GAGE DOUGLAS MILLS v THE KING [2025] SASCA 99

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE TRACEY) DCCRM-24-024215 Appellant: GAGE DOUGLAS MILLS Counsel: MR J POWELL SC - Solicitor: LEGAL SERVICES COMMISSION (SA) Respondent: THE KING Counsel: MS T DIAMANDI WITH MS L LAKATOS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 08/09/2025 File No/s: SCCRM-24-051041 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MILLS v THE KING [2025] SASCA 99 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Mullins) 8 September 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE This is an appeal against sentence. The appellant pleaded guilty to one count of the sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The sentencing judge commenced with a sentence of eight years’ imprisonment and reduced that by 25 per cent on account of the appellant’s plea of guilty. The appellant was sentenced to six years’ imprisonment, with a non-parole period of two years and six months. The appellant appeals his sentence on the ground that it is manifestly excessive and seeks re-sentence pursuant to s 158(7) of the Criminal Procedure Act 1921 (SA). Held (the Court), granting permission to appeal and dismissing the appeal: 1. Where it cannot be shown that any relevant sentencing factors were overlooked, and no irrelevant matters were taken into account, the appellant must show that the sentence was “outside the permissible range of sentences for the offender and the offence”. -- 1 of 10 -- 2. Having regard to the whole of the circumstances of the offending and the offender, it has not been demonstrated that the sentence in this case is manifestly excessive. 3. The starting point of eight years’ imprisonment, whilst high, needed to reflect the seriousness of the appellant’s offending and his recognition of the wrongfulness of his conduct, including the extent to which he prevailed upon an unwilling and young child. 4. The non-parole period of just over 40 per cent of the head sentence is a very low non-parole period and clearly reflects the sentencing judge’s concern about the appellant’s intellectual functioning, likely hardship in custody and prospects for rehabilitation. Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Procedure Act 1921 (SA) s 158(7), referred to. R v D (1997) 69 SASR 413, discussed. Adam (A Pseudonym) v The King [2024] SASCA 149; Arnold v Samuels (1972) 3 SASR 585; Brooker v The King [2024] SASCA 135; Bugmy v The Queen (1990) 169 CLR 525; Director of Public Prosecutions (SA) v Jones [2021] SASCA 114; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Giordimania v The Queen [2020] SASCFC 28; Heng v The Queen [2022] SASCA 24; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; Kentwell v The Queen (2014) 252 CLR 601; Lee v Western Australia (2022) 303 A Crim R 340; Munda v Western Australia (2013) 249 CLR 600; Police v Chilton (2014) 120 SASR 32; Power v The Queen (1974) 131 CLR 623; R v Berry [2024] SASCA 116; R v Creed (1985) 37 SASR 566; R v Driver (2011) 111 SASR 245; R v Dyett [2023] SASCA 41; R v Harris [2023] SASCA 129; R v Lian [2023] SASCA 122; R v Lutze (2014) 121 SASR 144; R v McIntyre (2020) 138 SASR 17; R v Monks (2019) 133 SASR 182; R v Morse (1979) 23 SASR 98; R v Palmer [2016] SASCFC 34; R v Perry [2022] SASCA 127; R v Schultz [2010] SASCFC 47; Walsh v The King [2024] SASCA 146; Warner v The King (2022) 142 SASR 275; Zozuk-Levy v The King [2025] SASCA 90, considered. -- 2 of 10 -- MILLS v THE KING [2025] SASCA 99 Court of Appeal – Criminal: Livesey P, S Doyle JA and Mullins AJA THE COURT (ex tempore): Introduction 1 The appellant appeals his sentence on the ground that it is manifestly excessive and seeks re-sentence pursuant to s 158(7) of the Criminal Procedure Act 1921 (SA). 2 The appellant was sentenced to imprisonment for six years, together with a non-parole period of two years and six months, following his plea of guilty to one count of the sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty is life imprisonment. 3 The sentencing judge commenced with a sentence of eight years’ imprisonment and reduced that by 25 per cent on account of the appellant’s plea of guilty. The sentence was ordered to commence from 3 December 2024. 4 In November 2021, the appellant was 18 years and 4 months and moved into the complainant’s home. He commenced a sexual relationship with her mother, who was 35. Between November 2021 and January 2022, the appellant engaged in multiple acts of penile-vaginal and penile-anal intercourse with the complainant, who was aged between 12 and 13 years. Most of the intercourse was preceded by the complainant telling the appellant that she did not want to engage in sex and, on the occasion of anal intercourse, the appellant continued despite the complainant telling him many times to stop. 5 Whilst the appellant made numerous admissions following his arrest, he downplayed aspects of the offending, including by minimising the frequency of the sexual intercourse and asserting that the complainant had asked him for sexual intercourse. 6 For the reasons that follow, permission to appeal should be granted but the appeal dismissed. The circumstances of the offending 7 During October 2021, the appellant met the complainant, her mother and brother through an online gaming platform. They spent time “gaming” at each other’s homes and became friendly. 8 In November 2021, the complainant and her family moved into her father’s home at Morphett Vale. Soon after, the appellant accepted an invitation to move into that home. The appellant shared a bedroom with the complainant’s mother. -- 3 of 10 -- [2025] SASCA 99 The Court 2 They commenced a sexual relationship. The complainant shared a bedroom with her siblings. 9 During November 2021, the appellant sent the complainant a text message while her mother was sleeping and her father was working. He entered her bedroom and asked repeatedly whether she would have sexual intercourse. The complainant said no, she did not want to. Despite these refusals, the appellant inserted his penis into her vagina while standing behind her. As he did so, he told the complainant to “be quiet”. The appellant did not use a condom. After the appellant removed his penis, he told the complainant to get dressed. 10 On another occasion the appellant told the complainant to go to her father’s bedroom. The appellant closed the door behind them and repeatedly asked the complainant to have sexual intercourse. The complainant said no. The appellant then bent the complainant over her father’s bed and inserted his penis into her vagina from behind. When he finished, he put on his clothes and left the bedroom. 11 On a separate occasion, whilst the complainant was in her father’s bedroom folding the washing and putting it away, the appellant entered the room. He closed the door and asked for sexual intercourse. The appellant bent the complainant over her father’s bed and again inserted his penis into her vagina from behind. The appellant also inserted his penis into the complainant’s anus twice, despite her saying “stop, stop, stop”. The complainant experienced pain for some days. 12 On several occasions, the appellant engaged in penile-vaginal intercourse with the complainant in the bathroom. He also did so in the backyard and in her mother’s bedroom. On one occasion, the appellant inserted his penis into the complainant’s vagina as she was bent over a cement wall in the backyard. The complainant’s father was inside the home at the time. 13 In January 2022, the complainant’s mother became aware of the appellant communicating with the complainant by Snapchat. She confronted the appellant and the complainant. The appellant made no response. The appellant had also communicated with the complainant by text messaging. The appellant told the complainant to delete the messages, and he watched as she did so. 14 At the end of January 2022, the appellant moved out of the Morphett Vale home. At the end of 2022, the complaint made a complaint to her best friend and to her boyfriend. She told them that she had been raped the whole time the appellant lived at the Morphett Vale home. Soon after, the complainant told her mother. Police were notified. 15 In early April 2024, police spoke with the appellant at his home in Salisbury North. The appellant admitted to penile-vaginal intercourse and said that he thought that he had had anal intercourse with the complainant as well. He claimed that the complainant had repeatedly asked him to have sex. -- 4 of 10 -- [2025] SASCA 99 The Court 3 16 The appellant told police that he only wore a condom “once” and that the sexual intercourse occurred in the same room on less than 10 occasions. 17 The victim impact statements from the complainant and her mother were read to the court and outlined the serious consequences of the offending. The circumstances of the offender 18 By the time of sentence, the appellant was 21 years and had no prior criminal history. He had had a difficult childhood after his mother died by suicide when he was about six months. He and his older brother were raised by their father. The appellant attended high school but found it difficult and left in year 10. He continued years 11 and 12 through a “FLO” programme. 19 When the appellant was 17 years, his father moved out and he continued living in the family home with his older brother. The appellant occasionally assisted with unpaid work at his father’s workplace. 20 Due to the appellant’s poor mental health, he did not work after completing high school. He received a Youth Allowance from Centrelink. The appellant was diagnosed with bipolar disorder and depression, and he was prescribed with medication to assist with his depression. 21 As the result of his difficulties with schooling and mental health, the appellant became socially isolated and spent much of his time “gaming”. He did not get along with his older brother. The appellant met the complainant’s mother through online gaming. 22 In her psychological report dated 27 October 2024, Professor Robyn Young diagnosed the appellant with autism and assessed his intellectual functioning as “very low”. She noted symptoms of post-traumatic stress disorder following an assault when the appellant was aged 19 years. In the opinion of Professor Young, the appellant did not meet the criteria for paedophilic disorder. She expressed the opinion that the appellant’s offending arose out of opportunity, ignorance, naivety, limited education and intellect. 23 After the autism diagnosis, the appellant has said that after serving his sentence he intends to apply for assistance through the NDIS. He hopes to obtain employment in warehousing. 24 Before arrest and incarceration, the appellant lived with his older brother and two cousins. He maintained a close relationship with his father, who remains supportive. 25 The appellant made no objection to the “non-contact” intervention order sought by the prosecution. -- 5 of 10 -- [2025] SASCA 99 The Court 4 The approach of the sentencing judge 26 In the course of her commendably concise sentencing remarks, the sentencing judge referred to the opinions of Professor Young:1 With respect to autistic individuals, Professor Young says that they can exhibit behaviours that expose them to criminal charges and victimisation because of an inability to pick up social cues, obstacles with both verbal and non-verbal messages and their social naivety, social misunderstanding and a lack of understanding of the implications of behaviour. These factors, combined with a lack of empathy, an inability to consistently control emotions, and issues associated with moral reasoning, can increase an autistic individual’s likelihood of exposure to the criminal justice system. 27 The appellant’s counsel submitted that the appellant had had both victim impact statements read to him, and he understood the effect of his conduct on the complainant and her mother. 28 The sentencing judge noted that the appellant had told Professor Young that he had asked for the complainant’s consent. She also noted that the appellant had agreed with police that he knew that it was an offence to have sexual intercourse with a child and that he should not have done it. Despite the opinion of Professor Young that the appellant had no, or very limited, appreciation of the wrongfulness of his conduct, the sentencing judge did not accept that the appellant did not have some appreciation of the wrongfulness of his conduct.2 29 The sentencing judge acknowledged that the appellant would be a vulnerable person in prison. The sentencing judge observed that the treatment of the appellant by the complainant’s mother – forming a sexual relationship with an impressionable young man almost half her age – was a “plainly unusual feature”.3 The sentencing judge accepted that the appellant’s offending did not represent a pattern of behaviour in the sense that he was not prone to engaging in sexual activity with underage girls.4 30 Whilst the prosecution argued that the appellant had engaged in an egregious breach of trust, enabled by his relationship with the complainant’s mother, the sentencing judge appeared to accept Professor Young’s opinion that the appellant was socially naïve and had difficulty navigating social situations and reading social cues:5 In my view your intellectual disability means the issue of general deterrence assumes a lesser significance in your level of understanding as to the seriousness of your offending. While there would, I accept, have been a reduction in your capacity to reason about the wrongfulness of your conduct, I do note however it appears you understood something 1 Sentencing remarks, p 2. 2 Sentencing remarks, p 3. 3 Sentencing remarks, p 4. 4 Sentencing remarks, p 4. 5 Sentencing remarks, p 4. -- 6 of 10 -- [2025] SASCA 99 The Court 5 about the issue of consent and were sufficiently aware of your wrongdoing to make rudimentary attempts to conceal your offending. I conclude that because of your disability the decision in R v D should not be given its full effect. The lesser significance of general deterrence and the fact that your intellectual disability reduced your moral culpability must be considered when sentencing you. On the other hand, your conduct was very serious; it was ongoing and the effect on the victim has been significant. 31 After commencing with a sentence of eight years’ imprisonment, reduced by 25 per cent to 6 years, the sentencing judge fixed a lower than usual non-parole period, finding that the safety of the community was best served by the appellant spending a lengthy period on parole.6 32 The sentencing judge found that, with the appropriate interventions described by Professor Young, there was reason to conclude that the appellant’s prospects for rehabilitation were very positive. The sentencing judge also took into account the difficulties the appellant would likely experience in custody.7 The contentions of the parties 33 In developing his case on manifest excess, the appellant pointed to a number of features of his case. These included his age of 18 years and four months in November 2021 when he commenced living in the Morphett Vale home. The appellant relied on a number of authorities which have held that youth is a significant sentencing factor.8 34 The appellant also suggested that the “age disparity” between the appellant and the complainant was a factor.9 The appellant went so far as to suggest that the six-year age difference between the appellant and the complainant, having regard to the appellant’s lower intellectual functioning and social immaturity, “did not represent a significant disparity in intellectual or life experience”.10 35 The appellant also relied on the well-known authorities concerning mental impairment and functioning.11 36 The appellant contended that the circumstances of this case could be distinguished from R v D,12 because he was not in any formal position of trust or authority concerning the complainant. The appellant relied on R v Berry for the proposition that the sentencing standard set in R v D “applies most directly in cases involving a course of conduct involving unlawful sexual intercourse with a child, 6 Sentencing remarks, p 4. 7 Sentencing remarks, pp 4-5. 8 Arnold v Samuels (1972) 3 SASR 585, 596 (Bray CJ); R v Schultz [2010] SASCFC 47, [23] (White J); R v Driver (2011) 111 SASR 245, [29] (Gray, Sulan and Blue JJ). 9 Relying on R v Lian [2023] SASCA 122, [102] (Kourakis CJ). 10 Appellant’s Written Submissions, [46]. 11 For example, R v Driver (2011) 111 SASR 245, [24] (Gray, Sulan and Blue JJ). 12 R v D (1997) 69 SASR 413. -- 7 of 10 -- [2025] SASCA 99 The Court 6 and committed by a person in a position of trust and authority”.13 It is noteworthy that it was not suggested that the sentencing judge made any error of principle regarding this standard. 37 The appellant also relied on his absence of criminal convictions, early guilty plea and evident co-operation. 38 The respondent contended that each of these matters had been taken into account by the sentencing judge. In the circumstances, and having regard to well-known authority, the respondent contended that the appellant had failed to demonstrate that the sentence was unreasonable or plainly unjust. The determination of the appeal 39 The appellant must do more than point to various sentencing considerations and suggest that they should have been accorded more or less weight in a case where it is evident that they were taken into account by the sentencing judge.14 Where it cannot be shown that any relevant sentencing factors were overlooked, and no irrelevant matters were taken into account, the appellant must show that the sentence was “outside the permissible range of sentences for the offender and the offence”.15 40 When considering the head sentence, it is necessary to consider the matters relevant to fixing the sentence, including the maximum sentence and the standards of sentence customarily observed for the particular crime.16 Whilst consideration of the non-parole period will encompass the same relevant sentencing considerations, greater emphasis may be given to rehabilitation.17 41 As has been recognised many times, non-parole periods of between one half and three quarters of the head sentence have often been imposed in this State.18 42 In this case, the sentencing judge had regard to the sentencing standard in R v D.19 Whilst the appellant has appropriately pointed to the absence of any formal position of trust and authority, the facts of this case tend to suggest the 13 R v Berry [2024] SASCA 116, [68] (Doyle and Bleby JJA and Hall AJA). 14 Police v Chilton (2014) 120 SASR 32, [17]-[19] (Kourakis CJ, with whom David J agreed). See also Munda v Western Australia (2013) 249 CLR 600, [33]-[35] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ); R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ); Lee v Western Australia (2022) 303 A Crim R 340, [72]-[76] (Buss P, Mitchell JA and Livesey AJA). 15 Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 16 R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed). 17 Power v The Queen (1974) 131 CLR 623, 628 (Barwick CJ, Menzies, Stephen and Mason JJ); R v Creed (1985) 37 SASR 566, 568-569 (King CJ, with whom Cox and Olsson JJ agreed); Bugmy v The Queen (1990) 169 CLR 525, 530-531 (Mason CJ and McHugh J). 18 R v Palmer [2016] SASCFC 34, [4] (Kourakis CJ); R v McIntyre (2020) 138 SASR 17, [84] (Doyle J, with whom Stanley and Hughes JJ agreed); Edmonds (A Pseudonym) v The Queen [2022] SASCA 11, [45]-[47] (Livesey P, Doyle and David JJA); Heng v The Queen [2022] SASCA 24, [5]-[8], [19] (Livesey P), [69]-[70] (Doyle and Bleby JJA). 19 R v D (1997) 69 SASR 413. -- 8 of 10 -- [2025] SASCA 99 The Court 7 existence of an informal position of trust and authority created by a combination of the appellant’s relationship with the complainant’s mother, his residence in the home at the invitation of the complainant’s family and the significant age disparity between the appellant and the complainant. In those circumstances, there was no error in having regard to that sentencing standard even if it did not apply directly.20 43 We would, however, reject the respondent’s submission that offending against s 50(1) of the CLCA invariably involves the breach of a position of trust and authority. In our view, it will always be necessary to have regard to the underlying facts and circumstances in order to determine the extent to which the sentencing standard in R v D provides guidance. 44 In this case, the sentencing judge had regard to that standard but did not commence with a sentence of 12 years’ imprisonment because of the appellant’s intellectual disability. Clearly the sentencing judge had regard to the appellant’s mental impairment and the extent to which the appellant, nonetheless, recognised that his conduct was wrongful. There was no error in doing so, for the authorities recognise that where an offender’s mental condition has played some role in the offending, some leniency may be appropriate.21 45 Indeed, there is much to be said for the proposition that Professor Young’s report did not adequately consider this aspect of the appellant’s conduct because the history he provided to her was not consistent with the factual basis upon which the sentencing judge proceeded. 46 Whilst the appellant offended as a young man, he knew that it was wrong to have sex with a girl of only 12 or 13: his was not a case involving an offender and a complainant who were relevantly “close-in-age”.22 47 In our view, having regard to the whole of the circumstances of the offending and the offender, it has not been demonstrated that the sentence in this case is manifestly excessive. The starting point of eight years’ imprisonment, whilst high, needed to reflect the seriousness of the appellant’s offending and his recognition of the wrongfulness of his conduct, including the extent to which he prevailed upon and exploited an unwilling child. 20 Warner v The King (2022) 142 SASR 275, [15]-[31] (Kourakis CJ), [64]-[80] (Livesey P), [118]-[124] (Doyle JA). See also, for example, R v Berry [2024] SASCA 116, [64]-[69] (Doyle and Bleby JJA and Hall AJA); Brooker v The King [2024] SASCA 135, [84]-[87] (Livesey P, David JA and Bond AJA); Adam (A Pseudonym) v The King [2024] SASCA 149, [59]-[78] (Livesey P, Bleby and David JJA). 21 R v Monks (2019) 133 SASR 182, [32]-[59] (Doyle J, with whom Peek and Parker JJ agreed); Giordimania v The Queen [2020] SASCFC 28, [61] (Doyle J, with whom Nicholson and Hughes JJ agreed); Director of Public Prosecutions (SA) v Jones [2021] SASCA 114, [15]-[17] (Livesey P, Doyle and Bleby JJA); R v Perry [2022] SASCA 127, [61]-[76] (Kourakis CJ), [116]-[127] (Livesey P and David JA); Walsh v The King [2024] SASCA 146, [31]-[35] (Livesey P, Bleby and David JJA); Zozuk-Levy v The King [2025] SASCA 90, [27]-[28] (Livesey P and Stanley JA). 22 Cf R v Harris [2023] SASCA 129, [55]-[75] (Livesey P, Lovell and Bleby JJA); R v Dyett [2023] SASCA 41, [38]-[45] (Livesey P, Bleby and David JJA). -- 9 of 10 -- [2025] SASCA 99 The Court 8 48 The non-parole period of just over 40 per cent of the head sentence clearly reflected her Honour’s concern about the appellant’s intellectual functioning, likely hardship in custody and prospects for rehabilitation. It is a very low non-parole period. Conclusion 49 Permission to appeal should be granted but the appeal dismissed. -- 10 of 10 --