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District Court 28 August 2013

Milson v R (No 2)

[2013] NSWDC 268

Domestic & family violencePublic order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES

Citation: Milson v R (No 2) [2013] NSWDC 268
Court: District Court of New South Wales
Date: 28 August 2013
Judge(s): Cogswell SC DCJ

Background

The appellant had an apprehended domestic violence order (ADVO) made against him, with his former partner as the protected person. He was charged with four separate contraventions of that order across two distinct episodes in January 2011 and July 2012.

The January 2011 incidents involved an argument during a child handover and, on a separate occasion, the appellant briefly hugging and kissing his daughter before going into custody. The July 2012 incidents were more serious: the appellant followed his former partner's car through Tweed Heads, drove alongside her on the wrong side of the road, and made a threatening remark. His former partner's young son was present throughout.

At Tweed Heads Local Court in January 2013, Magistrate Dakin imposed four prison sentences on the appellant. The appellant appealed those sentences to the District Court.

  • Whether the original good behaviour bonds for the January 2011 offences should have been revoked and replaced with imprisonment
  • What weight should be given to the mitigating circumstances of each offence when assessing objective seriousness
  • Whether the Tweed Heads offences, although relatively low in objective seriousness, warranted immediate imprisonment given the appellant's prior convictions and existing bond conditions
  • Whether suspended sentences were appropriate for the Tweed Heads offences

Decision

Regarding the January 2011 offences, Cogswell SC DCJ characterised them as low in objective seriousness. The first incident arose from an argument during a child handover arrangement that Ms Cantrill herself had requested. The second involved the appellant hugging his daughter before going into custody, conduct the judge described as occurring in "very mitigating circumstances," albeit more than a technical breach.

In light of those mitigating circumstances, the court decided to take no action on the bond breaches that had given rise to the January 2011 prison sentences. The sentences imposed in the Local Court for those offences were set aside.

The Tweed Heads offences were treated more seriously. While still assessed as relatively low in objective gravity, they were aggravated by the fact that the appellant was on good behaviour bonds at the time and already held criminal convictions for similar conduct. The stalking or intimidation charge carried a significant maximum penalty.

For the Tweed Heads offences, the court determined that imprisonment was the only appropriate response. However, given the circumstances, the court suspended both sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 rather than requiring the appellant to serve them immediately.

Orders Made

• Set aside the sentences imposed in respect of the offences committed in January 2011
• Imposed a sentence of 4 months imprisonment for the first Tweed Heads offence
• Imposed a sentence of 8 months imprisonment for the second Tweed Heads offence
• Suspended the execution of both sentences under s 12 of the Crimes (Sentencing Procedure) Act

Key Takeaways

  • The District Court distinguished sharply between the two sets of offences, treating the January 2011 incidents as low in objective seriousness because they arose from a child handover arrangement and a farewell to a child before custody.
  • Mitigating circumstances, including a parent's desire to say goodbye to a child before entering custody, can significantly reduce the assessed gravity of an ADVO contravention, even where the breach is acknowledged as more than technical.
  • Aggravating factors, including committing further offences while on an existing good behaviour bond and having prior convictions for similar conduct, elevated the sentencing outcome for the Tweed Heads offences notwithstanding their relatively low objective seriousness.
  • Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a sentence of imprisonment and then suspend its execution, which the District Court exercised here to reflect both the need for a custodial response and the particular circumstances of the offending.
  • Taking no action on good behaviour bond breaches remains an available sentencing option where the underlying offences are found to be of very low objective seriousness and mitigating circumstances are compelling.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)

Cases Cited
No cases were cited in the judgment.