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

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.
He had been committed for trial on 11 October 2012.
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.
I convict him of this offence.

PLEA OF GUILTY

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.
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)”.

I am firmly of the…

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 R v Milsom

Details

AGLC: R v Milsom [2015] NSWDC 138
Case: [2015] NSWDC 138
Decision Date: 01 April 2015

CaseChat Overview and Summary

In the case of R v Milsom, the defendant, Milsom, appealed against his sentence for armed robbery with wounding, which was imposed by the District Court of Queensland. The appeal was heard by the Court of Criminal Appeal, which found that the sentence was manifestly excessive and remitted the matter to the District Court for resentencing. The legal issues before the District Court on the resentencing were whether the sentence should be reduced due to a procedural unfairness in the original sentencing process and whether the delay and Milsom's mental condition warranted a reduced sentence.

The Court of Criminal Appeal had found that there was procedural unfairness because the District Court had not considered all of the mitigating factors before it. The District Court was required to reassess the sentence, taking into account the legal principles of parity and the need to ensure that the sentence was just and proportionate. The Court also considered the impact of the delay in sentencing and Milsom's mental condition at the time of sentencing. The Court found that these factors warranted a reduction in the original sentence.

After considering the legal principles and mitigating factors, the District Court sentenced Milsom to a term of imprisonment of 2 years 4 months with a non-parole period of 341 days. This sentence took into account the procedural unfairness, the delay, and Milsom's mental condition. The Court found that these factors warranted a reduced sentence, but still needed to ensure that the sentence was just and proportionate to the offence committed. The Court of Criminal Appeal had previously found that the original sentence was manifestly excessive, and the resentencing by the District Court reflected this finding.

Orders

Orders of the court

Sentenced to a term of imprisonment of 2 years 4 months with a non-parole period of 341 days

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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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