AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 April 2015

R v Milsom

[2015] NSWDC 138

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY WITH WOUNDING PROCEDURAL UNFAIRNESS DELAY MENTAL CONDITION

Citation: R v Milsom [2015] NSWDC 138
Court: District Court of New South Wales
Date: 1 April 2015
Judge: Payne DCJ

Background

The offender pleaded guilty on arraignment in May 2013 to a single charge of armed robbery with wounding under s 98 of the Crimes Act 1900 (NSW). The offence occurred in the early hours of 18 April 2012, when the offender and a co-offender entered a 7-Eleven store in Glebe armed with an axe, a knife, and what appeared to be a pistol (later found to be a toy). They cornered the sole staff member, assaulted him, threatened to kill him, and stole cash, cigarettes, and telephone credits. The victim was wounded on his hand when he grabbed the co-offender's knife blade to protect himself.

The matter was originally sentenced, but the Court of Criminal Appeal allowed an appeal in Milsom v R [2014] NSWCCA 142, finding procedural unfairness, and remitted the matter to the District Court for resentencing. The current decision is that resentencing exercise.

By the time of resentencing, the offender had served 341 days of actual custody. His legal representative did not seek a non-custodial outcome but asked the court to combine that time served with a supervised parole period in the community.

  • What sentence was appropriate on resentencing following remittal from the Court of Criminal Appeal for procedural unfairness?
  • What weight should be given to the guilty plea (entered on arraignment, not at the earliest opportunity) for utilitarian purposes?
  • Whether the offender had demonstrated genuine remorse satisfying s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should delay between the offence and resentencing, the offender's mental condition, and parity with the co-offender's sentence affect the sentence?
  • Whether special circumstances justified a non-parole period less than the statutory default proportion of the total term?

Decision

Payne DCJ convicted the offender and proceeded to sentence him afresh. The judge assessed the objective seriousness of the offence as significant: the robbery was planned, involved multiple weapons, lasted an extended period, and left the victim in genuine fear for his life. The maximum penalty under s 98 is 25 years imprisonment, with a standard non-parole period of seven years.

The judge allowed a 15 percent discount on the sentence for the utilitarian value of the guilty plea, noting it was not entered at the earliest opportunity. The judge was satisfied the offender had also demonstrated genuine remorse within the meaning of s 21A(3)(i), accepting evidence from the offender himself, his sister, and an apology letter written in July 2012. The offender had accepted agreed facts going beyond his own recollection, which the court treated as consistent with taking responsibility.

The judge described the combination of features in this case as "truly exceptional," taking into account the procedural history on remittal, delay, the offender's mental condition, his history of drug and alcohol abuse, and parity considerations with the co-offender's sentence. These factors collectively justified a sentence at the lower end of the range.

Special circumstances were found to exist. The court accepted that the offender's mental condition and substance abuse history could be better addressed under supervision in the community, and that both the offender and the public would benefit from an extended parole period. The non-parole period was therefore set below the ordinary 50 percent threshold.

Orders Made

  • The offender was convicted of armed robbery with wounding contrary to s 98 of the Crimes Act 1900 (NSW).
  • A non-parole period of 341 days was imposed, commencing 26 April 2014 and expiring 1 April 2015.
  • A total sentence of 2 years and 4 months was imposed, commencing 26 April 2014 and expiring 25 August 2016.
  • The offender was directed to be released to supervised parole on 1 April 2015.

Key Takeaways

  • On resentencing following remittal for procedural unfairness, the District Court treated the combination of delay, mental condition, drug and alcohol history, and parity with the co-offender as collectively exceptional, justifying a sentence at the lower end of the available range.
  • A guilty plea entered on arraignment rather than at the earliest opportunity attracted only a 15 percent utilitarian discount, consistent with the graduated approach to plea discounts under NSW sentencing law.
  • Genuine remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 can be established where an offender accepts agreed facts beyond personal recollection, provides an apology letter, and gives credible oral evidence of shame and acknowledgment of harm caused.
  • Under the test in R v Tuuta [2014] NSWCCA 40, special circumstances require significant positive signs that a longer parole period is likely (not merely possible) to support successful rehabilitation. The District Court was satisfied that threshold was met here, given the offender's mental health needs and substance abuse history.
  • Where an offender has served actual full-time custody by the time of resentencing and the sentencing court finds exceptional circumstances, a sentence structured entirely as time served plus supervised parole remains available, consistent with the Court of Criminal Appeal's observations in R v JW [2010] NSWCCA 49.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (armed robbery with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A (aggravating and mitigating factors), 54A

Cases:
- Milsom v R [2014] NSWCCA 142 (appeal allowing remittal)
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Tuuta [2014] NSWCCA 40
- R v Carroll, Carroll v R [2010] NSWCCA 55; 77 NSWLR 45
- R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 34
- R v Muldrock; Muldrock v R [2012] NSWCCA 108
- Simpson v R [2014] NSWCCA 23
- Campbell v R [2014] NSWCCA 102
- GN v R [2012] NSWCCA 96
- R v Bennett [2014] NSWCCA 197