R v Milward

COURT OF APPEAL

[1995] QCA 456

DAVIES JA
MOYNIHAN J
FRYBERG J

CA No 224 of 1995

THE QUEEN

MICHAEL JOSEPH MILWARD

BRISBANE

..DATE 23/08/95

JUDGMENT

MOYNIHAN J: This is an application for leave to appeal against a sentence of 12 months imprisonment for wilful damage to property by night. The applicant was dealt with on the same occasion for four other offences of wilful damage to property for which sentences of six months, in the case of three and three months imprisonment in the case of another, were imposed.

He was also dealt with for a series of other offences in relation to failing to honour bail and, I think, some driving offences, but those matters are of no great concern, subject to them being indicative of the appalling criminal history which the applicant has accumulated in his lifetime.

The offences, including that the subject of the application for leave to appeal, were offences committed in respect of property owned or occupied by a woman who, the Magistrate was told, unfortunately the applicant loves. He was dealt with for a breach of a domestic violence order on the same occasion. That breach relates to a breach in respect of that woman.

The applicant has previously been dealt with by the Magistrates Court on, I think, four or five previous occasions for breach of domestic violence orders, whether concerning the same woman or not does not emerge and, in any event, is not particularly relevant. He also has a number of assault convictions including assault with the circumstance of aggravation that the person assaulted was a female.

He also has a great range of other offences relating from driving offences to stealing, receiving and similar offences. He has a number of breaches of bail conditions. Generally, he seems to regard the law as being of no consequence or of no application to him and, as I have indicated, has habitually been dealt with by the Courts for its breach.

The circumstances of the destruction of the property of which he was convicted have to be viewed in the context of the domestic relationship which is reflected in the various domestic violence orders that have apparently been made against him and in his persistent breach of those orders.
The Magistrate obviously sentenced him in the context of those considerations.

It is true that it is not immediately apparent why the Magistrate selected one particular offence, that in relation to the destruction of property owned by the Housing Commission. It was the residence occupied by the woman into which the applicant broke while it was occupied by her and I think two children. But on the other hand I should, myself, have thought that had the Magistrate imposed a concurrent sentence of 12 months in respect of the other associated offences, there would be little that the applicant could have said by way of complaint.

In the circumstances there has been nothing shown to demonstrate that the exercise of the sentencing discretion by the Magistrate was other than entirely appropriate, in the circumstances, with which he found himself confronted.

I would, therefore, refuse the application for leave to appeal.

DAVIES JA: I agree.

FRYBERG J: I agree.

DAVIES JA: The application is refused.

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In the Court of Appeal, the case of R v Milward concerns an application for leave to appeal against a sentence of 12 months imprisonment for wilful damage to property by night. Michael Joseph Milward, the applicant, was also sentenced for four other offences of wilful damage to property and breaches of domestic violence orders. His criminal history includes multiple convictions for assault, particularly with the aggravating circumstance that the victim was a female, and various other offences such as driving offences and theft. The offences in question were committed against a woman whom the applicant loves, and the property damage occurred during a breach of a domestic violence order. The appeal application was heard by Justices Moynihan, Davies, and Fryberg.

The legal issues before the court involved whether the sentence imposed by the magistrate was appropriate given the nature of the offences and the applicant's extensive criminal history. The court had to consider whether the magistrate's sentencing discretion was exercised appropriately in light of the domestic violence context and the applicant's persistent breaches of domestic violence orders. The court was also required to determine whether there were any grounds to believe that the sentence was disproportionate or unjust.

The court found that the magistrate's sentencing was entirely appropriate given the circumstances. Justice Moynihan noted that while it was not immediately clear why the magistrate selected one particular offence for a 12-month sentence, it would have been reasonable to impose concurrent sentences for the other associated offences. The court emphasised that the applicant had a long history of disregarding the law, including habitual breaches of court orders. The court concluded that there was no evidence to suggest that the magistrate's exercise of discretion was improper. Consequently, the application for leave to appeal was refused.

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