R v Mills

[2019] NSWDC 814

District Court

New South Wales

Medium Neutral Citation:	R v Mills [2019] NSWDC 814
Hearing dates:	28 August 2019
Decision date:	29 August 2019
Jurisdiction:	Criminal
Before:	King SC
Decision:	Convicted. Special circumstances found – age of offender, first time in custody, need for an extended period of supervised parole to assist in reintegrating into the community– counselling in relation to sexual offending and in respect of alcohol abuse. Sentenced to a term of imprisonment of 4 years comprising of a NPP of 2 years commencing on 23/7/18 and expiring on 22/7/20 and a balance of term of 2 years to commence on 23/7/20 and to expire on 22/7/22.
Catchwords:	CRIMINAL – Sentence – sexual intercourse without consent – belated plea on trial day – discount - subjective matters
Legislation Cited:	Crimes Act 1900
Category:	Sentence
Parties:	Regina Mills, Glen Gary
Representation:	Counsel: Ms C Mendes   Solicitors: Mr J Lee
File Number(s):	2017/00133819
Publication restriction:	NPO in re complainant’s name and anything that might tend to identify her

Judgment

1. Glen Mills appears for sentence in respect of a single offence contrary to s 61I of the Crimes Act 1900, that is, sexual intercourse without consent. The maximum penalty provided is 14 years’ imprisonment and there is a relevant standard non‑parole period of seven years. The offender was committed for trial on 11 September 2017 from the Albury Local Court and the trial was listed to commence on 25 February 2019 at the Albury District Court, as I understand it, as one of a number of matters in a rolling list.

2. On the following day, 26 February 2019, the Crown presented an indictment which included, as I understand it, for the first time, an alternative count to a lesser charge to the primary count. The primary count was an offence contrary to s 61J(1) of the Crimes Act, which had a maximum penalty of 20 years’ imprisonment. On the 26th he pleaded guilty to the alternative count that he is now to be sentenced in respect of. The plea was in the circumstances a very belated plea, however I accept that he is entitled to a 10% discount for the utility of the plea alone, and such a discount will be provided.

3. The facts are agreed and are as follows:

4. The victim, JH, resided in a unit at premises in Tarakan Avenue, North Albury.

5. The offender, up until 1 May 2017, was a resident in a different unit at the same premises. At the unit block, the offender performed the role of handyman and lawn maintenance. On 1 May, the offender vacated his unit.

6. During the evening of 3 May 2017, the offender and his brother, Mark Mills, attended a further unit in the premises to speak with a friend. While there, the victim also attended the same unit to ask the occupants to turn their music down.

7. Following a conversation the offender asked the victim to accompany him to the unit he had vacated in the complex to show her the painting that he had carried out in that unit on vacating it. The victim observed the offender to be intoxicated.

8. The offender and the victim walked to the offender’s vacated unit where he unlocked the door and they entered via the back door. The unit was bare, with no furniture, and freshly painted.

9. Whilst standing in the lounge room, the offender placed his arm tightly around the victim.

10. The offender while holding the victim with his left arm took hold of the victim’s pants with his right hand, pulling her pants and underwear down. The offender then forced the victim to the carpeted floor. The victim was lying on her back and the offender lay on top of the victim, pinning her to the floor with his bodyweight. The offender placed his left arm around the victim and removed his pants and underwear. The victim said to him, “You’re drunk,” and, “Get off me.” The offender did not verbally respond or react physically.

11. The offender then had penile/vaginal intercourse with the victim for a period of time, causing pain to the victim. The victim did not consent to the sexual intercourse with the offender and the offender was reckless as to whether or not the victim was consenting.

12. The offender did not use a condom.

13. The victim managed to push the offender off her before getting dressed and fleeing from the unit. The victim returned to the unit they had each been visiting and told the occupant of that unit that the offender had just tried to rape her. The victim then returned to her own unit, locked herself inside, and contacted police.

14. Shortly thereafter the offender left the unit complex with his brother.

15. The victim was transported to the Albury Base Hospital where she underwent a forensic examination. She complained of soreness to her vaginal area as a result of the assault and informed medical staff that she did not consent to any sexual act with the offender. No injuries were observed on examination of her body or genitals.

16. At about 4.20am on Thursday 4 May 2017, police attended premises in Alemein Court, North Albury, and arrested the offender and took him into custody.

17. There is no information before me as to the age of the victim; however I take it from the facts that it is most likely that she was a mature adult.

18. Ms Mendes on behalf of the offender submits that the matter is slightly below the midrange. The Crown has submitted that the matter can be regarded as midrange. In the circumstances of the offending there could have been no significant premeditation of the offence and it appears to have been relatively spontaneous, either at a time after they had entered the repainted unit or perhaps slightly before, when each was visiting the other unit of the complex.

19. The offender used force against the victim and ignored her request that he get off her after he had forced her to the ground and lay on top of her. There is no evidence of any significant injury to the complainant, and provided to the Court as part of Exhibit 1 is a Victim Impact Statement. I accept that the victim has suffered ongoing consequences from the offence committed against her. Those consequences are, in my view, to be entirely expected, and within the range of the ordinary results of offending of this nature.

20. I accept that she will no doubt continue to have adverse effects for a period of time and there can be no determination as to how long that may last for, or whether those effects will ever abate, but they are, as I have said, however, entirely within the range of what can ordinarily be expected as a consequence. I accept in the circumstances that the matter falls slightly below the midrange. In respect of subjective matters the following material is available to the Court: the offender’s criminal history; a New South Wales Department of Corrective Services Conviction, Sentence, and Appeals Report; a psychology report under the hand of Laura Durkin, dated 26 July 2019; a letter from a friend of the offender, Ms Donna Humphries, dated 26 August 2019; and a letter from Billy Gannon, a psychologist, dated 27 August 2019.

21. Subjective matters are drawn from that material. The offender did not give evidence on sentence. I note that although the offender has a number of offences in the past, none of them have resulted in sentences of imprisonment, and all have been dealt with in the Local Court, or Children’s Court. Of significance is the fact that the offender is now some 55 years of age and he has not criminally offended at all since 2003, and significantly no offending in the past that could be relevant to the issue of sentence for this offence.

22. Indeed, it is difficult to understand, when one looks at his subjective matters and lack of past offending, how it is that a 55 year old, or 53 year old at the time, committed this offence. His past record contains no clues that might enlighten the subject. He remains well regarded by Donna Humphries. He has been engaging in psychological assistance from Mr Gannon since 7 August 2018. He attended once a fortnight for a total of nine visits with some gaps. He had apparently been first referred under a Mental Health Care Plan dated 30 May 2018.

23. The letter from Mr Gannon, in my view, does not really disclose what it is that he is assisting the offender with. It contains the following:

24. “Mr Mills has attended all sessions with a willingness to disclose and discuss difficult circumstances throughout his life and work on strategies to manage his mental health and on improving his behaviour. He has shown a willingness towards improvement and I believe this attitude would serve him well towards the path of rehabilitation.”

25. There is nothing in the report from the psychologist that indicates that he has been endeavouring to assist him in relation to reducing the risk of sexual reoffending.

26. I note that having been in custody after arrest on 4 May 2017 until 7 December 2017, he was then granted conditional bail which required him to report to police daily and abstain from drinking alcohol. There is no suggestion that he breached the conditions of his bail at any time, and I note that that is supported by the letter to the Court from Donna Humphries, in particular in relation to his having ceased consuming alcohol.

27. He was at liberty from 7 December to 26 February when the plea was entered and bail was refused. Why it has taken from the entry of the plea until last week to actually be listed for sentence I am unaware, but he has been in custody since bail was refused on entering the plea of guilty.

28. The offender was born and raised in Albury as the youngest of three children. When he was 15 years of age, his parents’ relationship broke down due to domestic violence and his father’s abuse of alcohol. He described his mother as a great parent and his father as a violent alcoholic who on occasions had to be restrained by the offender’s older brothers from assaulting their mother.

29. After his parents’ separation they shared joint custody of the children and the offender lived between each of their residences. Unfortunately his brothers were apparently often engaged in antisocial conduct or incarcerated. In more recent times the offender has acted as a brother’s carer in the last years of his life, that brother now being deceased. Until he was incarcerated in relation to these matters while on remand he was his eldest brother’s carer. His eldest brother suffers from advanced cancer.

30. When the offender was under the age of 12 there was some sexually inappropriate behaviour towards him from his eldest brother. The offender moved out of home at the age of 24. He had discontinued his education in the first term of Year 8 because he wanted to commence work and had secured a job which he started immediately after terminating study. However, the job lasted only three days before he became unwell. He has, however, been employed in various labouring roles, including with his father as a concrete labourer. When he was 24, a person he knew through one of his former partners began training him to become a painter, and eventually he was provided with formal qualifications in painting through the Western Sydney University.

31. He has worked mostly as a painter since that time, generally as a sole trader or a subcontractor, but has also been employed as a handyman. He has, however, had numerous periods of employment throughout his career, and when he became his now-deceased brother’s carer in mid‑2016 he ceased work and was receiving a carer’s pension. I note that at least at the time of the offending he was the handyman at the unit block in which he was living. He is said to have had some five significant intimate relationships during the course of his life, which are said to have been adversely affected from time to time by his abuse of alcohol and cannabis.

32. As a result of his previous relationships he has had four children to three different partners, the children being now aged 30, 22, 19, and 17. From time to time he has had custody of some of the children, and at the time of this offending he had his 19 year old son in his care, although their relationship was under strain at the time. In mid‑2014 he had commenced his fifth significant relationship, although the relationship is said to have lacked emotional and physical intimacy. They lived independently of each other for much of their relationship. In early 2017, only months prior to this offending, the relationship was terminated due to the ongoing difficulties with intimacy. The psychological report contains the following in relation to the offender’s view in relation to the issue of consent:

“Discussion of the issue of consent was challenging with Mr Mills. He appeared to have a basic and rigid understanding of the term and seemed to believe that only a verbal expression of non‑consent was necessary. He appeared unaware that non‑verbal cues might indicate a lack of consent, or that psychological factors might affect a person’s ability or willingness to consent. He also struggled considerably to identify what factors might affect a person’s ability to consent, and he had a poor understanding of what constituted forced sexual contact.

Indeed, Mr Mills believed that only physically forcing or verbally intimidating a person was abusive, and he was unaware that intellectual impairment might compromise a person’s ability to consent. Moreover, he was unaware of why a child might be unable to consent, and suggested that by contrast a child may be able to consent to sex. It is evident his understanding of the issue of consent is limited and distorted and that he requires support in understanding the nuance of this issue.”

33. Also of concern is the content of the report at para 43, when dealing with the offences:

“While Mr Mills said that he accepts responsibility for his offending and he is remorseful and regretful, he was unable to demonstrate that. Indeed, during further discussion he minimised his conduct and engaged in victim blaming, and his account revealed notable cognitive distortions and a lack of insight into what constitutes sexual abuse. Such comments are not uncommon in untreated individuals, but will require addressing through intervention.”

34. His explanation as to his commission of the crime was that he was lonely at the time and he wanted affection and intimacy, as he was then struggling emotionally to cope with the separation from his partner and the recent death of his brother. He acknowledged that he misread the situation. As indicated in the facts, the offender was intoxicated at the time, but that is not an excuse for his conduct. There is no suggestion that he was affected by prohibited drugs at the time, although I note that it was his use of cannabis that had frequently caused the deterioration of his relationships, and he is said by the age of 11 to have commenced using cannabis and using it regularly until he was 16 years of age at a rate of 2 grams a week.

35. He did not cease use of cannabis until he was in his mid‑40s, by which stage he had been smoking up to an ounce a week. At the time that he ceased it, at 45 years of age, he was struggling to consume it without ill effects. He had commenced to use alcohol at the age of 12, and that became problematic while he was in his 20s. At the age of 28 he was binge drinking and in his late 40s his intake increased significantly. I note that one of the conditions of his bail in respect of this matter was that he not drink alcohol, and I accept that he managed to comply with his bail conditions.

36. He was apparently introduced to the use of amphetamines when he was 16 years of age and within a year he was using speed every few days and consuming up to two grams a day until he was 27 years of age, at which time he ceased using it. Between the ages of 17 and 27 he used heroin recreationally up to four times a month, but did not develop dependence. He has also experimented with cocaine, hallucinogens, LSD, and psilocybin mushrooms. Whilst subject to the bail conditions he apparently had no difficulty in ceasing completely the use of alcohol.

37. Ms Durkin assessed the offender as posing a moderate risk of reoffending. In view of his lack of any relevant criminal history and his age, I find that his risk of reoffending is low, particularly if he receives some assistance and/or appropriate training in relation to the concept of consent. I accept in the circumstances that he has a reasonably good prospect of rehabilitation. As to remorse and contrition, a plea of guilty in itself does not necessarily indicate remorse or contrition, and I note that although he is referred to having expressed such to the psychologist in the passage I previously quoted, which in my view indicates a lack of genuine remorse or contrition, also taking into account that the offending occurred on 3 May 2017 and it was not until 26 February 2019 that a plea was finally entered.

38. Offences of this nature must always be regarded seriously. It is why the legislature has provided for a significant term of imprisonment available as the maximum, that is, 14 years, and similarly why the standard non‑parole period has been set at seven years, although the standard non‑parole period is not as relevant in relation to matters where a plea of guilty is entered as it is to matters where there is a plea of not guilty. However, the standard non‑parole period remains a guidepost for the Court’s consideration, just as does the maximum penalty available.

39. I have taken all of those matters into account. I acknowledge that there is a need for any sentence imposed to provide both general deterrence and specific deterrence. Taking all of those matters into account, it is clear that the s 5 threshold has been passed, as is appropriately conceded by Ms Mendes on behalf of the offender. I intend to find special circumstances because this will be the offender’s first custodial sentence at the age of 55, and because, as I perceive it, although he has engaged to some extent with a psychologist, his long term prospects would be best enhanced by a longer period of parole to assist him with treatment for his history of alcohol abuse and, in particular, counselling in relation to sexual offending.

40. Accordingly, I will significantly reduce the non‑parole period from the statutory relationship to the balance of term.

41. Mr Mills, would you please stand? You are convicted in relation to the offence of sexual intercourse without consent contrary to s 61I of the Crimes Act. You are sentenced to a non‑parole period of two years. That will commence, taking into account all of the time you have previously spent in custody, on 23 July 2018, and you will be first eligible for parole on 22 July 2020. The balance of term is two years. Expressed in other terms, that is a four year sentence with a two year non‑parole period, so the total sentence will expire on 22 July 2022.

42. I am sure that, having been in custody for some time, you would understand that you are likely to be released on parole on 22 July 2020. In the meantime, while in custody you should take advantage of any particular programs that are available.

OFFENDER: I will, your Honour.

HIS HONOUR: Particularly in relation to sex offending. All right, is there anything ‑ please take a seat.

MENDES: Not on my part, your Honour, may it please the Court.

HIS HONOUR: All right, I’ll adjourn.

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Decision last updated: 21 February 2020