Director of Public Prosecutions v Miller (a pseudonym)
[2025] VSC 164
•2 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted Revised |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0177
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| JAVIER MILLER (a pseudonym) | Accused |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 and 26 February 2025 |
DATE OF SENTENCE: | 2 April 2025 |
CASE MAY BE CITED AS: | DPP v Miller (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 164 – First Revision: 13 May 2025 |
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CRIMINAL LAW – Sentence – Charge of aggravated servitude based on cruel, inhuman or degrading treatment – Other charges of common assault and possession of a drug of dependence – Guilty plea – Accused intimate partner of victim – Serious level of offending relating to the charge of aggravated slavery – Absence of remorse – Prospects for rehabilitation fairly poor – General deterrence – Total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years – Criminal Code Act 1995 (Cth) – Crimes Act 1914 (Cth) - Sentencing Act (1991) (Vic) – R v Verdins (2007) 16 VR 269 – Brown v The Queen (2020) 62 VR 491 – Markarian v The Queen (2005) 228 CLR 357 – DPP (Cth) v Kannan [2021] VSC 439 – Kannan v The King (2023) 306 A Crim R 363 – Ho v The Queen (2011) 219 A Crim R 74 – DPP v Laurence [2004] VSCA 154 – Nolan v The Queen [2017] VSCA 240 – Azzopardi v The Queen [2011] VSCA 372 – Nantahkum v The Queen (2013) 236 A Crim R 158.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Elizabeth Ruddle SC with Ms Gabrielle Fitzgibbon | Office of Public Prosecutions |
| For the Accused | Mr Theo Kassimatis KC with Mr Michael Allen | Stary Norton Halphen |
HER HONOUR:
Introduction
Javier Miller, you have pleaded guilty to charges 1 and 2, which are both charges of common assault committed between the 1 July 2020 and 31 January 2021[1] and charge 3, a charge of aggravated servitude contrary to the Criminal Code Act 1995 (Cth) (‘Criminal Code Act’), committed between the 1 April 2021 and 12 August 2023.[2] The victim in respect of each of charges 1, 2 and 3 is your former wife MK.
[1]Contrary to common law.
[2]Sections 270.5(1) and 270.8(1)(b).
The 4th charge to which you also pleaded guilty is a charge of possession of a drug of dependence, on 12 August 2023.[3] This charge relates to a small bag of cannabis found when your apartment was searched for a second time after your arrest.[4]
[3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[4]The small Ziploc bag contained 15 grams of cannabis.
Maximum penalties
Charges 1 and 2 of common assault involve a maximum penalty of five years’ imprisonment. Charge 3 of aggravated servitude carries a maximum sentence of 20 years’ imprisonment. Charge 4, possess drug of dependence, carries a maximum penalty of five penalty units.
Charge 3 – Aggravated Servitude
Relating to the charge of aggravated servitude, the parties have informed the Court that this is the first case relating to servitude, (aggravated or otherwise), under ss 270.5 and 270.8 of the Criminal Code Act to be prosecuted and heard by an Australian court.
As such, it is of some utility to briefly outline the offence. Servitude is relevantly defined as:[5]
[5]Criminal Code Act 1995 (Cth), Sch 1 s 270.4.
(1)[…] the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception:
(a)a reasonable person in the position of the victim would not consider himself or herself to be free:
(i) to cease providing the labour or services; or
(ii)to leave the place or area where the victim provides the labour or services; and
(b)the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services.
[…]
(3) The victim may be in a condition of servitude whether or not:
(a)escape from the condition is practically possible for the victim; or
(b)the victim has attempted to escape from the condition.
The Criminal Code Act provides for three servitude offences, including an alternative offence of forced labour. Applicable to this matter is the offence under s 270.5(1) which states that:
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b)the conduct causes another person to enter into or remain in servitude.
The offence of servitude will be aggravated where any of the circumstances listed in s 270.8 of Criminal Code Act apply. In this case, you have been charged with aggravated servitude on the basis that you subjected the victim to cruel, inhuman or degrading treatment.
Documents tendered by the parties
The Crown tendered the following documents:
(a) Summary of prosecution opening for plea, dated 1 November 2024 (exhibit P1);
(b) Outline of Crown’s submissions on plea, dated 21 February 2025 (exhibit P2);
(c) Bundle of victim impact statements (‘VIS’), comprising VIS from the primary victim, MK on her own behalf and that of her daughter, and VIS from MK’s parents, DT and NT; (exhibit P3);
(d) July 2023 video footage that was sent by MK to her mother (exhibit P4);
(e) Bundle of eight photos taken of MK soon after her arrival at the Royal Melbourne Hospital (exhibit P5);
(f) Ten crime scene photos selected by the Crown being labelled photo list #2 (exhibit P6);
(g) Sixteen videos and an accompanying schedule, which include 10 short unedited videos and six smaller edited videos as samples on a USB (exhibit P7);
(h) Bundle of a series of screenshots of the victim (exhibit P8); and
(i) Bundle of photos, taken during the medical examination of the victim, labelled photographs #7 (exhibit P9).
The defence tendered the following documents:
(a) Sentencing submissions dated 17 February 2025 (exhibit D1); and
(b) Psychological report of Mr Patrick Newton (exhibit D2).
Introduction to the charged offences
Javier Miller, you are a citizen of Indonesia and were born there on 28 November 1998. You arrived in Australia in 2018 on a post-graduate visa and became employed in the hospitality sector until you stopped work in October of 2021. You are currently aged 26.
MK was born in Vietnam in 1999 and arrived in Australia on a student visa in February 2020 in order to study graphic design and photography at Swinburne University.
MK began dating you in June 2020 and one month later moved into the apartment you shared with your brother Andrew in [redacted].
Throughout the offending period you were aged between 21 and 24 years, as was MK. Charge 3 of aggravated servitude, is by far the most serious charge on the indictment, alleging that during the between-dates charge period you engaged in conduct causing MK to enter into or remain in servitude, and in committing the offence you subjected her to cruel, inhuman or degrading treatment.[6]
[6]Contrary to s 270.5(1) of the Criminal CodeAct 1995 (Cth).
Charges 1 and 2 involve specific assaults that you perpetrated on MK.
Within the period of MK’s servitude you subjected her to physical, psychological and sexual abuse and deprived her of autonomy and freedom of movement in her ordinary daily activities. Your mistreatment of MK escalated even after the birth of your daughter, NC, and subsequent to your marriage to MK.
By the time MK was liberated from you, your cruel, inhuman or degrading treatment of her had left her in a physically fragile and psychologically demoralised state.
Factual circumstances of the offending
I will now describe the factual circumstances of your offending in more detail. You lived with MK at the following locations over the course of your relationship with her:
(a) From approximately July 2020 to August 2021, at an apartment at [redacted].[7] I will refer to this as the first [redacted] apartment;
[7](Initially leased and jointly occupied with Andrew Miller; Andrew moved out in January 2021.)
(b) From August 2021 to January 2023, at apartment [redacted]. I will refer to this as the second [redacted] apartment.
(c) During January 2023, two Airbnb short-term rental apartments; one in St Kilda and one in the CBD; and
(d) From February 2023 to 12 August 2023, at apartment [redacted]. I will refer to this as the Exhibition Street apartment.
After MK moved in to live with you and your brother at the first [redacted] apartment in July 2020, you began assaulting her and verbally abusing her. The assaults including punching her face or throwing items at her. You usually waited until you were alone with her to do so. Meanwhile, you restricted her contact with her friends on social media, and you began to limit her access to her phone. MK’s mother found it more difficult to contact her.
The common assault charges
Charges 1 and 2 concern two specific incidents of common assault perpetrated on MK when you were living at the first [redacted] apartment.
Charge 1 relates to an occasion in July or August 2020 when MK was with you in your car and without any provocation, you punched her multiple times to the face. When she got out of the car to escape you grabbed her by the hair and dragged her back into the car against her will. The indictment particulars of charge 1 refer to grabbing MK by the hair and dragging her back to the vehicle.[8] Charge 2 relates to an occasion in the same time period, when MK was sitting in the car with you in the apartment garage. You punched her to the face, causing her nose to bleed. The indictment particulars for charge 2 reflect the punch to the face in the apartment garage.
[8]Charge 1 on the indictment is particularised slight differently to the SPO at paragraph 21, namely that the reference to Mr Miller punching MK in the face multiple times is left out. However, the Crown informed the Court that the SPO contains the correct and full details of the charge whilst the particulars on the indictment were designed to allow the Court to differentiate between charge 1 and charge 2.
The lead-up to the period of servitude
Uncharged physical abuse and controlling behaviours are described in the Crown SPO as occurring in late 2020 and early 2021. This conduct is relevant as background context and includes occasions of punching or throwing things at MK and restricting MK’s access to a social life and education. You began to insist on accompanying her to university classes so you could keep her under observation. You restricted her interaction with university friends even for group assignments. By late 2020 to early 2021 you were not allowing her to go to university in person.
In February 2021, prior to becoming pregnant to you, MK tried to leave you, taking up a hotel booking paid for by her mother. However, she returned to you after two days because you promised that you would change. MK found out she was pregnant to you in April 2021 and she hoped that, if she had the baby, this would improve your behaviour.
The period of servitude
Charge 3 relates to the aggravated servitude that occurred in the period between April 2021 and August 2023. I have used the location where you were living as a framework for outlining the conduct constituting the offence of aggravated servitude.
The first [redacted] apartment
Between April 2021 and August 2021, you and MK lived at the first [redacted] apartment, MK was pregnant with your daughter NC at the time. During MK’s pregnancy you continued to physically assault her, striking her all over her body, but you refrained from hitting her stomach. The physical abuse included assaulting her at least once a week with such actions as pushing her into a set of drawers,[9] and kicking and punching her on many occasions. MK did not fight back as she did not want to risk injury to the baby.
[9]Causing laceration and scarring to her shoulder.
MK recalled being hit repeatedly on one occasion for taking too long to collect items from the chemist. You restricted her access to her phone and laptop and kept hold of them, so she had to seek permission to use these items. You restricted her contact with friends and only allowed calls to her family, at your discretion, for five to 10 minutes at a time, while you were present and in control of what was said by her. This controlling behaviour helped ensure that MK did not disclose the abuse to her family.
You continued to assault MK throughout her pregnancy, including kicking, punching, hitting and slapping her, and on multiple occasions breaking her glasses in the process. MK has very poor eyesight and it was difficult for her to function without her glasses, so she had to ask her mother to send new glasses from Vietnam. She lost count of the number of pairs of glasses broken by you.
From March to October 2021, you worked as a chef at a Noble Park restaurant and while at work you made MK stay locked in your car outside. She could not leave the car without your permission, even being escorted to the bathroom by you before being locked in the car again. You set the car alarm to alert you if she tried to get out of the car.
The second [redacted] apartment
In August 2021, you and MK moved into the second [redacted] apartment. Whilst living there, MK was not permitted to leave the apartment unless you were with her, and she did not have her own apartment key. You took over the shopping to restrict her from going out. You insisted that the blinds stay down and that she not touch them, so that she felt like a prisoner there. On occasions that you left the apartment, you locked MK inside. You also broke MK’s phone by slamming it on the table, rendering it unusable. Subsequently, you also smashed MK’s laptop onto a table and smashed her camera against a wall. These items had been given to her by her father for her university studies
Due to your extensive coercive control over MK’s movements, she missed vital pre-natal appointments and was only permitted to attend for a pregnancy ultrasound on two occasions, both times in your company.
MK gave birth to NC at the Royal Women’s Hospital in the second week of October 2021.[10] During her admission, hospital staff noticed bruising and injuries on her body and suspected domestic violence. You ensured that you did not leave MK alone with nursing staff so that proper inquiries could be made. You instructed her not to tell anyone about your assaults, so she made up explanations, claiming to be clumsy and bruise easily. After MK gave birth to NC by caesarean section and during her post-natal recovery, you became annoyed at how long she was spending in hospital, continually asking nurses when she and the baby could come home.
[10]Exact birthdates have not been used in these reasons for privacy reasons.
After MK went home with her new baby, far from improving your behaviour, you continued to assault her once or twice a week regardless of whether she was holding or nursing NC. You forced MK to reschedule Maternal Child Health (‘MCH’) nursing appointments, or miss them altogether, resulting in attempts from MCH nurses to visit the apartment for routine checks. On those occasions, you forced MK to be quiet so as to pretend that no one was home.
You arranged to marry MK in April 2022 and had her ask some university contacts to act as witnesses. Mr D was surprised to be asked to be a witness. He had observed that MK had gone from being extremely sociable before she met you, to extremely reclusive. She was wearing a dark hooded jumper and jeans at the wedding, her hair long and unkempt. Her appearance was altered from the person he had known. There was no ongoing social contact after the wedding.
MCH staff continued to attempt follow up with MK. During a home visit on 29 September 2022, they sighted broken furniture. On an occasion when a MCH nurse went to visit your apartment, you forced MK to wear long pants and sleeves to cover up bruises and you remained present, so she was unable to disclose the abuse.
Despite MCH staff attempts to get MK to attend the hospital with her baby you did not allow it. You also failed to maintain appointments for NC’s mandatory immunisations.
On 10 January 2023, MCH nurses visited your apartment, but you hid MK in the bedroom and told them she was sleeping. You did this because MK’s face was so badly injured you could not risk her being seen.
The Airbnb apartments
From January 2023 to February 2023, after the second [redacted] lease was up, you moved your family into two short-term Airbnb apartments. MK and NC were not permitted to leave these apartments.
During your stay at the St Kilda Airbnb apartment, in January 2023, you hit MK across the back with a belt leaving a mark. You claimed she had not washed your clothes properly. This was the first time you had used an object to hit her, but from that time on you regularly used a belt to assault her.
The Exhibition Street apartment
From February 2023 until the date of your arrest on 12 August 2023, you, MK and NC lived at the Exhibition Street apartment. During this time, your physical assaults on MK escalated in brutality, frequency and duration. At first, she was hit once or twice a week, but soon you began to hit her every day for even the most trivial of reasons, such as that she yawned or looked at you.
She was hit on her back with a belt about three times a week, causing her skin to break and bleed. You then began to use a heater cord to whip her, using the end plugs in such a way that it caused extreme pain. When you wanted to hurt her more, you would double the cord over and hit her repeatedly until she could not take it any more or until you were satisfied. You would start hitting her on her back but then extended the assaults to her arms, legs and other parts of her body as she tried to get away. On one occasion you hit MK with such force that the power board, which you were using to hit her, broke. You began to use different sorts of electrical cables, and you also hit her with a stick from a hand vacuum cleaner and with your laptop computer.[11]
[11]Causing a crack to the base of the laptop.
One day you removed a white metal pole from NC’s highchair.[12] You struck MK with the pole on multiple occasions including hitting her in the jaw with it. At some stage her finger was fractured when she used her hand to protect her face from the pole. You also hit her with a wooden chair leg multiple times with such force it broke.
[12]The white pole is visible in photographs produced by the Crown and was a metre long and 20 millimetres in diameter.
If you were not satisfied after hitting MK with household items, you would slap her with your bare hands until her ears were swollen. Several times this caused her ears to bleed. When one ear started to bleed you swapped and started hitting the other ear. You also punched her in the face and jaw with a closed fist, often going into the bedroom to assault her to avoid neighbours hearing her screams. Sometimes when hitting her with a belt or pole you would become frenzied and hit the bedroom walls leaving scuff marks.
MK states that she came close to losing consciousness on occasions when you were assaulting her and could not stop her body from shaking from the pain. You forced her to take hot baths on the pretext it would make the bruising disappear. Several videos found on your laptop show her struggling to take a bath during this period. You told MK that you liked hitting women. You also held lighters to her face threatening to burn her.
On one occasion in mid-2023 you dragged her by the hair and repeatedly banged her head against the bedroom wall, causing severe headaches and sleeplessness for days. Neighbours on either side of your apartment heard suspicious noises such as yelling, banging and things being smashed. It seems that despite your efforts to conceal your behaviour, neighbours did hear suspicious sounds through the walls.[13]
[13]One neighbour said he heard what sounded like a metal pole hitting things and a woman screaming in pain and crying a lot. Another neighbour recalled hearing what sounded like whipping sounds and a woman screaming. It seems that one of the neighbours called 1800 RESPECT but there were no direct reports to police. None of the neighbours saw MK outside the apartment during this period.
Meanwhile, you maintained an active social life going out for regular activities like playing futsal. Each time you left the apartment, you insisted that MK and NC stayed in the bedroom until you returned home. You placed a rubber band on the door handle to check if she attempted to leave the bedroom. Once, when the rubber band had moved, you burst into the bedroom screaming at MK accusing her of attempting to go outside. As a tool of control, you also made MK record videos of herself on your laptop while you were away so that you could review the footage later to ensure she had complied with your directions.
In March 2023, you had purchased a new phone for MK, after having broken her previous phone in August 2021, but you also broke that phone leaving her without unsupervised access to a phone.
Treatment of NC and exposure of NC to her mother’s servitude
During NC’s infancy she was exposed to seeing and hearing the assaults and abuse inflicted on her mother. You also assaulted MK while she was holding NC and trying to settle her. If NC disturbed your sleep overnight you would hit MK with bare hands or objects, even if she was holding NC.
However, you did not limit your assaults to MK. By July 2023, you began to lose your temper with NC, on one occasion yelling in her face that you would kill her and, on another occasion, placing a belt around her neck and doing it up tight enough to make her scared and cry. You also slapped NC’s face on multiple occasions. Of course, you are not charged with any offence specifically relating to NC but your behaviour towards her, and in her presence, is relied on as evidencing a tool of control over her mother.
Confinement in the apartment
During the six months in the Exhibition Street apartment MK was only permitted to leave the apartment on three occasions, each time in your company, and when she did so, she was forced to conceal any visible injuries with oversized clothing. The first two occasions, which were at night, MK was only allowed to stay outside for about 10 minutes. On the third occasion, at about 11.00pm, you permitted MK to bring NC. This was the first time since NC was born that she had been taken outside, other than onto the balcony.
Financial abuse
In addition to your physical abuse of MK you forced her to transfer to you, money sent to her by her family. You also demanded she transfer any COVID-19 government payments provided to her. She was denied access to her own money.
Deprivation of personal agency
MK had to ask your permission to eat, use the bathroom or sleep and had to wait for you to wake up to be allowed to use the bathroom in the morning. You refused to buy groceries that MK needed, which meant that usually NC could only eat two meals a day.
Sexual coercion
While sex was consensual before MK became pregnant to you and during her pregnancy, by February 2023 MK ceased being attracted to you due to the escalation in your violence. She continued to provide sex to you but only participated out of fear of violence.[14]
Final days of MK’s servitude
[14]Crown SPO, [78]–[80].
In late July 2023, MK took a 27-second video on your laptop, filming herself wearing only her underwear. The video showed recent and historical injuries inflicted by you, including cuts and bruises to her face, torso, back and all her limbs. She had black eyes, fresh and old lacerations, fresh and old scars on her back and bruises consistent with assault by implements. She sent this video to her mother, DT in Vietnam. Upon viewing the video DT became alarmed and informed you that she was coming to Melbourne on 18 August for business reasons. She did not want you to suspect her real reason for coming.
On 7 August 2023 MK sent a message to DT that you were angry and raising questions about DT’s reason for coming to Australia and that you had threatened to kill her family if NC was taken away from you.
On 11 August 2023, you left the apartment to buy groceries. While you were gone, MK formulated a plan to escape from you in a text message to her mother. While she was texting her mother, she was also on the phone to you. You heard the sound of a text message coming through and MK became panicked and began to profusely apologise, as she was not permitted to text her mother.
When you returned home, you immediately interrogated MK and began hitting her with the highchair pole to the legs, left arm and face, meanwhile calling her a bitch, slut and whore. You called DT and made her promise to transfer you A$2000, so you could return to Indonesia. DT said she would give you the money when she arrived in Melbourne.
During the phone call DT could hear MK screaming and the sound of you assaulting MK. A short time after this interaction you threw a phone at MK’s head striking her left eyebrow causing a deep laceration that required stitches. DT was so alarmed she changed her flight and departed Vietnam that same day.
Leadup to the arrest
On the morning of 12 August 2023, you returned from a haircut and hit MK with the highchair pole for not commenting on your haircut. You then hit her with the pole for taking too long to prepare your towel and clothes for your shower. You continued to hit her with the pole once you got out of the shower. At 12.45pm on 12 August, as soon as DT arrived in Melbourne, she reported you to the police, sharing the video MK had sent her.
At 2.32pm several police attended your apartment. Initially you did not answer the door, only opening the door when police announced themselves. MK was located in the bathroom visibly shaking. MK and NC were taken into police care and MK needed to be assisted out of the apartment. Due to her injured and fragile condition, police called an ambulance for her.[15] MK continually apologised, saying that it was all her fault.
[15]She appeared to have significant trauma to one of her eyes, her arms were not functioning properly and some of her toes appeared disjointed and angled incorrectly. She had obvious bruising, cuts and scabbing and scarring. Her condition was described as very confronting for all the emergency service responders.
You were placed under arrest and taken to Melbourne West police station.
Evidence of injures to MK and other evidence of her servitude
After MK’s liberation, crime scene photographs taken of the apartment captured evident blood staining and spatter on living room and bedroom walls, detached highchair legs lying on the floor, and a belt on the shelf of a television unit.[16]
[16]Various other items with apparent blood staining were seized from the apartment.
Medical and forensic assessments
MK was assessed at the Royal Melbourne Hospital. Her admission records from 12 August 2023 described the extent of her injuries. Dr Goonetilleke, a Forensic Medical Officer (‘FMO’), examined MK at the hospital on 14 August 2023 and took photos and made findings regarding injuries seen during the examination. I have had regard to the photos taken on arrival at the Royal Melbourne Hospital and the photos taken by the FMO.[17] Many injuries described by the medical experts are similar to images obtained from your laptop after police accessed that item.[18]
[17]Exhibits P5 and P9.
[18]Exhibit P8.
Injuries noted by hospital staff and the FMO were documented for multiple parts of MK’s body and her head. The photos depict multiple soft tissue injuries, bruising, markings, lacerations and scarring to most of MK’s body and multiple linear patterned injuries with a tram line appearance suggesting multiple forceful contacts with a linear blunt object.[19] It was determined that MK had a combination of injuries in keeping with blunt trauma and that she had myositis ossificans.[20]
[19]Some of the above injuries are also depicted in photographs taken by SC Randle on MK’s arrival at hospital two days prior.
[20]Bony deposition within the muscle tissue suggesting repetitive blunt trauma to the region often seen in athletes who compete in contact sports.
Notable areas of injury included:
(a) Her back: there was extensive scarring over her entire back and several fractured vertebrae caused by significant blunt trauma that would take weeks or months to heal;
(b) Her left upper arm: there was evidence of blunt trauma to her left arm resulting in compartment syndrome requiring urgent surgical intervention;
(c) Her ears: there was significant bruising and bleeding to both ears; evidence of cauliflower ear deformity to the ears[21] and an acute right auricular hematoma requiring surgical intervention consistent with direct trauma. An audiologist assessment from Hearing Australia referred to the significant trauma to both ears and occasional tinnitus in both ears. Regarding MK’s hearing it was considered that further investigations may be warranted;[22]
[21]The cauliflower deformity is permanent and was found to require corrective surgery.
[22]MK’s hearing was found to be within normal limits for the left ear and essentially within normal limits for the right ear.
(d) Her ribs: there were old, fractured ribs and multiple new fractured ribs;
(e) Her hands: there was an old nail bed injury and there were fractured fingers;
(f) Her face/eyes: there were extensive old and new bruises, abrasions and scars on the face, including the eyebrow, a subconjunctival haemorrhage to the left eye and a nasal bone fracture;
(g) Her limbs: there was extensive old and new bruising abrasions and scarring over all limbs.
Paediatric opinion regarding impact on NC
Dr Michelle Kaye, a paediatric specialist,[23] opined that NC may have suffered from emotional maltreatment, neglect and physical abuse in the form of some maladaptive behaviours which she believed that NC was already demonstrating. She adverted to the potential long-term risks for NC from exposure to family violence and from confinement in the home.[24]
[23]Dr Michelle Kaye is a specialist medical practitioner with the Victorian Forensic Paediatric Medical Service.
[24]Dr Kaye considered that based on MK’s version of events, NC experienced emotional maltreatment and neglect from exposure to family violence and home imprisonment which has possibly caused or contributed to growth, attachment, emotional, behavioural, and sleep problems. Resultant maladaptive behaviours and outcomes may not be immediately apparent or may not manifest for months or years but can be enduring and lifelong.
Evidence obtained during the police investigation
The investigation into your offending included a lengthy record of interview with you on 12 August 2023, which I will refer to shortly, four statements obtained from MK[25] and the results of two search warrants executed on the Exhibition Street apartment, comprising several things that were photographed and found to corroborate MK’s account to police.[26] They found scuff marks on walls, damage to a wooden cabinet in the loungeroom and several broken pairs of MK’s glasses.
[25]Commencing on 16 August 2023.
[26]Items seized by police included two electrical multi-power boards, one Apple Mac laptop computer, a black HDMI cable, two cigarette lighters, one gas check lighter and one portable heater.
Police also reviewed the available CCTV footage of the main entrance to the apartment building, being the five weeks leading up to your arrest. The footage showed the paucity of times NC was allowed outside[27] and showed that there were no recorded sighting of MK leaving the building in those five weeks.[28]
[27]On the 158 occasions that you entered or exited the apartment NC was only observed on three of those occasions.
[28]CCTV footage of the building entrance was available for the 5 weeks between 1 July 2023 and 11 August 2023.
Further investigations by police showed the transfer of all MK’s funds received from her family, directly to you, so that between August 2021 and July 2023, MK had transferred more than $50,000 to you, leaving nothing in her bank account.
Police also spoke to a witness from the restaurant where you worked in 2021 who confirmed that during your shifts MK would be sitting out in the car outside the premises.
Video footage of MK and NC during MK’s servitude
Police retrieved a number of videos from your laptop computer,[29] including 159 recorded videos of interest showing MK and NC inside the bedroom of the apartment. A description of what the videos contained will be attached to these sentencing remarks as Appendix B. The Court was also provided with a series of videos and screenshots taken of MK (exhibits P7 and P8).
[29]By October 2023.
The video footage graphically depicts the stress, fear and servitude that MK was subjected to by you, even when she was not in your physical presence. The images show extensive bruising and swelling to MK’s face, neck, ears, arms and legs as well as fresh lacerations. In one of the screenshots, MK’s right eye was so swollen and bruised that it was fused shut.
The record of interview
The record of interview conducted with you on 12 August contains substantial admissions to the injuries and violence visited on MK, although throughout the interview you falsely blamed her for being the cause of your behaviour. The interview provides an insight into your attitude of entitlement to treat your wife as you did, claiming she was asking for it.
You spoke about needing to give MK consequences, falsely claiming that she suggested the idea of consequences and was in effect asking to be abused. At one point you confirmed that MK had not been out of the house without you in the last 12 months and you admitted that she did not have a phone as it had been broken. When shown photographs of MK’s injuries you said, ‘yeah I give her consequences pretty much’. You declined to participate in a second interview after police had obtained a fuller understanding of MK’s allegations.
Brief summation of offending
Charges 1 and 2 which involve specific assaults on MK were occasions of concerning family violence towards an intimate partner.
Charge 3, commencing on 1 April 2021 and ending on 12 August 2023 includes psychological or emotional, physical and sexual mistreatment and coercive control of an intimate partner. The charge involves the additional element of cruel, inhuman or degrading treatment over and above the offence of causing another person to enter or remain in servitude. I have already summarised your conduct in my earlier reference to the Crown’s SPO, but for completeness the aspects which are relied on by the Crown as cruel, inhuman or degrading treatment are listed as Appendix A to this sentence.
MK came under your total control, and, as well as being subjected to regular violent assaults, she was deprived of personal freedom and liberty in almost every aspect of her life. She was detained inside the residence at your direction, often inside a single room and subject to constant surveillance via video and phone. She was denied proper access to medical care, for herself and her newborn daughter. She endured unwanted sexual contact with you after February 2023 and throughout the charge period she was subjected to isolation from friends and family, frequently being deprived of access to a phone, without you being present. She had no social life and undertook forced labour by way of directed tasks.
She experienced psychological abuse, such as feeling imprisoned inside unlocked rooms, and having to surrender any money she received to you. A further aspect of her aggravated servitude was your mistreatment of NC and NC’s exposure to the aggravated servitude visited upon her mother. The Crown relied on video footage of the offending as being relevant to understanding the objective gravity of the offending, but agreed, given the confronting and personal nature of the video footage, that the footage be viewed by me in chambers, rather than in open court.
Procedural history and prior record
As mentioned, you were aged between 21 and 24 years when you committed the offending, and you are now aged 26. You were arrested and remanded on 12 August 2023, and you have remained in custody since that time. You have no prior criminal history, and you pleaded guilty to the charges at committal mention on 4 August 2024. The indictment was filed in this court on 8 August 2024, and you were arraigned on 5 September 2024.
Victim impact statements
In her VIS, MK said that as a result of the offending she feels worthless, as if she deserved to be treated poorly and she still feels that she does not know what happiness is. She feels bad whenever she is happy. She has needed counselling for anxiety, PTSD and dissociation. She feels changed by what you did to her. She still bears visible injuries over her body and needed plastic surgery to her ears and surgery to her arm from being hit constantly. She does not like to show her injuries in public in case she might have to tell her story. She felt shut off from everyone in her life and finds it hard to feel that she and her daughter are safe.
On behalf of NC, she described her daughter’s fear of male strangers because of what she was exposed to.
MK’s father, in his VIS, referred to his intuition that there was something wrong in his daughter’s relationship with you and his shock at her physical condition when she was rescued in August 2023. He said physical wounds will heal, but emotional wounds are hard to heal.
MK’s mother, DT, spoke of feeling devastated and terrified by your actions and how she is always worried, anxious and stressed by the distance from her daughter, feeling that her daughter is not safe.
The Crown pointed out regarding the impact on MK that she was not a resident of Australia when the offences against her occurred and as such she had no family support within Australia. She became increasingly isolated because of the offending, especially when she was cut off from friends and forced to stop attending university because of your actions.
Your counsel did not shy away from the victim impact material and frankly conceded that your offending was abhorrent and that the consequences for MK were profound and long-lasting.
I have taken all of the VIS into account in sentencing you, and I have absolutely no doubt that the impact on MK has been enduring and life-changing and that the impact on NC of being exposed to her mother’s servitude may not yet be fully realised.
Personal circumstances and psychological report
Early childhood
You provided your personal history to forensic psychologist, Patrick Newton, who assessed you for the purposes of your plea hearing.
You are the younger of two sons who grew up in Java with your parents.
Your father worked as a businessman operating restaurants and a factory, while your mother undertook home duties. Your family were well-off, and you had servants to take you to school and other activities. You commented to Mr Newton that that you were a bit spoilt as a child and were given everything you wanted. The family structure was traditional, with your father in charge, which seemed appropriate to you. As a child, when you misbehaved corporal punishment was applied, but you did not believe you were mistreated. You attended Catholic schools in Indonesia and learned English during primary school.
Adolescence and early adulthood
You had no significant problems in schooling, but in high school you started going in the wrong direction, mixing with disaffected youth. Nevertheless, you achieved the equivalent of Year 12 and played professional futsal in Indonesia.
Arrival and work and study in Australia
You travelled to Australia in 2017 to pursue a Bachelor of Hospitality at an international college in New South Wales.
In 2020, you moved to Melbourne to live with your brother so you could save money. You worked sporadically in the hospitality field in 2017 to 2018, then as a concierge in 2019, and as a chef between 2020 and 2021. Your most recent job was as a delivery driver for an Indonesian restaurant, but you stopped working altogether in January 2023. During your time in Port Philip Prison, you have worked in the kitchen.
Past relationships before MK
Regarding past relationships, you had many short-term relationships and casual liaisons with young women between graduation from high school and your relationship with MK. You acknowledged to Mr Newton that you typically cheated on your partners, although you expected absolute fidelity from them.
Substance abuse
You described to Mr Newton your experimentation with alcohol and drugs from the age of 14 or 15, noting that your drinking reached a peak in your early years in Australia where you would typically drink 10 or more drinks with friends. However, you were not a heavy or daily drinker during your relationship with MK.
Your cannabis use increased while living in Australia and you continued to use cannabis until your arrest. You told Mr Newton you used heroin on several occasions between 2019 and 2020 and used other substances in a sporadic fashion including ecstasy, amphetamines, Ketamine and Xanax.[30]
Past mental health
[30]Mr Newton considered ICD-11 criteria for a diagnosis of cannabis abuse and that the use of stimulants was sufficient to meet criteria for harmful use of illegal stimulants.
You described to Mr Newton that during your childhood and adolescence you had persistent problems with anger control, interpreting other people as wanting to punish you, causing you to respond aggressively to such situations. You claimed, however, that as an adult you only experienced normal mood variations and that you had not felt it necessary to seek mental health assistance, nor had you ever been prescribed medication for psychological issues.
Contrition and insight
According to Mr Newton you provided a self-justificatory narrative of your behaviour towards MK, describing the relationship as toxic and blaming your ex-wife’s failings, doubting her fidelity. You asserted that she had apologised to you for her infidelity and deceit and that it had been her idea to provide consequences in the form of physical abuse. Mr Newton records that when challenged about this narrative you became agitated and combative before conceding that you had probably been paranoid.
You did not express remorse spontaneously during the interview and expressed little empathy for your wife. You were unable to meaningfully discuss the effects of your conduct upon MK or NC. You were unable to articulate the changes you would make to address the factors which contributed to the offending. Therefore, whilst you made some statements of remorse in clichéd terms, Mr Newton was left unconvinced of their sincerity.
Reaction to the charges
You were found to be experiencing reactive anxiety, being preoccupied with worries about your legal matters. You did not express fear of being deported and in fact hoped that could happen quickly to make it easier for your family to look after you. Your anxiety was described as linked to your experience of incarceration and concern about the consequences for you. You were not found to meet the criteria for an anxiety-related disorder, mood disorder or adjustment disorder.
Features of personality or mental health disorder that existed at the time of the offending
Mr Newton opined that your psychological functioning was not affected by any mental disorder at the time of the offending conduct.[31] Similarly, while you were using cannabis, it was only causing mild effects for you. On the other hand, you were found to have traits highly suggestive of a narcissistic personality disorder (‘NPD’)[32] with antisocial features.
[31]Mr Newton also made findings of cognitive lucidity and orientation with no active psychosis or thought disorder. Reality testing was intact and Mr Newton made a finding of normal intelligence but with limited understanding of emotional and subjective matters. There was no indication of intellectual impairment.
[32]Mr Newton referred to clear personality pathology being strongly narcissistic and self-focussed and lacking empathy for others. Attitudes formed in childhood seemed to have seeded a grandiose sense of entitlement that persisted into adulthood and pervaded the relationship with MK.
Your social judgement and moral reasoning were skewed to a sense of entitlement to behave in a self-interested fashion as a result of your long-term personality vulnerabilities.
In the psychosocial domain, pervasive problems were demonstrated in the range of antisocial behaviours. Your relationships were either superficial or characterised by pervasive violence. You have a patchy employment history, a significant history of problematic drug use with limited progress in getting treatment and a past history of unstable mental health.
Risk assessments
Mr Newton conducted a risk assessment of you and found that you present with at least eight of the 10 factors correlated to an elevated risk of intimate partner violence.
Of particular concern to Mr Newton were your offence-supporting attitudes including difficulties accepting responsibility, a belief in the acceptability of violence as a response to relationship conflict and approaches to marriage that go well beyond even ‘traditional’ perspectives on gender-relationships.[33]
[33]Mr Newton also noted ongoing denigration of the complainant and a strong commitment to patriarchal attitudes.
You were assessed as posing a high risk of further spousal violence, on a structured clinical judgment framework. Put differently, your risk for recidivism for further violent offending directed at an intimate partner is well above average relative to other offenders being sentenced for such matters.
Relationship between NPD with antisocial features and offending
Regarding your NPD with antisocial features, Mr Newton found that your personality vulnerabilities[34] are the result of seeing the world through a self-focused lens. You are of normal intelligence and were fully aware of the wrongfulness of your conduct towards MK but your personality pathology influences your attitudes and capacity for empathy.[35]
[34]Entitlement, insecurity and rigidity.
[35]Mr Newton explained that this was reflected in self-centredness and lack of empathy for others and conviction as to the righteousness of Mr Miller’s own perspective on morality, relationships and the world more generally, leading him to exalt himself and denigrate others to preserve his own fragile self-esteem.
There was no direct causal nexus between your diagnosis and the offending,[36] nor any indication of cognitive impairment diminishing your ability to regulate your behaviour. Your personality disorder did impair your social judgment resulting in an increased sense of entitlement and a decreased sense of empathy for MK, but your ability to make calm and rational choices was not impaired and nor were you disinhibited.
[36]The effects of the NPD did not increase impulsivity or disinhibit Mr Miller or reduce his capacity to understand the wrongfulness of his actions or impair his ability to have the requisite intent to engage in the offending. Therefore, whilst they provide some context for understanding the offending, the offending was not caused by those maladaptive personality features in the opinion of Mr Newton.
In summary, Mr Newton, both in his report and in his oral evidence,[37] reiterated the absence of a causal nexus between your NPD with antisocial features and the offending but agreed that your attitudes underpinned and provided a context for the offending, in that you behaved in a narcissistic and non-empathetic way towards MK.[38] Your psychological condition[39] impaired your social functioning towards others and skewed your social and moral judgment.[40] Mr Newton testified as to the low frequency in the community of persons diagnosed with NPD with antisocial features.[41] Under cross-examination, he confirmed the limited extent to which your condition influenced your decision-making in respect of your criminal behaviour.[42]
[37]Given on day 2 of the plea hearing on 26 February 2025.
[38]TS 64.
[39]NPD with antisocial features.
[40]Mr Newton explained (TS 65):
He sees himself as being entitled, as I said, to behave in these ways. But having said that, it's not that he doesn't think what he's done is wrong. He's aware of that. He's aware that it transgresses the law. He's aware that it transgresses ethical standards, but he thinks he is special and that he's entitled to behave in ways that do that.
[41]TS pp 67–68: positing that NPD may apply to between 1% and 3–6% prevalence and the subtype involving antisocial features being less common than that.
[42]TS p 69 where Mr Newton confirmed the presence of the ability to make calm and rational decisions, not being disinhibited or unable to understand the wrongfulness of the conduct by reason of the NPD with antisocial features.
He opined that the disorder would make your experience of imprisonment somewhat more burdensome than for other prisoners by increasing the risk of negative interactions in prison.
Mr Newton observed that to date you have not engaged in offence-specific treatment regarding family violence, but you have engaged in some drug and alcohol treatment in prison.[43] However, your insight into your drug use is limited and you are at a significantly elevated risk of relapse to problematic drug use.
[43]Treatment with Buvidal has been implemented.
I accept Mr Newton’s expert opinion regarding your psychological diagnosis of NPD with antisocial features which can tend to influence your behaviour towards others while not causing the offending. I also accept his opinion that you were aware of the moral wrongfulness of your actions towards MK and towards and in the presence of NC, notwithstanding your psychological condition.
Reduction of moral culpability based on Verdins
The Crown submitted that whilst personality disorders may in certain circumstances enliven Verdins[44] principles, rigorous analysis was required and in this case I should find that Mr Newton’s diagnosis of NPD with antisocial features was not of such severity as to reduce your moral culpability, nor require moderation of deterrence,[45] denunciation or just punishment. The Crown submitted that at most it could help explain some aspects of the offending.[46]
[44]R v Verdins (2007) 16 VR 269.
[45]Whether general or specific.
[46]Citing Dieni v The Queen [2022] VSCA 16.
Mr Kassimatis, in response, embraced the jurisprudential approach to personality disorders espoused by the Court of Appeal in Brown.[47] He submitted that the matters that could go to a reduction of moral culpability under Verdins were not exhaustively laid out by the Court in that case,[48] and that your impaired moral and social judgement stemming from your entrenched psychological condition should be found to reduce your moral culpability.
[47]Brown v The Queen (2020) 62 VR 491, where the Court of Appeal rejected the blanket exclusion of personality disorders from those conditions capable of attracting mitigation under Verdins and emphasised that the question was not whether an offender attracted a particular diagnostic label; rather, sentencing judges were encouraged to focus on the symptoms of an offender’s condition and their relationship to the offending.
[48]Referring to the matters listed in discussion of the first limb of Verdins and also referring to the case of Tran v The Queen (2012) 35 VR 484.
He submitted that the weight to be given to deterrence,[49] denunciation and just punishment should also be reduced, even in the absence of a causal nexus between your psychological condition and the offending.
[49]Both specific and general deterrence.
However, Mr Kassimatis conceded that a finding of impaired mental functioning at the time of the offending based on impaired moral and social judgment could cut both ways by influencing other sentencing considerations such as community protection.[50]
[50]TS p 71 and p 87.
In my view, only a very modest reduction of moral culpability can be justified in your case due to your longstanding and untreated NPD with antisocial features. While your empathy for others and your moral judgement was skewed, you knew exactly what you were doing and that it was wrong. Despite this, not only did your physical assaults of MK continue over a protracted period, but the assaults increased in both their severity and frequency. As such, this condition only leads to a very modest reduction in the punitive denunciatory and deterrent aspects of your sentence. I also agree with the concession from your counsel that the entrenched nature of your condition has ramifications for future risk and community protection.
Regarding rehabilitation and specific deterrence, Mr Newton’s opinion leads to a more nuanced approach. He opined that while your immediate reaction to a prison sentence may be to feel persecuted, in the longer term you have the capacity to benefit from the occurrence of that sentence.[51] I accept his opinion on this aspect, leading me to consider that both specific deterrence and rehabilitation are relevant in your case. In your favour, it appears you have some capacity to rehabilitate and respond productively to your sentence. However, the potential for rehabilitation is uncertain and is dependent on your capacity to overcome feelings of persecution arising from a sentence, as foreshadowed by Mr Newton.
[51]TS p 68.
Mr Kassimatis drew upon Mr Newton’s report[52] to invoke Verdins limb five, submitting that because of your psychological condition, imprisonment will weigh more heavily on you than it would for a person in normal health.
[52]Mr Newton stated that ‘[t]he effects of Mr Miller’s personality disorder are likely to add to the burden of imprisonment upon him by increasing the risk of “negative interactions” with other prisoners, reducing his access to supports and complicating the delivery of rehabilitative programs to him’: see Psychological Report of Dr Patrick Newton, [77].
The Crown conceded that Verdins limb five could be enlivened but submitted that limited weight should be given to this mitigatory factor.
I am persuaded that your NPD with antisocial features will make prison more burdensome for you than for prisoners of normal health, and this factor will be taken into account in sentencing you.
Objective gravity of Charges 1, 2 and 4
Regarding the two occasions of common assault, the Crown noted that neither occasion was provoked in any way and that this behaviour represented the start of the physical abuse within the relationship.
Although these assaults were spontaneous, they must be deplored especially given the context of family violence. In both instances, the victim was your partner, later your wife, and you assaulted her to a vulnerable part of her body, namely her head. Despite the reprehensible nature of those assaults, understandably those instances were not the focus of much attention during the plea hearing, given the serious nature of the conduct in charge 3, which appeared to flow on from those earlier incidents.
As such, in sentencing you on the first two charges, it appears to me that the gravity of the conduct encompassed by charge 3, involving offending in circumstances where you had already committed the two earlier assaults, makes it appropriate to order full concurrency with charge 3. This approach also recognises the higher sentencing range attaching to charge 3.
Charge 4 is of a different character and deserves little attention in these sentencing remarks which are mainly focused on the major charge, charge 3.
Objective gravity of Charge 3 – Aggravated Servitude
The Crown submitted, regarding the offence of aggravated servitude, that the nature of the crime is in itself very serious as reflected in the maximum penalty of 20 years. Further, this was a serious example of that offence, and the gravity of the offending was very high.
Mr Kassimatis responded that, on the continuum of offences under Division 270,[53] the aggravated servitude offence carries a lesser maximum sentence than the slavery offences for which the maximum penalty is 25 years. Whilst I accept that the difference in penalties between slavery and servitude provides a distinction in the continuum of offences in Division 270,[54] I also note that the hierarchy of the offences under Division 270 does not necessarily define the gravity of the actual offending or the culpability of the offender in any particular case.[55]
[53]Criminal Code Act 1995 (Cth).
[54]See Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 Explanatory Memorandum, p 17.
[55]Judicial College of Victoria, Modern Slavery: Guidance for Australian Courts, p 41 citing Connors v The Queen [2013] EWCA Crim 324, [6].
The Crown further submitted that this should be classed as a ‘worst case’ example of the offence due to the merciless nature of your conduct, its prolonged duration, the psychological and physical abuse and the deprivation of MK’s basic rights and freedoms.
Your moral culpability was described by Ms Ruddle as exceedingly high as you deliberately engaged in this conduct for two years and four months despite opportunities to desist.
Citing Markarian v The Queen,[56] Ms Ruddle submitted that careful attention to maximum penalties will almost always be required, inviting comparison between the worst possible case and the case before the Court and providing, when balanced against all other relevant factors, a yardstick.[57]
[56](2005) 228 CLR 357, 372 (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[57]Ibid [31].
Ms Ruddle listed the following features as demonstrating the high gravity of the offending:
(a) MK was deprived of her liberty for a prolonged period during which she was denied basic rights, including safety, autonomy and dignity.
(b) The period of servitude began during her pregnancy and persisted after the birth of your daughter.
(c) The conditions of her servitude were severe, with you exercising near total control over her life and dictating her movements, contact with others and daily living conditions. MK was largely confined to the home, often to one room and often requiring permission to use the bathroom or access health care. The incursions on her personal autonomy included you directing her to be subject to monitoring and surveillance when you left the home. You limited not only her physical freedom but also her financial independence.
(d) MK was subject to physical assaults that were violent, repeated, intense and involved household objects. These assaults had no regard for her bodily integrity and security of person, and occurred before, during and after her pregnancy.
(e) NC was at times subject to physical assaults.
(f) The offending occurred in the context of family violence and coercive control in breach of a relationship of trust and intimacy.
(g) MK’s servitude only ended through the intervention of others.
The Crown submitted that you exercised dominion over MK and enforced compliance through a combination of psychological coercion and physical abuse, instilling fear and submission through intimidation, threats and surveillance and through restricting MK’s connection to others.[58] The Crown referred to the sheer volume of MK’s injuries and MK’s fear reflected in the videos tendered by the Crown. The Crown also submitted that the threats of violence and actual violence perpetrated against NC were a tool used by you to further exercise your control over MK.
[58]Reference was made to DPP v Ho & Anor [2009] VSC 437, [32] (Cummins J) despite that case dealing with slavery: ‘The consequence was that this was modern slavery: not with physical chains but with mental chains’.
Mr Kassimatis frankly conceded that the offending was serious but suggested that undue focus on individual episodes of physical or sexual abuse risked creating unfairness in the way discussed in The Queen v De Simoni,[59] given that you are not charged with the underlying offences. The Court was encouraged to avoid putting at the forefront the various underlying uncharged acts.
[59](1981) 147 CLR 383.
Many of the factors referred to as showing the high objective gravity of your offending were also relied upon by Ms Ruddle as evidencing the cruel, inhuman or degrading nature of MK’s servitude. In considering the Crown’s argument about the markers of the objective gravity of your conduct over the charge period, I am mindful of the need to avoid double punishment in that the many serious aspects of what you did to MK form part of the offence itself being examples of cruel, inhuman or degrading treatment while under a condition of servitude.
As to the Crown’s submission that this was ‘worst case example’ of the offence of aggravated servitude,[60] this characterisation is potentially confusing for the reasons referred to in oral submissions by Mr Kassimatis.[61] I also note that there are few comparative cases, and no previous cases relating to the offence of aggravated servitude. As such, I do not find it necessary to comment of whether the offending in this case constitutes a ‘worst case’ example.
[60]Outline of Submissions on Plea, [3].
[61]See TS pp 55 and 56 by reference to Kilic v The Queen (2016) 259 CLR 256, [18] where the High Court said:
What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type.
The Crown’s submission about worst case seemed to focus on objective gravity. Mr Kassimatis submitted that the use of the reference ‘worst case’ attracts a certain sentencing principle and given the current case involves a guilty plea by a young man with his life ahead of him against the background of a 20-year maximum penalty as mitigating factors in moderating Mr Miller’s sentence, the Court should not accept the submission that this case be labelled as a ‘worst case’ example.
Nevertheless, I am well satisfied that the features of objective gravity present in this case make it a high-level example of the offence.
Regarding moral culpability, Mr Kassimatis placed reliance on limb 1 of Verdins. As mentioned earlier, I consider that any reduction of moral culpability because of your psychological condition can only be very modest considering Mr Newton’s evidence.
Timing of guilty pleas, cooperation with police and the question of remorse
The Crown accepted that you are entitled to the benefit of the utilitarian value of your early pleas of guilty,[62] but submitted your pleas were not indicative of remorse, instead being made in the face of an overwhelming case. No contrition had been expressed by you[63] and in your record of interview you sought to blame MK for the abuse and minimised your own conduct.[64]
[62]Saving the time and cost of a contested proceeding and sparing victims and witnesses.
[63]As was clear from Mr Newton’s report.
[64]The Crown rejects answers in the record of interview blaming MK, noting these assertions are entirely unsupported by evidence and that the efforts by MK to comply are readily apparent from the video footage.
Ms Ruddle conceded that you made admissions during your record of interview but argued that beyond that, you did not cooperate with law enforcement agencies.
Mr Kassimatis submitted that notwithstanding the gravity of the offending, your sentence should be mitigated because of your guilty pleas which were valuable for their utility, sparing MK and others from the ordeal of a trial and saving resources.[65] Reliance was also placed on the early stage at which the guilty pleas were entered, noting that they represented an acceptance of responsibility for the offending. It was argued that there is a powerful public interest in giving recognition to a plea of guilty, even in the face of a very strong prosecution case. Charged individuals need to know that a plea of guilty will find palpable recognition in the sentence passed. The more serious a crime, the greater weight to be given to a guilty plea and the effect of a guilty plea should not be swamped by aggravating factors.
[65]Reference was made to the well-established utilitarian value of a guilty plea.
I accept that your pleas of guilty and the early stage at which they were offered make them very valuable in this case and deserving of palpable recognition in your sentence, notwithstanding the strength of the Crown case. The burden on the courts, victims and witnesses of contested trials can be easily understood when considering the procedural history of cases such as DPP (Cth) v Kannan[66] (‘Kannan’) and Ho v The Queen[67] (‘Ho’).
[66][2021] VSC 439 and see also Kannan and Kannan v The King [2023] VSCA 58.
[67](2011) 219 A Crim R 74.
While your pleas of guilt necessarily entail an acceptance of responsibility for the offences, that is in no way an indication of you experiencing proper remorse. Of course, absence of remorse is merely absence of a mitigatory factor. I acknowledge that you did cooperate in providing answers to police in your record of interview leading to the admissions upon which the Crown relied in bringing the charges against you.
Youth, character and antecedents and prospects for rehabilitation
Mr Newton’s evidence was relevant to your prospects for improvement of your NPD with antisocial features.[68] He left open the possibility of improvement[69] but considered it less likely than not that you would overcome your narcissistic responses and thereby reduce your risk of reoffending. He opined that you will be in need of comprehensive treatment for your personality disorder.[70]
[68]Mr Newton said that the antisocial part of his responses is to disregard the rights of others: TS pp 69–70.
[69]Noting favorable factors of intelligence, youth and the deterrent effects of the likely prison sentence.
[70]Newton Report, [82].
Regarding your past character and antecedents, Ms Ruddle conceded the absence of prior criminality and that you were a young offender during the period of the charges. However, she submitted that special leniency due to youthfulness was not warranted in your case owing to the gravity of the offending and your bleak prospects for rehabilitation.
The offending was neither impulsive nor reckless but instead was calculated and prolonged. It involved vicious abuse and domination of your partner for an extended period, thereby limiting the weight that should be given to youthful offender principles.[71] There was an absence of remorse, and you had no verified work history from October 2021 until your arrest. Mr Newton assessed you as a high risk for further spousal or intimate partner violence.[72]
[71]Citing Nolan v The Queen [2017] VSCA 240 (‘Nolan’), Azzopardi v The Queen [2011] VSCA 372, [44] (Redlich JA, Coghlan and Macaulay AJA agreeing) (‘Azzopardi’) and DPP v Lawrence [2004] VSCA 154 (‘Lawrence’) as explaining the limitations on youthfulness as a matter in mitigation for certain kinds of offending or grave offences.
[72]Factors related to future risk canvassed by Mr Newton included history of offending (both actual violence and threats against MK), difficulties in interpersonal relationships, problematic behavioural and social adjustment, poor level of insight, offence-supporting attitudes and lack of engagement in any offence-specific treatment, and a history of problematic drug use and limited insight into this. Also, the fact that the offending was prolonged, brutal and only ceased due to the intervention of others.
The case of DPP vLawrence[73] was referred to, where the Court observed that in cases of extreme violence, youth and rehabilitation must take a back seat to specific and general deterrence. This was especially so for crimes of wanton and unprovoked viciousness. Similarly in Nolan,[74] the background context of an adult domestic relationship was contrasted by the Court with more impulsive offending by youthful offenders, so that Azzopardi principles in such cases had little work to do.[75]
[73][2004] VSCA 154.
[74][2017] VSCA 240.
[75]Azzopardi v The Queen [2011] VSCA 372.
The Crown accepted whilst in custody, you are isolated from family but argued that no weight should be given to the risk of deportation as you had expressed the hope of being removed back to your home country as soon as possible.
Mr Kassimatis emphasised your youth, absence of criminal history and the fact that you are on remand as a first-time prisoner isolated from your overseas family. He argued that your youthfulness and rehabilitative prospects should be at the forefront of the Court’s sentencing discretion, despite Mr Newton’s findings as to the risk of re-offending and should not be displaced by matters such as general deterrence. He submitted that rehabilitation is still usually more important than general deterrence for young offenders,[76] and this was especially so in circumstances of immaturity and ‘long-term personality vulnerabilities’.[77] The continued support of your family was also referred to.
[76]Reference was made to the reason why a youthful offender’s sentence should be treated differently to adults including where immaturity renders the person less able to analyse the consequences of his actions and control their impulses or less amenable to general or specific deterrence.
[77]Citing the Newton report, [51].
As a young person it was put that you are more vulnerable to the polluting influences of gaol and you ought to be seen as being capable of reclamation, and that community protection is advanced by rehabilitation of a youthful offender
In my view the protracted, repetitive and cruel nature of the offending captured by charge 3 and your awareness of the wrongfulness of your conduct make it hard to give much weight to youthful offender principles. You went to lengths to ensure concealment of your ongoing offending from people outside the home and allowed your own outrageous treatment of MK to escalate in brutality and scope over the course of time. It was only ended by the intervention of others.
Based on your own statements in the record of interview, and Mr Newton’s evidence, it appears to me that notwithstanding your youth, your prospects for rehabilitation are fairly poor, although Mr Newton allowed for some possibility of improvement over time.
I remain mindful of your absence of criminal history and that this is your first time in prison and that a lengthy term of imprisonment will have a significant impact on you, especially since your family live overseas. All these factors must be carefully balanced in arriving at a just sentence.
Comparative cases
The Crown noted that no court in any Australian jurisdiction has sentenced a person for aggravated servitude under the Criminal Code Act, nor for the newly framed charge of servitude.[78]
[78]The current offence of servitude was introduced by the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). Prior to this, the offence of servitude under the Criminal Code Act 1995 (Cth) was limited to sexual servitude, being circumstances wherein a person who provides sexual services and who, because of the use of force or threats is not free to cease providing sexual services or is not free to leave the place or area where the person provides sexual services. The definition and offence of sexual servitude were subsequently recast in broader terms to account for exploitation in other industries. The current offence of servitude also requires that the victim is significantly deprived of their personal freedom in respect of other aspects of their life.
DPP (Cth) v Kannan,[79] (on appeal Kannan v The King[80]) appeared to be the first Australian case concerning slavery by domestic servitude, as opposed to slavery in the context of sexual servitude.
[79][2021] VSC 439.
[80][2023] VSCA 58.
The Crown submitted that the factual circumstances in Kannan were markedly different to your case and did not involve a spousal relationship. Your case was submitted to represent a distinct case under the servitude provisions.
Mr Kassimatis referred to some potentially relevant cases,[81] arguing that there are no genuinely comparable cases, nor cases that have jointly invoked sections 270.5 and 270.8 of the Criminal Code Act, but that there are cases that have dealt with slavery offences.[82]
[81]Kannan v The King [2023] VSCA 58; DPP (Cth) v Kannan [2021] VSC 439; Ho v The Queen (2011) 219 A Crim R 74; Nantahkum v The Queen (2013) 236 A Crim R 158; R v McIvor & Tanuchit [2010] NSWDC 310; and R v DS (2005) 153 A Crim R 194.
[82]In breach of s 270.3 where the maximum penalty is 25 years’ imprisonment.
The cases of Kannan, Ho and Nantahkum v The Queen[83] (‘Nantahkum’) were raised by Mr Kassimatis as the closest useful comparators, although it was noted that those cases involved sentencing after a trial, not a guilty plea.
[83](2013) 236 A Crim R 158.
In considering the cases referred to by the parties, I note that Kannan offers some guidance, although there are many points of difference. Kannan occurred in the context of an exploitative employment arrangement. Both Mr and Mrs Kannan were convicted of slavery offences.[84] On the one hand, the matter proceeded to trial and related to offending over a period of eight years, and there was a higher available sentence for the specific charges.[85] On the other hand the sentencing involved recognition of significant delay, hardship to the couple’s three autistic children, the absence of victim impact material and differences in the victim’s place in the household compared to the dynamics of your treatment of MK. There was also significant extra-curial punishment. Furthermore, the offending did not involve repeated and merciless violence and oppression towards an intimate partner, nor the use of a child as a tool of further control, whereas your offending entailed the abuse of a relationship of close trust within the context of an intimate partner relationship.
[84]Charges of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership.
[85]Noting also that the charges there concerned slavery and acknowledging the 25 years maximum applying there.
These differences make it difficult to draw meaningful comparisons.
While there are some common features of oppressive and restrictive conduct in the cases referred to by the parties, the aggravated servitude in the present case involved a regime of extraordinary cruelty and tyranny perpetrated over a lengthy period inclusive of family violence and sexual exploitation. As such, the cases referred to are of limited utility. I also consider that the age of the cases of Ho and Nantahkum makes them less useful.
Sentencing purposes
Mr Kassimatis conceded that deterrence, denunciation, just punishment and protection of the community are important sentencing considerations but submitted that those objectives and the gravity of the offending should not subjugate the matters upon which you legitimately rely to mitigate sentence.
The Crown responded that regarding general deterrence, the offending before the court within a domestic setting is easily committed and difficult to detect. Spousal or intimate partner offending is generally deserving of general deterrence in sentencing.[86] Reference was also made by the Crown to the persuasive statements of Champion J in Kannan[87] emphasising the importance of general deterrence in cases of domestic servitude, noting that in your case the offending was unlikely to have come to light but for the bravery of MK and her mother in seeking help. I agree with the Crown’s submission that the context of your offending, within a family setting, and the ease with which domestic servitude can be hidden from view, influences the weight to be given to general and specific deterrence.[88]
[86]Citing Pasinis v The Queen [2014] VSCA 97.
[87][2021] VSC 439, [3].
[88]See Crimes Act 1914 (Cth), s 16A(2)(a).
It was submitted that the factual background to your case represents a high-level example of the charge, and exceptionally serious offending, including extreme violence and blatant disregard for MK’s personal security and human rights.
Consequently, just punishment, deterrence and community protection and denunciation were submitted to be paramount sentencing considerations. I agree that each of these sentencing purposes are of vital importance in your case, although I have not lost sight of the goal of rehabilitation or the mitigatory matters emphasised on your behalf and I will also apply the principle of parsimony to your sentencing.[89]
[89]Insofar as it is applicable under ss 16A(1) and 16A(2)(k) of the Crimes Act 1914 (Cth).
Structure and mechanics of sentence
As charge 3, the offence of aggravated servitude, is a Commonwealth offence, the Court must sentence in accordance with Part 1B of the Crimes Act 1914 (Cth) (‘Crimes Act’).
Section 16A(1) provides that the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) mandates that the Court[90] have regard to a number of specific matters that are relevant and known to the Court, in addition to any other matters. I have considered the s 16A factors for the Commonwealth offence, alongside relevant sentencing jurisprudence that applies to all of the offences. Some of the s 16A factors mirror the kinds of factors that are relevant under State sentencing law.[91]
[90](When determining the appropriate sentence).
[91]See s 5(2) Sentencing Act (1991) (Vic).
I note that the sentencing process by way of ‘instinctive synthesis’ is equally applicable to sentencing for Commonwealth and State offences.
Sentence
Javier Miller, I will now announce the sentence.
Charge 3 is the base sentence.
On charge 3 of aggravated servitude, you are sentenced to 12 years’ imprisonment. In relation to this charge, I am required to consider whether an alternative to a sentence of imprisonment is available and I am confident that it is not due to the gravity of the offending for the reasons already explained.[92]
[92]Crimes Act 1914 (Cth), s 17A.
On charges 1 and 2 you are sentenced to an aggregate 2 months’ imprisonment which is to be served wholly concurrently with the sentence on charge 3. In considering whether to impose an aggregate sentence, I have separately considered each charge of common assault in the aggregate sentence and I have ensured that the sentence meets the totality of your offending in a proportionate and just way. The offending in charges 1 and 2 is part of a series of offences of the same or a similar character. The effect of an aggregate sentence being imposed on those charges means that you will serve a single prison sentence of two months for both charges 1 and 2.
Pursuant to s 19AB(1) of the Crimes Act, I fix a non-parole period of nine years. I am required to explain the purpose and consequences of fixing a non-parole period.[93] The total effective sentence is 12 years’ imprisonment. I have directed that you serve a minimum period of nine (9) years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of not less than nine years. Thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to conditions of your parole and subject to any order for your deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked, and you may be ordered to serve the balance of your sentence in prison.
[93]Crimes Act 1914 (Cth), s 16F.
On charge 4 a fine of $600.00 is imposed.[94]
[94]With conviction, as clarified under r 1.14 of the Supreme Court (Criminal Procedure) Rules 2017.
Pursuant to s 19(3) of the Crimes Act, I direct that you must commence serving your sentence for aggravated servitude immediately and concurrently with the period of imprisonment imposed for charges 1 and 2.[95]
[95]As it is my task to sentence you for both a Commonwealth offence, being aggravated servitude, and State offences, being two charges of common assault and one charge of possession of a drug of dependence, I must have regard to s 19 of Crimes Act 1914 (Cth).
Charge Offence Maximum Sentence Indictment P11731898 1, 2 Common assault 5 years’ imprisonment on each charge Aggregate sentence of 2 months’ imprisonment 3 Causing a person to enter into or remain in servitude – aggravated offence 20 years’ imprisonment 12 years imprisonment 4 Possession of a drug of dependence 5 penalty units $600.00 fine Total effective sentence:
12 years
Non-parole period 9 years
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, I would have imposed a sentence of 15 years and six months’ imprisonment with a non-parole period of 12 years.[96]
[96]Section 18 of the Sentencing Act 1991 (Vic) requires that any time spent by an offender in custody in respect of that offence must be reckoned as a period of imprisonment or detention already served under the sentence unless otherwise ordered. Section 16E of the Crimes Act 1914 (Cth) provides that where the law of a State has the effect that a sentence imposed on a person for an offence against the law of that State or a non-parole period fixed in respect of that sentence may be reduced by the period that the person has been in custody for the offence, the law applies in the same way to a federal sentence imposed on a person in that State or to a non-parole period fixed in respect of that sentence.
Pursuant to s 18(4) of the Sentencing Act1991, I declare that you have already served 599 days by way of pre-sentence detention, not including today’s date, and I direct that this be reckoned as time already served under the current sentence.
I will make the forfeiture and disposal order sought by the Crown.
Appendix A: Examples of cruel, inhuman or degrading treatment referred to by the Crown as required for the aggravated servitude offence (Charge 3)
i. forcing MK to accompany you to work where she had to sit in the car while you worked;
ii. breaking pairs of her glasses, making it difficult to perform basic tasks;
iii. subjecting her to frequent daily beatings, including using objects such as a chair leg and a pole from your daughter’s highchair;
iv. beating her if the baby made noise or woke during the night;
v. denying her access to basic medical care and post-natal care;
vi. withholding medical treatment for injuries you inflicted;
vii. confining her to a small bedroom for extended periods sometimes up to 12 hours;
viii. forcing her to seek permission for basic needs such as eating, drinking, sleeping or showering;
ix. targeting areas on her body for assaults where bruises would heal more quickly, and forcing her to take long hot baths;
x. using items such as a rubber band to detect if she left her bedroom without permission;
xi. forcing her to record videos of herself on her laptop to monitor compliance with your instructions;
xii. limiting groceries resulting in only two meals a day for NC;
xiii. requiring MK to warm your bed at night and assaulting her if she did not do so;
xiv. financial abuse including depriving her of any financial autonomy and forcing her to transfer money that she received from other sources;
xv. After NC’s birth, commission of the offending in her presence;
xvi. Causing the harm suffered by MK included physical, psychological, social and financial impacts and forced sexual service, including the harm detailed in MK’s VIS and in the medical evidence.
Appendix B: Content of video and audio recordings on the laptop computer
The Crown SPO sets out at [108] the nature of the videos following examination of your laptop computer.
The Crown submits that a police officer reviewed 159 recorded videos of interest, varying in length from only a few minutes to 12 hours and showing MK and NC inside the bedroom of their apartment. The videos are relied on as depicting a timeline of MK’s injuries from October 2022 through to August 2023, including a significant escalation in visible injuries on specific dates.
Two of the videos depict controlling behaviour on your part, giving MK orders prior to you leaving the apartment, including orders as to where the camera should be set up so as to enable you to see everything.
Three of the videos show you calling her at regular intervals when out of the house and MK rushing to the laptop to answer these calls (during these calls, also instructing her to keep the recording going).
One of the videos depicts you returning home and asking her to show you confirmation of how long the video had been recording for.
One of the videos shows you arriving home, collecting NC from the room and directing MK to remain in the room for some time.
One of the videos shows you assaulting MK while she is holding NC.
One of the videos is an audio-only recording, in which MK can be heard being assaulted by you, including sounds consistent with being whipped.
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