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 deterrenceCases Cited: Stevens v R [2007] NSWCCA 152 Category: Principal judgment Parties: Blake Milgate
Mitchell Milgate
Director of Public ProsecutionsRepresentation: Solicitors:
L Graham (ODPP)
S Beckham (Appellants)
File Number(s): 2019/00040780 - R v Mitchell MILGATE 2019/00040611 - R v Blake MILGATE
JUDGMENT
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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.
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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
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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.
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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…
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- Case
- [2019] NSWDC 808
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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