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Court of Criminal Appeal 17 June 2019

Milliner v R

[2019] NSWCCA 127

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CRIMES ACT 1900 (NSW) S 66EB WHETHER ERROR IN LEVEL OF ACCUMULATION

Citation: Milliner v R [2019] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 17 June 2019
Judges: Leeming JA, Hamill J, N Adams J (unanimous)

Background

The appellant had pleaded guilty in the District Court to two offences under s 66EB of the Crimes Act 1900 (NSW), both carrying a maximum penalty of 15 years' imprisonment. The offending involved extended online communications with what the appellant believed was a mother willing to facilitate sexual access to her 11-year-old daughter. In fact, the online profile was operated by NSW Police officers from the Child Exploitation Internet Unit, and the child was entirely fictitious.

Over a period of approximately five months, the appellant engaged in detailed discussions about sexual acts he intended to perform with both the mother and child, purchased a vibrator for the supposed child, and ultimately travelled to an address where he believed the pair resided. Police arrested him on arrival on 5 April 2016.

The two counts reflected distinct aspects of the conduct: Count 1 was attempting to procure a child under 14 for unlawful sexual activity, and Count 2 was travelling with intent to meet a child under 14 whom he had groomed for unlawful sexual activity, with the additional element of intending to procure the child for activity with himself and another person.

  • Whether the sentencing judge erred in the degree of accumulation applied between the two sentences (two years' accumulation rather than some lesser period)
  • Whether the total effective sentence of eight years (non-parole period of five years) was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, but only on the first ground. N Adams J (with whom Leeming JA and Hamill J agreed) found no error in the individual sentences imposed for each count, accepting that the offending was objectively serious, that general deterrence was a primary sentencing consideration for sexually predatory conduct towards children, and that the nature of the intended sexual activity was relevant to the objective seriousness assessment.

On the accumulation question, the Court accepted that some degree of accumulation was necessary to avoid the sentence failing to reflect the total criminality of two distinct offences. However, N Adams J concluded that two years' accumulation was excessive given the degree of overlap between the two counts. Both offences arose from the same course of conduct, and applying the totality principle, the Court found that one year of accumulation adequately captured the overall criminality.

The second ground, manifest excess, was not separately upheld. The reduction in total sentence flowed from the adjustment to accumulation rather than any finding that the individual sentences were themselves too high. The Court confirmed that the fictitious nature of the child did not reduce the seriousness of the offending, consistent with established authority that such offences are no less reprehensible when the offender believes the child to be real.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentences imposed at first instance quashed
  • Count 1: imprisonment comprising a non-parole period of 3 years from 5 April 2016 (expiring 4 April 2019) and a balance of term of 2 years commencing 5 April 2019
  • Count 2: imprisonment comprising a non-parole period of 3 years from 5 April 2017 (expiring 4 April 2020) and a balance of term of 3 years commencing 5 April 2020
  • Overall effective sentence: non-parole period of 4 years from 5 April 2016 (expiring 4 April 2020) and a balance of term of 3 years; eligible for parole on 4 April 2020

Key Takeaways

  • Under s 66EB of the Crimes Act 1900 (NSW), offences involving a fictitious child are treated with the same objective seriousness as those involving a real child, provided the offender genuinely believed the child existed.
  • General deterrence operates as a primary sentencing consideration for sexually predatory conduct directed at children, a principle the Court of Criminal Appeal reaffirmed by reference to R v De Leeuw [2015] NSWCCA 183.
  • Where multiple counts arise from the same course of conduct, the totality principle requires that the degree of accumulation reflect, but not overstate, the distinct criminality of each offence. The Court reduced the accumulation period from two years to one year on this basis.
  • No error was established in the individual sentences for each count; the appeal succeeded only on the narrower question of how those sentences were combined.
  • The nature of the sexual activity proposed or intended is a relevant factor in assessing the objective gravity of procurement and grooming offences, consistent with Tector v Regina [2008] NSWCCA 151.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EB, 344A
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), s 474.26

Cases
- Cahyadi v R [2007] NSWCCA 1
- DL v The Queen [2018] HCA 32; (2018) 92 ALJR 464
- Greenyer v R [2016] NSWCCA 272
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Rampley v R [2010] NSWCCA 293
- Regina v XX [2009] NSWCCA 115
- R v De Leeuw [2015] NSWCCA 183
- Tector v Regina [2008] NSWCCA 151
- ZA v R [2018] NSWCCA 116