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DPP v McMillian [2020] VCC 1227

sentence — 2 counts of using carriage service to procure person believed to be under age of 16 years with intention of engaging in sexual activity — additional state drug offence — nature and circumstances — s 16A(2)(a) — offender communicated with two different people who they believed were underage girls knowing that this was against law — offender did what they could to procure each would be victim to engage in sexual activity — offender was obviously conscious of fact that they were engaging in illegal conduct from outset — conduct was deliberative and focused over period of six weeks — communicating with more than one victim in overlapping period is relevant to moral culpability which is high — offender did not lie about age nor go to great lengths to conceal identity — appears offender was banking on communications being kept secret — no actual victims is not a matter in mitigation — if there had been actual victims offending would be even more serious — mental condition — s 16A(2)(m) — time in gaol will be good deal harsher because of mental health issues and there is risk that mental health might well deteriorate — COVID-19 restrictions will mean offender undergoes harsher form of imprisonment — offender will not receive visits from family and partner — offender is of Aboriginal background so may well be especially at risk in terms of health — during time spent on remand offender has self-harmed and had suicidal thoughts — guilty plea — s 16A(2)(g) — offender pleaded guilty at earliest opportunity entitling them to significant discount in sentence otherwise received — cooperation — s 16A(2)(h) — offending conduct was deliberative and only came to end when offender was arrested — offender made some admissions to police and gave them access to phone — offender co-operated to an extent although did not admit to offending —rehabilitation — s 16A(2)(n) — offender has way to go in finally dealing with drug problem and appropriately addressing offending behaviour — offender has motivation and ability to turn things around — more needs to be done to address drug problem to deal with mental health problems and address underlying reasons for offending — prospects of rehabilitation guardedly good — specific deterrence — s 16A(2)(j) — some weight in view of deliberative nature of offending struggles with drugs psychological issues and current unclear picture of motivation for offending — general deterrence — s 16A(2)(ja) — strong weight in bid to deter others from behaving as offender has — offending preys on young and vulnerable and is difficult to detect — clear and strong message must be sent to other would-be offenders that conduct is intolerable — offender sentenced to 2 years’ and 6 months imprisonment with 6 month non-parole period — s 6AAA — but for plea of guilty offender would have been sentenced to 4 years’ imprisonment with 3 year non-parole period
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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