Director of Public Prosecutions v Miller

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01287

DIRECTOR OF PUBLIC PROSECUTIONS

DOUGLAS ANDREW MILLER

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2019
DATE OF SENTENCE:	6 February 2019
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2019] VCC 96

REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW - Sentence
Catchwords: Guilty plea – two charges of using a carriage service to groom a person under 16 years of age – one charge of trafficking in a drug of dependence – one charge of sexual penetration of a child under 16 – one charge of possession of child pornography
Legislation Cited: Criminal Code 1995 (Cth); Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958
Cases Cited: Clarkson and EJA v The Queen (2011) 32 VR 361, Williams v The Queen [2018] VSCA 171, Atanackovic v The Queen [2015] VSCA 136
Sentence: Community correction order for a period of three years with 200 hours of community work, mental health assessment and treatment, drug treatment and rehabilitation, programs to reduce the risk of reoffending and supervision

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D O'Doherty	OPP
For the Accused	Mr T S Lynch	Brian Birrell

HIS HONOUR:

Introduction

Douglas Andrew Miller, you have pleaded guilty to an indictment containing two Commonwealth charges and three State charges.
The Commonwealth charges are:
· Charges 1 and 2 - Use a carriage service to groom a person under the age of 16 for sexual activity contrary to s 474.27(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of 12 years imprisonment;
The state charges are:
· Charge 3 - Trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment;
· Charge 4 - Sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment; and
· Charge 5 - Possess child pornography material contrary to s 70(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.
You have also admitted your prior criminal record.

Circumstances of the offending

A prosecution opening was tendered on the plea which may be summarised as follows:
Lidia Denton[1], who was aged 15 at the time of the offending, first met you when she was with friends sometime in 2016. You did not have further contact with her until sometime in early 2017 when you started talking to each other by text message, through Facebook and on Snapchat. As a result of your conversations, Ms Denton started to have feelings for you about a month before anything happened between you. Your conversations would commence in an ordinary way, then you would make them sexual by saying things like you wanted her in your bed, or that you wanted to have sex with her.
[1] A pseudonym name
During one of the conversations, you asked Ms Denton how old she was. She told you she was 15. You told her you were older than her and said you were 20, thus being truthful about your age.
On Saturday 3 June 2017, you and Ms Denton sent each other text messages during the day and you arranged to meet at a park in the afternoon. Later that evening, Ms Denton sent you a text message saying ‘I like you’. You then sent several messages asking her to meet up later that night, saying you could talk about it in person, and encouraged her to sneak out and come over to your house. You did not end up meeting that day.
The next morning, following further text messages, you again suggested meeting up and you both arranged to meet at the silos at 12.00pm.
Ms Denton went to the silos with her friend, Lorraine Hopson[2], who was 14 at the time. She met you there, along with Alex Jackman[3]. Ms Hopson and Mr Jackman went for a walk, leaving you and Ms Denton alone in the silo. You both went into a room inside the silo, where you talked. You both started cuddling and you began kissing Ms Denton's neck, before you had sexual intercourse, with you introducing your penis into Ms Denton's vagina. You did not wear a condom. You ejaculated, but not inside her vagina. These are the facts that form the basis of charge 4 which is a representative charge and relate to two further occasions where the same act took place over the following two weeks.
[2] A pseudonym name
[3] A pseudonym name
Ms Denton went back to Numurkah that afternoon. You both kept messaging each other. You both talked about meeting up again soon and you told her that you wanted your relationship with her to be closer. Ms Denton told you that you should always have a condom on you, because she did not want to risk getting pregnant. Later that night, she asked you if you only wanted her for sex. You said no.
On 5 June 2017, you both had a conversation on Snapchat between 4.39pm and 10.42pm. During that conversation, Ms Denton asked you whether you knew that ‘the thing that happened in the silos’ was going to happen. She then sent you a photograph of herself holding her dress up, showing her thigh and underwear, which has been categorised as child exploitation material. You responded saying you didn’t, and commented ‘sexy’ in respect of the photograph. Over the course of the rest of that conversation, and later on 7 June 2017, Ms Denton sent you another 14 photographs that have also been categorised as child exploitation material. You encouraged her to do so by making comments like: ‘Awe you put your clothes back on’ and ‘Can I see more of your sexy body’.
The photographs that Ms Denton sent you included those showing her inner thighs and underwear, her naked breasts and torso, and her hand over her vagina. Thirteen of the photographs were categorised as category 1, one as category 2 and one as category 7 child exploitation material.
In the early hours of the morning of 6 June 2017, you continued sending text messages to Ms Denton. You told her that when she stayed at Lorraine’s she should stay at your house one night. You said you would love it if she stayed and said ‘Plus if we do stuff in a bed will be so much better and it will mean more’.
You met with Ms Denton and Ms Hopson at a toilet block in Numurkah twice on 8 June 2017 - once after school, then again later that night. When discussing meeting up that morning by text message, you told Ms Denton you were going to bring a blanket, and suggested it could be used to have sex together without making it obvious what you were doing. Later that morning, you also sent her messages saying you were going to make her horny, and you could not wait to catch up that night. Ms Hopson stated that she and Ms Denton bought $20 worth of cannabis from you when they met you that day. The cannabis involved was a small quantity. It is these facts that relate to charge 3, trafficking in a drug of dependence.
Sometime after 2.00am on 10 June 2017, you again met with Ms Denton in the female toilets (in the toilet block in Numurkah). Before you met, you asked Ms Denton if she wanted to have sex and she said yes. She had a condom with her, but you did not want to use it and said it was better without one. This was the second occasion you had sexual intercourse with Ms Denton, introducing your penis into her vagina and the first uncharged act represented by charge 4.
You met with Ms Denton in the same place again on the night of 11 June 2017. You both arranged to meet through text messages, and discussed sharing cannabis, but on this occasion you said you were ‘shouting’. From the messages, it is apparent that nothing sexual happened between you on that evening.
On Monday 12 June 2017, you messaged Ms Denton and told her you could make your relationship better by having a threesome with Ms Hopson. She told you no. At around the same time, you were sending messages to Ms Hopson. Sometime in the morning of 12 June 2017 you sent Ms Hopson a sexually explicit text message which is detailed in the prosecution opening.
At about 6.51am on that day, Ms Hopson replied and indicated she would not meet up with you or talk with you like that, as Ms Denton was her best friend and she (that is Ms Denton) liked you.
That night, Ms Denton asked you what you wanted out of the relationship. You said you wanted to get closer and hopefully form a relationship. Ms Denton said she wanted the same, but told you that you could not talk to Ms Hopson the way you had been. Ms Denton indicated she wanted the relationship to work, and you told her she should show you that she wanted that, so you knew she meant it. She asked how she was supposed to show it to you, and you responded saying making conversation, spending time together, getting to know each other better, and ‘I'm sure you know other ways you can show it’. Ms Denton replied saying ‘When do you want to’. You replied saying ‘tonight’. You said ‘I can come and see you if you want’.
You both met again in the toilet block in Numurkah for the final time shortly after that. You brought a blanket with you again which was put on the floor. You both began talking, then got closer and started kissing. You touched her breasts and vagina under her clothing, and then you had sexual intercourse, with you introducing your penis into Ms Denton's vagina. You were on top of her to begin with, but then you swapped positions. You did not wear a condom. Towards the end, Ms Denton told you that she did not want it anymore and to get off, but you counted down how much longer you would be, before withdrawing when you ejaculated. This is the second uncharged act represented by charge 4.
On 14 June 2017, Ms Denton told her mother about having sexual intercourse with you. Ms Hopson also told a teacher about the relationship the following day when asked why Ms Denton was not at school and the police were notified.
The messages you sent to Ms Denton by text message and Snapchat summarised above are the basis of charge 1, using a carriage service to groom a person under 16 years of age.
In addition to the message you sent to Ms Hopson on 12 June 2017, you also sent her further messages. Ms Hopson told her guardian, Lucia Whittle[4]. A couple of weeks later, Ms Hopson told Ms Whittle that she didn’t want you messaging her anymore as you were asking her about sex, talking about watching a movie together and asked if she would have sex with you. Ms Whittle told her husband Peter Whittle[5]. Within a few days, Mr Whittle saw you when you came to collect the mail from their shop. He told you to leave Ms Hopson alone as she was only 14.
[4] A pseudonym name
[5] A pseudonym name
You sent her further messages on 6 June 2017 using Facebook messenger. The messages included four images of your penis and four videos of you masturbating. You asked Ms Hopson several times if she received them, but she pretended she had not because she did not want to view them. The messages, images and videos you sent to Ms Hopson are the basis of charge 2, using a carriage service to groom a person under 16 years of age.
On 19 June 2017, you went to the Shepparton Police Station and spoke to Detective Sergeant Paul Shortis. On that day, your mobile phone was seized by police. It was later analysed and police located the 15 photographs that Ms Denton had sent you between 5 - 7 June 2017, which were categorised as child exploitation material the subject of charge 5 - possession of child pornography.
On 6 September 2017, police attended your home and you were arrested in relation to this matter. You were interviewed in the presence of an independent third person. You admitted that you had intercourse with Ms Denton and that it was consensual. You said that you were unsure if she was 15. You said that Mr Whittle had said something to you about Ms Hopson and to stay away from her but denied that you had been told that she was 14. You said that you had sold a small amount of cannabis to Ms Hopson for $20.

Objective seriousness of the offending

Sexual offences against children are regarded as very serious. This is because the victims of such offences are vulnerable and dependent upon adults and the law seeks to protect young persons from harm. Further, the seriousness of such offences including the grooming offences in this instance, is reflected by the maximum penalties imposed - 12 years in relation to the grooming offence and 10 years in relation to the penetration offence.
In Clarkson and EJA v The Queen[6] the Court of Appeal explained that these offences are ‘founded on a presumption of harm … intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when the child can give meaningful consent.’
[6] (2011) 32 VR 361 at [3].
In this instance however, while the offences by their nature are serious, it is relevant that while the victim of the sexual penetration charge was 15, you were at the time a young and very immature man of 20 years. In that regard the comments by Harper JA in Clarkson are apposite:
…there are exceptional cases - for example, in a relationship between a 15-year-old girl and an 18-year-old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offences as less grave and the offender's culpability as reduced.[7]
[7] Ibid at [7].
It is clear from the summary of prosecution opening, that while you used the medium of text messaging to turn your communications with Ms Denton to sexual matters in order to interest her in having sex with you, she did have a genuine interest in pursuing a relationship with you. It is also clear that in relation to the times that you did have sex, you both agreed to meet and both of you willingly engaged in sexual activity, including intercourse.
In relation to Ms Hopson, your text conversations with her were more brazen however Ms Hopson did engage with you and told you to desist. Ms Hopson went further and reported you to her guardian and you were told to leave her alone. Undeterred, you sent her explicit pictures of yourself. In my view while your efforts to engage Ms Hopson in your sexual conversations were unsuccessful, your behaviour was brazen and appalling.
As to the charge of possession of child pornography, this relates to the images that Ms Denton sent to you that she had taken of herself. In my view while this charge is by its nature a serious charge and separate to the grooming charge, it arose as part of the general conversation you were having with Ms Denton via your telephone communications. It was confined to communication between the two of you and it is not the usual example of this type of charge which typically consists of possession of such material that has been circulating on the internet. However, while it appears from the evidence that the initial photo sent to you was unprompted by you, you encouraged Ms Denton to send further photos which is evidenced by your text responses.
A victim impact statement was prepared by Ms Denton and tendered on the plea. I have taken the contents of that victim impact statement into account. The victim impact statement demonstrates the effects this incident has had on Ms Denton and the difficulties she has had readjusting to school, her friends and her family. She notes that being around males now makes her feel uncomfortable and her social life has been restricted. She has also been engaged in counselling for a period of time. She feels as if her life has been turned upside down and she is very angry.

Personal circumstances

You are now aged 21 and were 20 at the time of the offences. Your parents separated when you were 18 months of age and you were essentially raised by your mother and stepfather. You have a younger half-brother, aged eight. Your mother and your stepfather recently separated and your mother has recently relocated to Queensland. You have indicated that you will probably follow her there when this matter is resolved.
You grew up in Wunghnu north of Shepparton, attending the local primary school. You displayed learning difficulties at an early age and ultimately in 2011 you were diagnosed with Autism Spectrum Disorder (ASD). You attended McGuire College for your secondary schooling leaving partway through year 11. In 2014 you attempted a number of TAFE courses but did not finish.
You have not had any long-term employment and are currently in receipt of the disability support pension as a result of your disorder.
Ms Carla Lechner, clinical psychologist, prepared a report which was tendered on the plea. She assessed you and conducted various psychometric testing. As to your ASD she notes as follows:
This disorder is characterised by impairments in social interaction, communication, imaginative thinking, and the presence of restricted or repetitive patterns of behaviour and/or play. This is manifested in immature social and emotional interactions and sometimes a tendency to gravitate to younger persons who are of a similar level of maturity. This appears to be at play in terms of Mr Miller's social and sexual interactions and a contributing factor to his offending.
As a result of the psychometric testing and assessment of you at interview, Ms Lechner makes the following observations:
Mr Miller's offending does not appear to be reflective of a sexual preference for young girls per se, rather it is a manifestation of his poor social skills and emotional immaturity. He tends to gravitate to those whose social and emotional maturity matches his own. In respect of these matters, Mr Miller stated that the sexual contact was consensual, that he was attracted to the complainants and did not really think about their respective ages. He understands that it is wrong to engage in sexual contact with girls under the age of 16 years but fails to have a full understanding about why this is so given that he operates at that level of mid-teenage maturity.
In relation to the various testing that was completed as to risk, Ms Lechner concludes as follows:
…It is my view that Mr Miller is a ‘moderate’ risk of future sexual offending. It remains my view that Mr Miller's offending is not related to a sexual deviancy problem and a sexual attraction to young girls per se, rather is a reflection of his social and emotional immaturity, poor judgment skills and poor impulse inhibition.
Your mother Belinda Downes gave evidence on the plea. She provided some history of your various interaction with specialists through your younger years including various psychologists, speech pathologists and paediatricians. She also notes that you attended a clinical psychologist up until the age of 18. She stated that through your schooling years you had great difficulties interacting with other children because of your disorder. She notes that the teachers had great difficulty with you and although you were suspended on many occasions, the schools you attended continued to support you. Ms Downes has recently moved to Queensland and you now live with your father John Miller in Shepparton.
Mr Miller also gave evidence on the plea. He understands your disorder and the difficulties you are facing as you grow into adulthood. He works full-time in the earthmoving industry. He gave evidence that the company he works for is able to offer you work and that there is plenty of work available once this matter is concluded. Both Mr Miller and your mother gave evidence that when you speak about topics that you are interested in such as mechanics and cars, you are able to engage in mature conversation with adults.
Both your parents were also interviewed by Ms Lechner and consistent with the evidence that they gave before me, she reports that both your parents have always been concerned about your immaturity and your inability to read people. These observations by both your parents also accord with Ms Lechner's professional opinion based upon her observations and testing that your social and emotional immaturity is a contributing factor to your offending.

Sentencing considerations

I take into account that you have pleaded guilty to these offences and that the plea was entered at the earliest opportunity at the committal mention stage. As such, your plea of guilty has avoided the need for a trial and importantly, has avoided witnesses having to give evidence and relive the events.
As to remorse Ms Lechner notes that while you understand that your actions were wrong, you do not have a sophisticated understanding as to why this is the case. This is so because you operate at a level of mid-teenage maturity. In that regard she notes that you would benefit from social and communication skills training including education regarding appropriate sexual boundaries.
Understandably, Ms Lechner is also of the view that on account of your immaturity and lack of cognitive and social flexibility, you are likely to find the rigours of a prison environment more difficult to negotiate than others. Given that you are now 21, you are not a candidate for a youth justice centre order and any prison sentence imposed would be served in the adult system. As such the conclusions of Ms Lechner carry greater weight in that context.
In my view you would also be at risk in an adult custodial setting. You are socially and emotionally immature and as assessed by Ms Lechner (and confirmed by your parents in evidence), you have difficulty reading others, you have poor judgment skills and you have poor impulse inhibition.
At age 21 you are a youthful offender and as a consequence of your ASD and associated immaturity, you operate at a younger level. Therefore in my view in the circumstances, rehabilitation must remain as a paramount sentencing consideration.
I must also have regard to other sentencing considerations. As noted, the offences are serious and general deterrence must be given consideration in the sentencing equation. As to specific deterrence, Ms Lechner concludes that you are at moderate risk of reoffending, however she notes that that is not because you have any sexual deviancy or preference for young girls, but rather because of your social immaturity, arising from your ASD. Further, as to specific deterrence, I note that you have no relevant prior history and that the two matters on your criminal record are unrelated driving matters.
I was also informed that you have complied with your bail conditions and that you have no subsequent matters and nothing pending.
Mr O'Doherty who appeared on behalf of the Director of Public Prosecutions submitted that the offending requires a period of imprisonment followed by a community correction order. After careful consideration, and for the reasons noted above, in my view the applicable sentencing considerations are able to be met by allowing you to remain in the community subject to a strict community correction order which is both punitive and therapeutic.
In that regard I note the recent decision of Williams v The Queen[8], where the court consisting of Priest JA and Hargraves JA said at paragraph 47:
As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.
[8] [2018] VSCA 171.
Further, because a community correction order is able to incorporate punitive and rehabilitative purposes, as noted by the Court of Appeal in Atanackovic v The Queen, such an order is capable of offering the ‘best opportunity to promote the best interests of the community and those of the offender’.[9]
[9] [2015] VSCA 136 at [97].

Sentence

Mr Miller please stand.
Douglas Andrew Miller, in relation to charges 1, 2, 3, 4 and 5 you will be convicted and placed on a community correction order for a period of three years. The order will include punitive and therapeutic components and it will be onerous.
You will be required to complete 200 hours of community work over the three year period. The order will also require that you undertake mental health assessment and treatment as required, programs to reduce the risk of reoffending and supervision.
Further, having informed the writer of the assessment report of your cannabis use together with the fact that cannabis was used in the context of the offending, you will be required to undertake drug treatment and rehabilitation.
Pursuant to section 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions may be credited as hours of unpaid community work.
Pursuant to section 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 14 months imprisonment with a non-parole period of 7 months.
Further, the sexual offences to which you have pleaded guilty require you to comply with the Sex Offenders Registration Act 2004. In the circumstances you must comply with the reporting conditions for the remainder of your life.

‑ ‑ ‑

[2019] VCC 96

6 February 2019