Milgate v The Queen; Milgate v The Queen - [2019] NSWDC 808

District Court

New South Wales

Medium Neutral Citation: Milgate v R; Milgate v R [2019] NSWDC 808
Hearing dates: 29 November 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraphs [16] to [18]

Catchwords: CRIME — Appeals— Appeal from Local Court to District Court — By person sentenced against sentence — Appeal dismissed
CRIME — Violent offences — Assault occasioning actual bodily harm — in company — affray using unlawful violence
SENTENCING — Violent offences — alcohol-fuelled violence — CCTV footage — high-level of objective seriousness — general deterrence
Cases Cited: Stevens v R [2007] NSWCCA 152
Category: Principal judgment
Parties: Blake Milgate
Mitchell Milgate
Director of Public Prosecutions
Representation: Solicitors:
L Graham (ODPP)
S Beckham (Appellants)

File Number(s): 2019/00040780 - R v Mitchell MILGATE 2019/00040611 - R v Blake MILGATE

JUDGMENT

HIS HONOUR: The two appellants Blake and Mitchell Milgate appeal sentences imposed at Penrith Local Court on 25 October 2019 for the following offences: assault occasioning actual bodily harm while in company concerning Tyson Gampe where they were respectively in company with each other and Wendall Milgate and also an offence of affray using unlawful violence towards Shannon Rushworth and Tyson Gampe. In respect of both offences the Local Court imposed fully concurrent sentences of 18 months imprisonment with non‑parole periods of 12 months for each of the appellants.
The facts were agreed in the Local Court by both offenders and their lawyers; there is some slight difference in the two agreed facts documents but they were agreed facts which were before the Local Court. An attempt today was made to reopen the facts which was eventually abandoned. There is also closed circuit television footage of the incident which was tendered in the Local Court and also before me and I have had an opportunity to watch it in open court and in my chambers before giving the result of the appeal.

Agreed Facts

The following is taken from the agreed facts and from some observations I have made from the closed circuit television. I have had regard to all of the agreed facts and what I am about to read is not as extensive as the agreed facts. The two appellants were part of a group of five men who engaged in an attack on two other men in McDonald’s car park in Penrith. The agreed facts state that these two appellants walked past Mr Rushworth, one of the victims, and words were exchanged between them resulting in an argument. The agreed facts do not state what words were exchanged but whatever they were they could not amount to provocation for what then occurred.
The agreed facts for Blake Milgate state that the fight was initiated by the “offenders group” and that Blake Milgate threw the first punch. The agreed facts state that the closed circuit television footage shows that the five men in the “offenders group” stalked the two victims Mr Rushworth and Mr Gampe…

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.

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Details

Case: [2019] NSWDC 808
Decision Date: 29 November 2019

CaseChat Overview and Summary

The appellants, Milgate and his co-appellants, appealed against their convictions and sentences in the District Court of New South Wales, following their convictions in the Local Court for assault occasioning actual bodily harm in company and affray using unlawful violence. The incidents occurred in a public place where the appellants, in a group, used unlawful violence against a person. The matter was heard in the District Court where the appellants contested the severity of the sentences imposed by the Local Court.

The primary legal issue before the court was whether the sentences imposed by the Local Court were manifestly excessive or inadequate. The court was required to weigh the objective seriousness of the offences, the role of each appellant in the incidents, and the need for general deterrence in determining the appropriate sentence. Additionally, the court considered the impact of alcohol on the appellants' actions and the availability of CCTV footage as evidence.

In delivering the judgment, the court found that the sentences imposed by the Local Court were neither manifestly excessive nor inadequate. The court emphasised the high level of objective seriousness of the offences, noting the use of unlawful violence in a public place and the impact on the victim. The court also highlighted the importance of general deterrence in cases involving alcohol-fuelled violence. Given these factors, the court concluded that the sentences were appropriate and dismissed the appeals.

The District Court affirmed the sentences imposed by the Local Court. Milgate and his co-appellants were ordered to serve the sentences they had already been given, with no alteration to the terms or duration of their sentences. The court further noted that any application for parole would be considered on its merits, taking into account the appellants' conduct and rehabilitation efforts.

Orders

Orders of the court

See paragraphs [16] to [18]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Milgate v R; Milgate v R [2019] NSWDC 808
Hearing dates:	29 November 2019
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [16] to [18]
Catchwords:	CRIME — Appeals— Appeal from Local Court to District Court — By person sentenced against sentence — Appeal dismissed CRIME — Violent offences — Assault occasioning actual bodily harm — in company — affray using unlawful violence SENTENCING — Violent offences — alcohol-fuelled violence — CCTV footage — high-level of objective seriousness — general deterrence
Cases Cited:	Stevens v R [2007] NSWCCA 152
Category:	Principal judgment
Parties:	Blake Milgate Mitchell Milgate Director of Public Prosecutions
Representation:	Solicitors: L Graham (ODPP) S Beckham (Appellants)
File Number(s):	2019/00040780 - R v Mitchell MILGATE 2019/00040611 - R v Blake MILGATE