Director of Public Prosecutions v Mills (a pseudonym)

[2025] VCC 653

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

SETH MILLS (A PSEUDONYM)

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JUDGE:

His Honour Judge Rozen

WHERE HELD:

Melbourne

DATE OF HEARING:

6 May 2025

DATE OF SENTENCE:

DATE OF APPLICATION:

22 May 2025

23 June 2025

CASE MAY BE CITED AS:

DPP v Mills (a pseudonym)

MEDIUM NEUTRAL CITATION:

[2025] VCC 653

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:   Sexual penetration of a child under 16 – two charges – one incident – historical offending – 19-year-old offender – 15-year-old victim – objective gravity-mid - delay – victim impact – Bugmy principles – early guilty plea – significant rehabilitation since offending – young offender – limited unrelated criminal history – SORA exemption-granted.

Legislation Cited:  Crimes Act 1958 (Vic); Crimes (Amendment) Act 2000 (Vic); Children, Youth and Families Act 2005 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:R v G [2009] 1 AC 92; Bugmy v The Queen [2013] HCA 37; DPP v Abad [2016] VCC 1219; DPP v Abad  [2016] VSCA 279; DPP v Coombes (a pseudonym) [2018] VCC 389; DPP v Baker [2016] VCC 1500; DPP v Ronchi [2018] VCC 1323.

Sentence: 12 months’ imprisonment-wholly suspended-one year – Sex Offenders Registration Act-15 years-Exemption granted – s 6AAA declaration – 18 months’ imprisonment – non-parole period of 12 months’.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Ms M. O’Brien	Murphy's Lawyers Inc.

HIS HONOUR:

1Seth Mills,[1] you have pleaded guilty to two charges of sexual penetration of a child under 16, contrary to section 45(1) of the Crimes Act 1958 (Vic).[2] The maximum penalty for each charge is 10 years’ imprisonment.

[1] A pseudonym.

[2] As amended by the Crimes (Amendment) Act 2000 (Vic).

2You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 9 April 2025, which I note is an agreed document.[3]

[3] Exhibit P1.

Circumstances of Offending

3The offending occurred in August of 2010, at that time you were 19 years and 11 months old and residing in New South Wales. The victim, Alannah Tucker,[4] was aged 15 years and 5 months and living with her mother and siblings in Endeavour Hills, Victoria.

[4] A pseudonym.

Background

4Ms Tucker was in Year 9 at the time of the offending, however had ceased attending school due to episodes of bullying. She created a Facebook Profile with the name ‘Alannah Tucker’ and listed her date of birth within the profile. The profile included a recent picture of herself.

5In or around June or July 2010, Ms Tucker accepted a friend request from you and you began sending messages to each other using the Facebook Messenger app.

6Eventually, you both began to call each other daily. During one of these calls, Ms Tucker told you that she was 15 and you told her that you were 19. These calls often went for around 45 minutes, during which you often comforted Ms Tucker about the recent separation of her parents.

Meeting

7After having been in contact with Ms Tucker for around one month, you drove from New South Wales to visit her. You were accompanied by your friend.

8On 20 August 2010 in the mid-afternoon, you and your friend arrived at Ms Tucker’s house. After having dinner with Ms Tucker and her family, you left. After this, you sent a text message to Ms Tucker and asked if she wanted to come to Sydney with you.

9Ms Tucker packed a bag and left the house at approximately 10pm without letting her parents know. You picked her up and drove to Seymour. On the same night, after having completed a petrol drive off, your friend was intercepted by police and arrested at about 1:40am.

10During the arrest, the police asked for your and Ms Tucker’s licences. Ms Tucker informed the police that she was 15 and did not have a licence. Your friend was taken to the police station, and you and Ms Tucker waited on the side of the Hume Freeway in the car.

Offending

11After the police left, you moved into the back seat of the car and sat next to Ms Tucker and began kissing her. You put your hands down her pants, massaging her vagina and putting your fingers inside her vagina (Charge 1 – Sexual Penetration of a Child Under 16).

12You then had penile-vaginal sex for five to ten minutes before you ejaculated inside the Complainant’s vagina (no condom was used) (Charge 2 - Sexual Penetration of a Child Under 16).

13You did not say anything to Ms Tucker before you began kissing her and she did not resist or refuse your advances. After the offending, you drove to Seymour Police Station and picked up your friend before continuing to drive to Sydney.

14On the morning of 21 August 2011 Ms Tucker’s mother realised that she wasn’t home and made a report to police.

15When you arrived home in New South Wales with Ms Tucker, your mother informed you that she had been contacted by police regarding Ms Tucker. Your mother then drove Ms Tucker to a police station.

16Ms Tucker was taken to a refuge while arrangements were being made to return her to her home. On 22 August 2011 you arranged to see Ms Tucker, who left the refuge to meet you. Ms Tucker was then transferred from the refuge to a hospital after having expressed suicidal ideation.

17Ms Tucker was returned to Victoria around 27 August 2011, the two of you remained in contact until Ms Tucker deleted her Facebook Account at the insistence of her mother.

Arrest and Record of Interview

18Some time in 2020, prior to the COVID-19 pandemic, Ms Tucker disclosed the offending to her sister. She told her sister that at the time the encounter was consensual but that she later realised it was wrong because of your respective ages.

19In 2021, after attending therapy, Ms Tucker disclosed the offending to her mother and made a formal statement to police.

20On 1 June 2022, you were arrested by NSW police and transported to a police station for interview. You declined to participate in an interview and were released and subsequently charged.

Victim Impact

21In a victim impact statement dated 2 May 2025 which was read to the court, Ms Tucker eloquently explains the ongoing severe impact of your offending on her. Ms Tucker explains that she has been affected socially, emotionally, physically and psychologically. Her family has also been affected. She states that to this day she struggles to maintain friendships and relationships.

22I have taken into account the impact of your offending on Ms Tucker as I am required to do. 

Objective gravity and moral culpability

23As has been repeatedly explained by the Court of Appeal, the offence of engaging in sexual activity with underage girls exists to protect girls from the many harmful consequences of premature sexual activity. Girls such as Ms Tucker are deemed by the legislature to be too immature to consent to engaging in sex. As her victim impact statement makes clear, it is only as she has matured that she has realised the harm caused to her by your offending.

24Penetrative sex ‘is the most serious form of sexual activity’ and the ‘harm which may be done by sexual penetration is not necessarily lessened by the age of the person penetrating’.[5]

[5] R v G [2009] 1 AC 92, 109 [49] (Baroness Hale).

25I accept the prosecution’s submission that your offending cannot be categorized as low level but rather is towards the middle level of objective seriousness. The aggravating features of your offending that have led me to this view are:

(a)   You pursued Ms Tucker first on social media and then by driving interstate to collect her and drive her across State lines;

(b)   The offending involved two types of penetration albeit on the one occasion;

(c)   You penetrated Ms Tucker’s vagina with your penis without using a condom thus exposing her to the risk of both pregnancy and disease;

(d)   The offending occurred by the side of a highway in the dead of night in circumstances where Ms Tucker had little realistic alternative but to consent; and

(e)   Your offending has had a significant deleterious effect on Ms Tucker based on her victim impact statement.

26As against these matters, there was a relatively small age gap between you and the complainant.

Personal Circumstances

27You are currently 34 years old.

28You had a very traumatic, dysfunctional and disadvantaged upbringing. Your mother was a heroin addict who gave birth to you during a three year custodial term. Your biological father was a drug dealer and a drug addict, who threatened your mother to such an extent that you both had to relocate.

29You spent part of your formative years in foster care and also in your mother’s care. At the age of 10, your mother re-partnered with your stepfather. Your stepfather was addicted to drugs and was physically abusive toward you.

30You attended three different primary schools, and left school at the age of 14. This was due to your mother’s chaotic lifestyle and your learning difficulties.

31You began to use substances at the age of 15, which included alcohol, cannabis, crystal methamphetamine and LSD. You describe that between the ages of 18 and 22, your life was a blur, I note that your offending occurred during this period. At age 23, you found out that your partner was pregnant, after this you began to rehabilitate yourself. You have been in remission since this time.

32You have a limited criminal history which includes charges for drug offences and driving matters, your last encounter with the criminal justice system was in 2013. 

33You have been working since you left school at 14. You are currently the sole income earner for your family and work as a truck driver. Your partner is currently waiting on knee surgery in order to return to work.

34You live in a rental property in Sydney with your partner and your two children. You have an eleven year old son and a four year old daughter. Both of your children have special needs and rely heavily on parental support and NDIS interventions.

35I accept your counsel’s submissions that the general principle in the case of Bugmy has application to your circumstances and moderates your moral culpability to a modest extent.[6]

[6] Bugmy v The Queen [2013] HCA 37.

Matters in mitigation

36As your counsel has submitted, there are a number of significant matters that mitigate the sentence in your case.

37First, and most important are your pleas of guilty. You indicated your willingness to plead guilty at a very early stage of the proceedings. This has saved the witnesses and particularly Ms Tucker from the anxiety and distress of having to give evidence at your trial. Further, your guilty pleas are the clearest evidence of your acceptance of responsibility for your offending. Finally, you have saved the community the expense of a trial.

38Secondly, there has been a very long delay between the date of your offending and the matter coming before the court for sentencing. The reason for that delay is that Ms Tucker did not report the offending to the authorities until 2021. I emphasise that this is not criticism of either Ms Tucker or the prosecuting authorities. It is the fact of the delay not its cause that is relevant to sentencing. 

39During that period of 15 years, you have had the matter hanging over your head which is a punishment of itself. The second important effect of the delay is that, in the intervening period, you have turned your life around. I accept that the 34 year old father of two young children who is now before the court is a different person to the 19 year old youth who committed these offences.

40The third important effect of the delay is that you have lost the opportunity to be sentenced as a young offender which would have been the case had the matter been prosecuted expeditiously. You were aged 19 at the time of the offending. As your counsel Ms O’Brien pointed out, if these proceedings were brought at that time, you would have been considered a young offender and a rehabilitative disposition would have been a strong consideration for the sentencing judge.

41It is also relevant that you have a limited criminal history which is for offending unrelated to that which is before the court.

Rehabilitation Prospects

42The court received a letter and heard evidence from your partner Ms Susannah Joncey who travelled from Sydney. She spoke in glowing terms of the support that you provide her and the two children you share, both of whom I have noted have additional needs. You are the family’s primary source of income and contribute the majority share of household expenses. Ms Joncey told the court that she would find it very difficult to cope if you were incarcerated.

43The court also received a number of other written references from your friends and family. The authors of the references referred to you as a valued member of the community, supportive husband and devoted father. For example, your close friend Billy Cowell writes that you are committed to ‘doing what is necessary to move forward in a positive direction’. He adds that he will stand by you.

44When regard is had to the very difficult childhood you experienced, your efforts at rehabilitation are very commendable.

45In these circumstances, I consider that your future prospects of rehabilitation are very good.

Other cases

46Your counsel referred, in support of the submission that an adjourned undertaking is an appropriate sentence to a number of cases in which sex offenders had been sentenced to adjourned undertakings. As I discussed with your counsel during the course of the hearing I have derived limited assistance from the cases cited. It is necessary to explain briefly why that is the case.

47DPP v Abad[7] was the subject of an appeal to the Court of Appeal. While the appeal was not successful (due to the approach that had been taken by the prosecutor), the Court still characterised the first instance sentence as ‘manifestly inadequate’.[8]

[7] [2016] VCC 1219.

[8] DPP v Abad [2016] VSCA 279, 22-3 [88].

48In the cases of DPP v Coombes (a pseudonym)[9] and DPP v Baker,[10] the offenders were under the age of 18 at the date of the offending. As the sentencing Judges observed, had they been sentenced as children, an entirely different sentencing regime to that under the Sentencing Act 1991 (Vic) would have applied. In particular, under that regime, general deterrence is not a sentencing purpose.[11]

[9] [2018] VCC 389.

[10] [2016] VCC 1500.

[11] Children, Youth and Families Act 2005 (Vic) s 362.

49Finally, the case of DPP v Ronchi[12] was unusual because the offender had engaged in what the sentencing Judge described as ‘remarkable’ efforts to educate young people as part of his rehabilitation.[13]

[12] [2018] VCC 1323.

[13] Ibid 3-4 [14].

50In each of the cases to which Ms O’Brien referred, the court accepted that the offending was low level. By contrast, in your case, I have rejected Ms Obrien’s submission that your offending is similarly low level for the reasons I have explained earlier.

51Ultimately it is necessary to impose the sentence that is appropriate in your case having regard to the circumstances of your offending and your personal life story.

Submissions

52In comprehensive written submissions, your counsel submitted that given your early pleas of guilty, traumatic childhood, impressive steps of rehabilitation, family responsibilities and the delay in the finalisation of the case, you are ‘not an appropriate candidate for a Community Corrections disposition’. Ms O’Brien instead submitted that an adjourned undertaking is an appropriate disposition.[14]

[14] Moya O’Brien, ‘Accused Submissions in Support of an Application for a Sentence Indication’, Submissions in DPP v Mills, CR-24-00794, 7 [28].

53Mr Cookson, who appeared for the prosecution submitted that either a Community Correction Order or a wholly-suspended term of imprisonment would be appropriate sentences. He submitted that the offending was too serious for an adjourned undertaking. In particular, Mr Cookson submitted that the sentencing purpose of general deterrence would not be adequately addressed by such a disposition.

54During the hearing of your plea on 6 May 2025, I expressed the tentative view that the objective seriousness of your offending meant that an adjourned undertaking was not appropriate. Your counsel responded that a wholly suspended term of imprisonment, whilst not her preferred disposition would be a practical sentence. 

Consideration

55The principal sentencing considerations in this case are general deterrence and just punishment. Specific deterrence and community protection are lesser considerations in light of your limited history, impressive rehabilitation prospects and low risk of re-offending.

56Your offending is too serious for an adjourned undertaking which is towards the very lowest level of the sentencing hierarchy. The prevalence of sexual offending by young men against underage girls means that the court must send a clear message to any would-be offenders that the consequences of such offending will be serious.

57You were assessed as suitable for a community correction order. However, as you live in New South Wales there are practical difficulties with fulfilling any unpaid community work condition. Further, the only other condition that is recommended concerns your mental health and there is no evidence before the court that links any such concerns with the risk of re-offending.

58On balance I have determined that only an aggregate term of imprisonment of 12 months adequately addresses the relevant sentencing purposes.

59Under the former section 27 of the Sentencing Act 1991 the court may suspend all or part of such a sentence, for a period of up to three years, if satisfied that there are exceptional circumstances.

60Because of the circumstances of your case as outlined earlier, especially your age at the relevant time, the lengthy period in which there has been no further relevant offending, I have decided to wholly suspend your sentence for a period of one year. I have had regard to the criteria in the now repealed section 27(1A) of the Sentencing Act.

61Mr Mills, you must understand that if you are convicted of any offending that carries gaol, you will breach your suspended sentence and can be brought back before me and you will have to show exceptional circumstances why the sentence should not be fully restored.

62As you have been found guilty of two Class 1 offences arising from the same incident, pursuant to section 34 of the Sex Offenders Registration Act 2004 (Vic) (’SORA’), you are a registerable offender with reporting obligations for 15 years. As a breach of that Act can amount to a breach of your suspended sentence, you must take advice and fully understand your obligations. I note that your counsel has anticipated making an application on your behalf pursuant to section 11A of the SORA for an exemption of the reporting requirements. The application will be considered by the court at a future time.

63Pursuant to section 6AAA of the Sentencing Act, I indicate that if you had pleaded not guilty, I would have sentenced you to 18 months’ imprisonment with a non-parole period of 12 months.

SORA Exemption

64On 2 June 2025, Mr Mills applied for an exemption order under section 11A of the SORA.[15] The Application was supported by an affidavit from Rose Cetin of Murphy’s Lawyers Inc, affirmed the same date.[16]

[15] Satisfying the requirements listed in section 11D SORA.

[16] Exhibit P1 (SORA Exemption Application).

65Registration under SORA is the norm for child sex offenders. However, the Act allows for a small category of offenders to be exempt if certain criteria are met. In assessing an application, the court will have regard to the views of the Chief Commissioner of Police.

66The court is satisfied that the accused has met the requirements set out in section 11A(1), in that during the commission of the offending, Mr Mills was, at all times, not more than 19 years of age.

67The court is also satisfied that pursuant to section 11B:

(a)   At all times during the commission of the offending, Ms Tucker was over the age of 14;[17] and

(b)   Mr Mills presently poses a low risk to the sexual safety of persons in the community.

[17] SORA s 11B(1)(a).

68The court accepted Mr Steven Wood’s assessment[18] that Mr Mills was a low risk of sexual offending, with 10 years of post-offence conduct to reflect this.

[18] Exhibit D1, 27.

69Upon noting that the Chief Commissioner of Police did not oppose the application,[19] the application to exempt Mr Mills from the Sex Offender Registration requirements was granted.

[19] Exhibit P1 (SORA Exemption Application).