R v Milsom

[2015] NSWDC 138

District Court

New South Wales

Medium Neutral Citation:	R v Milsom [2015] NSWDC 138
Hearing dates:	29 – 30 January, 18 February 2015
Decision date:	01 April 2015
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Sentenced to a term of imprisonment of 2 years 4 months with a non-parole period of 341 days
Catchwords:	CRIMINAL LAW – sentence – armed robbery with wounding – procedural unfairness – case remitted to District Court by Court of Criminal Appeal – delay – mental condition – parity
Legislation Cited:	Crimes Act 1900 (NSW), s 98 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A
Cases Cited:	Campbell v R [2014] NSWCCA 102 GN v R [2012] NSWCCA 96 Milsom v R [2014] NSWCCA 142 R v Bennett [2014] NSWCCA 197 R v Carroll, Carroll v R [2010] NSWCCA 55; 77 NSWLR 45; 200 A Crim R 284 R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 34; 106 A Crim R 149 R v JW [2010] NSWCCA 49; 77 NSWLR 7; 199 A Crim R 486 R v Muldrock; Muldrock v R [2012] NSWCCA 108 R v Tuuta [2014] NSWCCA 40 Simpson v R [2014] NSWCCA 23
Category:	Sentence
Parties:	Regina (Crown) Nigel Thomas Milsom (Offender)
Representation:	Counsel: P Boulten SC (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Catherine Hunter Solicitor (Offender)
File Number(s):	2012/00122623

SENTENCE

1. On 3 May 2013, Mr Milsom pleaded guilty to one offence in an indictment. The plea was entered on arraignment. The offence is as follows: on 18 April 2012 at Glebe in the State of New South Wales being armed with an offensive weapon, namely an axe, did rob Gurmit Singh of certain property, namely a sum of cash, a number of packets of cigarettes and a quantity of telephone credits, the property of Gurmit Singh, and at the time of that robbery did wound the said Gurmit Singh.

2. He had been committed for trial on 11 October 2012.

3. The offence is contrary to s 98 of the Crimes Act 1900 (NSW). The maximum penalty prescribed for the offence is imprisonment for 25 years. The legislature has prescribed a standard non-parole period of seven years.

4. I convict him of this offence.

PLEA OF GUILTY

5. The plea of guilty was not entered at the earliest opportunity. The plea, as already noted, was entered on arraignment. I am of the view a reduction of 15 percent for utilitarian considerations only is appropriate.

6. I am also satisfied he is entitled to the mitigating factor found in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW), which provides as follows:

“the remorse shown by the offender for the offence, but only if:

(i)   the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)   the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)”.

7. I am firmly of the view both of these considerations have been more than satisfied in this case. Even though it being a feature of mitigation, it only need be proved on the balance of probabilities.

8. In this case, the prisoner has accepted facts relating to the offence outside his own personal knowledge. I accept he does not remember clearly the offence. I accept the defence submission this goes to accepting responsibility and his remorse.

9. He also gave evidence about this matter, which I accept, at transcript p 91 line 20ff of 30 January 2015:

“Q.   What do you think about what you did to this fellow?

A.   It was – well, it’s devastating. When I found out what had happened to him, yeah, I was, I couldn’t believe it because I kind of didn’t know him personally, but I used to deal with him pretty much every day and so, yeah, I couldn’t--

Q.   If you had to describe the emotions or the feelings that you had about your own analysis of your criminal conduct, do it now?

A.   Yeah, just shameful and, yeah, just really ashamed for all my family and friends and, you know, I have hurt everyone.

Q.   Have you thought about him?

A.   Yeah, yeah.

Q.   You drafted a letter of apology which is in the papers.”

10. I also take into account and accept the content of the apology letter, which is the second item within defence exhibit 2, first written on 6 July 2012.

11. Further, I accept the evidence of his sister, found at transcript p 130 lines 12-25 of 30 January 2015, which is as follows:

“Q.   How would you describe your brother’s attitude to his own conduct when he did what he did in this instance?

A.   He has been filled with shame, and you know, remorse. He has seen the impact on everyone around him, let alone his own feelings of what he - you know - what he did that night.

Q.   Has he talked about the fellow he attacked?

A.   He did at the time, yes, when I first saw him, when I visited him in gaol when he was initially arrested and taken to Silverwater.

Q.   What did he have to say?

A.   He just sobbed, said ‘I can’t believe I did this to him. He would have been terrified. I hope I can at some stage make contact and apologise for what I did.’”

12. He also made admissions in the electronically recorded interview with a suspected person dated 18 April 2012, exhibit B.

FACTS

13. The factual context of the offence is found in a statement of agreed facts which is as follows:

“During the evening of the 17 April 2012 the co-offender James Simon visited the offender Nigel Milsom at his house in Queen Street, Glebe. Simon had become acquainted with Milsom, who is 10 years his senior, through his father.

Milsom and Simon spent the evening together well into the early hours of the morning of 18 April 2012. Milsom and Simon discussed and agreed to ‘do a job’. Milsom grabbed a hand axe which he had purchased at Bunnings Warehouse the previous day and placed it in the pocket of his cargo shorts. The axe was steel with rubber covering the handle. The blade of the axe is about five centimetres in length, curved and sharpened around the edges.

Milsom and Simon decided to go to the 7-Eleven store on Cowper Street.

This 7-Eleven store is located at the corner of Cowper Street and Glebe Point Road. It is within short walking distance (about 200 metres) from Milsom’s house at Queen Street. Both Simon and Milsom had been to the store on previous occasions as customers. The store has a glass latched entry door with the service counter located in the top left corner of the shop. The main area of the store is on the right side of the entrance with an aisle of merchandise along the middle and drink and food refrigerators along the side wall. A combined storage and staff room is located at the rear left side of this main room and can only be accessed by a staff member through the wooden security door.

About 2.45am 18 April 2012 Milsom walked into the store followed by Simon. The staff member on duty, Mr Gurmit Singh, was sitting by the open fridge area on the right side of the store. Milsom entered the store first and immediately approached Singh.

Milsom had a blue scarf wrapped around his head partially covering his face. He was wearing a green beanie over a red baseball cap, black jacket, cargo shorts and white sneakers. He walked straight up to Singh whilst holding the axe in one hand, which he had taken from his pocket.

Simon entered the store moments later and walked along the middle aisle. He approached Singh from the other side. Simon also had his face concealed behind a grey colour scarf, with a black baseball cap. He was wearing an army green jacket, blue jeans and green shoes. Simon and Milsom cornered Singh by the refrigerator and grabbed hold of him. They pushed him into the storeroom where he would not be seen from outside the shop.

Once inside the storeroom, Milsom and Simon punched Singh around the head and shoulders. Simon demanded money from Singh, while Milsom demanded the ‘safe key’. One of them threatened Singh by saying, ‘I will kill you if you don’t give us the money.’ Simon was holding a knife with a blade some 15 centimetres long.

As Milsom held onto Singh by his shirt Simon held the knife by the handle with the point towards Singh. When Simon pushed the knife towards him, Singh grabbed it by the blade to protect himself. Singh was cut on his left hand around the ring finger as a result of catching the sharp edge of the blade with his bare hand. The wound immediately started bleeding.

Singh was struck several more times, and then Simon produced a metallic pistol in his hand. (This pistol was later located inside Milsom’s pocket upon his arrest and found to be a toy.)

Simon pointed the gun towards Singh’s face and said, ‘I have the gun. Where is the money?’ Singh, believing the pistol to be real, was in fear of his life and said to them, ‘The money is at the front. I will take you there.’ Milsom and Simon continued to threaten Singh. Milsom swung the axe at Singh’s legs, forcing him to step back.

Milsom and Simon found a backpack which belonged to Singh on a cabinet nearby. They looked through the bag and took a small amount of cash from it. Milsom and Simon kept Singh inside this room for a few minutes before escorting him to the front counter where he was told to open the cash register.

Simon pulled a cordless phone and its base off the counter. Simon then smashed the handset against the floor numerous times to prevent its use. Singh was in such fear that he cooperated with the commands given to him as best he could. He entered the code on the cash register to release the till.

Simon took several notes from the till and placed it in his pocket before loading the rest of the cash into small 7-Eleven plastic bags. The two offenders noticed a safe under the counter and demanded that Singh open it. Singh was unable to do so as he did not know the code for it. Simon and Milsom became angry and pushed Singh around again. Simon punched Singh in the face, knocking him back into the corner.

Milsom told Singh to open the cigarette cabinet and put the cigarettes into a plastic bag. Milsom was unhappy with the way Singh was loading the plastic bag with the cigarettes and pushed him aside. He swung the axe in Singh’s direction in a threatening manner and started placing his preferred brands of cigarettes into the plastic bag himself. Singh was forced into a corner while both Simon and Milsom loaded the cigarettes and cash into plastic bags.

Milsom also found a bundle of Vodaphone phone credit codes on the counter, which he pocketed.

Milsom saw another cabinet next to the safe. He tried to force the cabinet open by hacking at it with his axe but was unsuccessful. Simon and Milsom remained inside the store for about 10 minutes.

The entire incident was recorded on the surveillance cameras inside the store.

During the robbery, a witness was walking along Glebe Point [Road] with the intention of going inside the 7-Eleven. He heard male voices inside and saw Simon and Milsom with their faces concealed and weapons in their hands. He became fearful for his own safety and walked past the store down Glebe Point Road towards Parramatta Road. As he hurried past, he heard a loud male voice coming from the inside of the store saying ‘open it up or we’ll shoot you.’ The witness waved a taxi down. The taxi driver contacted the police. Police arrived on the scene with full lights and sirens a short time later.

Simon and Milsom heard the sirens and ran out the door carrying the cash and cigarettes. They initially went down Cowper Street, dropping the plastic bags containing the cash and the cigarettes in front of the store. They were intercepted by police, forcing them to split up and run back in the opposite direction on Glebe Point Road. Police established a perimeter around the store and nearby streets. This was also captured on the external surveillance cameras.

Milsom ran south along Glebe Point Road and was apprehended by a number of police officers at the intersection with Francis Street.

Police seized the axe Milsom was holding just prior to his arrest. A further search of Milsom resulted in police locating the knife and the ‘firearm’ used in the offence. A bundle of Vodaphone credits and some cigarettes were found inside his pockets.

Simon ran north on Glebe Point Road, before crossing over to the other side into Derwent Lane. Police pursued him on foot and caught up with him as he was trying to jump a back fence of residential premises. Police drew their firearms and challenged Simon. He surrendered to them. He was arrested and cautioned. Police recovered an amount of cash Simon had taken from the cash register inside his pants pocket.

Police became concerned that Simon was at risk of self-harm. He was conveyed to Royal Prince Alfred Hospital around 3.15am for a mental health assessment.

Meanwhile, police organised an ambulance to take Singh to Sydney Hospital. He was in pain from a number of bruises he sustained around his face, shoulders and arms as well as from the wound on his left ring finger. He was treated by a doctor on duty who prescribed him with analgesic medication. He received four stitches for the wound. He was discharged from the hospital shortly afterwards.

Singh was traumatised and distraught from the experience and was unable to return to work for several days.

Milsom was taken to Newtown Police Station, where his rights were explained to him. He agreed to participate in an electronically recorded interview, in which he admitted the offence. He was later charged.

Simon was discharged from the Royal Prince Alfred Hospital the same day and was taken to Newtown Police Station.

Simon declined to participate in an electronically [recorded] interview.

The property taken in the robbery included the sum of $644.00 in cash, 18 packets of cigarettes valued at $294.00, and Vodaphone credits valued at $918.00. Of this, all but $67.00 in cash was recovered by police and returned to the owner.”

14. It is clear from this factual statement this is an objectively serious instance or example of an offence contrary to s 98: Simpson v R [2014] NSWCCA 23 at [25]-[27] (Hoeben CJ at CL); Campbell v R [2014] NSWCCA 102 at [27]-[33] (Simpson J).

15. It is the position that the wounding was very much at the lower end of the scale, if not the lowest, and that must be taken into account. I also accept the purchase of the axe was not in preparation for any robbery and there was minimal planning. As against that, the offence was committed in company and there was more than one weapon used and there was actual violence inflicted on the victim. This occurred over a 10 minute period. Further, a metallic pistol found later to be a toy was used by the co-offender to threaten the victim at the same time the prisoner waved the axe towards him.

16. The victim was a vulnerable person working at night: s 21A(2)(l) Crimes (Sentencing Procedure) Act.

17. I am of this view already noted that this is an objectively serious instance or example of an offence contrary to s 98, giving consideration only to the objective seriousness of the offence without reference to matters personal to the prisoner, including his mental condition: s 54A(2) Crimes (Sentencing Procedure) Act. In GN v R [2012] NSWCCA 96, Basten JA said at [12], with Blanch J agreeing at [18]:

“Usually the ‘objective seriousness’ of the offence is equated with the level of moral culpability of the offender. However, although the circumstances of the offence may justify the description of being ‘in the middle of the range of objective seriousness’ for such an offence, in the language of s 54A(2) of the Sentencing Procedure Act, where the personal characteristics of the offender reduce the level of moral culpability, that description does not identify the level of moral culpability: see Muldrock at [54].”

18. The standard non-parole period is a guidepost, together with the maximum penalty.

19. The Crown in her careful written submissions gave consideration to the guideline in R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 34; 106 A Crim R 149. I have taken into account those submissions.

20. This of course is an offence not contrary to s 97(1). Rather, the more serious offence contrary to s 98. It is in this connection that I have referred to the aggravating factor s 21A(2)(l). I am fully aware this consideration is a feature of a case contrary to s 97(1), as discussed in Henry.

21. In R v JW [2010] NSWCCA 49; 77 NSWLR 7; 199 A Crim R 486, the following is found in the joint judgment of McClellan CJ at CL, Howie and Johnson JJ at [214]:

“We do not agree that the subjective factors recounted by the Chief Justice and relied upon by the sentencing judge could justify the sentences imposed for either offence even when they are taken together with the findings of fact in relation to the commission of the offences. It has been established that for armed robbery offences it would only be in exceptional circumstances that other than a sentence of actual custody could be imposed. We do not believe that the subjective factors in this case could have led to the imposition of the sentences imposed even had the charges been armed robbery or robbery in company. But the charges here were armed robbery with wounding and they were serious examples of their kind. In our opinion it would be very rare indeed that subjective factors could result in such exceptional circumstances that a custodial sentence could be avoided for an active participant in an offence of this nature. Yet here there were two offences.”

22. Their Honours were in the majority. Spigelman CJ, Allsop P agreeing, took a different view. What is noted there by their Honours is a matter to which I will return later in these remarks. I emphasise though that the quote is “in such exceptional circumstances that a custodial sentence could be avoided” and as already now stated twice the reference there is to a custodial sentence.

SUBJECTIVE MATTERS AND SOME DEFENCE SUBMISSIONS

23. The prisoner was born on 16 July 1975. He was aged 36 years and about nine months at the time of the offence. He is now aged 39 years and about nine months.

24. He is a very accomplished and successful artist. He obtained a Bachelor of Fine Arts with Honours and a Masters Degree in Fine Arts, both from the College of Fine Arts University of New South Wales.

25. He was undertaking a PhD and had completed a number of years of study towards achieving that degree, again in Fine Arts. However, his supervisor was murdered by his son and this was so upsetting to him he was unable to continue his PhD studies thereafter.

26. He has won many awards and been a finalist in respect of many high level art competitions. He won the prestigious Sulman Prize on 30 March 2012, some 18 days before the offence. He won the prestigious Moran Portraiture Prize on 23 October 2013, a month or so after he was sentenced.

27. It is relevant to note now this came to the attention of other prisoners in his wing at Cessnock and as a result he was stood over because some of those prisoners thought he was a person of means. This made his conditions of custody more onerous and such knowledge would remain with certain prisoners and if he were to return to custody this would also make any further custodial conditions more onerous.

28. He has been exposed to a number of tragic episodes. His sister died of an overdose of drugs in 2009. In 2000, he found his cousin dead in their shared premises, an event which caused him great distress.

29. The following is found in the judgment of the Court of Criminal Appeal Milsom v R [2014] NSWCCA 142 at [23]-[27] (Hoeben CJ at CL):

“[23] The applicant had experienced a dysfunctional childhood and upbringing. His parents divorced when he was four or five years old. His mother regularly relocated the family to hide them from his father, who was an alcoholic. Five of his paternal uncles had suicided. His maternal grandfather had an alcohol problem. The applicant has a younger brother on a methadone maintenance program and his youngest brother abuses methamphetamine.

[24] In the past the applicant had engaged in suicidal behaviour while intoxicated, including three suicidal gestures following his arrest. He ran at a police officer, he banged his head against the cell wall and he attempted to suffocate himself with a seatbelt in the back of the police car after his arrest.

[25] The applicant was granted bail following his arrest and spent time in the Sydney Clinic under the care of a psychiatrist, Dr Samson F Roberts. Following his discharge, he succeeded in maintaining sobriety. At the time of sentencing, he had been on bail for 14 months and he continued to be treated successfully in the community by Dr Roberts and a psychologist.

[26] Dr Roberts provided three reports for consideration by the Court (31 July 2012, 26 June 2013, 4 September 2013). In the report of 31 July 2012 Dr Roberts took a history that in the period before the offence the applicant was consuming a minimum of 15 beers a day with whiskey on occasions. He had used opiates since the age of 18 and his use had escalated over the 12 months before his admission to the Sydney Clinic. He had been using ice for more than 18 months before the offence.

[27] Dr Roberts took a history that all of these substances were used ‘as an escape from depression’. The applicant had been prescribed Zoloft for depression, but had ceased to take it before the offending. He had been treated for depression for 7 years. At page 11 of the 31 July 2012 report, Dr Roberts said:

‘In the period before the events for which Mr Milsom is before the court, he had experienced a relapse of his depression, having ceased antidepressant medication and resumed substance use. Severe depressive illness is typically associated with apathy for consequence, impaired cognition and reasoning and vulnerability to coercion.’”

30. In respect of his “subjective case”, Hoeben CJ at CL had already said in an earlier paragraph, being paragraph [20]:

“It is necessary to say something about the applicant’s subjective case in order to understand the issues which arose during the sentence proceedings. The applicant at the time of the offending was a successful artist, having won the prestigious ‘Sulman Award for Modern Art’ which is awarded by the Art Gallery of New South Wales. Unfortunately, in the course of celebrations accompanying this win, a friend provided him with a quantity of methylamphetamine and heroin on which he proceeded to binge in the weeks leading up to the offence.”

I accept his account of obtaining methylamphetamine in this way.

31. Further reports have now been tendered from Dr Roberts, dated 17 June 2014 and 22 January 2015. The doctor also gave further evidence by way of cross-examination at the Sydney District Court on 29 January 2015.

32. A report from psychologist Jenny Chapman was also tendered and many testimonials. His partner, now friend, gave evidence, as did his sister. There is a pre-sentence report dated 6 September 2013 and a further report dated 27 January 2015.

33. The prisoner’s curriculum vitae and a bundle in relation to his artwork was also tendered in the defence case.

34. It will just not be possible to make reference to all of the material. I have though reviewed carefully all of it and revisited carefully the totality of the proceedings which were transcribed. Also the Crown’s written submissions.

35. The prisoner has no convictions (in 1996 he was dealt with under s 556A of the Crimes Act for larceny). I put this to one side. He is a person of prior good character.

36. I am of the view this offending was completely out of character. I am firmly of the view the conduct which gave rise to the charge is aberrant. I am of the view he is a person with a non-violent disposition.

37. Despite the Crown’s submission to the contrary, I am of the view he has excellent prospects for rehabilitation. Indeed I am of the view he has made very significant steps towards full rehabilitation already. He is, in my view, unlikely to re-offend. I accept he has not used illegal drugs since his arrest. He has family and community support and has taken responsibility for his son. He has recommenced Zoloft and is compliant with his medication.

38. The prisoner has had a long term history of suffering from a psychiatric illness. He has a well-established disorder of some standing. I accept the defence submission he was in a very vulnerable and impaired cognitive state at the time this incident occurred.

39. He had ceased taking his medication, Zoloft, at the time of the offending. He has been taking this medication for about seven to 10 years.

40. I accept, as already noted, he had received methylamphetamine (ice) at the Art Gallery of New South Wales when he received the Sulman Award for Modern Art on 30 March 2012, some 18 days before the offence, and went on a binge while continuing to take other drugs and alcohol: see Court of Criminal Appeal judgment Milsom v R at [20] which has been quoted already.

41. I accept in the light of all of the evidence the prisoner’s moral culpability at the time of the offence was reduced and consequently the need to denounce the crime is reduced. Further, he is a much reduced vehicle for the principle of general deterrence, although in this case general deterrence cannot be put completely to one side. Also, I accept his mental health means a custodial sentence will weigh more heavily on him. In fact, this has happened in this case and that is a matter to which I will return.

42. I am firmly of the view specific deterrence is reduced if not eliminated in this case because of what has happened procedurally, and the custody and the nature of it already experienced. I will also be giving specific consideration to the course of the proceedings later in these remarks.

43. I accept Mr Boulten’s submission he has had a real difficulty with abusing drugs and alcohol stemming from a mental illness. So the drug problem sheds light on the offence which I am of the view was impulsive and, as already noted, minimally planned. The intoxication affected his ability to exercise judgment. That is not to say I treat this, being his drug and alcohol use and intoxication at the time, as a mitigating feature. I do not. It is though relevant in the way I have noted.

PARITY

44. The co-offender Mr Simon was sentenced by his Honour at the same time as the prisoner. This took place on 13 September 2013, about one year and six months ago.

45. Mr Simon received a sentence of six years with a non-parole period of three years. He was on parole at the time of the present offence, on 18 April 2012. His parole was revoked as a result of this offence. The new sentence was specified to commence at the end of the balance of parole, although on the same day it finished, rather than the following day. Accordingly, his total custodial component is three years, seven months, seven days and his effective total term six years, seven months, seven days.

46. His being on parole differentiates him from the prisoner. Further, Mr Simon has a criminal record. The custodial record of Mr Simon was tendered and this discloses he has been given the benefit of parole on four occasions. He has had his parole revoked on three prior occasions, including the revocation which resulted from the offending on 18 April 2012. He has been in and out of custody consistently from March 2003 when he was aged 18. His date of birth is 17 February 1985. He was aged 27 years and two months at the time of the armed robbery with wounding. He is nine years and seven months younger than Mr Milsom. He also has a juvenile record, including at least two separate custodial orders by way of control orders.

47. He had last been released on parole on 25 August 2011, some eight months before the present offence.

48. He was entitled to a 25 percent reduction for utilitarian consideration, having pleaded guilty in the Local Court.

49. It was accepted by the Crown it was Mr Simon’s idea to commit the offence.

50. Mr Boulten submitted - and I accept - his client was substantially less culpable. His moral and legal responsibility was less because of the inter relationship between his offending and his mental problem and this warrants a reduction in his sentence.

51. The two subjective cases are very different.

52. Further, I am of the view very little weight, if any, needs to be given to specific deterrence and reduced weight to general deterrence in Mr Milsom’s case.

53. Accordingly, there are significant dissimilarities between the two cases.

54. Mr Boulten submitted because of the matters noted and the procedural irregularities, justice dictates his client receive a significantly less severe sentence.

55. I accept this proposition because of the combination of matters, the cumulative effects of these dissimilarities. In fact, in my view they are not like offenders at all, apart from their participation in the same offence.

COURSE OF THE PROCEEDINGS

56. The offence the prisoner committed took place some three years ago. He pleaded guilty about two years ago. It will be necessary to go into a deal of detail to explain why he remains unsentenced.

57. Delay is a significant aspect of this case, even though the delay is not the responsibility of the Crown or the prisoner.

58. His rehabilitative efforts and success in that regard need to be taken into account in his favour as they have been achieved during this period of delay, despite the real difficulties he has experienced from the operation of the legal system in respect of his prosecution.

59. On 18 April 2012, the offence was committed and the prisoner and the co-offender arrested near the scene of the offence.

60. On 27 April 2012, bail was granted but not entered. On 30 April 2012, bail was entered and the prisoner released on bail to reside at the Sydney Clinic for the next 21 days. On 17 May 2012, bail was varied to a residential address.

61. On 11 October 2012, the prisoner was committed for trial. On 3 May 2013, the prisoner pleaded guilty on arraignment. On 28 June 2013, sentence proceedings before Maiden DCJ commenced. Bail was revoked by his Honour. There was no application by the Crown that bail be revoked. On the contrary, the Crown did not oppose bail being granted.

62. The Court of Criminal Appeal found the “revocation of the applicant’s bail at the conclusion of the proceedings on 28 June clearly involved a denial of procedural fairness insofar as the applicant was concerned”: Milsom v R at [98].

63. On 18 July 2013, the prisoner made application for the sentencing judge to disqualify himself. The application was rejected. As at the time of the Court of Criminal Appeal judgment, reasons for that rejection had still not been given.

64. On 9 September 2013, the sentence proceedings before the judge continued. Bail at that time was granted by his Honour, not opposed by the Crown. Although it does not seem an application was in fact made at that time.

65. So by now, the prisoner had gone into custody, been released, and gone into custody and been released again. The second of those occasions involved, as already noted, a procedural irregularity. On his return to custody on this occasion, his mental health deteriorated significantly.

66. It was on 19 July 2013 that the meeting between the legal representatives and the judge in the ante room of one of the courts in the Downing Centre took place.

67. The Court of Criminal Appeal stated the following at [104] and [105] of the judgment:

“[104] Although the recollections of the legal advisors, as set out in their affidavits, are not identical, three significant aspects of the meeting are clear:

(i)   It was initiated by his Honour.

(ii)   There was a clear statement by his Honour that he did not think the applicant should receive a custodial sentence.

(iii)   His Honour was concerned about a Crown appeal if he did not impose a custodial sentence and was trying to elicit some assurance from the Crown representative that no appeal would be brought.

[105] The attempt to bring pressure on the Crown representative in this way was quite inappropriate, should not have happened and is strongly disapproved by this Court. Leaving that aspect aside, when taken with his Honour’s express desire not to impose a custodial sentence on the applicant, it provides a firm basis for the applicant’s primary complaint that the sentencing proceedings involved procedural unfairness insofar as he was concerned, resulting in the sentence ultimately imposed giving rise to a miscarriage of justice.”

68. On 9 September 2013, the sentence proceedings continued before his Honour. On 13 September 2013, a sentence of six years imprisonment with a non-parole period of two and a half years was imposed on the prisoner. The co-offender was sentenced as already noted.

69. In relation to this, the Court of Criminal Appeal found a further procedural unfairness had occurred. This is discussed at [120] and [121] as follows:

“[120] Applying those principles to the facts of this case, the overwhelming conclusion is that procedural unfairness has occurred. The exchanges in court on 19 July and 9 September, together with the out of court communication between his Honour and the legal representatives on the afternoon of 19 July, made it clear that the sentence under consideration by his Honour ranged from a non-custodial sentence at one end of the spectrum to something more but not greatly more than imprisonment for 2 years at the other. There was no mention by his Honour, or by the parties, of a head sentence of 6 years or anything like it. On the contrary, the tone of the submissions was consistent with the out of court discussion. The Crown was clearly expecting a non-custodial sentence which explains his request at the end of the proceedings that his Honour expedite the production of a transcript of his remarks on sentence.

[121] The practical injustice is clear in at least two respects. The applicant received a longer sentence than that which had been identified clearly by the sentencing judge in the course of submissions without any indication from his Honour that his opinion had changed in this respect. In addition, he lost the opportunity for his counsel to make further submissions on that issue in particular submissions relating to parity.”

70. As a result, the prisoner was returned to custody for the third time. On 24 June 2014, the Court of Criminal Appeal heard the prisoner’s appeal and on 26 June 2014, the Court of Criminal Appeal allowed the prisoner bail. On 28 July 2014, the Court of Criminal Appeal judgment was delivered, the sentence quashed and the case was remitted to another judge of the District Court.

71. Accordingly, the prisoner went back into custody on a third occasion and was re-released now on a third occasion.

72. The case was heard by myself on 29 and 30 January 2015 at Sydney District Court and adjourned to be completed at Newcastle on 18 February 2015. Judgment was then reserved until my return to Parramatta District Court today, 1 April 2015.

73. I accept the evidence of the prisoner and his sister that they were shocked when he was bail refused before the case had completed and, as already noted, the prisoner’s mental condition deteriorated upon his return to custody. Further, they had been positively told at a later time, being 19 July after the discussion in the ante room, he would not be going into custody again and were devastated when that happened on 13 September. It must be remembered Mr Milsom and his family were told the judge had said this.

74. Mr Boulten submitted the present matter is a most exceptional case, indeed an extraordinary case.

75. The Crown submitted the relevance of the course of the proceedings is disruption to his rehabilitation upon his return to custody which the Crown stated was definitely required. The Crown said at [46] of the written submissions:

“It is submitted [the] fact that the offender has to return to custody again should not be elevated to the sole reason for finding that the Henry guideline does not apply. In taking into account the disruption to the offender’s rehabilitation, it is submitted that care should be taken not to re-litigate matters that were the proper subject of the appeal. It is submitted that the relevance of the earlier sentence proceedings are limited to the disruption to his rehabilitation. The disruption would mitigate the penalty to be imposed.”

76. In the case of R v Bennett [2014] NSWCCA 197, Simpson J said at [99], in a judgment in relation to a Crown appeal:

“Disruption of an offender’s rehabilitation is a relevant consideration in relation to the exercise of the residual discretion: Green v The Queen at 479 [43] per French CJ, Crennan and Kiefel JJ.”

With respect to the Crown, I am firmly of the view the significance of the proceedings in this case is very much more than that. This is a most exceptional, indeed an extraordinary, case.

77. In R v Carroll, Carroll v R [2010] NSWCCA 55; 77 NSWLR 45; 200 A Crim R 284, Allsop P said the respondent had been “buffeted” by the operation of the legal system. At [65] the following is found:

“Since being first sentenced, Mr Carroll has been buffeted by the operation of the legal system in a manner which must be recognised. He served imprisonment by way of periodic detention between 24 April 2008 and 19 September 2008. He was then incarcerated full-time for seven months between 19 September 2008 and 29 April 2009. His appeal to the High Court was successful. On 29 April 2009, he was given bail over the objection of the Crown. His appeal has been extended in its duration by the passing of retrospective legislation that attracted serious Constitutional challenge. The imposition of these matters upon him can be recognised not to be of his making (other than through the commission of the offence).”

At [66]:

“His personal circumstances reveal the heavy psychological burden the legal process has had on him.”

This is the position in the present case.

78. The Court imposed a further sentence of 18 months, suspended on him entering into a bond to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act.

79. On remitter from the High Court, R v Muldrock; Muldrock v R [2012] NSWCCA 108, at [14], the matter was described in the following way: “The matter is an extraordinary one.” The ultimate sentence imposed was a non-parole period of one year with a balance of term of two years.

80. The Court was of the view automatic release was appropriate which would result from the head sentence being three years. Mr Muldrock had been in custody continuously from 22 April 2009 to 18 May 2012, in excess of three years. The Court orders were made on 18 May 2012. The three years would have expired on 21 April 2012, the non-parole period on 21 April 2010.

81. Mr Muldrock was never granted bail from when he first went into custody.

82. In my view, this case is one involving actual anxiety and distress experienced by the prisoner. This case involves very unusual considerations which go far beyond the principal of disruption to his rehabilitation.

83. The strong subjective features together with the factual findings made, combined with the procedural history, make this case truly exceptional.

84. Mr Boulten though, on behalf of his client, does not seek a non-custodial sentence. He is requesting the custodial time served, which it is agreed is 341 days, be combined with a period on parole in the community. 341 days is in excess of 11 months, or stated differently, 24 days less than 365 days which is one year. This is a full-time custodial sentence. Actual custody has been served. In this regard, I refer back to what was said by their Honours in R v JW.

SPECIAL CIRCUMSTANCES

85. I now turn to the question of special circumstances.

86. In R v Tuuta [2014] NSWCCA 40, Bellew J, Bathurst CJ and Hoeben CJ at CL agreeing, said at [57]:

“Circumstances which are not properly regarded as being ‘special’ should not be elevated into that category (see R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 719; [68]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [20]). In order for special circumstances to be made out there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful, and that this is not merely a possibility (see R v Carter [2003] NSWCCA 243 at [20]).”

87. In my view, in this case that test is satisfied. The prisoner (and accordingly the community) will benefit from an extended period of supervision in the community, particularly in relation to his mental condition and history of drug and alcohol abuse. These conditions can better be treated in the community.

SENTENCE TO BE IMPOSED

88. Yes, stand up please.

The sentence I would have imposed prior to reduction of 15 percent for utilitarian considerations is 2 years 9 months. That reduced by 15 percent is 2 years 4 months 2 days, rounded to 2 years 4 months.

89. The formal orders are as follows:

I impose a non-parole period of 341 days, commencing on 26 April 2014 and expiring today, 1 April 2015. The total term is 2 years 4 months, commencing on 26 April 2014 and expiring on 25 August 2016.

90. I am fully aware the non-parole period is somewhat less than 50 percent of the total term. In my view, that is appropriate in all the circumstances of this case.

91. The special circumstances are those noted in my Remarks on Sentence.

92. I direct your release to supervised parole today, 1 April 2015. The parole will be entered in the Registry.

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Decision last updated: 29 July 2015