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District Court 29 November 2019

Milgate v R; Milgate v R

[2019] NSWDC 808

Assault & violencePublic order & justice offences
FUELLED VIOLENCE — CCTV FOOTAGE — HIGH

Citation: Milgate v R; Milgate v R [2019] NSWDC 808
Court: District Court of New South Wales
Date: 29 November 2019
Judge: Buscombe DCJ

Background

Two brothers, aged 23 and 20, appealed against sentences imposed in the Penrith Local Court on 25 October 2019. Each had been convicted of assault occasioning actual bodily harm while in company and affray using unlawful violence, arising from a group attack on two men in a Penrith McDonald's car park. The Local Court had sentenced each appellant to 18 months imprisonment with a non-parole period of 12 months, with both sentences served concurrently.

The agreed facts, signed by both appellants in the Local Court, described a group of five men stalking two victims around the car park before launching a sustained attack. CCTV footage was tendered in both courts. The violence left one victim unconscious with a fractured skull, fractured cheekbone, fractured ribs, fractured nose, and bleeding on the brain, while the other victim suffered facial swelling and bruising.

On appeal, an attempt was made to reopen and contest the agreed facts, but this was ultimately abandoned. The appellants pressed their appeals on sentence alone.

  • Whether the sentences imposed by the Local Court were manifestly excessive, having regard to the objective seriousness of the offending
  • Whether the appellants' subjective circumstances (youth, limited or no criminal history, early guilty pleas, good character references) warranted a reduction in the sentences imposed
  • The proper application of sentencing principles for affray, including the principle from Stevens v R that an offender is sentenced only for their own conduct and that of co-offenders which gave rise to the affray, not for separate offences committed by others

Decision

Buscombe DCJ dismissed both appeals and confirmed the sentences imposed in the Local Court. His Honour found that the offending fell well within the mid-range of objective seriousness. The attack was coordinated, sustained, and conducted in public by a group of five men against two victims, and appeared to be alcohol-fuelled. The CCTV footage demonstrated clearly that the appellants acted in combination with the wider group in a coordinated manner.

His Honour acknowledged the appellants' subjective cases, which were relatively strong. Neither appellant had a significant criminal history, both were young adult offenders, both entered early guilty pleas attracting a 25% discount, and both had genuine community support. The court also took into account that both appellants had recently lost their father. For young adult offenders, his Honour acknowledged that rehabilitation generally warrants greater emphasis than general deterrence and denunciation.

Despite those mitigating factors, his Honour found that the principle of general deterrence loomed large given the seriousness of the violence involved. The court noted that the Local Court magistrate had already extended leniency by making both sentences fully concurrent and by finding special circumstances. No error in the Local Court's approach was identified, and no sentence other than full-time custody was considered appropriate.

His Honour also addressed remorse with some caution. Although early guilty pleas indicated remorse to a degree, comments made by the older appellant in the pre-sentence report, which contradicted the agreed facts, led the court to treat his remorse as limited in weight.

Orders Made

  • Both appeals dismissed
  • Blake Milgate sentenced to 18 months imprisonment, commencing 29 November 2019 and expiring 28 May 2021, with a non-parole period of 12 months expiring 28 November 2020 (both offences fully concurrent)
  • Mitchell Milgate sentenced to 18 months imprisonment, commencing 29 November 2019 and expiring 28 May 2021, with a non-parole period of 12 months expiring 28 November 2020 (both offences fully concurrent)

Key Takeaways

  • In dismissing the appeals, the District Court confirmed that alcohol-fuelled group violence in a public place, even where the individual appellant's role is less severe than that of co-offenders, can warrant full-time custody despite youth, limited criminal history, and early guilty pleas.
  • Where an offender makes statements in a pre-sentence report that contradict agreed facts they have signed, a sentencing court may treat the expression of remorse as carrying reduced weight.
  • Under the principles in Stevens v R, an offender convicted of affray is sentenced for their own conduct and that of co-offenders which gave rise to the affray itself, not for separate offences committed by others in the group. The serious injuries caused primarily by others in the group did not, however, substantially diminish the objective seriousness of the appellants' own participation in the affray.
  • The availability of CCTV evidence was significant. The footage allowed the court to assess independently the degree of coordination among group members and the individual conduct of each appellant, supplementing the agreed facts.
  • General deterrence carries particular weight in sentencing for serious public violence by young men under the influence of alcohol, and may override otherwise favourable subjective circumstances, including youth and good character.

Legislation and Cases Referenced

Cases:
- Stevens v R [2007] NSWCCA 152 (sentencing principles for affray)

Legislation:
No specific legislation was cited in the judgment text. The offences of assault occasioning actual bodily harm while in company and affray are offences under the Crimes Act 1900 (NSW).