JUDGES:	PRIEST, McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2019
DATE OF JUDGMENT:	15 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 55
JUDGMENT APPEALED FROM:	DPP v Milson (Unreported, County Court of Victoria, Judge Allen, 6 July 2018)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Intentionally causing injury, robbery, intentionally causing serious injury and other offences – Respondent sentenced to six years and five months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly inadequate – Significant mitigating factors – Mercy – Prospects of rehabilitation – Whether residual discretion should be exercised – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D Piekusis SC	Mr John Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr M J Gumbleton	Marcevski Lawyers

PRIEST JA
WEINBERG JA:

Introduction

Following the respondent’s pleas of guilty in the County Court on 18 June 2018 to charges including intentionally causing injury, robbery and intentionally causing serious injury, on 6 July 2018 a judge of that court sentenced him to be imprisoned for 6 years and 5 months, with a non-parole period of 3 years and 6 months, in accordance with the following table:

Charge Offence Sentence Cumulation

Indictment

1 Intentionally causing injury[1] 18 months 9 months

2 Robbery[2] 12 months 6 months

3 Failure to comply with Court order to provide assistance[3] 1 month —

4 Intentionally causing serious injury[4] 5 years Base

5 Possessing a drug of dependence[5] 3 months —

Related summary offences

10 Committing an offence whilst on bail[6] 1 month 1 month

17 Committing an offence whilst on bail 1 month 1 month

Total effective sentence: 6 years and 5 months’ imprisonment

Non-parole period: 3 years and 6 months

Pre-sentence detention: 631 days

Section 6AAA declaration: 8 years with non-parole period of 5 years

Other orders: Forensic Sample and Disposal orders

[1]Crimes Act 1958, s 18. The maximum sentence is 10 years’ imprisonment.
[2]Crimes Act 1958, s 75. The maximum sentence is 15 years’ imprisonment.
[3]Crimes Act 1958, s 465AA(9). The maximum sentence is five years’ imprisonment.
[4]Crimes Act 1958, s 16. The maximum sentence is 20 years’ imprisonment.
[5]Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(b). The maximum penalty is imprisonment for one year or 30 penalty units (or both).
[6]Bail Act 1977, s 30B. The maximum penalty is three months’ imprisonment or 30 penalty units.

By a notice of appeal dated 3 August 2018, the Director of Public Prosecutions contends that the individual sentences on charges 1, 2 and 4, and the total effective sentence and non-parole period, are manifestly inadequate. The sole ground of appeal is supported by a number of ‘particulars’, which it is unnecessary to set out.[7]
[7]See DPP v Weybury

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Milson

Details

AGLC: DPP v Milson [2019] VSCA 55
Case: [2019] VSCA 55
Decision Date: 15 March 2019

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Milson involved an appeal by the Crown against the sentence imposed on Milson for a series of serious offences. Milson was convicted of intentionally causing injury, robbery, intentionally causing serious injury, and other related offences. The trial judge sentenced Milson to a total of six years and five months in prison, with a non-parole period of three years and six months. The Crown appealed, arguing that the sentence was manifestly inadequate. The legal issues before the court included whether the sentence was manifestly inadequate, the significance of mitigating factors, the exercise of mercy, the prospects of rehabilitation, and whether the court's residual discretion should be exercised.

The court considered the gravity of the offences, which involved violence and multiple victims. The Crown submitted that the sentence failed to reflect the seriousness of the crimes and the need for general deterrence. The defence argued that the sentence was appropriate given the mitigating factors, including the absence of a criminal record, personal circumstances, and prospects of rehabilitation. The court found that while the offences were serious, the sentence did not depart from the principle that the punishment should fit the crime. The court acknowledged the mitigating factors and the prospects of rehabilitation but concluded that the sentence was not manifestly inadequate. The court found that the sentence reflected a proper balance between the need for punishment and the mitigating factors.

Consequently, the court dismissed the appeal. The original sentence was affirmed as appropriate. The court held that while the mitigating factors were significant, they did not warrant a substantial departure from the usual sentence for such offences. The exercise of residual discretion was deemed unnecessary. The court's decision emphasised the importance of proportionality in sentencing while also recognising the importance of individual circumstances. The original sentence was upheld, and no further action was ordered.

Orders