.  You returned to work as an apprentice air conditioning mechanic, working 30 hours per week and attending rehabilitation sessions at Wyndham Clinic, remaining substance free till September 2019.  Unfortunately, you relapsed again into ice use, continuing with this until your arrest and remand into custody in November 2019.

36I understand that you relapsed again into ice use after suffering a back injury at work which saw you off work, then placed on light duties.  You became increasingly depressed and lost motivation to continue with your RMIT studies.  This then led to you having your employment terminated.

37You were bailed to live with your parents in Townsville, where you have been abstinent from drugs and alcohol-  At least this was the situation as at the plea hearing and I understand that you continue to  abstain.

Mental Health

38In terms of your mental health, you were diagnosed with severe depression whilst undergoing your first residential drug treatment in July 2015.  Your symptoms have persisted over a number of years and you have been prescribed medication to help you deal with your mental health difficulties.  After you were bailed for the offending before me, you embarked on 10 treatment sessions with a clinical psychologist, as evidenced by letters from her which were tendered at the plea hearing.

39I have also received a report from Ms Carla Lechner psychologist who has seen you once for the purposes of preparing a report.  According to Ms Lechner, you have symptoms of Stimulant Use Disorder which is in early remission and you also suffer from Major Depressive Disorder.  She is of the view that you turned to drugs, especially ice to improve your mood in the context of a mood disorder suffered after bullying at school and tensions at home, and to alleviate your social anxiety and improve your self-confidence.  She said that you became caught in a cycle of using drugs to improve your mood but that this had the effect of aggravating your symptoms of depression and anxiety.  She said that your use of ice had also led to sexual disinhibition which 'when coupled with his psychosexual anxiety and immaturity, potentially leads to sexually inappropriate behaviour'.

40In sentencing you, I take into account your mental health in a general way, as it is not relied on to moderate any sentencing principles.  However, I accept that any time in gaol served by you will be a good deal harsher because of your mental health issues and that there is a risk that your mental health might well deteriorate.  Also, this would be your first time in gaol, and the COVID-19 restrictions will mean that you undergo a harsher form of imprisonment than would otherwise be the case.  Your immediate family and your partner live in Queensland, so you will not receive any visits from them, although you have some support in Melbourne.  You are a fairly young man of Aboriginal background on your father's side such that you may well be especially at risk in terms of your health, although this is not clear in your particular case.  You suffer from sleep apnoea, but I have been advised that the equipment or apparatus that you need to deal with this, is accessible in gaol.  However, your sleep apnoea may well expose you to further susceptibility in respect of
COVID-19.  There is no direct evidence that this is true in your case.  However, I allow for the fact that your experience of gaol will be further negatively impacted by your anxiety in respect of the prospect of contracting the illness in all of the circumstances.

41I have also factored in that you have had ongoing severe back problems that you have received physiotherapy treatment for, but your back injury will also make time in gaol a good deal harder than it might otherwise be.

42In terms of your sexual history you have had age appropriate relationships and sexual encounters of an appropriate nature, in terms of the ages of you and the other person, in the past from time to time- although, you have experienced a good deal of hurt from some of these relationships.  I am not sure if this helps to explain you targeting underage females on the occasions before me, also factoring in your methamphetamine use and psychological difficulties at the relevant time.  It is to be hoped that ongoing psychological treatment and undertaking appropriate programs, if and when you are able to, will help to fully explain and for you to fully grapple with why you behaved as you did.

43You are currently in a committed, age appropriate relationship, and your partner viewed the plea hearing along with your parents and other family members, who are in support of you.

Education/Vocational

44In terms of your educational and vocational background, despite your difficulties with dislocation and bullying, you completed secondary education to a good standard and did well in your first year of university studying a Bachelor of Engineering.  However, after the rest of your family went to England for your father to pursue a masters degree in engineering, I was told that you hosted a number of house parties and gatherings in order to gain social acceptance.  You also did a good deal of bar work and venue promotion work which saw you working at a number of venues at all hours of the day and night.  While your work helped to gain some social acceptance, your studies suffered, and you dropped out of university by the middle of second year.

45You have a rather solid work history, commencing when you were 12 years old as a paper boy, and you worked in supermarkets and bar venues, at times in supervisory or co-ordinator roles, as well as doing a brief stint as a baker's assistant.

46In 2016, you commenced an apprenticeship as an air conditioning mechanic with a particular company, continuing with this for the next three years.  In this role, you had travelled all over Melbourne for various tasks that you were given.  In 2016 you also achieved a number of certificate qualifications from Victoria University and from 2016 to 2019 you undertook a Certificate III course at RMIT in respect of heating and air conditioning.

47I understand that you are yet to complete your apprenticeship, but that you have been working towards this with a company in Townsville.  I have read a number of letters from that company, including one after the plea hearing, describing your duties and their preparedness to keep you on if they can.  I understand that whilst you have been in Melbourne and awaiting this hearing today, you have continued to work remotely with that company.  However, the company's ability to keep you on is somewhat limited if you are absent for too long.  Your supervisor and manager of the company also provided character references speaking very highly of you.  I must say that these individuals -that is, the company representatives, as well as members of your family who provided character references, have been most impressive in the ongoing and insightful support of you.  It is testament to you, though, that they are prepared to be.  However, in cases such as these, factors such as good character and mitigatory matters personal to an offender, although relevant, are not given primacy.  Paramount weight must be given to general deterrence.

48You pleaded guilty at the earliest opportunity which entitles you to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of taking part in contested proceedings and you have saved the community the time and expense of these.

49Although your offending conduct was deliberative and only came to an end when you were arrested, you made some admissions to police and gave them access to your phone.  You co-operated to an extent at that time, although you did not admit to the offending as such.  You have also taken a number of steps toward rehabilitation since the offending, and on the basis of all of the material before me, I am satisfied that you are remorseful for your actions, in the clear light of day, having weaned yourself of methamphetamine and received some appropriate treatment.

50You have no criminal history nor subsequent matters, and you have very solid family support as well as a supportive age appropriate partner.  The character evidence in support of you is most impressive.  The people who you have in your life are of very high calibre and they have expressed appropriate insight, as I have said, into the seriousness of your offending.  But they have also said that they are there for you on your path of rehabilitation.  Certainly, they have been there for you in the past in your battle with drug addiction and since your release on bail.

51I also understand that the three days that you spent on remand was a most salutary experience for you.  I also understand that you have self-harmed and have had suicidal thoughts, which is most concerning.

52Since your release on bail, you have done a great deal to rehabilitate, which is to your credit.  You have a way to go in finally dealing with your drug problem, and appropriately addressing your offending behaviour.  You wrote a letter to the Court which was eloquent and insightful.  You obviously have the motivation and ability to turn things around once and for good, but more needs to be done in order to address your drug problem once and for all, to deal with your mental health problems and address the underlying reasons for your offending.

53In all of the relevant circumstances, I regard your prospects of rehabilitation as guardedly good.  I place some weight on specific deterrence in view of the deliberative nature of the offending, your struggles with drugs, psychological issues, and the current unclear picture of your motivation for the offending.  I also place some weight on protection of the community for the same reasons.  However, the weight that I place on these is less than moderate in light of the matters in mitigation in your case.

54I must place strong weight on general deterrence, however, in a bid to deter others from behaving as you have.  Offending such as yours preys on the young and the vulnerable and is often difficult to detect.  A clear and strong message must be sent to other would-be offenders that conduct such as yours is intolerable.

55The question for me is whether the weight which I must give to all relevant sentencing considerations can be accommodated by anything less than a sentence which involves an immediate gaol term.  The prosecution submitted that it could not.  Your counsel submitted that a recognisance release order which saw you immediately released was within the range, although he seemed to accept that this was not clearly so.  Ordinarily, in cases such as this a gaol term which involves immediate gaol is the appropriate sentence.

56I was taken to a table by the prosecution and some cases by your counsel in respect of current sentencing practice.  Current sentencing practice is another matter that I must consider, although it is not a controlling factor in sentencing you.

57After a good deal of consideration, Mr McMillan, I am afraid that your offending is too serious to avoid an immediate sentence of imprisonment.  But I have kept this to a minimum in view of some weighty mitigatory matters in your favour and my concerns about the harshness of your experience of prison, especially in the current climate.

58You are convicted of each of the offences on the indictment.

Ancillary Order

59Please stand up, sir.

60By reason of your convictions for the first two offences you are to be recorded as a registrable offender for 15 years.  You must report your personal details to the chief commissioner of police annually for 15 years.  You must first report these details within seven days after your release from custody.  Details in writing of these reporting conditions will be served upon you by my associate.  I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

61Is it convenient to do that now?  I have signed that.  Madam Associate, I have signed it.

62MR NEWTON:  Your Honour, I can indicate the document's been signed.  Just as a matter of prisoner safety, the usual way in which this is done is that counsel will hold onto the actual hardcopy information.  That will be forwarded through my instructor to the client and his family.

63HER HONOUR:  All right.  Yes, thank you.  I will just continue on with my sentencing remarks.

64In respect of Charge 3, the state charge, you are sentenced to seven days' imprisonment.  I intend that that sentence run entirely concurrently with the Commonwealth gaol term to be immediately served.

65In respect of Charges 1 and 2, you are sentenced to an aggregate term of imprisonment of two years, six months, which will commence today.  But you will be released after six months upon giving security via recognisance in the sum of $3,000 to comply with the condition that you be of good behaviour for a period of four years, and a further condition that you undertake a sex offender's program upon your release from gaol.

66This means that you are to serve a term of six months gaol immediately, but you will be released after this period.  You will then have the balance of that gaol term, two years' imprisonment, hanging over your head for a period of four years.

67If you commit another offence within four years of your release or fail to complete a sex offender's program than unless you can give a justifiable excuse, you will be required to serve the additional two years' imprisonment and you may also be required to pay the sum of $3,000.

68I have imposed this sentence because of the seriousness of the offences that you have committed and to give appropriate weight to all relevant sentencing principles in your case but I have decided to release you after six months' imprisonment because this is the minimum period which I consider is appropriate in all of the circumstances, including matters personal to you.

69I am required to tell you that the recognisance release order can be varied or discharged under s.20AA of the Crimes Act 1914 (Commonwealth) upon application by you or a person described in s.20AA(1) of that Act.

6AAA

70If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years.

71I declare that you have already served three days by way of pre-sentence detention which will be deducted from your sentence.

72Take a seat for a moment please, sir.

73Madam Prosecutor, is there anything arising from those sentencing remarks?  I am sorry, I cannot hear you.  Just one moment.

74MS SKJOBLAR:  No, Your Honour, once I receive the order I'll advise (indistinct words.)

75HER HONOUR:  I am sorry, say it again.

76MS SKJOBLAR:  No, Your Honour, once I receive the orders I'll advise should there be anything arise.

77HER HONOUR:  Thank you very much.  Yes, the recognisance release order needs to be signed by your client.  Is there anything arising from my remarks?

78MR NEWTON:  No, Your Honour.

79HER HONOUR:  All right, thank you.  I will just sign that and again your client will need to sign that.  While that is happening, Mr Newton, I will have my associate communicate with the prison authority if you say that I should, and I think maybe I should-  That this is your client's first time in prison and that there are particular vulnerabilities in his particular case.

80MR NEWTON:  Yes.

81HER HONOUR:  Yes, all right, thank you.

82MR NEWTON:  Absolutely.  Thank you, Your Honour.

83HER HONOUR:  All right, if you could assist your client with the signing of the recognisance.

84MR NEWTON:  Yes, I'll do that.

85HER HONOUR:  Thank you.  Take a seat please, sir.  Ms Skjoblar, in the prosecution opening there was consent to forfeiture of the offender's -
Mr McMillian's phone.  There is no need for me to make an order, is there?

86MS SKJOBLAR:  No need, Your Honour.

87HER HONOUR:  Thank you.  All right, thank you.  Is there any reason why
Mr McMillian should not be removed at this time, Mr Newton?

88MR NEWTON:  No, Your Honour.

89HER HONOUR:  All right.  Yes, thank you, if you could remove Mr McMillian please.  Yes, thank you, we will now adjourn.

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