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District Court 15 February 2018

R v Milliner

[2018] NSWDC 324

Sexual offences
CRIMINAL LAW MITIGATING FACTORS AGGRAVATING FACTORS CIRCUMSTANCES OBJECTIVE SERIOUSNESS SENTENCE PRINCIPLES

Citation: R v Milliner [2018] NSWDC 324
Court: District Court of New South Wales
Date: 15 February 2018
Judge: Scotting DCJ

Background

The offender pleaded guilty to two offences under the Crimes Act 1900. The first was attempting to intentionally procure a child under the age of 14 years for unlawful sexual activity (s 66EB(2)). The second was travelling with the intention of meeting a child under 14 whom he had groomed for unlawful sexual activity, with the intention of procuring her for sexual activity involving himself and another person (s 66EB(2A)).

Both offences arose from a covert police operation. Officers from the NSW Police Child Exploitation Internet Unit had created an undercover profile on an adult social networking site, posing as a 34-year-old woman with an 11-year-old daughter. From October 2015, the offender engaged in extensive online and telephone communications with the undercover profile, during which he described in explicit detail the sexual acts he intended to perform on the fictitious child and her mother.

Over several months the offender discussed grooming methods, purchased a vibrator that he indicated was intended for use on the child, and progressed toward arranging an in-person meeting. He was arrested on 5 April 2016.

  • What was the appropriate sentence for each count, having regard to objective seriousness, standard non-parole period (applying to the second count), and all relevant sentencing factors?
  • What weight should be given to mitigating factors, including prior good character, the offender's mental health (PTSD), addiction to prescription medication, rehabilitation, and remorse?
  • What discount applied for the guilty plea entered in the District Court, and what was its utilitarian value in the circumstances?
  • Whether special circumstances existed warranting a departure from the default ratio of non-parole period to additional term.

Decision

Scotting DCJ found the offending to be serious. The communications were sustained over several months, involved detailed planning, included the purchase of a sexual device intended for use on a child, and contemplated sexual acts of significant gravity against a child of 11. The offending was premeditated rather than opportunistic.

In mitigation, the judge accepted that the offender had no prior criminal history, had experienced genuine PTSD and prescription medication addiction at the time of offending, had since taken meaningful steps toward rehabilitation, and was in stable employment and a stable relationship. The court was satisfied on the balance of probabilities that the offender was unlikely to reoffend.

The guilty plea was entered in the District Court. The Crown acknowledged the bill had not been found until shortly before the plea, and His Honour accepted there was significant utilitarian value in the plea in the overall circumstances, applying a discount of 20 per cent. The plea was also taken as indicative of remorse, consistent with R v Borkowski.

A finding of special circumstances was made on the basis that this was the offender's first period of custody and that his mental health condition would benefit from a longer period of supervision on parole, with treatment more readily accessible in the community.

Orders Made

  • Count 1 (attempt to procure): imprisonment with a non-parole period of 3 years commencing 5 April 2016, expiring 4 April 2019, and an additional term of 2 years expiring 4 April 2021.
  • Count 2 (travel to meet child following grooming): imprisonment with a non-parole period of 3 years commencing 5 April 2018, expiring 4 April 2021, and an additional term of 3 years expiring 4 April 2024.
  • Overall effective sentence: non-parole period of 5 years with an additional term of 3 years (total 8 years).
  • Earliest eligible release to parole: 4 April 2021.

Key Takeaways

  • The District Court confirmed that sustained online grooming, accompanied by detailed planning and the acquisition of items intended for use on a child, will be treated as serious offending warranting full-time imprisonment, even in the absence of any actual child victim.
  • A standard non-parole period of 6 years applies under the Crimes Act 1900 to the substantive offence of travelling to meet a child following grooming (s 66EB(2A)), and functions as a legislative guidepost the sentencing court must take into account, though it does not apply to an attempt offence under s 66EB(2).
  • Mitigating factors such as good character, mental illness (PTSD), and rehabilitation can reduce sentence length, but they do not displace the need for imprisonment where the offending is sufficiently serious.
  • A 20 per cent guilty plea discount was applied where the bill was not found until shortly before the plea, reflecting the significant utilitarian value of the plea in the particular procedural circumstances.
  • Special circumstances can be established where first-time custody, combined with a diagnosed mental health condition requiring ongoing treatment, points to the benefit of an extended parole period for community-based rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EB(2), 66EB(2A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(3)(k), 22

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1