Director of Public Prosecutions v Miller

[2021] VCC 402

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

AT MELBOURNE

CRIMINAL DIVISION

CR-19-02286

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROSS MILLER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2021
DATE OF SENTENCE:	30 March 2021 and 8 April 2021
CASE MAY BE CITED AS:	DPP v Miller
MEDIUM NEUTRAL CITATION:	[2021] VCC 402

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr B. Tait	Tait Lawyers

HER HONOUR:

1Ross James Miller, you have pleaded guilty before me to eight charges of failing to comply with reporting obligations contrary to s.46(1A) of the Sex Offenders Registration Act, one charge of possessing child abuse material contrary to s.51G(1) of the Crimes Act Victoria, three charges of using a carriage service to transmit indecent communication to a person under 16 years of age contrary to sub-s.474.27A(1)  of the Commonwealth Criminal Code and two charges of using a carriage service to solicit child pornography material contrary to sub-s.474.19(1) of the Commonwealth Criminal Code.  The facts underlying your offending are as follows. 

2

At the time of this offending, you had been convicted of a registrable sex offence at the Melbourne County Court on 12 October 2007.  You were placed on the registered sex offenders index for a period of eight years.  On 18 December 2013, you were further convicted of a registrable sex offence and placed on the registered sex offenders index for a period of 15 years.  Then again, on

4 February 2014, you were again convicted of a registrable sex offence by the Frankston Magistrates' Court, although, you were not placed on the Sex Offender Registry for life at that time.  However, you have a pending s.52 notice which is a notification of change in reporting period, whereby you will be notified of a change in your reporting period from 15 years to life. 

3At the time of these matters you were in a relationship with a 29-year-old woman who suffered cerebral palsy and epilepsy and you had been living by yourself in a caravan in the backyard of your girlfriend's parent's home.  You moved to Werribee on 24 October 2017 and, as a result, you were managed by detectives from the Wyndham Crime Investigation Unit for your compliance management on the Sex Offender Registry.  As part of your compliance, police conducted unannounced home visits, as did your compliance managers, and there were checks on your online activity by an analyst from the Sex Offender Registry.  During your unannounced visits you were usually at home and in your caravan and you would always come and speak to detectives out the front of your caravan or near the driveway.  As part of your reporting obligations, you had to make an annual interview report to detectives from the Moorabbin Sex Office and Child Abuse Investigation Team.

4On 12 October 2017, you reported no child contact and you reported four e-mail accounts and you supplied details of those to police.  You also reported one username and one mobile phone number.

5On 2 October 2018, you went to the Werribee Police Station where you participated in your annual review, again, stating that you had no child contact and, again, providing four e-mail accounts which you said were active.  You reported one mobile phone number that you were using which was registered with Optus and provided only one username.  You were provided with a copy of your annual interview and a copy of your notice of reporting obligations which were explained in detail by Detective Sergeant Williams who also provided examples of what child contact was for your purposes.

6On 18 December 2018, police executed a search warrant on your premises in Werribee.  You were the only person home.  They seized three mobile phones from your caravan, along with a laptop and a number of external storage devices.  You provided your passcode to each of the mobile phones.  You were nervous and shaky while the search was being undertaken but you denied any breaches of your Sex Offender Registry obligations.  You insisted that all your external storage devices contained cricket that you had been recording and when police found the third mobile phone, you said it had no SIM card.  It was switched on.  You said it should not be able to work because it did not contain a SIM card. 

7You were taken to the Werribee Police Station where you were interviewed in relation to breaching your reporting obligations by using multiple unreported online usernames.  In other words, you were using usernames, Mr Miller, which you had not provided police.  You made no admissions to any of the unreported usernames which were located as active on Skype, Snapchat and Kik.  You could not provide a phone number for the second mobile phone, but you insisted you told police about it and they should have a record of it. 

8On the home screen of the second mobile phone seized, there was an application called Teen Chat for teenagers.  You said to police you were going to delete that.  You then said that you use a particular username which you had not told about to police, which is part of Charge 8, and you told police you talked to teenagers in America, speaking mainly to girls.  You said your girlfriend was always either asleep or on her computer and that you wanted to talk to people.  Eventually, you made admissions.  You said to police that you knew it was wrong, 'But my brain doesn't see it that way half the time.  I've got to have someone to talk to.'  You said that you never detailed your real age.  The application was designed for children from the age of 12 plus. 

9You finally admitted that you spoke to quite a lot of children under the age of 18 and that about one in 30 of them were in fact Australian.  You said you did not see any harm in talking to American children.  When you were asked if the online contact was child contact, you said, 'In some ways no and in some ways yes, but if it was face-to-face, then my brain would say, "Back off".'  You said you never used your real name and you never sent a photograph of yourself.  You claim that your brain does not believe you are 50 years old and will not accept your age. 

10There was forensic analysis of your phone which ultimately showed that you were actively using Snapchat where a large quantity of contacts appeared to be under the age of 18.  Other usernames were found.  Inside the camera roll were images that appeared to have been screenshotted from Snapshot showing children who appeared to be under 18.  The web history on your devices showed that you would conduct online searches of the children you were communicating with, that you were saving their images, phone numbers, locations, sports interests, et cetera and those searches would often identify or confirm the child's age. 

11Charge 1 relates to your second phone.  An IPND check confirmed that the mobile number was registered to you and was connected around 8 August 2017.  You failed to report this to police. 

12Charge 2 relates to you creating an undisclosed username of Sugar Daddy on datingfactory.com website and failing to report this to police. 

13

Charges 3 and 4 relate to a 16-year-old high school student G who lives with her parents in South Australia.  She installed a teenage dating app on her phone and began communicating with you around 21 September 2018.  You identified yourself as a 17-year-old male from Melbourne.  She told you she was 16 and the two of you communicated for a couple of weeks before you asked for her phone number.  You did not report this conduct to police.  That offending relates to

Charge 3 on the indictment. 

14In about October 2018, the two of you exchanged text messages, you telling G that you loved her and wanted to treat her with a gift, offering to buy her a ring and getting her ring size.  You messaged G at all times of the day and night and made her feel special, discussed visiting her, saying that the two of you could stay in a hotel but G refused.  You asked G to send you nude photographs of herself, of G in her underwear, of her breasts, her vagina, and full body naked photos.  Those actions underly Charge 4 on the indictment, soliciting child pornography.  G did not send any of those.  She only sent a face photo with a filter that partially covered her face.  G's family became concerned about the amount of time she was spending talking to you and discovered the nature of the communications.  G then deleted the app and your number from her phone. 

15Charge 5, 6 and 7 relate to a 14-year-old girl T from Western Australia who you contacted via the Teen Chat application in around September 2018.  You presented as being a 17-year-old from Melbourne and T told you she was 14, turning 15.  You had T under the contact name Sexy Babe.  You asked that the two of you move the communication across to Snapchat where the two of you continued to message via text messages.  You asked T to send you a photograph of herself and she sent you a photo of her face.  You did not report this activity, which underlies Charge 6 on the indictment, failing to comply with reporting obligations. 

16You kept telling T you were going to get the money together to fly over and meet her.  You continually asked her to be your girlfriend.  You asked her to send you nude pictures and these actions underlie Charge 5 on the indictment, solicitate child pornography. 

17You then sent a photograph of a hand holding a man's penis, which underlies Charge 6 on the indictment, transmitting indecent communication.  An image like this was saved on your camera. 

18You became aggressive in your communications to T, saying you would fuck her all night and so hard she wouldn't be able to walk.  T told you she did not want to be your girlfriend.  You then became controlling and threatening, saying you would come and find her and do something to her, and she finally blocked and deleted contact with you in around December 2018. 

19

Charge 8 relates to checks of your reported information which showed that, between 17 October and 18 December 2018, you had multiple unreported names on Snapchat and Kik which were linked to your reported phone number.  Further, you were actively using Snapchat where there appeared to be a large number of contacts under the age of 18.  You were using unreported usernames via Snapchat and inside your mobile camera roll were images that appeared to have been screenshot from Snapchat, showing children who appeared to be under 18.  You also created an unreported Viber account which had been active since at least

25 August 2018.

20Charges 9 and 10 related to an analysis of one of your mobile phones where contact was located between you and a 15-year-old girl named G1 from New South Wales.  Police spoke to her and confirmed the contact and it was discovered you had been communicating with G1 from at least November 2018 until you were arrested.  G1 provided you her address and it was arranged for you to send her various items such as cigarettes, handcuffs and a ring.  These actions underly Charge 9 on the indictment, transmitting an indecent communication.  You failed to report the contact with G1 to police and this underlies Charge 10, failing to comply with reporting obligations. 

21Charges 11 and 13 relate to S, a 15-year-old American girl who you created as a Snapchat contact around 4 December 2018.  You failed to report this, which underlies Charge 11, failing to comply with reporting conditions.  The Snapchat communication indicates daughter/daddy role playing, including you wanting to sexually penetrate S, and that communication continued up until the day of your arrest.  Various contents included sexual communications, talking about having sex and describing it in graphic terms. 

22Charge 12 related to another analysis of your second mobile phone, locating contact between you and a female named H who was found to live in New South Wales and was 14.  In a video recorded statement from H obtained by New South Wales police, contact was described.  She blocked you after you continually asked to be her boyfriend.  You also asked her to RP, which you understood to be a sexual type of role playing.  She said you made her feel uncomfortable, that she found you creepy.  You had been communicating with H from around November 2018 through to the evening before your arrest and this action also underlies part of the failure to comply with reporting obligation charges. 

23Charge 14 relates to a forensic analysis by investigators of your mobile phones and external storage devices.  They showed an orientation to child related sites and there was an amount of child abuse material located.  I do note that the majority of it was adult pornography.  Nevertheless, there were a number of child related abuse material, although in the milder categories.

24

You were remanded into custody and there was a committal mention on

15 November 2019 at which time the matter resolved by way of straight hand-up brief with pleas of guilty.  You were remanded in custody from 15 August 2019 until you were released on 23 July 2020. 

25There have been a large number of hearings in this matter.  The matter was adjourned from 20 January 2020 to allow the defence to obtain reports.  There was a further plea on 21 May which was then adjourned to allow for the Department of Health and Human Services to have a planning meeting to work out what arrangements could be made for you.  There were further pleas in May and in July, when you ultimately released on bail.  That was a decision I took.  It seemed - and I will refer to your history in a moment - but it certainly seemed that the major reason for your offending in this way were your living conditions.  You were, as I said, living in a caravan, you were isolated, you had virtually no-one to talk to and there were no supports in place.  Ultimately, on 25 January 2021, I ordered a justice plan and a CCO assessment and there were a couple of other adjournments, essentially to see what had finally been organised for you until the sentence today.  Overall, this is the eighth time you have appeared before the court.

26You are now living in what I am satisfied is appropriate circumstances in the community and you appear to have done well.  I will refer to those supports in a moment, but importantly, the involvement of Intellectual Disability Services has been invoked and, even more importantly, you have been given the support of the NDIS.  I now turn to your personal circumstances.

27You are 56 years of age.  You have a disturbing prior criminal history, but I note that it did not start until 2007 when you were in your 40s.  You suffer a number of conditions.  You were born with cerebral palsy and epilepsy.  You are one of six children born to your parents.  From the age of four you were placed in what was then known as the Spastic Society where you lived, essentially, until you were 17.  It appears several of your siblings also suffer from intellectual disability.  You have been the client of Disability Services for some time.  You worked in various labouring capacities when you were 17 for a few years but, essentially, you have lived on the disability support pension for most of your life.  You have had a number of relationships, however, you have no children. 

28You report that the advent  or the, if you like so you can understand it, creation of the internet and technology has been your downfall.  When one turns to your prior criminal history, most of your offending which, as I have said, began in 2007, relates to internet related activity.  For example, in 2007 you were dealt with in the Melbourne Magistrates' Court for producing child pornography, for stalking another person.  You were sentences to 12 months imprisonment on that occasion.  Again, in 2012 you were dealt with for failing to comply with reporting conditions.  Then in 2013 you were dealt with for using a service to groom a child under 16 for sexual acts.  You received an 11-month sentence with release on a good behaviour bond under Commonwealth legislation. 

29In 2014 you were dealt with for failing to comply with reporting obligations, theft, failing to report a telephone number, failing to report an e-mail address, furnishing false or misleading information, knowingly possess child pornography.  There was a variation in 2014 of the sentence that you received for using a service to groom an under 16-year-old for a sexual act. 

30

I received three reports, one of them was an old report from psychologist

Jeff Cummins, but I received a neuropsychological report from Dr Loretta Evans who is well known to this court.  She described you as having an attraction to underage children of both sexes.  In other words, as being paedophilic.  She described you as having an extremely high risk of reoffending.  I also received a report from psychologist David Ball who also diagnosed you as suffering from a paedophilic disturbance, stating that you reported an attraction to girls in the range of 10-18 and boys aged about 6-10, your attraction to boys being less pronounced.  You told Dr Ball that you noticed your attraction to young girls when you were in your mid-30s and to young boys in your 40s. 

31You had had contact with your family and your mother up until your conviction and imprisonment in 2007 and thereafter they had nothing to do with you. 

32I found Dr Evans' report to be significant and interesting.  She stated, 'Mr Miller's responses reflect a likely disassociation between knowing and doing, meaning he may verbalise a strategy but he is unable to plan a response upon recommendations.'  She said you did know the difference between right and wrong and, again, this was something found by Mr Ball.  She said, 'Mr Miller's offending behaviour appears appreciably influenced by the development of highly impulsive and maladaptive reactions that are easily triggered.  Such behaviours are considered secondary to personality characteristics and psychopathic tendencies.'  She said without appropriate supports, your rehabilitative prospects were poor. 

33Mr Ball said that you presented as a socially detached individual with crushingly low self-esteem who tends to perceive others as being more capable and worthy.  He said you are more likely to be a follower.  He said, 'While he seeks emotional support and protection from others, he is uncomfortable in social relationships.'  He said that you have problems making friends.  He noted that you suffer from a borderline intellectual disability.  Again, as I said, he found your risk of (indistinct) to be high. 

34So the problem presented to this court was essentially - and this is one that I discussed with counsel at length - what would happen to you on your release and the problem is, Mr Miller, that you appear to have problems making friends and then you get lonely and then you get bored and then you turn to the internet for company in one way and then out comes your attraction, particularly to young girls, and you engage in the sort of activity that you did.  And the activity you engaged in was really concerning.  You had a number of reporting obligations and I am satisfied that you breached them continuously and that you continuously lied about what you were doing. 

35The number of adjournments that were set in place were set in place largely to explore options for you in the community and that, in my view, has been a most worthwhile exercise.  As I have said, Intellectual Disability Services and the NDIS have been brought in to support you. 

36Since your release on 23 July 2020, appropriate accommodation - although, it is not final accommodation - has been found for you.  In particular, the services of the organisational LifeConnect have been extremely important.  You had been living at Merindah Lodge in Buninyong in Victoria which is a boarding house.  It is an open-ended arrangement.  You can stay there as long as you like, as long as you meet with house rules.  However, I received an updated report from LifeConnect which is working with Catholic Housing or Catholic Care in Ballarat to find something more suitable.  Most importantly, you are attended on by Eric who works with LifeConnect.  He sees you four days a week.  So you are in secure accommodation, you also have company four days a week, you are engaging in activities, and I regard this arrangement, which I am satisfied will be ongoing, as the best protection in the community from you further offending.

37My concern was, if I sentenced you to a term of imprisonment, you would simply get out, have nowhere to live, end up in the same lonely, disconnected situation you were living with, you would turn to the internet and this would happen all over again.  You have been living at Merindah Lodge for about nine or 10 months now and that has been a success and, in my view, that situation should continue and I have had you assessed both for a justice plan and as a condition of a community corrections order.  Under that justice plan, it has been decided that you, as a current participant of the NDIS and you receive funding for this, will be supported with daily living and transport.  It notes that you are socially isolated and that services will continue to be provided to you whilst  you are on the order under the auspices of Forensic Disability Services and so forth.  They change their names all the time so I just lose track.

38In dealing with you in the way that I am, I have yet to refer to the maximum penalties applicable to this offending.  I make it clear that the disposition you will ultimately be released on is designed both to punish you, because it will include the time that you have spent in custody, but also to set up a proper arrangement so that you are not in a situation where you are left to your own devices and those devices inevitably end up being internet devices with you offending in this way. 

39What you really need to understand, Mr Miller, is that, apart from anything else, every time you behave the way you behaved previously, contacting young girls (1), you are going to be found out and every time you come to court now you are probably going to get gaoled for it, that is number one, but (2), you are frightening these girls, you are doing a lot of damage.  Do you understand what I am saying to you?  The fact that they are on the internet and they are not physically close to you, does not mean anything.  A 14-year-old, a 15-year-old, a 16-year-old, who is being threatened and being told someone is going to come and fuck them hard, for example, is very, very frightening.  It is a serious offence.

40So I am giving you an opportunity and if you do not take that opportunity and if you do not do what you are supposed to do about it, you will be brought back in front of me and I will sentence you to a long term of imprisonment.  Do you understand?  I will put you in gaol for a long time because you have offended over and over again in that period of time that you were living in that caravan.  Do you understand?  In the end, if you do not do what you are supposed to do, I am going to decide that you are simply too dangerous to young women, teenage girls, and that you simply have to be put somewhere to be kept out of the way.  I am going to be much less concerned about making sure you have got somewhere good to live and that you have got good supports.

41That is, if you get onto the phone again, if you start doing that on the internet again and I find out about it, police find out about it and you come back in front of me, I am going to say, well, Mr Miller got a good chance where everyone went to a huge amount of trouble last time and it does not work.  What has been set up for you is to make sure you stay out of trouble and if it does not work and you do not stay out of trouble, then all I am going to be looking at is gaol.  And the order that I am going to put you on means that for about the next two-and-a-half/three years, if you do this again, you are going to come back in front of me.  Do you understand?  So you will not just be in trouble for doing it again, you will be in trouble for not sticking to the order that I am putting in place.  You will be breaching that order and you will be breaching - do you understand what breaching means?  You tell me what you think it means. 

42OFFENDER:  Don't do it again. 

43Yes, it means that you will get into trouble for all the things that you are meant to do under the Sex Offenders Register, all right?  So every time you get caught for doing something like this, you breach the Register and you breach the order and it is more offending.  So there is three consequences, three really bad things that will happen immediately every time you do that, all right?  You will probably go before another Magistrate or another Judge for offending, then you will go in front another Judge or another Magistrate for breaching all your obligations under the Sex Offenders Register and you will have breached this community corrections order.  So you will get three lots of sentences for that, all right? 

44So you are getting to the stage where, you know, you might have done 583 days in gaol, which is nearly two years.  You will be getting a lot more than two years gaol if you do this again.  Can you say back to me what I just said to you about what will happen if you offend again? 

45OFFENDER:  I'll get more than two years.

46You will get more than two years gaol, all right? 

47OFFENDER:  Okay.

48You have got that? 

49OFFENDER:  Yeah.

50You are in a really serious position and you have to remember that.  You really, really have to remember that.  On the other hand, you have done really well and I am impressed with that.  You can live in the community properly without getting into trouble if you have got the right structures and support around you.  You have shown that in the last 10 months and that is why I am prepared to give you an opportunity.  You keep this up, everything will be fine and you will have a much happier life.  If you start feeling lonely or things are not working, tell Eric.  Tell whoever is in your life and working with you.  Do not just think, 'Right, I will make myself feel better by going on the internet.'  Just think, 'Right, if I go on the internet, I am going to go to gaol.  I just can't do this, so I need to tell someone.' 

51In the past, you did not have anyone to tell, now you have.  Now is the time to use those people in your life instead of the internet.  The internet is just trouble for you.

52OFFENDER:  Got it.

53You know that you are attracted - - -

54OFFENDER:  I wish the internet wasn't even invented. 

55Well, you can stay from the internet if you want to.  I just want you in a situation - and this is what this situation is - where you do not feel you have to go to the internet, where you have got other things to do.  It seems to me, you understand very well that the connection between the internet and your offending.  You are attracted to girls under 16 and that is worrying.  They are classified as children under the law and if you do the things on the internet that you have done before, that is a serious offence and you will get gaoled for it.  So the internet is not your friend, let me put it that way, but it is up to you to decide whether you use the internet and it is up to you to understand that, if you feel like using the internet because you are lonely or for any reason, you must tell Eric, you must tell someone else.  There are people there to step in and say, 'Thank you for telling, Ross, that's good.  We're going to do something about that.'  The problem is, when you are on your own and you have not got those sorts of helps, my concern is that that is going to happen. 

56The maximum penalty for failing to comply with reporting conditions is five years imprisonment.  The maximum penalty for using a carriage service to solicit child pornography material is 15 years imprisonment.  The maximum penalty for using a carriage service to transmit indecent communication to a person under 16 is 15 years imprisonment and the maximum penalty for knowingly possessing child exploitation material is 15 years imprisonment.

57I am going to therefore sentence you as follows and here we go. 

(a)   On Charge 1, you are sentenced to six months imprisonment

(b)   On Charge 2, you are sentenced to six months imprisonment

(c)   On Charge 3, you are sentenced to six months imprisonment

(d)   On Charge 4, you are sentenced to six months imprisonment

(e)   On Charge 5, you are sentenced to six months imprisonment

(f)    On Charge 6, you are sentenced to six months imprisonment

(g)   On Charge 7, you are sentenced to six months imprisonment

(h)   On Charge 8, you are sentenced to six months imprisonment

(i)    On Charge 9, you are sentenced to six months imprisonment

(j)    On Charge 10, you are sentenced to six months imprisonment

58

In fact, on each of the charges you are sentenced to six months imprisonment.  Charges 1-3, 6, 8, 10, 11, 12, and 14 will all be served concurrently and will begin today.  That leaves me with Charges 4, 5, 7, 9, and 13.   So the sentence imposed on Charge 4 will commence on 30 April 2020.  The sentence imposed on

Charge 5 will start on 30 May.  The sentence imposed on Charge 7 will commence on 30 June.  The sentence imposed on Charge 9 will begin on 30 July.  Sorry, I will move it all up.

59The sentence imposed on Charge 4 will begin on 30 May.  The sentence imposed on Charge 5 will begin on 30 June.  The sentence imposed on Charge 7 will begin on 30 July.  The sentence imposed on Charge 9 will begin on 30 August and the sentence imposed Charge 13 will begin on 30 September. 

- - -

60HER HONOUR:  Hang on, but it's already been served.  All right, this is the problem.  He's already served the time.  How do I express that in - I'm sorry, I've got the dates right.

61MR DEVLIN:  Yes, Your Honour.

62HER HONOUR:  This is where it's a mess.  Sorry, I should've sorted this out before I came in.

63MR DEVLIN:  Can I ask Your Honour, respectfully, affectively the effect of the sentence is to be - - -

64HER HONOUR:  12 months.

65MR DEVLIN:  - - - and then we just take a little bit of time to work - - -

66

HER HONOUR:  Than I'm going to release him on a - so I'll do all of that and then in relation to Victorian charges, I'm going to release him on a community corrections order for two years.  I'm going to check - look, I'm going to put it this way and I'll check with our records section once I've left the Bench who will sort this out for me and I can fix it under the slip rule.  So I'm going to

send - what I will do is, he is getting six months on each of the charges and the base sentence will be the sentence imposed - in fact, what I'll - no, look, it might be simpler if I simply - I'll simply charge him to 12 months on each and make them concurrent.  This is going to look terrible on transcript, isn't it? 

67MR DEVLIN:  Yes, Your Honour, I'm just trying to make sure it doesn't conflict with Commonwealth sentencing.

68HER HONOUR:  It's the way in which I can express time served - - -

69MR DEVLIN:  Yes.

70HER HONOUR:  - - - under the legislation because of the way you express Commonwealth legislation if it's time served and you have to set a date when it starts. 

71MR DEVLIN:  Yes.

72HER HONOUR:  It means I've got to sort of set a retrospective date. 

73MR DEVLIN:  Yes.  Your Honour, I think we might get into trouble if we try to do it too quickly.

74

HER HONOUR:  I completely agree with you.  I sort of came swashbuckling onto the Bench thinking this would work out.  Look, I'm really sorry because I know

Mr Miller has come from Buninyong and it's my fault that this isn't properly expressed.  It's entirely my fault.

75MR DEVLIN:  Did Your Honour say you've got a trial on?

76HER HONOUR:  I have got a trial on.

77MR DEVLIN:  Yes, so we can't come back this afternoon.  That's what I was going to suggest.

78HER HONOUR:  Look, what I might do is just adjourn it for a week and we can do this remotely. 

79MR DEVLIN:  Yes, Your Honour.  The most important part was you had delivered the import of the sentence personally to the accused.

80HER HONOUR:  Yes, I have - - -

81MR DEVLIN:  That was the important - - -

82HER HONOUR:  - - - and that was really important that he was here.

83MR DEVLIN:  Yes.

84HER HONOUR:  But given that it's my intention that he be released - and I'll get my associate to get the details.

85MR DEVLIN:  Yes, I think that's the best (indistinct)

86HER HONOUR:  I'll adjourn it for a week.  I'll do it remotely and I'll fit in with counsel, given that this is my fault that this isn't properly expressed, and it will be textbook, I promise, in a week's time.

87MR DEVLIN:  Thank you, Your Honour.

88HER HONOUR:  But, no, it's all very well going through that and, I mean - - -

89MR DEVLIN:  That's fine. 

90HER HONOUR:  - - - in terms of what I wanted to achieve, I can, but I've just realised when I've done all that, that it's going to be future sentencing. 

91MR DEVLIN:  Yes, Your Honour, and I don't think I'll be able to assist Your Honour so I'd rather - - -

92HER HONOUR:  No.  I wish you were (indistinct) I have to say today, Mr Devlin.  All right, normally, of course, it's - look, so I'll just set that down.  I'll speak to Records as to how I express it and there's a terrifying man called Mr Dickens who is wonderful at all this.  I actually don't think I've done a - I should know but it is the complication.  So if it was only Victorian charges I could - - -

93MR DEVLIN:  Yes, Your Honour, and the accused knows the result, so he can be comfortable.

94HER HONOUR:  Yes.

95MR DEVLIN:  So we'll just formalise it in a week's time. 

96HER HONOUR:  All right.  And my sincere apologies to everyone.  It's not appropriate.  I must say, I lost track of this simply because of a trial I'm running with Mr Sutton. 

97MR DEVLIN:  Thank you, Your Honour.

98HER HONOUR:  So all right. 

99MR DEVLIN:  His bail will be extended to - - -

100HER HONOUR:  Bail will be extended for a week.

101MR DEVLIN:  It will be done virtually on the next occasion.

102HER HONOUR:  Yes, it will.

103MR DEVLIN:  Thank you, Your Honour.

104

HER HONOUR:  It'll be virtually so that people don't have to come back, all right? 

Mr Miller, there's a technical way I have to do your sentence and I haven't worked it out properly and that's my fault and I'm sorry. 

105OFFENDER:  No, that's all right.

106HER HONOUR:  So I'm adjourning this for a week but you don't have to come back.  We're going to do it over the screens, all right?  And I'm sure poor Eric's got better things to do than drive you all the way down from Buninyong. 

107ERIC:  That's all right.  I do, I do.

108HER HONOUR:  Yes, so what date can we do? 

109ASSOCIATE:  Your Honour, I've got 10.30 on Wednesday, 7 April.

110HER HONOUR:  All right.  Does that - or would you rather - can I do it earlier?

111MR DEVLIN:  Earlier would be better. 

112HER HONOUR:  What have I got earlier? 

113ASSOCIATE:  Your Honour, you've got 9.30 matters each day. 

114HER HONOUR:  Yes, but what are they?  Can I rearrange them?

115ASSOCIATE:  Yes, you've got a mention and an emergency case management matter on Thursday the 8th at 9.30 that I can push back. 

116HER HONOUR:  Yes, we'll push them back and you get the 9.30. 

117MR DEVLIN:  Thank you, Your Honour.

118HER HONOUR:  All right? 

119MR TAIT:  Just to advise Your Honour, I've got a fitness investigation starting at 10 that day. 

120HER HONOUR:  All right, is 9 o'clock - does start at 9 o'clock work?

121MR DEVLIN:  9 o'clock's fine.

122MR TAIT:  I can do nine, Your Honour.

123HER HONOUR:  Let's make it 9 o'clock.  Are you sure that's all right?

124MR TAIT:  Absolutely.

125HER HONOUR:  And what is it?

126MR TAIT:  A fitness investigation.

127HER HONOUR:  A fitness investigation.  Yes, no problem.  Look, I sincerely apologise to both of you.  This really is not acceptable that I turn up and I haven't got it all worked out and after all the work that everybody's put into this, you should be walking away with a proper sentence and you're not and I do apologise.  I'll have that all sorted and that's the way it will work.

128MR DEVLIN:  Thank you, Your Honour.

129HER HONOUR:  Again, I would particularly like to thank both counsel in this matter.  It's been extremely drawn out.  Both of you have gone above and beyond, if you don't mind me saying, particularly you, Mr Tait, because of all the various arrangements that you've made.  You've done a wonderful job for Mr Miller.

130MR TAIT:  Thank you.

131

HER HONOUR:  I'm hoping this works out and I'm very, very grateful to you because I've just sat up here saying I want this, this and this and you've gone and done it and I know just how many calls there are on your time, Mr Tait, so I'm particularly shamed that I have to put this off for another week.  But,

Mr Devlin, I've been very grateful to have you in attendance all the way through this. 

132MR DEVLIN:  Always my pleasure, Your Honour.

133HER HONOUR:  So if something could be properly sorted and I had always intended to particularly thank counsel for their exceptional assistance in this case. 

134MR DEVLIN:  Thank you, Your Honour.

135MR TAIT:  Thank you, Your Honour.

136HER HONOUR:  Very well, 9 o'clock on the - sorry, Gem?

137ASSOCIATE:  On the 8th, Your Honour.

138HER HONOUR:  8 April.  Bail is extended on the same terms and conditions, all right? 

139MR DEVLIN:  As Your Honour pleases.

140HER HONOUR:  Thank you very much.  We'll stand down to 11. 

Upon resuming on 8 April 2021

141All right, so what I am going to do is I am going to sentence Mr Miller to 12 months imprisonment on Charges 4, 5, 7, 9, and 13. 

142The total affective sentence will be 12 months imprisonment. 

143The sentences imposed on each of them are to start to today. 

144I declare that 583 days has already been served by way of presentence detention on Charges 1, 2, 3, 6, 8, 10, 11, 12, and 14.  I am moving 14 to that category because the amount held by Mr Miller of that material on his phone was fairly minor. 

145And on each of those he is going to be sentence to a community corrections order. 

146HER HONOUR:  Now, do I need to do a separate community corrections order for each charge?

147MR TAIT:  No.

148MR DEVLIN:  No, that can be - - -

149HER HONOUR:  All right, so on those charges that is what he's placed on.  The order will last for two years.  In addition to the core conditions, he will undergo treatment designed to reduce reoffending and there will be a justice plan - can I ask you, Mr Tait, the recommendation was for a treatment rehabilitation programs that reduce reoffending.  I think the justice plan takes care of that, doesn't it?

150MR TAIT:  You would think so.  You would certainly hope so. 

151HER HONOUR:  Yes, all right.  Attached to that will be a justice plan, supervision and judicial monitoring.  The first judicial monitoring will be in three months.  So the first judicial monitoring will be on 8 July 2021 at 9.30 and can be done by remote.  All right? 

152MR DEVLIN:  And I think the only other matter, Your Honour - - -

153HER HONOUR:  By remote facility. 

154MR DEVLIN:  - - - he'll be required to - - -

155HER HONOUR:  Be placed on the Sex Offenders Register.

156MR DEVLIN:  There's that, there's the forfeiture orders which we, I think, discussed the last occasion. 

157HER HONOUR:  Yes.

158MR DEVLIN:  But just in relation to the sentence, Your Honour, there would have to be a sentence - sorry, a recognisance or release order still signed. 

159HER HONOUR:  Why would there need to be a recognisance release order if I'm only sentencing him to custody which he's already served?  Because what I'm doing is, I'm placing him on a community corrections order which will start today, because you can actually order the start. 

160MR DEVLIN:  Yes, Your Honour.

161HER HONOUR:  I'd rather do that.  I can order the date, the start of a date - sorry, the date of the start of a community corrections order, which will also be today.  He's already served by way of PSD.  Ms McDonald, we're turning you into the residence expert.  Do you agree with that?  Sorry to put you on the spot. 

162MS McDONALD:  Your Honour, I believe under the Crimes Act, if there's no recognisance release order made, then Your Honour needs to state reasons for doing so. I'm just double-checking the Crimes Act now.

163HER HONOUR:  The reasons I'm not placing him on a recognisance release order are because he is being placed on a community corrections order pursuant to the Victorian legislation and it is simply a double-up, if I can put it that way. 

164MS McDONALD:  Thank you, Your Honour.

165HER HONOUR:  Is that a sufficient reason, Ms McDonald?  Is that all right?

166MS McDONALD: I believe so, Your Honour. If I may just check the Crimes Act. I won't be a moment.

167HER HONOUR:  Thank you.  I went straight to Mr Dickinson who's the corrections - Mr Dickinson who is the corrections - I don't know, sentencing guru.  He's always ringing us up and telling us we've done our sentences wrong, we have to reformulate them.  He's far more impressive than join, really. 

168MR DEVLIN:  Thank you, Your Honour.  I understand Your Honour's logic in relation to the two orders and I just make it clear that the CCO will have to be signed so that'll have to be sent and then returned.

169HER HONOUR:  Absolutely.  We're very used to doing that. 

170MR DEVLIN:  That's right, there's no objection to that, Your Honour. 

171

HER HONOUR:  Thank you very much.  Does that seem to be all right,

Ms McDonald?

172MS McDONALD:  Yes, thank you, Your Honour. 

173

HER HONOUR:  Thank you very much.  Pursuant to s.6AAA I declare that, had

Mr Miller not pleaded guilty, I would've sentenced him for a term of imprisonment of two years and order that he serve a minimum term of one year. 

174MR DEVLIN:  As Your Honour pleases.

175HER HONOUR:  I thank counsel very much.  I know I thanked you last time but - - -

176MR TAIT:  You said the forfeiture, Your Honour.

177HER HONOUR:  Yes, you might've said you'd make the forfeiture.

178HER HONOUR:  Of course I will make the forfeiture, yes.

179MS McDONALD:  Sorry.  Sorry, Your Honour.

180HER HONOUR:  Yes, Ms McDonald.

181MS McDONALD: I've looked at the Crimes Act.

182HER HONOUR:  Yes.

183MS McDONALD:  The RRO is only optional where the sentence is less than six months.  So given here that it's 12 months imprisonment, there will need to be an RRO. 

184HER HONOUR:  A recognisance release order.  All right then, very well, then I will place him on a recognisance release order in the sum of $200 for a period of 12 months.

185MR DEVLIN:  Yes, Your Honour, and a draft order's been provided.

186MS McDONALD:  Thank you, Your Honour.

187HER HONOUR:  Pardon?

188MR DEVLIN:  A draft order's been provided. 

189HER HONOUR:  Thank you very much.  Really, it's appalling how much we avoid the Federal legislation.  Have you got the order there, Jim?  Thank you.  All right, so there's a recognisance release order which is running alongside the community corrections order.  All right, thank you very much and have we got the - and I'll leave the Bench and my associate will make arrangements for the materials to be printed up.

190MR DEVLIN:  Thank you, Your Honour. 

191HER HONOUR:  So again, I'd like to - this, as I said, been a very long journey but I've been very grateful - I've been grateful you stayed in it all along, Mr Devlin, which I know it's not easy for prosecutors to do and you have gone above and beyond.

192MR DEVLIN:  Always my pleasure, Your Honour.

193HER HONOUR:  Mr Tait, in fact, I've been very lucky to having both counsel - both of you in this matter and now I'm going to include you in that, Ms McDonald, for coming up with a much better solution that, really, was quite obvious at the time and I don't know why I couldn't understand.  Thank you very much. 

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