Milsom v R

Case [2014] NSWCCA 142

Court of Criminal Appeal

New South Wales
Case Title: Milsom v R
Medium Neutral Citation: [2014] NSWCCA 142
Hearing Date(s): 24/06/2014
Decision Date: 28 July 2014
Before: Hoeben CJ at CL at [1]
Rothman J at [134]
Beech-Jones J at [147]
Decision:

(1) The sentence imposed by Maiden DCJ on 13 September 2013 is quashed.
(2) The sentence proceedings in relation to the applicant are remitted to the District Court for re-hearing by a different judge.
(3) The applicant's bail is continued until further order.
Catchwords: CRIMINAL LAW - sentence proceedings - plea of guilty - robbery in company while armed with an offensive weapon - irregularities in sentence proceedings - excessive intervention by sentencing judge - whether principles of procedural fairness observed - whether apprehended bias established - necessary for sentence proceedings to be re-heard by another judge.
Legislation Cited: Crimes Act 1900 - s98, 556A,
Criminal Appeal Act 1912 - s6(3)
Cases Cited: Baroudi v Regina [2007] NSWCCA 48
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Branko Balic (No 2) (1994) 75 A Crim R 515
Button v R [2010] NSWCCA 264
CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
House v R [1936] HCA 40; 55 CLR 499
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501
Madden v R [2011] NSWCCA 254
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Ng v R [2011] NSWCCA 227
O'Neil-Shaw v R [2010] NSWCCA 42
Parker v DPP (1992) 28 NSWLR 282
R v Foster (1992) 25 NSWLR 732
R v Orchard [2013] NSWCCA 342
R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Tran v Regina [2014] NSWCCA 85
Weir v Regina [2011] NSWCCA 123
Texts Cited: Judicial Review of Administrative Action (Thomson Reuters, 4th ed, 2009)
Category: Principal judgment
Parties: Nigel Thomas Milsom - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr P Boulten SC - Applicant
Mr R Herps - Respondent Crown
- Solicitors: Solicitors:
Catherine Hunter - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/122623
Decision Under Appeal
- Before: Maiden DCJ
- Date of Decision:  13 September 2013
- Court File Number(s): 2012/122623;2012/122824

JUDGMENT

  1. HOEBEN CJ at CL:

    Charges and sentence
    The applicant entered a plea of guilty before the Chief Judge of the District Court on 2 May 2013 to a charge that he did, on 18 April 2012 at Glebe in the State of New South Wales, being armed with an offensive weapon namely an axe, rob Gurmit Singh of certain property, namely a sum of cash, a number of packets of cigarettes and a quantity of telephone credits and at the time of that robbery, did wound the said Gurmit Singh.

  2. The plea of guilty was…

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AGLC
Milsom v R [2014] NSWCCA 142
Case
[2014] NSWCCA 142
Decision Date

CaseChat Overview and Summary

In the case of Milsom v R, the applicant appealed against his sentence following a guilty plea to a charge of robbery in company while armed with an offensive weapon. The primary issues before the court were whether the sentencing proceedings had miscarried due to irregularities in the judge's conduct, and if the principles of procedural fairness had been observed. The applicant contended that the sentencing judge's conduct had been inappropriate and had amounted to apprehended bias.

The court examined several instances where the sentencing judge had intervened in the proceedings, such as cross-examining the applicant, requesting specific documents, and communicating with counsel outside the presence of the applicant. The court considered whether these actions constituted a breach of procedural fairness and whether they demonstrated apprehended bias. The applicant argued that these irregularities led to an unfair outcome and necessitated a re-hearing of the sentence by another judge.

In evaluating the applicant's claims, the court noted the importance of maintaining the adversarial system, where the judge must not intrude upon the roles of counsel. The court found that the sentencing judge's actions, including the revocation of bail without application, refusal to disqualify himself despite an application for apprehended bias, and inappropriate communications with counsel, constituted significant procedural irregularities. These actions created an impression that the judge had predetermined the sentence and was seeking justifications for it, rather than considering all factors impartially.

The court concluded that the irregularities in the sentencing proceedings were substantial enough to undermine the fairness of the process. It found that the applicant had been denied procedural fairness and that the sentencing judge's conduct demonstrated apprehended bias. Consequently, the court determined that the sentence proceedings should be re-heard by another judge to ensure a fair outcome.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal from that sentence on the following grounds:Ground 1 - The sentencing proceedings miscarried because:(i) His Honour cross-examined the applicant about the circumstances of his acquisition of the tomahawk on 28 June 2013.(ii) His Honour asked the Prosecutor to obtain and tender the applicant's Custody Management Records.(iii) His Honour refused bail at the conclusion of proceedings on 28 June 2013 without any application being made by the Prosecutor and without hearing from the applicant.(iv) His Honour dismissed an application that he disqualify himself for apprehended bias without delivering any reasons.(v) His Honour initiated a conversation in the court ante room with counsel which was not recorded in which he indicated that he could not send the applicant to gaol and in which he urged the Prosecutor to tell the DPP not to appeal his decision.(vi) On 19 July 2013 his Honour granted bail without the applicant making any application for bail.(vii) His Honour extensively cross-examined the applicant about his drug related offending on 9 September 2013.(viii) His Honour failed to indicate to the applicant that he was actually contemplating a sentence of about 6 years' duration.Ground 2 - His Honour erred by failing to mitigate penalty as a result of the applicant's mental illness.Ground 3 - His Honour erred in finding that the applicant knew that his offending was going to be a consequence of his bingeing on dangerous substances.Ground 4 - His Honour erred by failing to mitigate penalty as a result of the applicant's intoxication.Ground 5 - His Honour's sentencing discretion miscarried because of his findings that the applicant had engaged in criminal behaviour which occurred over a long period of time and that he was involved in significant drug offending.Ground 6 - The sentence proceedings miscarried because the applicant had been left with a justifiable sense of grievance given the sentence imposed upon his co-offender, James Eric Simon.Ground 7 - The sentence was in all the circumstances manifestly excessive.Agreed Facts The following is extracted from the Statement of Agreed Facts signed by the applicant. The applicant was born in 1975 and was aged 36 at the time of the offending. Simon was then aged 26. The applicant and Simon spent the evening of 17 April 2012 together and early on the morning of 18 April agreed to "do a job". The applicant took a hand axe/tomahawk which he had purchased the previous day and placed it in the pocket of his shorts. He and Simon decided to go to the 7 eleven store in Cowper Street Glebe which was about 200 metres from the applicant's residence. Both he and Simon had been to the store on previous occasions as customers. At about 2.45am on 18 April the applicant walked into the store followed by Simon. The staff member on duty, Mr Singh (Singh), was sitting on the right side of the store. The applicant, who had a blue scarf wrapped around his head partially covering his face, walked straight up to Singh while holding the axe in one hand. Simon, who had followed the applicant into the store, approached Singh from the other side. Simon also had his face concealed behind a grey coloured scarf with a black baseball cap. Both offenders grabbed hold of Singh and pushed him into the storeroom where he could not be seen from outside the shop.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ
The applicant referred the Court to Madden v R [2011] NSWCCA 254 where Simpson J (with whom Whealy JA and Hislop J agreed) said at [29]:"29 ... the courts of NSW operate on an adversarial system. The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged ... It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. ... a judge must be very circumspect in intruding into the role of counsel."(iii) His Honour refused bail at the conclusion of proceedings on 28 June 2013 without any application being made by the Prosecutor and without hearing from the applicant. The applicant submitted that before his cross-examination had been completed, before all the evidence had been called in his case, and before submissions had been made and written submissions read, his Honour peremptorily revoked bail. The applicant submitted that this was in circumstances where he was already on bail, the Crown did not oppose the continuance of bail, no opportunity was given to his counsel to make submissions to the contrary and his Honour gave no reasons. The applicant submitted that the overwhelming inference was that at that time his Honour had already made up his mind to impose a significant term of imprisonment. On that issue, the applicant relied upon Branko Balic (No 2) (1994) 75 A Crim R 515 where Cole JA (with whom Handley and Sheller JJA agreed) said at 520:"In my view here there is no question of actual bias. It can readily be assumed that Judge Court paid full regard to all that was put to him when bail was being considered on 4 November 1994. Nonetheless the person seeking bail had been told in advance that his Honour had made the remarks quoted by Mr Ford. Those remarks were capable of being interpreted as a pre-judgment. Mr Balic, and the public, could reasonably entertain an apprehension of pre-judgment on the bail application. Once such a decision is so tainted, it must be set aside. A consequential effect is that Mr Balic, or fair-minded members of the public, could reasonably hold the view that any subsequent trial presided over by Judge Court may not have that appearance of impartiality which is necessary. There can be no doubt the trial would be conducted fairly by Judge Court, but that is not the test."(iv) His Honour dismissed an application that he disqualify himself for apprehended bias without delivering any reasons. The applicant submitted that there was a sound basis for the application that his Honour disqualify himself for apprehended bias. The applicant referred to the matters raised before his Honour when the application was made, i.e. the revocation of bail, making an observation which in effect compelled the applicant to give evidence and calling for the production of the Custody Management Records. The applicant submitted that these were significant matters which were indicative of an apparent pre-judgment on the part of his Honour. The applicant submitted that at the very least his Honour should have given reasons for the dismissal of the motion and his refusal to disqualify himself.(v) His Honour initiated a conversation in the court ante room with counsel which was not recorded, in which he indicated that he could not send the applicant to gaol and in which he urged the Prosecutor to tell the DPP not to appeal his decision.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant submitted that his Honour's cross-examination on 9 September was an inappropriate intervention in the proceedings that it gave rise to his Honour reaching an important conclusion which was adverse to him and which led to the imposition of an inappropriately higher sentence.(viii) His Honour failed to indicate to the applicant that he was actually contemplating a sentence of about 6 years' duration. The applicant submitted that from the time of the out of court discussions on the afternoon of 19 July, very little occurred to put his legal advisers on notice that his Honour was considering a sentence of 6 years or more. He submitted that the submissions of both advocates focused on whether the applicant's sentence would be more or less than 2 years, such as to allow the court to fully suspend the sentence. The applicant submitted that during the course of the proceedings on 19 July, the exchanges between the bench and the advocates focused almost entirely upon whether an ICO or a suspended sentence would be appropriate. He submitted that the exchanges and submissions on 9 September were to similar effect and drew attention to his Honour calling on the parties to address him as to whether there were "most exceptional circumstances" justifying a non-custodial outcome. The applicant noted that even though the Crown had not accepted that proposition, his Honour had tested the Crown's position with a series of questions relating to rehabilitation, remorse and his major depressive disorder in a context which could only be regarded as favourable to him. The applicant submitted that this impression was further strengthened by the inquiries by his Honour as to the exact number of days he could be considered to have spent in fulltime custody. The applicant submitted that the judge's final remarks to his counsel could only be interpreted as an indication that his Honour was of the opinion that the case was close to the margin of being a non-custodial sentence. The applicant submitted that because of the clear impression given by his Honour on 19 July and 9 September, his legal advisors were denied the opportunity to make submissions in opposition to the course that his honour ultimately took. The applicant submitted that his legal advisors were also denied the opportunity of making submissions as to the length and structure of any custodial sentence imposed. By way of illustration, the applicant submitted that had he been on notice that his Honour was considering a sentence of about 6 years, his legal advisors would have stressed parity and the sentencing factors that favourably differentiated him from Simon. The applicant submitted that the eight matters identified in this Ground of Appeal constituted significant irregularities in the sentence proceedings which ultimately worked to his disadvantage. The applicant submitted that the sentence proceedings were marked by inappropriate intervention by his Honour, inappropriate communication with the legal advisors in private and indications which seriously misled his counsel as to the sentence which his Honour was going to impose. In that regard, the applicant submitted that the proceedings on 19 July and 9 September had miscarried in that it was apparent from his Honour's comments that he was using a "bottom up" approach to sentence, i.e. he had a sentence in mind and was looking for factors to justify that sentence rather than adopting the proper approach of taking all factors into account and as a result of a consideration of those factors, reaching a final sentence.