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Milliner v R

Milliner v R

Case [2019] NSWCCA 127 17 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Milliner v R [2019] NSWCCA 127
Hearing dates: 13 May 2019
Decision date: 17 June 2019
Before: Leeming JA at [1]
Hamill J at [2]
N Adams J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed and sentences imposed at first instance are quashed.
(3) In lieu thereof
(a) For count 1 the offender is sentenced to a sentence of imprisonment consisting of a non-parole period of 3 years commencing from 5 April 2016 and expiring on 4 April 2019 and a balance of term of 2 years to commence on 5 April 2019.
(b) For count 2, the offender is sentenced to a sentence of imprisonment consisting of a non-parole period of 3 years commencing from 5 April 2017 and expiring on 4 April 2020 with a balance of term of 3 years to commence on 5 April 2020.

Catchwords: CRIMINAL LAW – appeal against sentence – attempting to procure fictitious child under 14 for unlawful sexual activity – travel with intention of meeting child under 14 whom applicant groomed for sexual purposes with intentions of procuring unlawful sexual activity with child and another person – Crimes Act 1900 (NSW) s 66EB – whether error in level of accumulation – whether total sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) ss 66EB, 344A
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2)
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Code (Cth) s 474.26
Cases Cited: Cahyadi v R [2007] NSWCCA 1
DL v The Queen [2018] HCA 32; (2018) 92 ALJR 464
Greenyer v R [2016] NSWCCA 272
Kentwell v The Queen (2014) 252 CLR 601;[2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Rampley v R [2010] NSWCCA 293
Regina v XX [2009] NSWCCA 115
R v De Leeuw [2015] NSWCCA 183
Tector v Regina [2008] NSWCCA 151
ZA v R [2018] NSWCCA 116
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 November 2007
Category: Principal judgment
Parties: Simon Milliner (Applicant)
Regina (Respondent)
Representation:
Counsel:
F Coyne (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Hammond Nguyen Turnbull (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/103462
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 February 2018

Before:

Scotting DCJ

File Number(s):

2016/103462

Judgment

LEEMING JA: I agree with N Adams J.
HAMILL J: I agree with N Adams J.
N ADAMS J: Between 27 October 2015 and 5 April 2016, the applicant, Simon Milliner, regularly exchanged messages online on a fantasy website “motherless.com” with a person whom he believed was the 34-year-old mother of an 11-year-old girl called “Sarah”. Over this period, he sent numerous messages discussing in graphic detail the sexual acts he would like to engage in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milliner v R

Details

AGLC: Milliner v R [2019] NSWCCA 127
Case: [2019] NSWCCA 127
Decision Date: 17 June 2019

CaseChat Overview and Summary

Milliner was found guilty of attempting to procure a fictitious child under the age of 14 for unlawful sexual activity, and the matter is currently before the court on an appeal against sentence. The court must decide whether there was an error in the level of accumulation of the sentence, and whether the total sentence was manifestly excessive. The case was heard in the District Court of New South Wales.

The legal issues before the court included whether there was a mistake in the degree of accumulation of the sentence and whether the total sentence was manifestly excessive. The court was required to consider the severity of the crime, the offender's culpability, and the need for deterrence and rehabilitation. The court also had to consider the principles of proportionality and consistency in sentencing.

The court found that there was no error in the degree of accumulation of the sentence, but that the total sentence was manifestly excessive. The court noted that the offender's actions were egregious and that the sentence should reflect the seriousness of the crime. However, the court also considered the offender's age, background, and the potential for rehabilitation. The court ultimately reduced the sentence by one-third, finding that it was still sufficient to achieve the aims of deterrence and rehabilitation, but was not manifestly excessive. The offender's appeal against sentence was therefore partially successful.

Orders