R v Miller (a pseudonym)

[2022] NSWDC 696

District Court

New South Wales

Medium Neutral Citation:

R v Miller (a pseudonym) [2022] NSWDC 696

Hearing dates:

4 April 2022, 14 April 2022

Date of orders:

14 April 2022

Decision date:

14 April 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 7 years with a non-parole period of 4 years.

Catchwords:

CRIME – Aggravated break and enter with intent knowing person there - Assault occasioning actual bodily harm (DV) - Stalk/intimidate intending fear physical etc harm (domestic) - Common assault (DV) - Intentionally choke etc person without consent (DV)

SENTENCING - Relevant factors on sentence -early plea - complex sentencing exercise - form 1 maters committed as a juvenile - intervening sentences of imprisonment - two victims – multiple offences against each - serious and prolonged domestic violence - victim impact- deprived background of offender - pattern of violence to women set by exposure to violence as a child - drug use - little schooling - young offender - delay - efficacy of imprisonment discussed - totality special circumstances

Legislation Cited:

Crimes Act1900

Crimes (Administration of Sentences) Act 1999

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

Clarke-Jeffries v R [2019] NSWCCA 56

Fernando v R (1992) 76 A Crim R 58

Hoskins v R [2021] NSWCCA 169

in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Kentwell v R (No 2) [2015] NSWCCA 96

KT v R [2008] NSWCCA 51

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda vWestern Australia (2013) 249 CLR 600; [2013] HCA 38

Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55

R v De Simoni (1981) 147 CLR 383

R v Hookey [2018] NSWCA 147

R v Lewis [2014] NSWSC 1127

R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383

RvTodd [1982] 2 NSWLR 517

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991)

Category:

Sentence

Parties:

David Miller (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Booker (for the offender)

Solicitors:
Legal; Aid NSW (for the offender)
Ms N Olender (for Director of Public Prosecutions)

File Number(s):

2021/00023573, 2021/00163477

Publication restriction:

Pseudonyms have been used for the names of the offender who was a child during some of the period when the offending occurred and to protect the privacy of the victims and their children.

Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the offender. Identifying information has been removed from this version of the judgment to comply with the statute.

SENTENCE – EX TEMPORE REVISED

Introduction

1. David Miller (a pseudonym) was born in 1997. He is an Aboriginal Australian who grew up locally. At 16 he commenced an on-and-off relationship with complainant 1, Jill (a pseudonym) who was then 14. They had a child when she was 15. The offending between himself and that victim went on from 2014 to 2018.

2. In 2018 and 2019 he was in a relationship with the complainant 2, Sarah (a pseudonym).

3. There are several complications to this sentencing exercise including; considerable delay and the fact many of the offences occurred when Miller was still a juvenile: see chronology Exhibit B.. Other offences that were committed against complainant 1, during the same period that he came before the Local Court. One event on 2 August 2015 resulted, after a call-up, in him going into custody. Miller was also arrested and gaoled for assaulting a cousin on 12 March 2019 and another sentence was imposed an unrelated domestic violence offence against another partner on 3 August 2020.

4. Sentencing for this matter also raises other difficult issues for judgment. A court must consider the various and often contradictory purpose of sentencing, it must give proper consideration to the seriousness of what occurred and to matters of mitigation raised by Miller. Where crimes involve violence a need to vindicate the dignity of the complainants. The courts have a duty to protect all women, all in the community from violence. The domestic context of this offending also is a matter that must be considered.

5. At the same time the Court must balance and take into account the offender's history of profound deprivation and his exposure to drugs, alcohol and domestic violence in the home and the trauma that has caused him. Tragically, the matters raised here illustrate the intergenerational violence that blights some communities. There is no easy solution. Gaol while necessary here provides only a temporary remedy.

6. The offending in relation to complainant 1, is made up of 18 offences - Group 1. Jill has a son to this offender and another child. The offending relates to a period from 2014 to 2018. Sensible charge negotiations have led to five specific counts being put before the Court for sentence. There are several others on Forms 1. Some of them occurred when Miller was under 18 and still at law a child.

7. The Group 1 matters for sentence are:

1. Sequence 9, an offence pursuant to s 113(2) Crimes Act1900, the first offence for sentence is from July 2016. It has a Form 1 with sequences 1, 2, 3, 4, 5, 6, 7, 10 and 11 on it.

2. Sequence 12, an offence pursuant to s 59 Crimes Act, is from August 2016, has a Form 1 with sequences 13 and 14.

3. Sequence 20, an offence pursuant to s 13(1 Crimes (Domestic and Personal Violence) Act 2007, occurred in January 2018. It has a Form 1 with sequence 15 on it.

4. Sequence 17, a s 59 Crimes Act offence, that occurred on 4 February 2018. It does not have a Form 1.

5. Sequence 19, another s 13(1) offence, was committed in February 2018. Sequence 18 is on its Form 1.

8. Group 2 relates to offences against the complainant Sarah. They occurred in 2018 and 2019. Sarah is a year older than the offender. She had two children and at the relevant time he had some parental responsibilities for his son from his relationship with Jill. There are six matters for sentence, some have Forms 1.

9. The Group 2 matters for sentence are:

1. Sequence 1, a s 59 Crimes Act offence, assault occasioning actual bodily harm, in September 2018. It has a Form 1, sequence 2.

2. Sequence 3 is a s 13(1) intimidation offence from November 2018.

3. Sequence 4 is another s 59 offence. Its Form 1 has sequences 5 and 13. They relate to intimidation and assault.

4. Sequence 7 is a s 59 offence from December 2018.

5. Sequence 9, a s 61 assault from January 2019.

6. Sequence 14 is a choking offence pursuant to s 37(1A) Crimes Act it occurred during the same period as sequence 9 - January 2019.

10. Each matter for sentence must be considered. I am required to identify all the factors that are relevant to the sentence for each matter, discuss their significance and then make value judgments as to an appropriate sentence given all the factors in the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

11. Guilty pleas were indicated in the Local Court. Each sentence must be reduced by 25% to take into account the utilitarian value of the plea of guilty. There are other values to an early guilty plea, particularly in matters involving offences the matter such as this. They were referred to in the guideline judgment of R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383.

12. Because I will be imposing an aggregate sentence and as there must be accumulation of sentences, both individually in the two groups and between the groups, I need to take care not to erode the benefit given for the guilty pleas.

Agreed Facts

13. There are agreed facts before the Court. They are comprehensive. I will try and keep my summary as succinct as possible.

Group 1

14. Miller and Jill were in an on-and-off relationship for about five years. It commenced when Jill was 14 years old. At the time the offender was living with his mother in Port Kembla and later at his grandmother's house nearby. The complainant fell pregnant.

15. Sequence 1 occurred when Jill was pregnant. While they were out the front of their home in Port Kembla when without any apparent reason the offender became angry, grabbed her by the hair. He swung her around causing her to hit a parked bus. She lost her footing and fell. He held her off the ground by her hair. He then released her and just walked away. Although not physically injured she experienced pain. Sequence 1 is on a Form 1.

16. When I note there were no physical injuries, I do not underestimate the psychological trauma this matter must have occasioned.

17. Sequence 2, common assault, occurred in July 2014, just a week before their son was born. There was an argument. The offender grabbed Jill by her hair and swung her causing her to collide with a parked car. He just let her go. Again, no physical injury but she felt pain. The matter took seconds. Sequence 2 is on a Form 1.

18. Sequence 3 occurred after the birth of their son. Jill was in a bedroom with her baby. He entered while his mother waited outside. He wanted to take the baby with him. She said “no,” as he was only a few hours old. He then grabbed her by the hair at the back of the head saying, "I'm taking the baby." He then smashed her face into the bedroom wall. She suffered injuries to her nose and lip. She was left crying and in shock. She subsequently had a black eye and swelling and cuts. Sequence 3 is on a Form 1.

19. Sequence 4 occurred two days later after Miller returned to Jill’s home, and again wanted to take the baby. He became angry because she refused. He also wanted some money. He grabbed the victim's hair and slammed her head into the bedroom wall cutting her nose, splitting it open where it had been injured previously. Sequence 4 is on a Form 1.

20. Sequence 5 occurred when Miller returned to Jill's home a week later. He stayed there without incident for a period but one day he made demands that she take the baby with him to see his mother. She said “no.” He became angry, and punched her to the face, splitting her lip and chipping her front tooth. She did not see him for several months after this. Sequence 5 is on a Form 1.

21. Sequence 6 occurred after the offender phoned her out of the blue. They met and then, without any justification, he pushed her in the face causing her lip to bleed. Sequence 6 is on a Form 1.

22. Miller turned 18 in June 2015. In August 2015 there was a gathering for his and Jill’s son’s first birthday. That led to the matter for which he received a separate custodial sentence.

23. He was released from custody on 25 July 2016 and immediately went with his mother and went and stood outside the victim's home. His mother was yelling out to her things like "She's a dog, slut, you were the reason he got locked up." That act of intimidation in which he participated with his mother is sequence 7.

24. Sequence 9 a matter for sentence is an aggravated break and enter with intent. Sequences 10 and 11 arise out of the same incident. Sequence 10 and 11 are on a Form 1. After the sequence 7 incident Miller gained entry to Jill’s home via the back door which was closed. He went to her bedroom. She locked the door and hid with her son. He kicked the door in. This caused the handle to break. He said, "Pack your shit. Pack the kid's shit. We're going to Wollongong." Fearing assault if she did not obey, she went with him taking her son and some clothes.

25. Sequence 12, a matter for sentence, is an assault occasioning actual bodily harm. Jill remained at Miller’s mother's home after the sequence 9 incident. She told him that she wanted to go back to her house. His response was to punch her in the face, knocking her to the ground. As she tried to get up, he put his foot on her head. She cried out in pain and fear. She was then punched to the side of the face while he said, "Stop crying." He then demanded she cuddle him as he was tired. As soon as she could went to a doctor. Her face was found to be swollen and bruised.

26. There was a period when there were no incidents, but then we come to sequence 13. Jill went to sleep and woke up to being punched in the face although the hits were not with full force. She said, "Why are you hitting me?" The offender replied, "I just had a thought about you with another man." It is on the Form 1 for sequence 12.

27. After that did not see him for a few weeks after that but after that is sequence 14. It is on the Form 1 for sequence 12. Jill tried to end the relationship. Miller intimidated her by saying, "You're a dead slut, I'm going to wring your neck."

28. After that they separated for a period. Jill became pregnant to another man and the offender made a promise that he would not hit her anymore. That promise was not kept. Sequence 15 occurred when the victim was about nine weeks pregnant with the second child. It is on the Form 1 for sequence 20.

29. Jill allowed the offender to stay in her home. He slept on the floor. She woke to find him being aggressive. He dragged her by the hair. She could not get to her feet. She yelled and her brother came and rendered assistance. Despite his assistance the offender kept on chasing her. Finally, he was told to "get the fuck out of the house" and left. Their child was present in the room when this incident took place.

30. Sequence 20, an intimidation offence for sentence, occurred in January 2018. The two had resumed their relationship. Jill was heavily pregnant. She and Miller stayed the night in small granny flat underneath his Nan's house. The following morning, he left the room and locked the door behind him. Jill remained in bed. Only after she woke up did she find that she had been locked in, and that Miller had taken the only key with him. She could not get out. She yelled, for help, she banged on the walls. No one came to her aid.

31. She was left without food or water or access to a toilet. She was 38 weeks pregnant. Two days later Miller returned, unlocked the door and said, "Oh bub, I forgot about you being here." She grabbed her bag and left. She gave birth a week later.

32. Sequence 17 for sentence, an offence of assault occasioning actual bodily harm, occurred on 4 February 2018. Jill was back at the granny flat with her younger child. The offender told her the baby's crying was disturbing his sleep. He demanded she "shut the fucking baby up." He then, it would appear, because the baby was crying knocked her unconscious. The baby was still crying when she woke up. Her ribs were aching consistent with her having been hit there.

33. She demanded, "What did you do?" and then she was struck again to her ribs and to the head rendering her unconscious again. When she eventually was able to get up she was in a great deal of pain and needed medical treatment.

34. Sequence 18 on a Form 1 for sequence 19 occurred on 4 February when Miller phoned Jill at her Nan’s. He spoke to her. But when she said she would be collecting their son the next day he said, "Try and I'll snap your neck."

35. Sequence 19 for sentence is the last matter in Group 1. After a week of not having access to her son Jill called the offender. He said, "This ain't your fucking kid. You come anywhere near here and I'll snap your neck."

36. The facts reveal that she has not seen her son or the offender since.

Group 2

37. The second series of events occurred in 2018 and 2019 when Miller was living with his grandmother in Port Kembla. The complainant Sarah lived in Wagga. She had two children. But she spent time in the Port Kembla area with Miller. At the time Miller had care of his and Jill’s son. Sarah describes their relationship as violent with the offender being controlling and possessive. He told her of his propensity for violence and his association with outlaw motorcycle gangs.

38. Sequence 1 occurred shortly after the relationship commenced in August or September 2018. Sarah tried to leave him. She was packing to go but he punched her to the face causing her to fall. The force of the punch split open her nose. It bled and the split left a permanent scar, which is shown in the photographs exhibited on sentence. His response was to say, "Sorry, I didn't mean it." She stopped packing her bag, fearing further assault.

39. Sequence 2 is on the Form 1. Not long afterwards Miller became annoyed at Sarah for speaking to cousins. He punched her to the face splitting her lip and causing it to bleed. She still has a scar inside her mouth.

40. Sequence 3, an intimidation offence, is for sentence. It is occurred in November 2018. She wanted to leave, and he said to her, "If you leave I'll drive down and shoot your whole family." Due to the threat and her fears of him she did not leave.

41. Sequence 4 assault occasioning actual bodily harm, is for sentence. Sequences 5 (intimidation) and 13 (assault) are on a Form 1. They occurred after the offender's mother convinced Miller to let Sarah visit a relative in Nowra. In text messages He asked her to return to Port Kembla. Sarah asked, "You're not going to hit me." Miller promised he would not hit her.

42. Sarah returned to Port Kembla. Soon after she returned, he punched her in the face with his closed fist. She was left with a black eye:; sequence 4.

43. His mother was there. She yelled, "Stop it." He told her to shut up. Sarah got up but as she tried to leave, he said, "If you walk out I'll bash you:" sequence 5. Fearing further assaults she stayed. He then grabbed her round the throat with both hands and squeezed with force rendering her unable to breathe: sequence 13. She clawed at him, and he eventually let go.

44. Sequence 7, for sentence, is an assault occasioning actual bodily harm offence. Sarah eventually did catch a train to Wagga. Soon after she found out she was pregnant to the offender. Miler came to live with her in Wagga. One day he became angry with her and punched her to the face. Her children were present. She screamed, "My kids are there." The children screamed. He said, "Well, we won't let them see it." He then grabbed her by the hair and dragged her to a bedroom where he continued to punch her. She sustained bruising and lumps to her head.

45. Sequence 9, an assault offence for sentence, occurred at the offender's home in Port Kembla in January 2019. She was staying there. She was 14 weeks pregnant. He became angry about something and punched her to the left side of the body around the rib cage causing her sharp pains. She fell to the ground and cried.

46. The victim suffered several traumas unrelated traumas, including the death of her son and she lost her unborn baby shortly afterwards.

47. Sequence 14, the choking offence for sentence occurred in March 2019 when Sarah and Miller were staying in Wagga. The offender came into her room while she was on the phone. He went up to her and punched her to the face.\: sequence 10 on the Form 1. He then grabbed her around the throat and began squeezing with force. She began to struggle. She could not breathe. She made loud noises. Eventually the offender let go. She collapsed onto a mattress.

48. She told her Nan “nothing” had happened but she was left with significant bruising around her neck. This was seen by police. At the time she was too afraid to tell them what Miller had done to her. Eventually her family and police prevailed upon her to come forward. Briefs were compiled and the offender was charged. At the time he was in custody on other matters.

Objective seriousness

49. I must assess the objective seriousness of each matter for sentence. At this stage the matters on the Form 1 are not taken into account when I assess the objective seriousness.

The Group 1 offences.

50. Sequence 9 occurred in Jill’s home. It was broken into. The intent of the entry was coercion, control, and intimidation. The offender achieved all of his aims.

51. Sequence 12 and 17 are assaults occasioning actual bodily harm. For sequence 12, again, her wishes were not just ignored, rather they were met with violence. It is clear from the facts that only Miller’s needs mattered to him. He had no concern for her or her wellbeing.

52. Sequence 17 occurred in similar objective circumstances. Again, he blamed her for the crying baby. Instead of helping, he knocked her unconscious - twice - causing her a great deal of pain.

53. The Intimidation offences, sequence 20, was a particularly serious example. Jill was isolated without food and water for two days. Miller’s response was, "I forgot." Clearly, by being locked in the premises there was intimidation. It was demeaning, degrading, and frightening. It is a serious example of intimidation, but I must take great care when I formulate a sentence for this matter. Miller he is not charged with a deprivation of liberty offence and as the High Court made clear in R v De Simoni (1981) 147 CLR 383, I punish him for the offence charged not some other offence.

54. Sequence 19 was another serious example of intimidation, as it involved a threat to kill. It occurred as part of controlling, selfish behaviour, and an assertion of a custody right over their baby that occurred outside any judicial or family welfare process.

The Group 2 offences

55. The initial assault on Sarah, sequence 9 occurred when she was pregnant. It involves punches to her arm and ribs causing pain, so much pain she fell. The assault occasioning actual bodily harm, sequence 1, involved a push to the face, a fall, a split nose and a permanent scar. Sequence 4 involved a punch to the face despite his promises not to do so. Sequence 7 occurred while the victim was pregnant. It involved a punch to the face in the presence of her children and, aware of that, he moved her to another room. Those facts make it obvious how serious these offences were.

56. Intimidation, sequence 3, involved a conditional threat to kill her and her family. As intended, it achieved his aim - her acquiescence to staying with him.

57. The choke, sequence 14, involved both hands being squeezed so that she could not breathe. Again, those facts make it obvious how serious this offence was, and why choking offences, which risk serious harm or death, are treated seriously by parliament and the courts.

Forms 1

58. There are multiple domestic violence matters. They mean that greater weight must be given to deterrence and community protection when I sentence the matters for sentence; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. As they must taken into account, I need to synthesise their facts when I consider the appropriate sentences to be imposed for the matters for sentence. In some cases, matters on a Form 1 can led to a substantial increase to the sentence on the matter for sentence. I will be guided the guideline judgment and the decision of Bathurst CJ in Abbas; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I note that Group 1 sequence 9’s Form 1 contains matters that had they been dealt with separately Miller would have benefited from the sentencing regime applicable in the Children’s Court.

Maximum Penalties

59. Maximum penalties are important guides to the exercise of my discretion. Section 113(2) Crimes Act has a maximum penalty of 14 years imprisonment; s 59 Crimes Act, five years; s 13(1) Crimes (Domestic and Personal Violence) Act, five years; s 61 Crimes Act, two years; and s 37(1A) Crimes Act, a maximum penalty of five years.

Other relevant factors

60. Each group of offences were part of a pattern of behaviour toward each complainant and part of a more general pattern which is reflected in Miller’s criminal record. That record shows other also offences involving domestic violence against other partners.

61. Miller’s criminal record is relevant to determining the proper sentence. It indicates that these offences were not uncharacteristic aberrations, sadly, even those that commenced when he was a child. They demonstrate his continuing disobedience towards the law. While his criminal history cannot result in a sentence which is disproportionate to the seriousness of the matters for sentence, a more severe penalty on one level is warranted here because of the need to focus on retribution, deterrence, and community protection: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477

62. A complication is he has spent time in custody over the relevant periods. Some for offences against complainant 1, which occurred during the period of some of the sequences dealt with here on Form 1 for sequence 9.

63. Miller received a gaol sentence at Wagga Local Court on 12 March 2019. He was released to parole on 11 December 2019 but by 4 August 2020 he was back in custody. His non-parole period for that matter expired on 3 May 2021.

Victim impact

64. There are two complainants or victims in this matter. Jill, the first complainant, did not take up the opportunity of providing a Victim Impact Statement (VIS). The absence of a VIS does not mitigate, nor does it give rise to any inference that an offence had little or no impact on her: s 30E (5) Crimes (Sentencing Procedure) Act 1999.

65. Sarah, the second complainant, provided the court with a Victim Impact Statement which I read out. In it she spoke of the fear occasioned and the fact that she was forced to lie to her own mother and police about what was being done to her. She told me of her sleeplessness, her anxiety, her panic attacks, and a constant lack of trust in men, all entirely understandable.

The case for the offender

66. Turning now to matters personal to the offender. He has been in custody for a lengthy period. He has been in custody during the COVID pandemic. I am aware that as a consequence of pandemic prevention measures there is limited access to education and other programs and that prisoners are subject to extensive lockdowns and, particularly if infected or isolated. Because of COVID, prisoners are unable to engage in even normal gaol activity. These are all matters I will take into account.

67. The subjective material before me is not particularly controversial. Miller grew up locally. He is a Yuin man. He was in the care of his mother for most of his life and she is still supportive of him.

68. Both parents went to gaol at various times. Sadly, at one stage I had to deal with his mother. His mother reports that domestic violence was normalised in the home when he was young. Both parent’s had chronic problems with substance abuse. He was often in the care of his grandmother who has cared for many young people in the Port Kembla area.

69. Miller struggled at school and is functionally illiterate. He took up the use of alcohol and cannabis when he was too young to make rational choices. He went to gaol for first time occurred when he was 18. This coincided with a methylamphetamine addiction; complicated by his mother's own problems with methylamphetamine. I have no difficulty accepting that methylamphetamine use makes him paranoid.

70. Apart from working when in gaol, he has never held a job. When he is released from gaol he fell back into a pattern of associating with old friends. That then leads to drugs and then violence, often against women. He has never been able to complete a rehabilitation program either in or out of custody. At present, there are no noticeable stabilising influences that can be provided to him in custody or available to him in the community. He was described by the author of one report, Mr Sheehan, as "rudderless."

71. I have the benefit of letters from his family. His mother speaks of the domestic violence that he experienced when young. Sadly, the agreed facts show she enabled and supported some of his actions, particularly gaining custody of a child, achieved by violence and intimidation. While I will consider what she has said about his history of deprivation, sadly repeated across generations, I can put little weight on other protestations she makes.

72. His grandmother similarly speaks of his early exposure to violence. She pleads for understanding. She still has faith in Miller and his capacity to be a good father for his children.

73. There is a comprehensive psychosocial report prepared by Mr Sheehan. He cannot say one way or the other whether Miller has a cognitive impairment but certainly there are indications of it. He too notes and details a long history of profound deprivation accompanied by poor social adjustment; behaviour modelled by his background. Miller reacts to frustration and conflict through disinhibited aggression; as is obvious from his record and the facts that I have summarised.

74. At present, there is simply no plan or strategy to avoid a repeat of these problems. Miller has some contact via video link with an older son but apprehended violence orders prevent contact with some of his children.

75. He is particularly vulnerable to addictions. He told Mr Sheehan that he "did not want to go back to all that" but, sadly, all his ties are with "all that." Mr Sheehan concluded at para 21:

"In order to improve his prospects for rehabilitation Mr Miller requires support, treatment, and supervision. There is a need to engage in treatment to address his violence behaviours, frustration tolerance and disordered substance abuse behaviour. His evident lower intellectual functioning requires closer examination to exclude impairment and more fully understand his treatment and support needs. His low literacy may be an impediment to effective program participation. It is difficult to imagine that he could keep pace with an intensive program such as the Violent Offender Therapeutic Program (VOTP). He could possibly do well in the HIPU program with additional individual support. The details of his release plan will be an important factor in his ability to adapt to normal community life with a need to escape antisocial influences and generate fresh links to prosocial community influences. He would benefit from a significant period of community supervision where he can be supported in achieving his rehabilitation goals."

76. A copy of Mr Sheehan's report will accompany the warrant.

77. Miller by his plea has accepted responsibility. I am not sure if he really does understand the impact of the harm that he has occasioned his victims. The principles set out by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, apply.

78. Miller grew up in homes exposed to illicit drug use. His background can operate to mitigate the sentence. His moral culpability is less than those whose formative years were not so marred. His childhood exposure to violence helps explain his recourse to violence when frustrated and his inability to control those impulses. The effects of the profound deprivation experienced by Miller do not diminish over time and will be given full weight.

79. Social exclusion and disempowerment of Aboriginal Australians sadly make that type of home environment more prevalent in their community than in the total population: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 326; Munda vWestern Australia (2013) 249 CLR 600; [2013] HCA 38, Bell J at [135]; Fernando v R (1992) 76 A Crim R 58 at 63 ; Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5. The Court of Criminal Appeal has said that the answer is no longer incarceration but lies in actions designed that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environment: R v Hookey [2018] NSWCA 147 at [61]; Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92]; R v Lewis [2014] NSWSC 1127 at [37]-[38]; Hoskins v R [2021] NSWCCA 169.

80. That does not mean that I cannot consider other relevant factors and other purposes of sentencing. The Bugmy and Fernando principles do not all favour mitigation. I must recognise there are countervailing factors which include; protection of the community, particularly where, as here, attempts have been made to address the issues many times before but there has been no change.

81. Change for the victims of domestic violence can only occur when men take responsibility for their behaviour and become part of the solution. Women should not be forced to bear an unfair burden. The victims of serious crimes such as these should not be deprived of the protection that the law is meant to provide. One way we provide protection is by the punishment imposed.

82. Courts must avoid the perception that serious violence offences committed by Aboriginal men will be treated by the law as matters of little moment, as Bell J made clear in Munda v Western Australia (although in dissent as to the outcome). It is recognised, as the High Court did in Munda, that heavy sentences are likely to be of little utility in reducing the general incidence of such crimes and that mitigating factors must be given significant weight. But the High Court also made clear that courts have to vindicate the dignity of each victim of violence to express the community's disapproval of that offending and to award such protection as they can against repetition.

83. That protection can be achieved by removing Mr Miller from the community for a period, but he must be returned to the community, and he should be returned in a better position than when he went into custody.

84. As Basten JA has noted, these conflicting considerations place a sentencing judge in a difficult position. Their acknowledgment provides little practical assistance in determining an appropriate sentence. The solution to social problems does not lie in criminal courts. The best course may be to err on the side of leniency: Hoskins at [2].

85. I must take into account here that his offending occurred while Miller was young, and that he is still young and immature. There is a general sentencing principle that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. The law recognises that young people have different levels of cognitive, emotional and psychological immaturity that can contribute to offending behaviour which as appears here became a pattern: KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.

86. There has been significant delay in bringing these matters for sentence. Sentencing for stale crimes calls for a considerable measure of understanding and flexibility; R v Todd [1982] 2 NSWLR 517 at 519: Mill v The Queen (1988) 166 CLR 59 at [14].

87. Had some of these offences been brought to the notice of authorities when they were first committed, they could have been dealt with in the Children's Court. At the same time, Miller has not used the delay to his benefit. Since they were committed, he has grown older and had some chance to mature but most of that maturing has occurred while he has been in custody.

Submissions

88. I have had the benefit of written and oral submissions from Ms Olender, senior solicitor for the Director of Public Prosecutions, and Mr Booker of counsel. I thank them and I hope this judgment has done justice to them.

Structure of the sentence

89. I am required to impose an appropriate sentence for each offence; and I will do so by indicating sentence and imposing an aggregate sentence. I must take into account the matters on the Form 1s. I must formulate an overall sentence that is just and appropriate to the totality of his crimes.

90. Simple arithmetic would lead to a sentence whose ultimate aggregate would exceed what is called for in the circumstances. There must have some relativity between what he did, the totality of his criminality, and the length of the aggregate sentences. I must attempt to ensure that public confidence will not be eroded by a perception that crimes go unpunished.

91. The sentence and the reason for its should be as transparent as possible. Everyone whether victims, offender, court or community, should know why a specific sentence was imposed.

92. Sentencing involves an intuitive judgment and different factors require different considerations and pragmatic decisions need to be made. Some matters compel concurrency. On the other hand, given the; number of matters, their nature and the fact there were two victims, requires accumulation.

93. I have to avoid disproportionate severity because it could lead to the offender being institutionalised. Too long a sentence spent in custody would make up a significant portion of his life. He is still young. I need to avoid the danger that his rehabilitation may be impeded and not enhanced by the sentence. I need to ensure that he has a hope of leading a normal life and that hope not be crushed. But what seems crushing depends on the perspective of the observer. It might differ between the offender and his family members and the victims, their families and the community.

94. Miller needs to learn how to lead a normal community life. He will need extensive assistance; starting with helping him learn to read and write. He will need help to avoid institutionalisation. There are many reasons here for finding special circumstances and for allowing a significant proportion of the sentence be spent on parole. But, and it is an important but, he will not be released to the community unless the State Parole Authority is satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999. Programs on parole, and parole supervision, may help him avoid reoffending.

Synthesis

95. Some men, as boys, do not grow up with good role models. They often live in fear that people will see them as weak if they do not put women in their place by means of violence. Some men seem to think they are weak if they do not control their girlfriends. Those attitudes must change. Jealousy, intimidation, humiliation of women cannot and will not be tolerated.

96. Punishment alone cannot achieve that aim. The community also has to take responsibility for the perpetuation of violence against women. We should not put the burden on women victims to stop this. Men must take responsibility. Miller must take responsibility. Such are his entrenched attitudes, his drug use and his anger responses that he cannot do it on his own. If he was released and just asked to report and obey reasonable directions that would not prevent reoffending.

97. Obviously, there must be punishment here and there must be retribution, but I do not and cannot ignore the harm caused to him by long-term intergenerational traumas and his own individual experiences. At the same time, I cannot ignore the trauma he inflicted on his victims and the children who witnessed what he did.

98. Community protection requires that a plan and a comprehensive plan before Miller is released to parole; to avoid repetition of what is a pattern of offending against domestic partners. If that plan is not put in place, it is possible, in fact likely, that Miller could serve the entirety of his sentence in custody.

99. Balancing all those matters I must attempt formulate a just and appropriate sentence.

Orders

100. For Group 1 there are 18 offences against Jill but there are five matters for sentence. Each of these indicative sentences takes into account the plea of guilty and where applicable the Form 1;

1. For Sequence 9 - I indicate a sentence of two years and seven months.

2. For sequence 12 - I indicate a sentence of one year and six months.

3. For sequence 20 - I indicate a sentence of two years and three months.

4. For sequence 17 - I indicate a sentence of one year and ten months.

5. For Sequence 19 - I indicate a sentence of one year and one month.

101. For Group 2, the offences in relation to Sarah. Each of these indicative sentences takes into account the plea of guilty and where applicable the Form 1;

1. For sequence 1 - I indicate a sentence of one year and six months.

2. For sequence 3 - I indicate a sentence of nine months.

3. For sequence 4 - I indicate a sentence of one year and one month.

4. For sequence 7 - I indicate a sentence of one year and six months.

5. For sequence 9 - I indicate a sentence of nine months.

6. For sequence 14- I indicate a sentence of two years.

102. There will be an aggregate sentence of seven years imprisonment. There will be a non-parole period of four years imprisonment. It will commence on 4 August 2020 which means Miller will be eligible for consideration for release to parole on 3 August 2024. There will be a parole period of three years, commencing on 4 August 2024 to 3 August 2027.

103. Although a lengthy period of parole has been allowed, release to parole will only occur after the State Parole Authority has conducted a full assessment and considered the important matters including community safety: s 136 of the Crimes (Administration of Sentences) Act.

Note: While revising these remarks I received notice that Miller had died while in custody.

**********

Decision last updated: 24 February 2023