R v Miller
[2015] VSC 180
•1 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 0005 of 2015
| THE QUEEN |
| v |
| SCOTT ALLEN MILLER |
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JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27, 29 April 2015 |
DATE OF JUDGMENT: | 1 May 2015 |
CASE MAY BE CITED AS: | R v Miller |
MEDIUM NEUTRAL CITATION: | [2015] VSC 180 |
Sentencing – Rape – Murder – Plea of Guilty – Paranoid schizophrenic – No history of offending – Verdins enlivened – Prospects of rehabilitation limited – Extreme violence against unknown member of the public.
Sentence: Total Effective Sentence 33 years – Minimum 28 years.
Declared serious sexual offender under s 11 Sex Offender Registration Act 2004.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams | Office of Public Prosecutions |
| For the Accused | Mr S Payne, Mr T Marsh Ms S Pratt | Victoria Legal Aid |
HER HONOUR:
Scott Allen Miller, on 20 January 2015 you pleaded guilty to two counts of rape and one count of murder of Yuk Ling Lau, known as Renea. Those offences occurring on 28 June 2014 near the Victoria Police Memorial in St Kilda Road, Melbourne at around 5.30am. Renea Lau was born on 26 November 1981 and was 32 years of age, the youngest of five children born to her parents who all lived in Hong Kong. You were born on 30 December 1971 in California, America, moving to this country when you were two and you were 42 years of age at the time you committed these offences.
The city in which we live, Melbourne, is a safe, in fact, a very safe place to live. The number of murders in this city has dropped year by year, reducing from 135 in the years 2005 – 2006, to 82 in the years 2013 – 2014, whilst our population has continued to increase. Women walk around this city, around our suburbs, they travel to and from work, often alone, shift workers such as Renea are often alone as they travel to their employment. They feel safe, they are comforted knowing and believing that this is safe and civilised society in which they live. Like all parts of the world, there are some areas of our city or suburbs that, male or female, you would probably not think wise to walk through alone late at night. That is just common sense. St Kilda Road, a broad and well lit avenue skirting apartments, theatres, and the botanical gardens would not be one of those. Renea Lau would have felt safe as she headed off to work in the early hours of the morning, having stayed overnight at a girlfriend’s apartment.
Tragically, in this state, just like the rest of the world, women may be harmed and may even be killed, but it is usually by someone known to them; a partner, a relative, but very rarely a complete stranger. Your offending is the opposite of that. Renea Lau had never met you, had never seen you, you had never spoken to her, you had no relationship with her whatsoever, you merely passed her on the street and as a result of that she is now dead at your hands in a most brutal and sadistic manner. The circumstances of your offending are such that you cause all of the women in our community to feel less safe and less secure in going about their ordinary daily lives, and that is just one of the terrible consequence of your attack upon Renea. As I said during the plea what you did is probably every woman’s, as well as every parent’s, worst nightmare of what could happen.
The circumstances of how Renea Lau came to be dead are terrible, but need to be repeated for the purposes of sentencing you. You had, for a long period of time, been leading a nomadic life, but by 27 June 2014, you were living rough and homeless in Melbourne. A number of people had exhibited concern and had been of assistance to you; providing you with clothing and bedding, concerned about the increasing colder weather, and you living in the Botanical Gardens sleeping in the rotunda near to the Queen Victoria Gardens. The police had spoken to you about your welfare and had checked whether you were in need of assistance, but you had told them that you were in fact happy living under the stars in the gardens, the salvos had also approached to see if you needed assistance which you declined, although you often received food from charity organisations dedicated to helping the homeless and transient in the inner city.
On 27 June 2014, you had in your possession your Commonwealth Bank eftpos card and on that night, after withdrawing some money, you went to the Transport Bar located in Federation Square, Melbourne. You arrived around 9.45-10pm, and left at 1.48am on the morning of 28 June. You made during your time at the Transport Bar a total of seven transactions on your eftpos card each one for a mixed drink. You spoke to a couple of women whilst you were at that bar, explaining your personal situation, that you were homeless, that it was by choice, and other matters pertaining to your life, but that you were to a degree offensive or more correctly inappropriate in your discussions with these women.
As the issue of your intoxication level was an issue, all of the people to whom you spoke that evening were asked about your condition in terms of your sobriety. One of the women stated ‘I wouldn’t say that Scott was drunk, he was definitely drinking but he wasn’t slurring his words or unstable on his feet, he was actually quite coherent’.
After leaving that bar at 1.48am, you approached a man called Tamati Kerkhove, who was sitting in Federation Square. After discussion, the two of you agreed to go to the Carlton Club Hotel in Bourke Street, Melbourne. You gave Mr Kerkhove information that included that you had been five or six weeks sleeping in the Kings Domain in Melbourne under a rotunda. You arrived at the hotel a short time later and went straight inside, and remained there until around 5am when you were removed from the hotel by a bouncer. You approached and spoke to a number of people whilst in the hotel. Nobody was under the impression that you were drunk or drug affected at that time. You were offensive when talking about women, you were annoying and inappropriate to women and at times to men. You were finally removed after a Ms Zamparutti approached security about the fact that you were annoying her and the male that she was with. You were described as not being aggressive just annoying. During that night you told Mr Kerkhove that you could identify the type of vagina a female had just by looking at them and proceeded to do that by pointing at different women within the club. Your attempts at conversation with some of the men was ultimately described by them as ‘crass’ because of the way you were talking about women and sex with women. You were described by the crowd controller and security guard, Sherman Smith, as ‘a smart arse’. He said ‘you smelt of beer, that you weren’t hammered, you could talk, you were borderline intoxicated’. All of which was consistent with the other witnesses describing you as being able to hold a conversation, not staggering, falling over or showing any particular signs of intoxication. You left the Carlton Club at 5.07am and walked along Swanston Street, speaking to different people as you went, crossing the road at Flinders Street and across Princes Bridge. It would not appear that you spoke to anyone after crossing Flinders Street until you came across Renea.
Renea was at that stage working at Ganache Chocolate in Toorak Road, South Yarra and was due to commence work at 6am. She was a pastry chef. She had spent a night at her friend’s apartment in South Bank due to the fact that she had hymn practice until late the previous evening. It was too early for the trams to be running and her friend advised her to walk to Flinders Street Station and catch the train to South Yarra. That was her intention when she left the apartment at approximately 5.15am. She walked up Coventry Street to St Kilda Road, a very public, large thoroughfare in our city and then commenced walking towards the Flinders Street train station. She got to the Melburnian Apartments where she passed you walking in the opposite direction. Something has happened at that point. You have done something that has frightened Renea and she ran, she tried to escape from you, and you chased her. On the centre island of the road next to the park a struggle occurred between Renea and yourself. Clearly, you overpowered this relatively petite woman, but she tried valiantly to fight you. She was dragged from that centre island across the road and into the Victoria Police Memorial. The evidence of her attempt to resist you showing in her finger drag marks located on that centre island as she held tight to anything she could find, including the ground, to stop you dragging her away from the light and what should have been safety.
She was dragged into the Police Memorial by you. The scarf she was wearing was removed and left on the ground, as was her handbag. You punched her numerous times, the number of which is unknown, and it would appear also bashed her head into the concrete floor again an unknown number of times, but you rendered her unconscious, and, by that, caused very significant head trauma to this young woman. She sustained a fractured nose, a blow-out fracture of the left orbit, with extensive bruising and abrasions to her face, mouth and knees, as well as injuries to her hands and fingers.
You then dragged Renea up a small rise in the ground to a grass area which was hidden behind a large tree restricting any view from the roadway. You removed all of her clothing and then yours and then you raped her both vaginally and anally, causing injuries to her vaginal area, all of which were discernable at autopsy.
At approximately 6.45am, you were observed by a man parking his car in Linlithgow Avenue, in the gardens. As he cut through the grassed area to St Kilda Road, he observed you completely naked with Renea naked on top of you. He tried not to look as he assumed that the two of you were having consensual sex. After he left, you rolled Renea off, placed her on the ground and attempted to cover her by placing her clothing on top of her body, clearly hoping to conceal the injuries to her upper body and head that you had caused. You left the area where Renea was and walked around to the Rotunda where you had been staying whilst you were still dressing yourself. You collected your belongings and began walking to the Kooyong Train Station along the Yarra Trail. You had left behind your shoes as well as your Commonwealth Bank Access Card which had fallen from your pocket earlier in the attack. You walked to Kooyong Railway Station, caught a train to Glen Waverley, withdrew all of the money you had in your account, being just under $20, purchased tobacco and shoes, travelled to Princes Highway and then commenced to hitchhike away from Melbourne. You were picked up mainly by women, all of whom must now consider themselves incredibly fortunate not to have fallen victim to you in any way.
You ended up in Eden where you were discovered on the beach by an alert police officer. You were arrested on 1 July 2014 you were extradited to Melbourne where you were subsequently interviewed. Prior to that interview commencing, you had asked the investigators how many years you get for murder and then told them that although you raped Renea you didn’t mean to kill her.
You were examined by a forensic medical officer. You had multiple small abrasions to your hands and wrists; two abrasions above your right eye; three fine linier scabs above the right eye; swelling to the right mandibular region; small abrasions, multiple numbers, to both knees and feet. All of those abrasions were considered to be consistent with blunt trauma, and in particular the abrasions to the knees could have been caused by kneeling on an abrasive surface whilst moving. Although not possible to date them, it is possible that the injuries occurred with the time frame of Renea’s murder. The DNA evidence also placed you as being a person involved with Renea’s death and rapes on that night.
You told the police in your interview that you had raped Renea, but you were unaware that you had killed her, that you had just exploded and punched Renea but you were not aware of how many times. You consistently maintained during that interview that you were blind drunk and had psychological problems that were at the root of all of this and you were happy to go to prison because you would now have a place to stay and people around you.
I do not intend to go into the post-mortem details relating to Renea, suffice it to say that your murder of Renea was very violent, as were your rapes. The cause of death was asphyxia, being consistent with a level of force being applied to her neck, together with evidence of assault resulting in head injury. Renea suffered a significant brain injury of the type that occurs as a result of the application of severe force to the head, and thus to the brain. It occurs where there is severe impact such as commonly seen in road accidents. Equally the bruising to the neck indicated the application of blunt force. On the material before the pathologist he stated that the changes that were observed in Renea Lau’s brain would take at least 35 minutes to be seen and indicate that her death was not instantaneous. Renea Lau must have been alive for, at the very least, 35 minutes after the head impact, which caused the diffuse axonal injury.
This crime and what you did to Renea Lau was positively evil. She was a young woman on her way to work when you literally dragged her off the street, violently bashed her, causing egregious injuries to her brain, face and neck, and then just as violently raped and sodomised her. A total stranger. As I said earlier, behaviour of this nature, rare though it is, is the reason that women feel frightened to be out in public, to walk down a street, to walk alone in this city in which they have every right to be out and about in. We have had marches on our streets about women being able to reclaim the right to walk safely and securely in this city and its suburbs. The courts can and will do all they can to ensure that women are safe, that they can walk without having to have a male to protect them or police officers to look after them. The sentences of the courts must and will reflect that, but here the tragedy does not belong just to the women of Victoria it belongs particularly to the family of Renea Lau and Renea herself. For this was a real person that was murdered. A young woman doing no more than heading to work, a much loved daughter, sister, girlfriend; a kind, caring, gentle soul whose life you have just taken away from all of those people as well as from her.
People should know this young woman who died, she should not be just another statistic, that is one of the reasons her family are present, to ensure that we all remember that your offending related to a loved human being. She was the youngest of five children, two older brothers, two older sisters, born and raised in Hong Kong to a family who struggled financially but managed to educate all of their children. She was the associate captain of school prefects in her final year, completed a diploma in Business Administration at the Hong Kong Institute of Vocational Education, and then obtained employment and worked whilst studying. She completed a Bachelor of Business at the Southern Cross University in Hong Kong graduating in 2008. In 2009, she came to Australia to travel and seek employment opportunities. And she did travel, initially through Brisbane and Perth before finally settling in Melbourne. She completed a patisserie course at the William Angliss Institute working all the time as a pastry chef assistant, and once having completed all of that she became pastry chef at Ganache Chocolates in South Yarra. She was a practising Christian, a member of the Melbourne Chinese Baptist Church in Kew, and met her boyfriend through the church. She was residing in Williams Landing some 40 minutes from the Melbourne CBD, and it was for this reason that Renea stayed overnight with her friend in South Bank and was walking along St Kilda Road. Because she lived so far distant from the CBD to attend at her church and partake of its activities, she was reliant on friends accommodating her.
This is the young woman that you murdered; a happy, contributing member of this society. One who will be missed by all of her friends and her family. Nothing I do or say will bring Renea back to them, but I have read the material that they have put forward and can only imagine the pain in which their lives will continue to be lived as a result of your actions in taking the life of their much loved Renea. Whatever sentence I impose on you is not a reflection of the value of Renea’s life, for her life is, like all other lives, beyond value. The sentence I impose on you is a result of many factors that I must, by law, consider and take into account.
One of those factors are your personal circumstances. As I previously indicated, you were born in America, coming to Australia when you were two years of age. Your mother at that stage had repartnered from your biological partner, a person with whom you have had no contact, and together you all came to Australia and settled in Perth. Your mother’s then partner returned to America within a short space of time. Your mother formed another relationship and two other children were born to that particular relationship and you, accordingly, have a half-brother and half-sister who reside in Perth, as does your mother. The partner Colin was violent both to your mother and to you, and your mother ultimately had to escape to a refuge whilst you were still quite a young child. She repartnered ultimately to a man with whom you have a good relationship.
You had travelled around the State of Western Australia, attending a number of different State schools early in your life as your mother’s final partner was involved in mining. You attended Thornlie Senior High School until the age of 17, where it appears you left home, and took some time off school before returning and finally completing Year 12. You were described by your mother and by yourself to the different psychologists and psychiatrists to whom you have spoken as being a fairly average child in terms of your behaviour whilst younger. You considered yourself as well above average in terms of your academic abilities and that you did exceptionally well in your final year of school. You had, prior to dropping out of school, been truanting and it was a factor in your decision to cease your education initially.
In the report from Professor Ogloff dated 22 April 2015, you stated that you left home in Year 11 for a period of time, living with one of your friends, as a result of your failure to follow the rules of the house as imposed by your mother, which was confirmed by your mother in her evidence in this court. You attended Curtain University after having a gap year, studying economics. You did not enjoy the course and you left after approximately six months.
You became involved in the rave scene in Perth. You spent some time involved in the rave scene culture organising rave parties, but after a couple of years you commenced to become itinerant, that is, you started leading a nomadic existence moving around Australia, including Western Australia, Northern Territory, New South Wales and, according to the material provided to Professor Ogloff, also Bali and New Zealand. In the last 15 years you have been self-employed creating and selling didgeridoos. You were at times quite successful. Prior to that you were employed in typically itinerant activities; fruit picking, working casually in supermarkets or other stores; you lived in your car or slept outdoors as you did on this occasion, sometimes you stayed with friends and occasionally even saw your family. I am unaware of any substantial relationships that you have had over the years, although your mother and her partner have been and remain supportive of you.
You have been involved in drug use for a lengthy period of time. You told Dr Ong that you had been using illicit substances since the age of 14, which was when you commenced using cannabis – using it almost daily for 10 years - particularly your time during the rave culture you used amphetamines, especially speed, as well as ecstasy and hallucinogens. You had moved to intravenous use of amphetamine by the time you were involved in your first and only prior admission to psychiatric care. You had seen a psychiatrist or a psychologist when you were in your late teens, in all likelihood relating to your truanting. You had also previously been admitted to Graylands Hospital in Perth pursuant to a forensic order when you were approximately 23 years of age. You had been charged with a number of offences of theft and the one of indecent exposure, which occurred on a Perth beach, but you have not given much in the way of details of the incident to those who have prepared the reports.
Professor Ogloff reported slightly differently on this particular admission stating:
Mr Miller’s only previous contact with psychiatric care occurred at the time of his admission to Graylands Hospital, a forensic unit in West Australia in 1994 when he was 19 years old. The discharge summary notes “Mr Miller has a long history of poly-substance abuse from the age of 14. His pattern of use is that of intermittent abuse.” The report noted that he was living with friends in a flat in Perth and was unemployed and spent most of his time involved in the drug culture. “While he was disoriented and apparently psychotic at the commencement of his stay in hospital, he has reported to ‘rapidly settle’ in hospital and within a few days a normal mental state was evident. It was evident that his initial presentation was that of ‘a delirium’”. On discharge he was diagnosed with hallucinogen hallucinosis, amphetamine intoxication, amphetamine abuse, and cannabis abuse.
Mr Miller said in the time leading up to his hospitalisation, he had been using drugs heavily for approximately two years (ie, meth amphetamine, LSD, ecstasy, cannabis and heroin (small amount)). He said that he was also selling drugs to fund his habit. He said that following his discharge from Graylands, he “went without chemicals, except smoking pot, for six years.”
All of that is consistent with the discharge summary from Graylands. That was prepared for the court in Perth.
In relation to this incident, you have claimed to those examining you that you had used cannabis in the weeks leading up to this matter and that you found some cannabis in the week prior to the incident and admitted that you used potentially up to one gram of cannabis on the day. To all practitioners who examined you, you have said that you were ‘blind drunk’.
You have been for the last 20 years a person suffering from paranoid schizophrenia. That illness being characterised by auditory, visual and somatic hallucinations, formal thought disorder and psycho-social decline. It is postulated that you have impacted over the years, resulting in cognitive changes leading you to be awkward and socially inappropriate as was evident on this night. You equally have a history of poly-substance abuse, particularly cannabis and amphetamines, all of which, most unfortunately, exacerbate psychotic symptoms as well as contribute to dis-inhibition and impulsivity.
You have not indicated to any person whose been treating or examining you that you heard any commands to kill or to rape this woman, or any other material that gives any direct connection between your acknowledged mental illness and your offending on this day. You claim instead to be totally intoxicated to the level of being ‘blind drunk’, and that at some stage whilst raping this young woman Renea you ‘woke up’ or ‘came to’ and then you stopped. Virtually like coming to your senses and that you have subsequently left her, collected your belongings, and departed for New South Wales.
The Crown have submitted CCTV material which demonstrates you walking from the early stage of the evening at the Transport Bar until your departure from the Glen Waverley area after having purchased the items I referred to earlier. None of it is capable of being interpreted as showing a person who would be considered ‘blind drunk’. At no stage are you seen staggering or falling down, bumping into people or furniture as you walk along the streets; there is one point when you come out of the Carlton Hotel where you take what appears to be a misstep, but apart from that, you make steady progress towards your designation, which destination unfortunately crossed the path of Renea Lau.
Although difficult to see on the CCTV shown in the court proceedings, both counsel assured me that it is recorded on the CCTV, that when you crossed paths with Renea in St Kilda Road she very quickly fled and ran across the road away from you, and you gave chase. You have not informed anyone of whatever comment, gesture, or action you made that caused Renea to flee in this manner, and thus this remains an unknown, but it is clear that you frightened her quite severely at that point.
I find that there was nothing in your actions, behaviour, or the evidence of witnesses that supports your statement to those examining you, that you were in fact ‘blind drunk’ at the time of this offending. Indeed, in your statements to the police after your arrest and extradition to Melbourne in your interview you said:[1]
I’ll make a brief statement. I was walking down the road where the said occurrence happened, and I was blind drunk and been stoned for five days, and it was not a premeditated thing, but I attacked a girl and didn’t intend to kill her and raped her. I wasn’t aware that she died from the incident and the whole thing was, I just exploded and its blurry and, and I knew I’d get caught for it. And I left, left town knowing I’d get caught for it and knowing that I’d probably go to jail because I, I saw my ID on the ground as I left and my shoes and I didn’t pick it up. And I’ve just been, in a terrible ordeal for 10 years and, I’m happy that, I’m happy about going to jail because I deserve to go to jail for that. Like I said it wasn’t premeditated and I was blind drunk and it was blurry what happened and that’s all I wanted to say.
[1]Depositions p 452.
You continued on in a lengthy passage when you said:[2]
… I didn’t even think about it, I saw her, I attacked her and I raped her, and I hit her. I can’t remember how many times presently. But I didn’t intend to, didn’t intend to kill her and like I said I just exploded into this violent, violent rage and, before I knew it I was stunned and shocked and I left, I picked up my bag and left town and I heard God say to me you will be charged for this Scott, and so I prayed for a couple of days and found myself on the beach and then I saw the police officers turn up and said you’ve been charged for murder, and that’s the first time I heard about it being murder, I didn’t think she was dead. And that’s all I’m going to say for the moment, you know, I regret it and, you know I, but like I said before I really feel as though, you know, I’ve had 10 years of no friends and you know I had, before a long time ago, I had schizophrenia and stuff like that, and I hadn’t been smoking pot for a long time, I had been lately and I didn’t think about it, she just happened to be there and I just turned into a, just exploded and it happened and before I knew it I was sort of it felt like I was a bit possessed and, and I left. And like I said I heard God say you’re going to be charged for this Scott, and in a way I’m happy because I’ll be in jail and I’ll have a place to stay and, and I’ll have food and I’ll be able to speak to people and, so I do accept that I’m going to go to jail for this, I didn’t intend to kill her, I didn’t intend to murder the girl and that’s it really for now, for now. Like that’s why I told you when we were down smoking and when you gave me a smoke and stuff like that, that’s why I told you, I just wanted you to know and I didn’t I don’t want to get carried into like I know you’re going to press me and stuff like that. I’m just like tired, exhausted, confused, swollen mouth and I just want to leave it at that. Like I just wanted to, yeah, admit it on camera so, in front of the court that, you know, the judge can see I admitted it I admitted em wrongdoing in this situation and I just want to reiterate it wasn’t premeditated it just happened. I just exploded and I don’t want to go into any further details because I’m tired I need a sleep and I’ve spoken to a lawyer and I’m not concerned about having a lawyer present now but for anything further I do and see that’s all I want to say.
[2]Depositions p 452-3.
On your behalf, your counsel has accepted full responsibility for your actions in the rape and murder of Ms Lau in what was described as circumstances of extreme violence. Counsel accepted that there were a number of matters in aggravation of the offences but submitted that your mental illness of schizophrenia or a schizoid-type illness was such that it mitigated the penalty that I should otherwise impose upon you and relied upon the decision of Verdins[3], particularly proposition 1, as outlined in R v Tsiaras[4] that serious psychiatric illness might reduce the moral culpability of an offence as distinct from an offender’s legal responsibility for the offence. The court in Verdins expanded upon what was contained within Tsiaras and outlined exactly what may reduce the offender’s moral culpability:[5]
[3]R v Verdins; R v Buckley; R v Vow (2007) 16 VR 269.
[4][1996] 1 VR 398.
[5]R v Verdins [2007] VSCA 102 [25], [26].
25It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.
26Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
(a)impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e)obscuring the intent to commit the offence; or
(f)contributing (causally) to the commission of the offence.
As we have said, this is not to be taken as an exhaustive list.
With the greatest of respect to the court in that matter, the case of Verdins now arises in almost every plea before the courts, certainly in the Supreme Court. It has made the task of sentencing judges more difficult, forcing them to consider reports from psychiatrists, but more usually psychologists, who have often had only very brief interaction with an offender, who have accepted as reliable and truthful the word of that offender as to their state of mind, thought processes or abilities, and relied upon the statements by the offenders, as though it was sworn evidence, to then ascribe to the offender, at least one of the six limbs of Verdins. I have found over time that I am less and less satisfied with reports prepared by forensic psychologists who have often spent an hour or less, with the offender before producing a lengthy report that purports to address quite particularly, and directly, the various limbs of Verdins, usually relating to either the moral culpability or the sentence weighing more heavily upon the offender. In light of this trend, it would be helpful to sentencing Judges in all courts, if the Court of Appeal could re-examine this aspect of sentencing with a view to perhaps reining in the overuse of reliance upon Verdins. Whilst the issues referred to in Verdins have relevance in this case, as I will discuss shortly, the consideration of the issues in Verdins overwhelmed most of the plea, when it should have been no more than another factor to be considered in the range of matters that the sentencing Judge must consider.
Evidence was called on your plea from Professor Ogloff, a well-respected psychologist, and Dr Kevin Ong, also a well-regarded psychiatrist employed by Forensicare with the right of private practice. Each of those persons stated that you were suffering from a severe mental illness and in my view that is clear and cannot be disputed. Professor Ogloff found that your diagnoses upon discharge from Thomas Embling on 31 December 2014 were schizo-effective disorder and poly-substance abuse being alcohol, cannabis, methamphetamine and hallucinogens. Dr Kevin Ong who examined you in October 2014 diagnosed you as having chronic-paranoid schizophrenia and poly-substance abuse. Both of those illnesses share common features – the major difference being that schizo-effective disorder has a mood component such as depression. With both disorders there has to be evidence of a psychotic disorder, that is, at least two symptoms for an extended period. Matters such as delusions, hallucinations, disorganised speech, catatonic behaviour or similar. You have had this schizo-effective disorder Professor Ogloff believes since early adulthood with evidence of symptoms in late adolescence and very early adulthood, such that you have a chronic psychotic illness; that is undisputed. Both Professor Ogloff and Dr Ong agree that you would have been psychotic not only the night but for the weeks and years prior to this offence occurring. Both of them agree that long-term chronic psychotic illnesses are adversely affected by substances including cannabis and such long-term untreated psychotic illness will contribute to cognitive deterioration.
Your mother also gave evidence before me, via video link, and indicated that you have for a long time been convinced that you were speaking to God and that God was speaking to you, that you had been outspoken inappropriately even when quite young. It is obvious that your use of cannabis from the age of 14 onwards has been a matter that has had significant negative impact in your life. Your mother described you leaving home at 17 as a result of disliking and not accepting the rules of the house as she applied them. To the question as to the age that you left home she said:
AHe was 17. He was actually a year younger than most of the children when he was in school because his birthday is at the end of December.
QAnd you had little contact with him after he left home?‑‑‑
AI would have periodic contact. He would call round when he chose to call around. And that was about it.
QMs Samuels, at any stage did you begin to have concerns that Mr Miller might be experiencing problems with his mental health?‑‑‑
AUm, yes, I did actually. I recall him coming around ‑ yes.
QAt what stage did you first begin to have those concerns?‑‑‑
AWell, the one time that I really specifically recall, he was about 19 and he came around and I had ‑ he was sitting outside and he started scribbling all of these things on a piece of paper telling me I knew what they were and I kept saying I don't know what they are. You know, they were like hieroglyphics and it was just nonsense. And he asked if he could stay that night and I let him stay that night. He wasn't really with us. But we just let him stay, and he said he'd been taking speed and I knew he was coming down from speed.
Later she said :
QWould he tell you that he was turning up or would he simply turn up unannounced?‑‑‑
AHe would just turn up unannounced when he started visiting us when he came back down to the Perth area, it would just be "uh‑huh, hello, I'm here". Um, he would stay maybe for a night and he would sleep outside, he wouldn't sleep in the house. He would talk about God talking to him and tell him that he was very intelligent and, you know, that sort of thing.
Further :
QA short time ago I asked you some questions about Scott's mental health and you indicated that you wanted him to get help but he had not thought that he had a mental health problem; is that correct?‑‑‑
AYes.
QOver the period of time, let's say the five or so years leading up to Scott coming to Melbourne, did he ever behave in a way that gave you any concerns about his safety or the safety of the public? Did he behave in a way that was violent or erratic in your presence?‑‑‑
A(Indistinct) no, no, he just ‑ like he'd come to visit and he'd talk to the television and again he'd talk about God and how God told him that he was, you know, really smart and he, you know he had people follow him and that sort of thing. Um, prior to that he exhibited behaviour that wasn't to me rational.
QYou clearly had some grave concerns about his mental health but did you have any inclination at any stage that he was a person that was capable of committing the acts that have him before the Supreme Court in Melbourne?‑‑‑
ANever. We always talked we would hear, get notice from the police that he was found dead under a bridge because somebody had done something to him because he's very outspoken. He has his own opinions and he, you know, voices them quite loudly.
HER HONOUR: Has he always done that?‑‑‑Um, I would say ‑ yes, he has.
Professor Ogloff in his evidence was asked:
HHIn circumstances where somebody is suffering from a schizophrenic illness over a long period of time and it remains untreated, are there permanent or long lasting cognitive changes that occur as a result.
AYes, I referenced that in the report, Your Honour. It is well‑known that schizophrenia is a biological ‑ has a biological base and that when left untreated particularly with recurring experiences there is long‑term deterioration of cognitive functioning, typically what we call executive functioning which is capacity to make decisions and reason in a way that the average person was, and that's a well‑known symptom that goes with schizophrenia over time.
…
HHYou mentioned executive functioning. Are you able to amplify on what executive functioning is particularly in the context of the offending that's alleged here, that is the rape and murder of a young woman?‑‑‑
AYes. Executive functioning is a component of cognitive capacity that really speaks to a higher level of decision‑making, so people with high levels of executive functioning are people who can make good decisions even under difficult circumstances. People who have deteriorated executive functioning typically struggle with the, what we call consequential thinking, the ability to understand what affect their behaviour will have over time. So those are the sorts of ‑ ‑ ‑
HHAre you saying he does not understand that bashing this woman in this way is going to have a consequence?‑‑‑
ANo. He certainly would, but he would understand it has a consequence but ‑ ‑ ‑
HHAnd that the consequence if you bash someone's head into the concrete constantly is that they may die?‑‑‑
AHe certainly would understand that. I think if you ‑ and that's why, in my view as I expressed in the report, anything Dr Ong expressed, the mental illness was not the causal factor for the offending, but what I'm saying is that his chronic illness over many years caused the deterioration in his reasoning capacity, so it's more the things we see in the police reports around comments he makes to people, he's oblivious to the effect it has.
In trying to fully comprehend what it was that Professor Ogloff was saying as to the causal connection, if any, of the offending, and the lessening of your cognitive functioning, I asked him a series of questions:
He says all of these comments to women. He is rejected out of hand by a number of them. He passes this woman in the street, clearly says something to her?‑‑‑That's right.
That causes her to flee, and he chases. Now, why does that relate to his disorder? Why does it not just relate to those factors of rejection ‑ equally why doesn't it relate to the factors of rejection, the influence of ‑ the disinhibiting influence of alcohol, and his raging fury about it?‑‑‑Again I think because just as he would have had the illness for many, many years. He also had a drinking problem early on and we certainly haven't seen this behaviour before. I would like to draw your attention just to paragraph 85.[6]
[6]Paragraph 85 of the Report of Professor Ogloff.
It is unlikely that the exact causes of Mr Miller’s very atypical and brutal offending will ever be fully known even to Mr Miller. However there can be little doubt that it occurred partly as a result of the confluence of his psychiatric symptomatology, alcohol intoxication, impaired cognitive reasoning, an underlying anger and resentment. Into the mix there must have also been a degree of sexual frustration and arousal. It remains unclear why Mr Miller developed such rage with the clear intention of raping the victim who was an innocent bystander. He apparently had no particular anger towards her; rather he unleashed his rage and intention to rape on her.
Again, as I mention there, it is in my view unlikely that the exact causes of this atypical and brutal offending will ever be fully known even to Mr Miller. I think he's at a loss to understand it himself. But taken the components that we've canvassed, I thought there can be little doubt that it occurred partly as a result of the confluence of the psychiatric symptomatology, alcohol intoxication, impaired cognitive reasoning and underlying anger and resentment.
HH What paragraph are you talking about.
AParagraph 85, As I mention there, added to that is the degree of sexual frustration arousal.
HHSee, I have to say I just find this a jump. I find that your conclusion there is a jump. It's an assumption. It's just an assumption?‑‑‑
AThat's correct, it is, yes.
HHAnd you assume it because you don't think there's another rational explanation for it, Professor?‑‑‑
AWell, I believe the components you mentioned, Your Honour, are linked in with what I'm saying that it's the confluence of those events of which you ‑ ‑ ‑
HHThat's not related to his schizoaffective disorder?‑‑‑
AWith respect it is because the schizoaffective disorder is always there underlying his reasoning so ‑ ‑ ‑
HHSo no matter what, everything he does you're saying is a result of his disorder?‑‑‑
ANot everything, but it contributes to it, Your Honour, so ‑ ‑ ‑
HHEverything he does is contributed to by his schizoaffective disorder?‑‑‑
AHis decision‑making so the decision to live, you know, live in a van over many years, the decision to live in a homeless condition, the decision ‑ ‑ ‑
HHSo his disorder ‑ basically you're saying his disorder explains all his actions when you combine it with any other factors that may occur on that day?‑‑‑
AIt underlies, it's always there, it underlies those factors and I agree with Your Honour and I mention there that the alcohol intoxication would have further disinhibited that and the rage that he felt, you know, being evicted from the facility, being rejected, as I mention there likely being sexually aroused, all came together.
Page 132
QProfessor, what about the fact that most people who commit murder have no prior history for it, no history of violence but just as a result of factors of anger, over‑reaction to incidents, thing of that nature, they kill?‑‑‑
AI think that's correct but they don't kill in the way that he did.
QWhy is that not the situation here?‑‑‑
AThey don't ‑ I mean, as you're well aware, certainly not all murders but most murders, most murder arises out of these reactive sorts of experiences of anger, rage.
QWell, he's got anger, he's got rejection and the disinhibition of alcohol?‑‑‑
ABut almost always it's people you know, people you have a particular reason to be angry with, not a stranger in the park when you're walking home after being evicted from a club.
HHSo you're basically saying that because of the circumstances of this offending, the strange nature of it, it must be as a result of an impact of the schizoid ‑ schizoaffective disorder?‑‑‑
AThat's correct.
QBecause that's the only way you can rationally explain it?‑‑‑
AI look at the whole history and I mean that's my role in the work I do is to try and understand why people do what they do and ultimately try to change that, and so that's correct, so it's looking at what are all the alternatives and what makes sense. As I mentioned again, it's unlikely that we'll ever know the exact causes, but based on all the information available and my experience and opinion, these were contributing factors.
Yes.
Question by your counsel:
QAm I right in saying that what you're putting is that the overall mental processes were disordered and that disorder contributed to his capacity to reason in the moment?‑‑‑
AIt's in the mix, yes.
Doctor Ong also gave evidence and he was asked about your ability to engage in rational clear thinking on the night of the offence and he replied:
AI was of the opinion that Mr Miller, as a result of consuming the amount of alcohol that he did, using the substances in the lead-up to the offence that he did, that he was in a state which would have made him more impulsive and unable to reason as rationally as if he - if he didn't have the effects of substances on board. I think this was exacerbated in Mr Miller due to the impact of the chronic untreated psychotic illness which - - -
HHSo is the major reason for all of this the consumption of alcohol and illicit drugs?---
AThat's part of the reason, Your Honour. I think various substances were - - -
QDisinhibiting?---
ADisinhibiting and having an effect on a man whose cognitive function was already impaired due to an untreated chronic psychotic illness which we certainly know leads patients, even without the effects of substances, with impulsivity of course in personality and difficulty in interpersonal relationships.
QWould you say that those cognitive effects of the long-term untreated illness would have had the capacity to impair Mr Miller's ability to exercise appropriate judgment in the situation?---
AUm, I think the consumption of alcohol and other substances would have exacerbated those cognitive impairments. The cognitive impairments, by themselves, minus substances, are unlikely to have been the sole reason that Mr Miller offended.
HHIn other words, without the consumption of alcohol and drugs, he would have behaved as he's normally behaved for the last 20-odd years?---
AThat would be, in my opinion, that this is a man who probably presents as somewhat eccentric to members of the community, but has not behaved in obviously such an extreme fashion previously.
QAre you of the opinion, doctor, that the cognitive effects would have had a contribution to the level of disinhibition or impulsivity that he felt?---
AUm, I think already Mr Miller's baseline is different to other members of the community as a result of his psychotic illness, thus the impact of substances is likely to have been more significant in Mr Miller's case.
QSo when you say that his baseline is different to others in the community, can you explain what you mean by that?---
ABecause of the untreated illness, he's likely to have developed significant changes in his personality or interpersonal functioning and also would have developed impulsivity, even without the - the effect of substances.
QAnd, in your opinion, that's likely to have been different, for example, to what you would expect the baseline to be in the broader community?---
AThat's correct.
QAnd these are all factors that you think were at play on the night of the offending in addition to the intoxication, at whatever level that might have been?---
AYes, I think they all - there was a confluence of actors there.
Whilst I am troubled by the concept that you have a lessened moral responsibility for this offending, I am prepared to adjust your sentence to reflect that you have a persistent untreated mental illness, which may have been a minor contributing factor. It is my view that the undoubted major contributors to your offending was your consumption of cannabis, alcohol, combined with your anger as result of your rejection by a number of women that night, and sexual frustration.
A court should be most reluctant to say that the consumption of alcohol or illegal substances, which then results in a person becoming disinhibited, is a matter that reduces the penalty applicable for that offence. Whilst I will reflect your mental illness by a slight reduction in your sentence, that reduction will not be a significant reduction, as your offending is of such a level of seriousness that the matters of general and specific deterrence and denunciation of the offence are certainly not eliminated and remain objectives of this sentence.
Your mental health has stabilised to a degree, you have become more settled as the medication has an impact. You have spent time in Thomas Embling Hospital, but have been back in the prison system for some months. You made a very serious suicide attempt, which resulted in you being hospitalised for a short time before being transferred to Thomas Embling. You are still inappropriate in your statements and comments to other prisoners, much as you were, even whilst at Thomas Embling Hospital, and as a result you spent your time there, as you do now within the prison system, mostly in isolation, as other prisoners tend to attack you as a result of your inappropriate comments, questions and observations. I do accept that unless things improve markedly in your mental health, which is highly unlikely, you will continue to make these types of comments and your time in custody will be more difficult. Equally, you have no family or friends in this state, your mother is unwell and unable to finance trips to visit you, and your time in custody accordingly will, for all of those reasons, be very lonely.
In terms of the issue of remorse, I do think you are remorseful, even though some of it is somewhat self-focused, I do believe you are sorry for what you have done to Renea Lau. Your prospects of rehabilitation, in light of your lack of prior criminal history, and the explosive violence you demonstrated on this night are exceedingly poor. You are a chronic sufferer of a schizoid disorder, it is clearly entrenched and unlikely to improve to the point that you no longer suffer from the illness, which does not assist with your prospects of rehabilitation.
Taking into account all of the matters to which I have referred, including your plea of guilty, and all relevant matters referred to in the Sentencing Act, I direct that you are to be sentenced as follows:
Charge 1 – Rape – 13 years imprisonment
Charge 2 – Rape – 13 years imprisonment
Charge 3 – Murder – 29 years imprisonment
I direct that charge 3 is the base sentence and I direct that 2 years of the sentence on count 1 and count 2 be served cumulatively on count 3 and on each other. That makes a total effective sentence of 33 years. I direct that you are to serve a minimum of 28 years before being eligible for parole.
Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been 36 years with a 31 year minimum.
I declare that you have spent 305 (three-hundred and five) days in pre-sentence detention and such should be noted in the records of the court.
Disposal order
I further declare that you are a serious sexual offender, pursuant to the Sex Offenders Registration Act, and whilst registration is a discretionary matter, I have formed the view that you should be registered as a serious sexual offender pursuant to s 11 of the Sex Offenders Registration Act 2004.
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