DPP v Millinga [2025] VCC 1236

1. You also admitted one related summary offence (Charge 5) of committing an indictable offence (aggravated burglary) whilst on bail. This charge carries a maximum penalty of 30 penalty units or three months' imprisonment.
2. You have admitted your criminal record.

1. The prosecution case at trial was that on the evening of 26 March 2022 you attended an apartment block at 199 William Street, Melbourne to visit your friend Andrew Gollan who lived in apartment 1608. CCTV footage of that evening showed you and Gollan in the lifts and foyer of the premises together.

1. The next morning, 27 March 2022 at approximately 5 am, CCTV footage showed you standing in the lobby area of the building. The victim, Coco Throsby, who had been living at apartment 813 for about three months, was observed exiting the lift and leaving the building to collect a food delivery. You were seen leaving the building at the same time. You and Ms Throsby were not previously known to one another. After Ms Throsby's food order was delivered, she re-entered the building using her fob access pass and you were observed on CCTV entering the building after her.

1. You were then shown entering the lift. You did not scan an access fob.

Ms Throsby entered the lift after you, scanned her access fob, and selected her level which was level 8. On reaching level 8, you stepped out of the lift first and turned left. Ms Throsby said she then exited the lift and turned right, and then you started walking in the same direction as her.

1. Ms Throsby testified that she recalled having a conversation with you in the hallway outside her apartment. She gave evidence that you were talking to her about the Mother Mary image she had on her phone case. She said she may also have had a conversation with you in the lift, but she wasn't sure. Ms Throsby testified that she told you before she opened the door that she was tired and just wanted to eat and sleep and she was only responding to you as she did not want to antagonise you. She said the conversation was calm and there was no yelling or swearing. She gave evidence that when she tried to close the door you pushed the apartment door open and entered her apartment (Charge 1 - aggravated burglary).
2. Ms Throsby gave evidence that after you entered her apartment, you pushed her down the hallway and into a bedroom where you pushed her and she fell onto a mattress on the floor landing on her back (Charge 2 - common assault). She said you were then on top of her and you had your hand over her mouth telling her you were going to teach her a lesson. Ms Throsby said she thought she was underneath you for two to three minutes. She said she eventually wriggled out and yelled at you and threatened to stab you as she said she was frightened, wanted you to know she was serious and to get out. Ms Throsby gave evidence that she screamed at you from your entry until your departure.
3. Ms Throsby testified that she called her sister in America, and her friend in Canada. Her sister encouraged her to report the offending, so she left her apartment, checking first to ensure that you were not in the vicinity and she went downstairs and told the night manager, Mr Blue what had happened. Mr Blue then called the police.

1. Police attended the apartment building at about 6.10 am and spoke with

Ms Throsby. They ascertained that there was no CCTV coverage of the residential hallways of the apartment building. From around 8 am police conducted doorknocks of neighbouring apartments, and one resident Ms Newton testified she had heard two voices shouting and yelling coming Ms Throsby's apartment between 5 am and 7 am.

1. I am cognisant that when sentencing following a conviction by jury, a sentencing judge must interpret the facts in a way that is consistent with the jury's verdict.[1] Further, any adverse findings of fact I make, I must find beyond reasonable doubt.[2]
2. It was made very clear to the jury in the closing addresses and in my directions that there was only one element in dispute in the trial on the aggravated burglary charge. It was not in dispute that you entered a part of a building - in this case, the victim's apartment. It was not in dispute that you entered the complainant's apartment as a trespasser, as you had no permission or authority to enter, and you knew that you had no right or authority to enter. It was not in dispute that when you entered the apartment Throsby was present, nor was it in dispute that you knew she was present when you entered. The only issue in dispute was whether when you entered the apartment, you intended to assault Ms Throsby. It was made abundantly clear to the jury that it was your intention at this point only that was to be assessed. The prosecution asked the jury to infer the intent for which you entered the apartment from your post-entry conduct, most relevantly, that after you pushed the door open and entered you assaulted Ms Throsby.
3. By its verdict the jury must have found that the prosecution had proved beyond reasonable doubt that at the time you entered the complainant's apartment - not at the time you were anywhere else such as in the hallway outside - you intended to apply force to Ms Throsby's body, and I sentence you on this basis.
4. In terms of the second charge - common assault - it was not disputed by your counsel that you put your hands on Ms Throsby in the bedroom and pushed her backwards - that you applied force to Ms Throsby's body. Your counsel did not specifically address what your intention was at that time, telling the jury it was a matter for them to be satisfied that the Crown has proved the elements of the charge. In terms of the third element, it was not suggested that there was any lawful justification or excuse for you to have pushed Ms Throsby.
5. By its verdict, the jury clearly found that the prosecution had proved beyond reasonable doubt that you committed the offence of common assault by pushing Ms Throsby to the ground in the bedroom and I sentence you on this basis.

1. Coco Throsby provided a Victim Impact Statement, which was read by the prosecutor at the plea hearing. Ms Throsby stated that she feels unsafe in her own home since the incident, struggles to sleep at night, feels "jumpy" and on high alert. She moved from her apartment following the offending. She has only recently started working again due to stress and fatigue. Her friendships suffered, as she distanced herself from those close to her, feeling that they did not understand what she had gone through.

1. You are 38 years old and were 35 years old at the time of your offending. You detailed your personal history to Dr Aleksandra Belofastov, psychologist, and

Ms Laura Scott, clinical neuropsychologist. You were born in Dar es Salaam, Tanzania and were raised to speak both Swahili and English fluently. You are the oldest in a family of six, growing up with your mother and father, who separated when you were young. After their separation you lived mainly with your mother. Your childhood was stable and without any trauma. Your mother was a primary school teacher and your father a technician. You completed primary school and four years of secondary school in Tanzania without difficulties. Of your five siblings, you have current contact with your brother, Bartholomeo, and sister, Suzan, who both live Interstate.

1. Contact with your immediate family has been less frequent since your remand into custody where you have reported feeling isolated, increasingly paranoid, often struggling to cope and to 'fit in'. At 21, you emigrated to Australia alone for work and study. You completed "Foundation Studies" at Swinburne University. You then commenced, but did not complete, a Film Production course in Melbourne. You have been employed in various jobs including as a labourer, courier driver, and warehouse worker, but you have not been employed for any lengthy period. You are a Christian and attend the catholic church.

1. Your brother, when interviewed by Dr Belofastov, described noticing significant changes in your behaviour and presentation two years after you moved to Australia. He reflects that this is when you began struggling with your mental health, which he said went untreated due to cultural differences in the understanding of mental illness[3]. You have periodically withdrawn contact with your family over the last years.

1. I have had regard to the reports on your mental health condition prepared by

Dr Scott, Ms Cidoni, Ms Dluzniak and Dr Belofastov. Yours is a very complex and unusual presentation. Your mental health functioning deteriorated sometime after your arrival in Australia in 2008, which coincided with your heavy use of drugs and alcohol. Your mental health appears to have continually declined over time and various investigations have been conducted into your mental health and cognitive functioning since being remanded in custody in 2022. 2. Relevantly however, CT scans taken of your brain in October 2023 after you presented with behavioural changes and unusual behaviour in custody, revealed that from at least around 2021 you have undergone degenerative brain changes. Dr Scott opined that based on neuroimaging and your neuropsychological profile was consistent with an acquired cognitive impairment and that your behaviour disturbances were more likely due to organic causes.[4] She continued that your level of cognitive and behavioural impairment is now greater than it was at the time of the offending with further deterioration occurring in the first six months of your incarceration. Dr Scott concluded that, "There is substantial evidence to suggest that he is experiencing the effects of a significant medical condition". Unfortunately, you are still on a waiting list for further evaluation of your scans and a comprehensive assessment of the nature of your medical condition, its prognosis and treatment options.

1. In terms of the application of the principles in R v Verdins; Buckley; Vo[5] investigations into your mental health did not reveal evidence of major mental or serious psychiatric illness, and it is unlikely you have an intellectual disability or developmental disorder. It was accepted by your legal representative that you were fit to stand trial. In the absence of a clear diagnosis or a realistic casual connection between your mental health condition and your offending, there was no reliance Verdins to reduce your moral culpability or to reduce the weight to be given to the principles of general and specific deterrence.
2. I, however, do have regard to the fact that when you offended it occurred in the context of there being evidence of at least some degenerative brain changes at that time, although how these affected your cognitive function and whether any effect was realistically connected to your offending is unknown. It also appears your mental health has deteriorated further since you offended.
3. Based on the evidence of Dr Scott in particular, I do find that Verdins limbs 5 and 6 are enlivened, and I accept that at the time of sentencing your mental health presentation renders imprisonment more onerous on you than on another prisoner and that the effects of your mental health condition are likely to deteriorate due to your incarceration.
4. I also give weight to the anxiety you may be experiencing given you have not had any further testing since the scans revealed the abnormality in circumstances where the evidence suggests you are suffering a significant medical condition.
5. You have a prior criminal history commencing from 23 March 2021 with convictions mainly for drug, dishonesty and driving offences which are of little moment here. You have no prior convictions for aggravated burglary. Relevantly however, on 23 March 2021 you were also convicted of the offence of stalking. The prosecution submitted the prior was relevant as it mirrored your behaviour in the present offending because you followed Ms Throsby into the building and to her apartment where the offending occurred. Your counsel argued however that the prosecution never alleged that you stalked Ms Throsby, rather that you formed the relevant intention to enter the apartment and assault her at the door of her apartment.
6. In my view, your prior conviction for stalking is only relevant in sentencing you for the present offences because it demonstrates another example of your inappropriate behaviour towards women. Even though it was not put that you stalked Ms Throsby, you following her was still a feature of your present offending in explaining how you got to be at her apartment. Of course, you are not to be punished again for your previous offending, but it is relevant in assessing your prospects of rehabilitation, risk of reoffending and the weight to be given to specific deterrence.

1. In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s5 of the Sentencing Act 1991 (Vic), and to the matters outlined in s5(2), which include the maximum penalty for the offence, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character, and the presence of any aggravating or mitigating factors or other relevant circumstances.
2. I have also had regard to the (non-exhaustive) list of considerations which will ordinarily be relevant to an assessment of the objective gravity of aggravated burglary as set out in R v Meyers[6]. These include the offender's intent at the point of entry - such as whether it was to steal or commit assault or cause damage; the mode of entry - such as forcing a door or breaking a window; whether the offender was carrying a weapon; whether the offender was alone or in company; the time of day at which the burglary took place; what the offender knew or believed about who would be inside and/or about where the person would be; and whether the offender was someone of whom the victim was particularly frightened.
3. In your case, your offending did not occur in company, you were not armed with a weapon and you cannot be said to have been someone who Ms Throsby was especially scared of, and I accept that your offending was not premeditated in the sense that you did not plan to target Ms Throsby beforehand and your offending was opportunistic and spontaneous. However, I cannot accept your counsel's submission that your offending was at the lower end of the range. Your counsel accepted that you followed her inside the building when she had gone out to collect her food. It is clear you exited at her floor level, followed her to her apartment, and forced your way inside by pushing the door when she was trying to close it. The premises were not visible to anyone, it was in the very early hours of the morning when people were less likely to be present, and it would have been obvious to you by her words and actions that she was very frightened. She had the right to feel safe in the building and in her apartment and you violated that right by forcing your way into her home.
4. In terms of the common assault, your counsel argued that yours was a limited example of this offence as you pushed Ms Throsby down onto the mattress, but you did not punch, kick, or slap her. Whilst it is to be acknowledged that yours is by no means the most serious example of a common assault or even a very serious example, it must still be borne in mind that you did push Ms Throsby, and she landed on the mattress. This was also in circumstances where you then landed on top of her, put your hand over her mouth, told her you would 'teach her a lesson' and she had to struggle to break free from you. For those reasons, I consider yours to be a common assault more towards the mid category of such offences.
5. You pleaded not guilty, as was your right, and I do not aggravate your penalty because you pleaded not guilty. However, this means you are not entitled to the very significant mitigatory benefits a plea of guilty carries such as its utilitarian value, facilitation of the course of justice and demonstration of remorse. I am unable, on the material before me, to conclude that you have demonstrated any remorse for your offending, which does not aggravate your offending, but is relevant to the weight I give to community protection and specific deterrence.
6. General deterrence is a primary sentencing consideration in your case. I must also impose a sentence that promotes specific deterrence given your lack of remorse, and your prior conviction for stalking insofar as this represents another instance of offending against women. I must also give weight to the need to punish you for your offending and to denounce your offending.
7. In terms of your prospects of rehabilitation, you do have family support, but much of what happens going forward it appears to me will be contingent on the identification of what mental health or medical condition underpins your abnormal brain scans and causes your cognitive and behavioural impairments and you undergoing treatment for the condition - assuming of course that the condition turns out to be realistically connected to your offending. You are also in need of education directed towards your offending against women. On the material before me I cannot assess your prospects of rehabilitation as anything more than guarded.
8. In terms of your risk of reoffending this is also contingent on the matters outlined above, namely a clear diagnosis, information as to whether any condition realistically contributed to your offending and if it did, the treatment options available. However, on the evidence at present, your absence of remorse, your prior offending which also involved inappropriate behaviour towards women, and the possibility that you do have an untreated mental health condition that contributed to your offending leads me to assess your risk of reoffending as high.
9. It is equally difficult for me to assess your moral culpability for the offending given the matters outlined above. Based on the evidence before me however I must assess this as being towards the high end.
10. There is no doubt your offending is very serious. Charge 1 carries a maximum penalty of 25 years; imprisonment, reflecting Parliament's view of the seriousness of the offending.
11. Clearly, your offending took a toll on Ms Throsby who was left distraught by your actions, and her sense of personal security and safety was deeply impacted. She was entitled to feel safe and secure inside her home and your actions took this from her.

1. I consider there should be a degree of cumulation between the charges to reflect the separate instances of offending each carrying different elements and warranting separate punishment. In assessing the degree of cumulation, I am of course mindful of the need to reflect the principle of totality and ensure that the sentence I impose is commensurate with your overall criminality and is not a crushing sentence.
2. I am also cognisant of not punishing you twice for the offending involving the assault on Ms Throsby. Apart from supporting an inference as to what you intended to do, what took place after your entry into the apartment - the common assault - cannot affect the sentence on the aggravated burglary charge as that offence is complete upon entry. Because the common assault was charged separately, your punishment for this offence will be reflected in the sentence I impose on that charge.

1. Your counsel submitted that you should be sentenced to time served as this is sufficient to reflect all the purposes of sentencing and because you have now been detained in custody continuously since 10 June 2022 - well over three years.
2. The prosecution submitted that a period in addition to time served was warranted given your conviction on 23 March 2021 for the offence of stalking.

1. Doing the best I can to synthesise all the relevant sentencing factors, I consider a period of imprisonment exceeding time served is required to reflect the strong need for general deterrence, your prior offending, the overall seriousness of your offending and its effect on the victim.

1. On Charge 1, you are convicted and sentenced to five years' imprisonment.

1. On Charge 2, you are convicted and sentenced to 18 months imprisonment. I direct that 12 months of the sentence on this charge be served cumulatively on the sentence imposed on charge 1.

1. On Charge 5 - the related summary offence of committing an indictable offence whilst on bail - you are convicted and sentenced to one month imprisonment. I direct that the sentence on this charge be served concurrently with the sentence imposed on Charges 1 and 2.

1. This results in a total effective sentence of six years' imprisonment. I direct that you serve a period of three years and three months' imprisonment before becoming eligible for parole.

1. You have served 1,111 days of pre-sentence detention excluding today. I direct that these days be entered into the records of the court.

Mr Millinga, Ms Clark will explain what that all means, but basically you will be eligible for parole in a few weeks, and your brother is here to support you, and it is not unfortunately in my power to do anything, but I hope that those scans can be further investigated, given the potential impact that they have. Thank you.

[1] Cheung v The Queen [2001] HCA 67; [2001] 209 CLR 1, [9], [14] ('Cheung')

[2] R v Pilley (1991) 56 A Crim R 202; Savvas v The Queen (1995) 183 CLR 1, [8]; Cheung, [14].

[3] Psychological Report of Dr Aleksandra Belofastov, at para [21].

[4] Neuropsychological report of Ms Laura Scott, 22 April 2024, p.5.

[5] [2007] VSCA 102; (2007) 16 VR 269 (Verdins)

[6] [2014] 44 VR 486; [2014] VSCA 314, [38].