Director of Public Prosecutions v Milne
[2024] VCC 372
•26 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01638
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY JAMES MILNE |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2024 |
DATE OF SENTENCE: | 26 March 2024 |
CASE MAY BE CITED AS: | DPP v Milne |
MEDIUM NEUTRAL CITATION: | [2024] VCC 372 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – Groom a person to make it easier to engage in sexual activity with a child outside of Australia, use carriage service to solicit child abuse material and to cause child abuse material to be transmitted to himself, – use carriage service to access child abuse material, possess or control child abuse material obtained or accessed using a carriage service- plea of guilty
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 1991 (Vic), Sentencing Act (Vic) 1991
Cases Cited:
Sentence: Imprisonment, total effective sentence 5 years, non-parole period, 3 years, Forfeiture and disposal orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Hill | Mr B. Cullen, Commonwealth Director of Public Prosecutions |
For the Accused | Mr B. Johnston | Ms. K. Da Costa, Doogue & George |
HIS HONOUR:
1Timothy James Milne, you have pleaded guilty to five charges relating to the Commonwealth Criminal code[1]. Charge 1, groom a person to sexual activity with a child outside of Australia. Charge 2, use a carriage service to cause child abuse material to be transmitted and solicit child abuse material. Charge 3, use a carriage service to access child abuse material. Charge 4, another charge of use a carriage service to cause child abuse material to be transmitted and solicit child abuse material. Charge 5, possess child abuse material obtained or accessed using a carriage service.
[1]Criminal Code Act 1995 (Cth)
2The facts of your offending are set out in Exhibit A, the amended summary of prosecution opening. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein. There is therefore no need to set out the full details of your offending. Briefly stated, in September 2022, you arrived back in Melbourne Airport from the USA. Your phone was reviewed by Australian Border Force officers and child abuse material was located in a telegram chat log with an adult Vietnamese male known as Van.
3You told ABF officers that you would pay Van for videos of Van engaging in sex with other men and that Van had sent you videos depicting sexual activity with children. You agreed to participate in a record of interview where you told officers that children depicted were between 11 and 12 years of age and were involved in sexual activity with each other and with adults. You said you knew it was wrong to possess child abuse material. You admitted viewing the material every few days. You were arrested. Your phone and MacBook computer were seized. Child abuse material and evidence of payments were located on these devices.
4You possessed 934 unique child abuse material files over both devices. That is, both images and videos. Nine hundred and seven of those were classified as Category 1 and 27 as Category 2, in accordance with the Australian Child Abuse Categorisation Scheme as set out in Annexure B of Exhibit A. Category 1 child abuse material depicts real and pre-pubescent children perceived to be under 13 years of age involved in sex acts, witnessing a sex act or the material is focused or concentrated on the anal or genital region of the child. Category 2 is other legal illegal content of children under 18 with images which are likely to cause offence to a reasonable adult where the child was subjected to sadism, torture, bestiality, or humiliation.
5Category 1 child abuse material is the most serious classification. A description of the images located on your devices is set out at paragraphs 14 and 15 of Exhibit A. They include an image of an adult male engaging in consensual intercourse with a male child who was about five years of age, an image of a male child around four years of age performing fellatio on an adult male, a video of an adult male masturbating over a sleeping male child between three and four years of age and placing his penis in the child's mouth, a video of a male masturbating a child between eight and 10 years of age while the adult anally penetrates him.
6On the MacBook, there was an image of a male child between 10 and 12 years of age being anally penetrated and a child of 10 years of age performing fellatio on an adult male. These are only some of the descriptions of course, but they demonstrate the nature of the material. Your possession of those 934 images is the basis of Charge 5, possession of child abuse material obtained by a carriage service. You accessed the child abuse material on your MacBook over a period of 10 months in 2021 and 2022. That is the basis of Charge 3, use a carriage service to access child abuse material.
7You negotiated with a man in Thailand called ‘Taiwan Burn’ to 'fuck a 12-year-old boy', in return for two payments of approximately $200 Australian. You made those two payments. You agreed to watch the sexual activity 'on Sunday'. There is no evidence you received any video from Burn, nor that you watched the sexual activity. The conduct is the basis of Charge 1, groom a person to engage in sexual activity with a child outside Australia.
8You also communicated with a man known as 'MS' in Indonesia. MS purported to be a male child. For six weeks between September and November of 2021, you negotiated to purchase child abuse material for MS for about $35 US. You paid the money and received a video you described as 'very hot'. You subsequently discussed purchasing another child abuse video for $30 US from MS and finally in November 2021 you paid MS for a new sex video and requested that video several times. There is no evidence on the material that you actually received it. These contacts with MS form the basis of Charge 2, using a carriage service to solicit child abuse material.
9For eight months between January and September 2022, you communicated with a Vietnamese adult male known as 'Tu Van'. You requested child abuse material from Van and paid him a total of $1,360 US in payments of $50 and $60 US. You and Van referred to the video as 'kid clips'. Van shared in the child abuse material by sending you a link to an online share folder. You requested child abuse material on 23 separate occasions. Van sent you child abuse files directly and on links to online share folders. In January 2022, you purchased 1,900 kid clips. On March 17, 4,264 kid clips and on 28 March you received 2,881 child abuse files. In all, a total of 9,045 files.
10Much of the material you received from Van had been deleted before the Australian Federal Police reviewed your devices. It included pre-pubescent and pubescent males engaging in sexual activities and performing fellatio on adult males. A description of the images and videos Van Sent you is set out at paragraphs 43 to 45 of Exhibit A. I do not propose to repeat the details in these reasons for sentence. Some of your victims were between two and five years of age being disgustingly abused. Your dealings with Van form the basis of Charge 4, using a carriage service to solicit child abuse material and cause child abuse material to be transmitted.
11Each of the five offences to which you have pleaded guilty are serious criminal offences. Each has a maximum penalty of 15 years' imprisonment. I regard Charge 1 as an upper-mid level example of the offence of grooming. You paid to have a 12-year-old boy sexual penetrated. It would be a more serious charge if there were evidence that the activity you paid for actually occurred. Charge 2 in my view represents a mid-level example of the offence of soliciting child abuse material. In relation to Charge 3, your accessing child abuse material for 10 months also represents a mid-level of that offence.
12In relation to Charge 4, the number of child abuse files received, the nature and content of those files, the number of requests you made for the child abuse material and the payments you made, make your conduct a serious example of that offence, soliciting child abuse material. Finally, Charge 5, given the number and nature of the images and videos you possessed, I assess this offending as a mid-level example of the offence of possession of child abuse material obtained by using a carriage service. Very often in these sorts of cases, many more images and videos are seen to have been obtained.
13Turning to your personal circumstances, you are now 41 years of age being born on 5 February 1983. You grew up in the Warburton area. Your history is set out in Exhibit 2, the psychological report of Dr Mathew Barth. You told Dr Barth that you were a victim of childhood physical abuse at the hands of your father until you were about 13. When you physically challenged him, however, according to you, he remained verbally abusive. Your mother left your father when you were 18. You have not had contact with him for over 20 years. Your stepfather and mother are supportive of you. Your mother provided a reference, Exhibit 5, outlining her support for you.
14You completed VCE at school, then completed a Diploma of Computer Systems & Electronics at Swinburne University. Since then, you have been successfully and fulltime employed in technical support and software development. You have been with your current employer for three years prior to you being remanded. You had a five-year involvement with CFA when you were young, demonstrating community involvement. You are sexually exclusively homosexual. You have had a number of relationships, however you have been with your current partner, Feng, for about six years. You both lived together in Point Cook in rental premises.
15Mr Feng also provided a reference, Exhibit 4, and states that you have a history of anxiety. He says he will continue to support you even while you are in custody. Dr Barth outlined your long-standing history of anxiety. His report, Exhibit 3, states:
'Mr Milne reported a long-standing history of anxiety. He described his early teens as having been significantly impacted by emotional and physical abuse from his father. He notes that he felt perpetually anxious and on edge during his childhood. Mr Milne said that his poor self-esteem intensified due to social issues he experienced during his school years. Hence, he recalled feeling insecure and self-conscious. Mr Milne told me that he continued to experience regular periods of heightened anxiety during his adult years, mainly in social and occupational contexts. He also described periods of distress due to witnessing fatalities as part of his CFA duties. He was reportedly diagnosed with anxiety, depression, and ADHD when he was
26 years old and he was prescribed dexamphetamine for his ADHD symptoms and another drug called Pristiq for his anxiety and depression.
Mr Milne began consulting Mr Geoffrey Burrows of this practice in October 2022 which has combined offence specific treatment with supportive counselling. Mr Milne's current mental health status is described below in detail'.16In paragraph 43 Dr Barth writes:
'By way of background, Mr Milne said that his offending occurred during a very difficult period of his life when Mr Feng was stranded in China during the outbreak of COVID-19 pandemic. Mr Milne reported that he felt depressed and lonely, and his pornography use increased. He also began communicating online with a range of Asian men where discussion focused on sexual content. These communications became more deviant with regard to the nature of the sexual discussion and culminated in Mr Milne accessing child abuse material and paying for the content which involved male children. Mr Milne expressed remorse and regret for his conduct and through his treatment with Mr Burrows he was able to gain insight into the harm he has caused and the broader context of the destructive impact of child abuse material. This has led to expression of empathy for those against whom he offended which underpins his remorse. Mr Milne is an emotionally vulnerable man. He has genuine talents and abilities. He tends readily to discount his achievements and his self-esteem is fragile. His long-standing health problems have undermined his identity and left him conceiving himself as being unattractive to others. Mr Mile is slow to warm up and feels considerable nervousness when meeting new people'.
17Dr Barth diagnosed you as suffering from a generalised anxiety disorder and reported:
'During any discussion with me, it is clear that he had attributed precocious sexuality to the male children depicted in the child abuse material and this formed the basis of cognitive distortions about them'.
18Excuse me for a moment, the lights turn themselves off automatically, I apologise for that.
'This in turn culminated in deviant sexual arousal patters which underpinned his offending conduct. Mr Milne's insight into his behaviour remains limited. In my view, he should continue to participate in specialist sex offender treatment for some time yet. Completion of such a program is the single most important factor to reduce Mr Milne's risk of recidivism'.
19It is clear to me that you will need to me that you will need to complete the sex offenders' course while you are in custody. Dr Barth concluded that you present with relevant risk factors including distorted sexual fantasies, limited insight, poor coping skills and social problems. However, you have a positive employment history, do not abuse drugs, have stable accommodation and no history of contact offending. You have voluntarily engaged in offence specific treatment. Overall, he concluded that you represent a low moderate risk of sexual recidivism.
20I take the contents of Dr Barth's report and Geoffrey Burrows' report, which is Exhibit 2, into account in sentencing you. You have completed 19 sexual offender treatment sessions with Mr Burrows. Your prospects of rehabilitation can be regarded as reasonable. I also take into account your pleas of guilty. I accept that those pleas were entered at the earliest of opportunity and you have spared the community the time and expense of a criminal trial and jurors the need to be exposed to this child abuse material. As such, your pleas have substantial utilitarian value, and they also demonstrate what I find is your genuine remorse for your offending and your acceptance of responsibility for it.
21You have no prior or subsequent criminal history, although that fact is less significant in cases such as yours. Your counsel submitted that there was a delay in finalising this matter which he submitted added to your anxiety and amounting effectively to extra-curial punishment. There were some delays to transfer the prosecution from the Australian Border Force to the Australian Federal Police, perhaps six months, and to properly analyse your computers. I take the short delay into account in sentencing you.
22Your counsel properly conceded that your crimes are serious offences. He conceded that a term of imprisonment must be imposed but argued that the term to be imposed could see you subsequently released on a recognizance release order. Such a recognizance release order can only be made if the term of imprisonment imposed is three years or less. The varied, protracted, and serious nature of your offending makes it impossible to accede to that submission. General deterrence is the principal sentencing consideration for offences such as yours. Parliament has recognised the compelling need to deter those who would solicit, transmit, access, or possess child abuse material.
23Your offences involved live victims, exploited for your perverted paedophilic desires. You paid needy and impoverished persons to abuse children for you. The sentences imposed in other similar cases provide the court with some assistance as to the range of sentences available in your case, although each case must be considered in the light of its own unique circumstances. I accept the prosecution submissions that I must impose a degree of cumulation between the charges to reflect the different forms and instances of your offending. I have also had regard for the need for specific deterrence, the need to impose adequate punishment and the need to protect the community.
24I have taken into account your co-operation with authorities when arrested as a mitigating factor in your case. In summary, I have had regard to all relevant parts of 16A(2) of the Crimes Act 1914 (Cth)[2] in sentencing you. Each of the offences to which you have pleaded guilty are Class 2 offences pursuant to the Sex Offenders Registration Act, (Vic) 1991[3]. You are therefore subject to reporting obligations under that Act for life.
[2]Crimes Act 1914 (Cth)
[3]Sex Offenders Registration Act 1991 (Vic)
25On all charges, you are convicted.
26On Charge 1, grooming a child for sex outside Australia, you are sentenced to be imprisoned for two years and six months.
27On Charge 2, use a carriage service to cause child abuse material to be transmitted and solicit child abuse material, you are sentenced to be imprisoned for two years.
28On Charge 3, accessing child abuse material obtained by a carriage service, you are sentenced to be imprisoned for two years.
29On Charge 4, using a carriage service to solicit child abuse material or cause child abuse material to be transmitted, you are to be imprisoned for three years.
30Finally, Charge 5, possess child abuse material obtained for accessed using a carriage service, you are to be imprisoned for two years.
31My intention is to impose a sentence that will see six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3 and six months of the sentence imposed on Charge 5, be served cumulatively upon the sentence imposed on Charge 4 which I declare to be the base sentence. That will provide for an effective term of imprisonment of five years. However, because of Commonwealth sentencing requirements, I am required to impose commencement days for each sentence.
32So, Charge 4, the base sentence, will commence today, 26 March 2024. Charge 1 will commence on 26 March 2025. Charge 2 will commence on
26 January 2026. Charge 3 will commence on 26 September 2026 and
Charge 5 will commence on 26 March 2027. That I believe achieves a total sentence from today of five years. I order that you serve three years of that sentence before being eligible for parole.33What's the PSD as of now? It's only a few days, isn't it?
34MR JOHNSTON: It is 12 days not including today.
35HIS HONOUR: Okay, I declare 12 days of the sentence I have just imposed not including today has already been served by way of pre-sentence detention. Madam prosecutor, can you check my figures on that and see whether I got it right? You can come back if I have not.
36MS HILL: Yes, I might need a few moments to check that. Thank you.
37HIS HONOUR: It is a nightmare this Commonwealth sentencing but I have done it about six times, and I think if you look at it you will see that it adds up to a total of five years from today.
38MS HILL: Yes, I think ‑ ‑ ‑
39HIS HONOUR: And I have done it so one starts before the other one expires.
40MS HILL: Thank you, I will just take a check and get back to you.
41HIS HONOUR: You too, Mr Johnston.
42MR JOHNSTON: Yes, Your Honour.
43HIS HONOUR: Are there any other orders required?
44MR JOHNSTON: Has Your Honour made the forfeiture order?
45HIS HONOUR: There is a forfeiture order is there?
46MS HILL: My instructions are that forfeiture was by consent, so there is no need for one Your Honour. The other matter would be the s6AAA.
47HIS HONOUR: Yes, thank you, I apologise for that. Pursuant to s6AAA of the Sentencing Act 1991 (Vic)[4], I indicate that but for your plea of guilty, I would have imposed an effective sentence of seven years and six months and a non-parole period of five years.
[4]Sentencing Act 1991 (Vic)[4],
48MS HILL: Thanks, Your Honour. I'll just check and get back to you.
49HIS HONOUR: We'll terminate the link. You can come back if I have got it wrong. Liberty to both parties to get it right, but you know what I want, I am trying to give him five with a three and deduct the PSD.
50MR JOHNSTON: Understood.
51MS HILL: Yes, Your Honour.
52HIS HONOUR: All right, would you terminate the links please and I will come back at 10.15.
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