R v Milliner

The Offender's Case on Sentence

1. The offender tendered a psychological report prepared by Mr Michael Kirton, clinical psychologist, dated 4 February 2018. The offender was assessed by way of audio visual link for the purpose of preparing the report. The psychologist believed that the offender presented as a reflective person who was coherent in speech with logical thought processes and normal affect and low mood, he did not detect any significant psychological symptoms. The offender gave a history to the psychologist that can be summarised as follows:
2. The offender has unhappy recollections of his early childhood at home and nightmares of his father. He was a violent man who was physically abusive to his mother over the period when they were together which was until his father and mother separated when he was six years of age. He witnessed frequent beating of his mother by his father which terrified him at the time.
3. His mother married again and when he was 10 years old. He got on with his step-father very well. He was present when his father raped his step-brother and step-sister who were younger than him and felt a sense of responsibility. His father was gaoled for those offences for 16 years. He has harboured considerable guilt over the years and has sought counselling for this, although not relating to abuse suffered by him.
4. The offender did reasonably well academically at school and had no problems with attendance or academic work. He was bullied incessantly at primary and secondary school, and a called a "nerd". He was never suspended and has never used drugs or alcohol to manage his ongoing flashbacks of the trauma and memories and anxiety of his early childhood.
5. His relationship with his mother became problematic when he was a teenager and he used to become very upset with her when she told him in anger that he was just like his father. He told the psychologist that he has been very angry for a number of years about his early life and his mother, and had stopped talking to her for about 15 years. Since his time in custody he has re-established a relationship with his mother and his family, and he has sent a letter of forgiveness to his father as he wanted that part of his life behind him.
6. The psychologist administered psychometric testing that revealed moderate levels of depression, moderate levels of anxiety and moderate levels of stress. The psychologist tested him for symptoms of post-traumatic stress disorder. He scored highly in the range of depression in that test and also in relation to extrusive experiences and defensive avoidance. The psychologist opined that his results in this test were a classic post-traumatic presentation in that the offender is reporting both the intrusive and avoidance components of post-traumatic stress disorder. The psychologist thought they were reflective of chronic post-traumatic stress disorder in response to the events in the offender's life. The psychologist stated that the experience of post-traumatic stress disorder at this level is an aversive one that can result in serious psychological disability when triggered by threat, fear or high stress. There is substantial evidence that shows that people suffering from post-traumatic stress disorder as the result of violence, childhood abuse, along with depression and raised reactive anxiety, are not able to focus clearly or make effective rational decisions about their life when in threat, fear or high levels of stress.
7. The psychologist also administered a test relevant to his levels of stress and their existence for a long period. The psychologist opined that the results of that test were also indicative of serious post-traumatic stress disorder. The psychologist administered the Static-99 protocol in order to establish his risk of re-offending. The offender scored in the low risk category.
8. The psychologist opined that the offender is suffering from post-traumatic stress disorder as a result of the guilt over, and the experience of the sexual assault of his two siblings, school bullying and violent abuse in his early life when he witnessed the fear and anxiety that assaults by his father caused to his mother.
9. The psychologist set out a number of studies relating to the impacts of post-traumatic stress disorder on its sufferers. In particular, the psychologist pointed out that in a florid episode of anxiety or stress, people suffering post-traumatic stress disorder are impaired in their ability to rationally evaluate data to problem solve and to use higher order thinking.
10. The psychologist opined that with his background of mental health issues that the offender has struggled to maintain a healthy life perspective regarding his own values and his relationships for many years. He became anxious in the past when he was inclined to phase out and do naïve and stupid things. The psychologist stated that this was a classic feature of chronic post-traumatic stress disorder.
11. The psychologist stated that there is a strong link between traumatic experiences and later criminal behaviour. Post-traumatic stress disorder can lead to both risky behaviours and to an increased risk to exposure to traumatic events in subsequent situations as part of compulsive re exposure to trauma. Re-enactments of trauma can result in acting out in behaviours such as self- harm, suicide or depression, or acting out behaviours such as harm to others in criminal activity. The psychologist opined that the offender is a classic example of this phenomenon, that the history of multiple violent traumatic memories before the age of six relating to his younger siblings and himself has resulted in him acting out in the alleged criminal behaviours of child grooming.
12. The psychologist opined that the current situation and alleged crime fits the picture of an attempt to heal unresolved traumatisation through enactments of his early experiences of violence. The psychologist provided a number of academic sources as authority for this proposition.
13. The offender told the psychologist that his shock and regret at what has eventuated has brought him to the point where he wants to fix the problem and has been endeavouring to do so whilst in prison. During the time he has made offers of forgiveness to his biological father, made contact with his mother and is in regular contact with her, has re-established contact with the church and has continued his relationship with his partner. He described himself as having worked hard to understand the alleged criminal behaviour.
14. The psychologist concluded that the offender seized the current crisis in his life as an opportunity to deal with the issue outlined. He is motivated to continue counselling and stated that he wants to sort himself out. The psychologist opined that with his extensive childhood abuse he fits the criteria for lifetime post-traumatic stress disorder criteria. In the past he has endeavoured to have treatment for one aspect of this, being the false guilt arisen in his inability to prevent the abuse of his siblings by his father, but until the present time has not sought further treatment.
15. The psychologist discussed an extensive treatment plan with the offender, involving a number of factors. The psychologist recommended that he attend a psychologist or psychiatrist focussing on trauma focussed treatment and counselling, and that he actively engage in the therapeutic process outlined, that he maintain regular contact with his doctor and take any psychotropic medication prescribed.
16. The offender presented a letter to the Court to the effect that his time in prison has been well spent by him. He has found prison to be a humbling experience and I note that he has been working as an administration block sweeper, a person usually engaged in cleaning. He has confirmed that he has reconciled with his mother and also returned to the church. He has expressed a desire to help other inmates in gaol. He accepts that his healing is not complete but intends to undertake further steps to achieve rehabilitation.
17. The offender presented a character reference from Mesepa Paul, a volunteer of the Hillsong CityCare Prison Ministry team. That team has supported the offender at Kariong Correctional Facility providing social and faith based support, and they have found him to be respectful and vulnerably honest in relation to his offending. He has expressed remorse and shame over his behaviour, and also admits to the stupidity and foolishness of engaging in the behaviour. He is committed to his Christian faith and has attempted to reconcile with his parents. He has expressed that he has made significant changes to his attitude and behaviour whilst he has been in prison. He appears to be a model inmate showing respect to staff and inmates. He has documented his experience with his faith and imprisonment, and hopes to one day publish his memoirs. He intends to continue providing support to other inmates, as well as continuing with this Christian faith on his release from custody.
18. The offender tendered two letters from his mother and step-father. Firstly, they confirm the abuse inflicted by his father on his siblings. Secondly, they comment that since the time of his arrest they have reconciled and become closer. He has been open with them about reasons for and circumstances relating to his offence and the charges made against him, and the subsequent decision to plead guilty. They expressed the view that his imprisonment has been challenging but a positive process for him, and he has re-assessed his life journey and what is important for him as a person. He seems to have re-discovered his Christian faith as a result of the experience. They have spoken to the prison chaplain and I understand that he is a positive influence on other inmates. They can support him on his release as much as they can. They indicate that he has expressed a determination to move forward positively with his life and to become activity involved with the church again. They have no doubt that he can return to success and useful employment.
19. The Court also received a letter from his current partner. She has known the offender for the past six years and been his girlfriend for the past three years. She has found him to be kind, loyal and trustworthy. He has acknowledged to her how foolish he was in the offending behaviour and has expressed remorse on many occasions for his actions and apologised on separate occasions to his family and to her. Upon release from custody he can reside with her family where she currently lives. In the future he intends to volunteer to help with the prison support team of the Hillsong Church and support other inmates and speak at the future conferences. He intends to return to his work manufacturing electric planes.

Objective Seriousness

1. The offence in count 1 of the attempt to procure is objectively serious. The features that support this finding are: 1. the nature of the proposed sexual activity included penile-vaginal intercourse. 2. the offence occurred over a period of approximately five months; 3. there was persistent pursuit of the fictitious child by the offender as demonstrated by the volume of the messages sent. 4. the proposed child of 11 years was significantly below the age of 14 years; 5. there was a significant age difference between the offender who was aged between 46 and 47 at the time; 6. the offender envisaged participating with the mother of the child in sexual activity together with the child; 7. the offender took steps to remain anonymous; 8. the maximum penalty for the offence is 15 years imprisonment.
2. The offence in count 2 is also objectively serious. The features that support that finding are: 1. the offender travelled with the intention to meet the child under 14 that he had groomed; 2. the proposed nature of the sexual activity included potential for penile vaginal intercourse; 3. it involved the offender sending a sex toy in the mail as part of the grooming procedure; 4. the offender envisaged the mother participating; 5. the age difference was significant and the child was significantly below the age of 14 years; 6. the offender took steps to remain anonymous; 7. after the considerable volume of messages the offender also spoke to a police officer posing as a fictitious child; 8. there was a relatively short period of time being one day between that conversation and the offence where the offender travelled to meet with that child.

Aggravating Factors

1. Count 1 involved a series of criminal acts: section 21A(2)(m) Crimes (Sentencing Procedure) Act 1999.
2. There are no aggravating factors for count 2.

Mitigating factors

1. The offender does not have any criminal convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender is currently 47 years of age.
2. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender was gainfully employed in the community and in a stable relationship. However, it should be noted that the offending conduct took place over a 5 month period and consequently the weight to be afforded to good character can be reduced.
3. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.The offender has expressed remorse to his referees, particularly his partner and his parents and also to the people involved in the church. He has accepted responsibility for his actions and I am satisfied on the balance of probabilities that he has expressed genuine contrition and remorse.
4. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The presentation of this case is somewhat peculiar. On the first reading of the psychological report I was surprised about the conclusion that this offending behaviour was related to his post-traumatic stress disorder. However, on careful consideration of the psychological report and in particular the careful referencing of that report by reference to academic studies I would accept the contents of the report. That gives rise to a need in my view for relatively long term psychological treatment. At this point the offender has not had the opportunity to undergo that form of treatment. I anticipate that as a result of him being on remand in custody he has not been offered particular courses or perhaps even ready access to psychological services. In the event that the offender receives the treatment that he requires, that is, referred to in the psychological report his prospects for rehabilitation are good. I accept the offender's expression of wanting to change his life, and in my view I am satisfied that he intends to undertake the psychological treatment. In those circumstances I am satisfied on the balance of probabilities that he has good prospects of rehabilitation.
5. The offender is unlikely to re-offend. The offender has distanced himself from criminal associates and taken steps to rehabilitate himself from addiction to prescription medication. He is in a stable relationship and is employed. I am satisfied that he now has insight into the extent of his PTSD and the effects it was having on him. He has involved himself in activities that involve some supervision of him. I am satisfied on the balance of probabilities that he is unlikely to reoffend.
6. The offender entered a plea of in the District Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The Crown concedes that the bill was not found in relation to this offending behaviour until shortly before the plea was entered. There were a number of other offences with which the offender was charged. In the circumstances I think that there is significant utilitarian value in the plea and that a higher discount ought to be available for someone pleading guilty in the District Court. The appropriate discount is 20%.
7. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999. I am satisfied having considered all other available penalties that no penalty other than imprisonment is appropriate.
8. The offender is convicted of both counts.
9. I make the finding of special circumstances. This is the offender's first time in custody. He suffers from a mental condition for which he requires treatment which may be more readily available to him in the community, in those circumstances he will benefit from a longer period of time on parole.
10. In relation to the first count the offender is sentenced to a term of imprisonment comprising of a non-parole period of three years to date from 5 April 2016 and expire on 4 April 2019, and an additional term of two years to expire on 4 April 2021.
11. In relation to the second count the offender is sentenced to a term of imprisonment comprising of a non-parole period of three years to date from 5 April 2018 and expire on 4 April 2021, and in additional term of three years to expire on 4 April 2024.
12. The overall effective term of imprisonment I have imposed consists of a non-parole period of 5 years with an additional term of 3 years.
13. The offender will be eligible to be released to parole on 4 April 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2018