DPP v Miller

3 You met the victim in 2012 and developed a friendship, becoming closer friends in around 2017. You and the victim have never been in an intimate relationship. She was 26-27 years old at the time of your offending.

4 The victim resided at a house in Doveton. You moved into the house in January 2020, as a housemate. You had an informal rental agreement with the victim, where you would transfer money to her, each fortnight. You occupied separate bedrooms in the house.

5 While you lived together you and the victim would spend time together in your bedrooms. It was normal for you and the victim to watch a movie, while lying in her bed. You did not, however, have free access to the victim's bedroom while you were living in the house. There was no agreement, at any time, for you to take or move any of the victim's belongings, outside of what might reasonably have been expected from a housemate.

6 You and the victim would use drugs together, including methylamphetamine, GHB (also referred to as "juice"), and Xanax.

7 When you moved into the Doveton house, you used a Samsung mobile phone.

8 On numerous occasions between 16 January and 17 April 2020, you went through the victim's personal property, moved her belongings, and photographed them from different angles. You did this without her knowledge or permission.

9 On 8 February 2020, between 6.29pm and 9.43pm, you took 29 photographs of the victim while she was unconscious or asleep in her bed, using your mobile phone. The photographs were taken at various angles. The victim was lying on top of her sheets, wearing a grey G-string and a pink top. The images included close ups of the victim's buttocks and groin area, taken from various angles. The victim remained unaware of the photographs until after your arrest.

10 On 25 April 2020, the victim asked you to move out, as you had brought an unwelcome former partner of hers into the house. She considered this to be a breach of trust. Once you moved out you maintained contact with the victim but spent far less time together.

11 On 8 May 2020, you and the victim spent time together, "to party". The victim used drugs throughout the evening.

12 At 6.15pm, you recorded a three and a half minute video on your mobile phone, while you were in the victim's bedroom. The video depicts the victim walking around the room, wearing a black crop top and a light coloured G-string, while talking on a mobile phone. She refers to you by a nickname and as "my bestie".

13 At 10.33pm on the same evening you recorded a 47-second video on your mobile phone. The video depicts the victim, in the same G-string, bending over a couch while talking on a mobile phone. On the phone, she says, "as you know, I'm highly juicy". This is a reference to having used GHB, or "juice".

14 On the same date, you were in the victim's bedroom. You took a series of photographs and videos of the victim while she was unconscious in her bed. The victim was wearing a black, long-sleeved body suit, which was clipped at the crotch, a light coloured G-string, and a light grey skirt.

15 At 11.10pm, you recorded a video on your mobile phone that depicts the bottom half of the victim, lying face down on her bed, wearing the grey skirt. You both make a moaning sound, and the victim kicks her legs out.

16 At 11.11pm, you recorded another video of 33 seconds. The video shows the bottom half of the victim lying on her stomach on her bed, wearing the grey skirt. You say, "oh hey", "oi", and "babe". You move the camera very close to the area of the victim's crotch. The victim does not make a sound or move.

17 At 11.13pm, a further recording depicts the victim lying on her back, wearing the grey skirt. You lightly kick the victim's right leg using your right foot, saying "oi". The victim is snoring softly, and does not reply or move. You then move the camera to reveal the victim's torso and face. The victim is wearing a black body suit, clipped at the front and covering her underwear. You zoom in close to the victim's crotch area, which is still covered, and then pan up to show her face while she continues to snore and not move.

18 A further recording at 11.16pm shows the bottom half of the victim, lying on her back and wearing the grey skirt. She is snoring and does not move, as you film her body and crotch area.

19 At that moment in her life, the victim was totally vulnerable. You took advantage of her vulnerability. Your conduct was predatory.

• A close-up of the victim's exposed vagina, with her underwear and body suit pulled to the left;

• Your left hand moving towards the victim's vagina;

• Your pointer and middle fingers separating the victim's labia majora and rubbing her vaginal area;

• Your middle finger touching the victim's clitoral area;

• Your fingers rubbing along the inside of the victim's vagina, as the video pans away from her vagina;

• The back of your hand rubbing up and down her vagina; and

21 The victim does not move throughout the recording. She can be heard snoring.

22 A photograph taken by you at 11.37pm depicts the victim's exposed vagina and shows you pulling her underwear to the left and the back of your left knuckle.

23 At 12.45am on 9 May 2020, the victim was unconscious in her bed. She was on her left side, with her skirt pulled up and her buttocks and groin partially exposed. You photographed her from several different angles.

24 In the daytime on 9 May 2020, the victim woke to find you rubbing yourself against her leg, using a grinding motion. She was shocked and confronted you. You responded by saying, "Oh my God, that was weird, I must have been dreaming or something".

25 On 26 August 2020, police attended at your address for an unrelated purpose and seized your phone. Relevant images and videos were located. Police contacted the victim to discuss her involvement with your offending. She confirmed that she did not consent to the sexual touching.

26 On 22 October 2020, investigators executed a search warrant at your address. Items including clothing, underwear, bank cards, make-up, jewellery, accessories and other personal items belonging to the victim were all located. You admitted to police that you had taken these items.

27 You were arrested and charged with these offences on 22 October 2020 and remanded in custody. You have now spent 406 days in pre-sentence detention.

28 Your case proceeded by way of straight hand-up brief, and you pleaded not guilty on 6 August 2021. A case conference was conducted on 21 September 2021 and resolved soon after. An updated indictment was filed, and you entered your pleas of guilty on 26 October 2021.

29 Your plea has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You are entitled to the full benefit for your guilty plea to the current indictment.

30 Although you made a "no comment" record of interview, you have not disputed that you were responsible for secretly taking the photographs and videos, nor the identity of the victim. There have been ongoing discussions about the appropriate charges, as there was a dispute as to whether sexual penetration occurred. You denied that it did. This more serious charge was ultimately discontinued and your plea of guilty was then entered.

31 Your guilty plea has facilitated the efficient administration of justice. This is particularly relevant, given the delay in jury trials that has resulted from the COVID-19 pandemic. I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered during the pandemic. The prosecution agrees that a plea of guilty entered at the current time should attract a more pronounced amelioration of sentence than at another time.

32 Your plea of guilty also demonstrates an acceptance of responsibility for your offending. Your counsel submits that it is consistent with remorse. I accept this submission and will return to the aspect of remorse later in these reasons.

33 Sexual offences are crimes of violence that cause harm to a victim. In this case, the victim had been a close friend of yours for several years. She described you as "her bestie". Your offending occurred at her home, in her bedroom, where she should have been safe and secure. You had access to her and to her property, by taking advantage of your friendship with each other. Your misconduct occurred during a four month period.

34 The sexual assaults occurred on 8 and 9 May 2020. The victim had no recollection whatsoever of your offending on 8 May. It is clear from the recordings that commenced at 11.11pm, that the victim was not alert; you sexually assaulted her soon after.

35 The victim was affected by drugs and had passed out on her bed. I am told that you were also affected by drugs of dependence at that time. While it is not suggested by the prosecution that you plied the victim with drugs in order to achieve this offending, you did take advantage of her when she had passed out. You video recorded the victim several times in the lead up to your touching and rubbing her most intimate genital area. You recorded the sexual assault for your voyeuristic pleasure.

36 She did recall waking up on 9 May to find you simulating intercourse. She was shocked and confronted you.

37 Both summary offences occurred on separate occasions while the victim was unconscious or asleep in her bed.

38 In relation to the charge of theft, while the monetary value of the property that you stole was not extensive, the items are reflective of your ongoing sexual deviancy, as you found women's underwear and other items sexually appealing. This offending is also reflective of your level of fixation on the victim.

39 A Victim Impact Statement, dated 17 November 2021, has been provided and was read to the Court by the victim. It is clear that the victim remains emotionally distraught by your conduct. She has been betrayed by a person that she trusted so much. She previously held you in very high regard, and your betrayal of her has left her feeling violated.

40 She feels angry, sad, depressed, worthless and useless. She has sought professional assistance to try to overcome the residual effect of your misconduct. She previously worked with you for seven years and now feels that she is unable to trust any colleagues. Her distress has caused a number of symptoms that make it difficult for her to return to work. She writes that you were her best friend and, in damaging that relationship, she struggles to deal with the consequences and the impact that it has on her life. She believes that your conduct will continue to affect her.

41 I take the Victim Impact Statement into account. I hope that the victim will not let your sexual offending continue to define her, that she will be able to put your conduct behind her and look forward to a more positive future. I note that at the end of her statement she writes "I just want the old [me] back". I hope that this can occur.

42 You were born in Colombo, Sri Lanka, in June 1984. You were 35 years of age at the time of your offending and are now 37 years old.

43 Your family moved to Australia in 1987, when you were three years of age. You grew up as part of a loving and supportive family. You are the younger of two sons and remain in a close relationship with your parents, who were present at your plea hearing. You have had limited contact with your brother since you were remanded. You have not been in an intimate relationship for around eight years, and you have no children.

44 Your parents both managed to access employment within a relatively short time of their arrival in Australia. You grew up in the Noble Park area and successfully completed Year 12, before commencing a business and marketing course at the Holmesglen TAFE. You left after the first year was completed.

45 You enjoyed participating in competitive cricket throughout your time at school, as well as playing tennis and table tennis. You hope to return to playing cricket when you are released from custody.

46 You have a strong history of employment, commencing work at the age of 14 at the local supermarket, and working in sales at various stores until around the age of 20 years. You then commenced working in various call centres for over a decade. You made many friends in this industry, including the victim.

47 At the age of 34 you started to work in a car dealership with your brother. You were laid off when the COVID-19 pandemic broke out in 2020, and were in receipt of JobSeeker for some time. You had arranged to commence further employment as a customer care consultant on 26 October 2020. However, this did not commence, as you were in custody at that time.

48 You first used drugs when at school, smoking cannabis at parties from the age of 14. Your cannabis use continued and became more regular until you were around 25 years old. You started to use methylamphetamine at the age of 23 and did so until the time of your arrest. You would socialise with your work colleagues and regularly use methylamphetamine.

49 You have also used ecstasy, cocaine, ketamine and GHB. You used Xanax a few times prior to your arrest. You have been abstinent from drug use while in custody and propose to engage in drug counselling upon your release.

50 You have one previous appearance in the Magistrates' Court in December 2019, where you pleaded guilty to five charges including two charges of possession of methylamphetamine, and received a fine with conviction. Your criminal history does not relate to sexual misconduct.

51 The current offences demonstrate an escalation in the seriousness of your offending. It is conceded that your sexual offending is not at the lower end of this type of offending. Your counsel submitted that it is mid-range or slightly above a mid-range example of sexual assault offending. You accept and acknowledge the seriousness of your criminal misconduct and you have not applied for bail since you were charged. You report that you were drug affected at the time, but that you knew your actions were wrong. You understand that the victim would have felt "creeped out", and you accept that your behaviour was a breach of trust.

52 In May 2021, with the assistance of your family, you commenced treatment with Mr Peter Hanley, psychologist. A report that has been prepared for Court, dated 18 November 2021, confirms that you have engaged in seven sessions via teleconference while you have been on remand at the Hopkins Correctional Centre. You have participated in treatment that has focused on addressing your offending behaviour.

53 Mr Hanley writes that you presented as an emotionally and socially immature man. You reported a history of illicit drug use, including methylamphetamine, which you used to enhance your sexual fantasies. You said that you had developed an interest in collecting women's underwear and other items associated with women that you found sexually appealing, suggestive of a fetishistic disorder.

54 You expressed regret for your offending behaviour and readily acknowledged your need for professional help. Further, that there was no excuse for your decision to sexually assault the victim.

55 You were accepted into the Sex Offender Treatment Program (SOTP). Your treatment has focused on the goals of developing your insight into the motivations and emotions that underpinned your offending, developing cognitive and behavioural strategies for managing your paraphilic fantasies and behaviours, improving your interpersonal skills, enhancing your understanding of the impact of sexual violence on victims, and developing relapse prevention strategies to reduce your risk of drug use and sexual recidivism.

56 You admitted that you had not treated women with respect. You explained that your underwear fetish had become a substitute for genuine relationships with women, and that you had ultimately pursued women as a means of facilitating your paraphilic interests.

57 When speaking to Mr Hanley, you provided an explanation for your offending, saying that you were attracted to the victim but felt unable to pursue her sexually. The use of methylamphetamine had enhanced the intensity of sexual fantasies you were having about her. You have expressed a desire to participate in drug and alcohol treatment, and to participate in ongoing treatment to address your sexual and behavioural problems.

58 In Mr Hanley's view you have made promising progress in the early stages of sex offender treatment. You have expressed the desire to apply skills learned during treatment to reduce your risk of re-offending. You have demonstrated development of insight into the nature of your sexual and interpersonal problems and taken steps to address them. Your offending and pattern of reported collecting of underwear points to deeply entrenched psychosexual problems, which appear to relate to maladaptive personality traits and interpersonal skill deficits. Your treatment needs are complex, but you have been responsive to treatment. Mr Hanley is willing to continue to provide the SOTP for you, whether you are in custody or back in the community and he expects that you will continue to make progress.

59 At the request of your solicitor, you were assessed by Ms Carla Lechner, clinical psychologist. In a report prepared for the Court dated 9 November 2021, Ms Lechner noted that you emanate from a stable family background and have a largely steady history of employment. For the past 10 years you have struggled with ice addiction. Drug use increased your level of self-confidence and your sexual appetite, and you developed a "secret life of fetishism". Ms Lechner agreed with Mr Hanley's diagnosis that you have a psychosexual disorder in addition to drug addiction problems.

• You fulfil the criteria of a dual diagnosis of stimulant use disorder in early remission in a controlled environment, and fetishistic and voyeuristic disorder;

• You currently report symptoms of severe psychological distress and moderate depression and anxiety;

• Your symptoms are of sufficient severity to warrant a diagnosis of adjustment disorder with mixed depression and anxiety, mostly reactive to being in prison;

• You have found the prison environment extremely challenging. The symptoms of depression and anxiety are not likely to abate in the short term;

• You have acknowledged your offending and made no attempt to minimise your responsibility or seriousness of your actions;

• You stated that even though you were drug-affected at the time, you knew that your behaviour was wrong;

• You expressed shame and regret for your actions and appropriate victim empathy. You have made no excuse for your offending;

• You demonstrated a good understanding that your actions constituted a breach of trust with the victim, adding that you thought she would be "creeped out" by the theft;

• You have a good capacity to engage in reflective and consequential thinking when not substance-affected;

• You have shown insight into your offending conduct;

• In the course of your interview, you spoke candidly about your sexually-based problems;

• You are aware that your sexual interests are deviant and are working with your psychologist in this regard;

• You stated that you stole the victim's personal items because you were fixated on her, and that you would sometimes look at the items for sexual arousal purposes;

• While in custody you have been focused on your rehabilitation;

• Upon your release into the community, it is strongly recommended that you continue psychological work with Mr Hanley and that you engage with AOD counselling supports;

• In Ms Lechner's view, you are strongly motivated to change your behaviour, but the real test of your resolve will be when you are back in the community

61 A number of references have been provided on your behalf. Your parents are aware of your current circumstances and remain supportive of you. They are at a loss to understand your sexual offending. Other family members and a friend describe you as a popular, caring, fun-loving person. They were shocked and surprised to hear of your offending behaviour. It is clear that they, too, provide support for you. You are most fortunate in that regard.

62 The references provided attest to your expressions of remorse and regret for your criminal offending. You acknowledge the effect that it has had on your parents and family. I accept that this is consistent with your plea of guilty. I also accept that your engagement in addressing your rehabilitation is relevant, as is your remorse. I am prepared to moderate your sentence to reflect these factors.

63 You have demonstrated the capacity to access professional support while in custody, to address your sexual deviancy. You intend to continue with appropriate treatment, which I consider is essential to address your risk of reoffending. Your compliance is in the best interests of the community. I note that there has not been a professional assessment of your risk of sexual reoffending. You hope to return to employment and to playing sport upon your release. You maintain the support from members of your family, and this will assist you in achieving your goals, although maintaining a drug-free lifestyle is also critical if you are to be successful. You have undertaken a period of self-reflection while in custody and developed a level of insight into your offending conduct. In my view, your prospects for rehabilitation are reasonably good, as long as you are compliant with treatment.

64 When considering the appropriate penalty, your counsel has submitted that a significant Community Correction Order would be appropriate and satisfy all the relevant sentencing requirements in your case. If I am not persuaded that this is appropriate, it was submitted that a combination sentencing disposition should be imposed here. If imposing a combination disposition, the maximum term of imprisonment left to be served after making such an order must be one year or less. You have spent 406 days in custody in pre-sentence detention.

65 The prosecution does not accept your counsel's submission, saying that the circumstances are too serious and that an immediate term of imprisonment with a non-parole period is the only appropriate disposition.

66 An assessment for a Community Correction Order was undertaken on 24 November 2021. When you presented to the assessing officer you showed insight into your offending conduct and the precursors to it. You were remorseful for your behaviour. You reported that you are prepared to access professional interventions to address your issues. Your family will provide you with financial support upon your release. You have been assessed as a high risk of general re-offending.

67 A mental health assessment was also conducted by Forensicare on

1 December 2021. You have not had contact with Forensicare in the past. You appeared to be genuinely motivated to address your issues, in order to improve your lifestyle and avoid any further contact with the criminal justice system. It was recommended that a mental health condition should be included in a Corrections Order.

68 You have been found suitable for a Corrections Order, you acknowledge that you have the capacity to comply with obligations and are willing to do so.

69 I take into account the maximum penalty for these offences and current sentencing practices. The principles of general deterrence, denunciation, punishment and protection of the community are all relevant sentencing considerations. I accept that specific deterrence is also relevant, in light of your conduct and your treating clinician's opinion that you have deeply entrenched psychosexual problems.

70 After careful consideration I am satisfied that a term of imprisonment must form part of the sentencing disposition, in light of the objective gravity of the offences.

71 It is accepted by the prosecution that additional restrictions in custody as a result of the COVID-19 pandemic are relevant to sentencing, consistent with the usual principles applicable to considering additional hardship in custody. This is in addition to your current mental health condition, being mixed depression and anxiety, mostly reactive to being in prison.

72 It is conceded by the prosecution that the fifth limb of Verdins has application,[2] and that there is an additional consideration, given the current environment in custody. I take that into account.

73 When you were first taken into custody you were required to spend two periods of 14 days in isolation in quarantine, as you moved from the Melbourne Assessment Prison to the Hopkins Correctional Facility. Over the past 12 months, imprisonment has been far more stressful for you than it would have been if you were in the community. The evolving nature of the pandemic has affected your capacity to receive any personal visits from family members or friends, which has increased the burden of imprisonment. The provision of educational and vocational courses has also been reduced over the current time. Overall, the measures taken by Corrections to deal with the pandemic have added to your hardship as a prisoner. I take this into account, particularly as this is the first time you have ever spent a period of time in custody. These hardships justify a sentencing benefit.

74 I take into account the maximum penalty for these offences and current sentencing practices. Both prosecution and defence counsel have noted that, given that this type of offence is commonly dealt with in the summary jurisdiction, it has been difficult to locate appropriate sentences in superior courts that do not also deal with more serious offending.

75 When imposing sentence, a court is obliged to give a proportionate individual sentence for each charge, regardless of whether the charges are allied with more serious offending. I have read the two County Court cases to which I was referred by your counsel.[3] They differ in many respects and I note that each case turns on its own facts.

76 I take into account the principle of totality, which is relevant and I have taken care not to doubly punish you for these offences. I accept that one related summary charge has some overlap with the sexual offending, given that you filmed the more serious sexual assault charge. The totality of the offending criminality must be appropriately reflected in the total effective sentence.

77 I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct. I am satisfied that a lengthy period of supervision is in your best interests, as well as in the interests of the community. Therefore, I will impose a combination disposition.

78 Balancing all these factors as best I can I sentence you as follows. Mr Miller, I will now go through the sentence on each charge and then the levels of cumulation and then go through a Corrections Order.**

79 The Corrections Order will be an 18 month order with conviction. It will relate to rehabilitation only for all the charges, being Charges 1, 2, 3 and both summary offences.

80 You are to be released on a Community Correction Order with conviction for 18 months. The conditions include:

• That you undergo drug and alcohol assessment and treatment as directed;

• That you undergo mental health assessment and treatment as directed;

• To participate in offending behaviour programs; and

81 The Corrections Order will commence upon your release from custody. You are to report to the Melbourne Community Correctional Service at 50 Franklin Street, Melbourne, either in person or via telephone within two days of your release.

82 Application for disposal has been made and granted.

83 HER HONOUR: Were there any further orders sought, Ms Holmes?

84 MS HOLMES: Could I just check Your Honour imposed two months on the summary Charge no.2 but I think that I missed - was that completely ‑ ‑ ‑

86 MS HOLMES: Yes. Thank you. I thought that must be the case but I just wanted to check.

87 HER HONOUR: I'll just go through the sentence again.

89 HER HONOUR: The charge of theft was three months and the CCO. It was one month cumulative on the base sentence. The second sexual assault was six months and a CCO, with two months cumulative. Then the CCO on the first summary offence and two months and a CCO on the second summary offence - that term of imprisonment is wholly concurrent.

92 MS HOLMES: Thank you. So, in effect he's got about 50 days left to serve before he comes out on the CCO.

97 HER HONOUR: Yes, the total effective sentence is one year and three months. Thank you.

99 HER HONOUR: All right. Mr Brennan, is there anything further that you want to raise?

101 HER HONOUR: All right. Can I confirm whether you have discussed with your client if he is prepared to comply with the Corrections Order? Would you like to go through it with him? If you've got the assessment report there, it will be that he is required to attend at the address in Franklin Street in Melbourne for the Corrections Order, once he's released from custody. It's a rehabilitation or therapeutic order only. I will step down for a moment and give you a chance to speak with your client to confirm that he understands the Corrections Order and whether he is prepared to comply with the order and then we'll resume. I'll just put Ms Holmes on standby for a moment, until you've had that opportunity, as you will need to give a verbal agreement for compliance. We'll just stand down.

102 HER HONOUR: Thank you, Mr Brennan, have you been through the corrections order with your client?

103 MR BRENNAN: Yes. I have, Your Honour and he consents to being placed on that order.

104 HER HONOUR: All right. Thank you. I'll confirm then that there's been an oral consent provided by Mr Miller. I hope he complies and makes progress on the order. We'll now adjourn the court. Thank you.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[3] DPP v Debenham [2021] VCC 949; DPP v Lay [2019] VCC 1629.

[4] Sentencing Act 1991 (Vic).