District Court New South Wales Medium Neutral Citation: MILSON v R [2013] NSWDC 267 Decision date: 28 August 2013 Before: Cogswell SC DCJ Decision: Sentence appeals upheld. Catchwords: CRIMINAL LAW - Particular offences - drive while disqualified; police pursuit - not stop - drive recklessly - full time custody appropriate - seriousness of driving record aggravating - lower court sentenced reduced - significant change in personal circumstances - serve sentence in maximum security - bail required regular reporting. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 50. Category: Principal judgment Parties: Jason Milson (Appellant) Regina (Respondent) Representation: Solicitors: Armstrong Felton (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/121417 Judgment 1After I found Mr Jason Milson guilty of two driving offences, I heard the appeal against his sentence. He had been sentenced to prison by the Local Court magistrate. The two offences were driving whilst disqualified and an offence involving a reckless police pursuit. The learned magistrate had sentenced Mr Milson to 10 months imprisonment for the drive whilst disqualified and 12 months imprisonment for the reckless police pursuit. The effect of accumulation is that Mr Milson was sentenced to a fixed term of 18 months imprisonment. He has appealed against that sentence. 2Mr N A Felton, who appeared on Mr Milson's behalf, acknowledged that the sentence had to involve some form of custody but argued there was a question about whether that could be served within the community. Mr Felton was correct and realistic in acknowledging that his client had to face a sentence of imprisonment. It is another question as to whether it can be ordered to be served in the community. 3The offences were both committed on the same occasion, as Mr Felton pointed out. Mr Felton also pointed out the change in his client's personal circumstances since about 2006 when he ceased becoming addicted to heroin and started taking methadone. He has been in a relationship and has a baby who was born in April this year. Mr Felton argued that his client's life had changed dramatically and that a view was available that his client has reached a crossroads. He pointed out also that his client had spent some time on bail and had been reporting two or three times a week and then once a week from last year. He urged me to consider a referral for assessment for an intensive correction order. 4On the other hand, Ms C Black who appeared for the respondent Director of Public Prosecutions, pointed to Mr Milson's criminal and traffic record. Mr Felton had to be realistic in acknowledging the impact of that record. Mr Milson has never held a driver's licence apart from a learner licence which he obtained back in the early 1990s. He has been convicted of no fewer than six offences of driving whilst disqualified from holding a licence. He has been given prison sentences in respect of those, one or two of which were ordered to be served by way of suspended sentence. He has spent time in custody before for this type of crime. 5Ms Black pointed out - and Mr Felton acknowledged - that Mr Milson, at the time that he committed the two offences that I am sentencing him for, was on bail on an earlier charge of driving whilst disqualified. Ms Black argued that Mr Milson's criminal record, especially his traffic record, was such that it should be regarded as an aggravating factor in my sentencing consideration and emphasised the importance of specific deterrence and general deterrence as well. I think she is correct in that submission. I would also regard it as important to take into account the protection of the public from a person who rides without ever having obtained an official licence. 6The driving whilst disqualified was a relatively straightforward offence. It was not a particularly serious example. He rode his motorbike across to a friend's place and then rode it away. However the police pursuit had to be terminated. The police pursuit occurred in circumstances where the traffic was busy because it was peak hour. 7The real issue in this case is whether I can accede to Mr Felton's submission that his client should serve his prison sentence in some way other than in full-time custody. I cannot order that or allow that because of the seriousness of his driving record. He has had prison sentences before. He is a menace on the road, riding without proper training and indeed on this occasion forcing the police to pursue him. He reached speeds of up to and over 100 kilometres an hour in a 60 kilometre per hour speed zone. A person with his driving record cannot expect otherwise than a gaol sentence. 8When he was sentenced by the magistrate he received, as I said, 10 months for the driving whilst disqualified and 12 months for the police pursuit offence. I do not propose to impose sentences which are as high as that. I take into account the evidence which Mr Milson gave about the likelihood of him being in maximum security when he is in custody because included in his record is an offence of escape or attempted escape. He has also recently assumed additional family responsibilities and has, to his credit, changed his life around significantly in the last few years. In addition he has been the subject of bail conditions which required regular reporting. 9I regard an appropriate sentence for the driving whilst disqualified as one of 5 months imprisonment and I regard an appropriate sentence for the police pursuit offence as one of 6 months imprisonment. I think it is right to accumulate them to some extent and I would accumulate them by 3 months so that the overall sentence is 9 months imprisonment and I would fix a non-parole period of 5 months imprisonment. HIS HONOUR: Now, two things. One is the date from which I fix the sentence. There is some previous time in custody. Remember this is a fresh sentencing exercise. FELTON: That's right. There was 2 months spent or 2 months taken into account by the learned magistrate when imposing the sentence for the driving whilst disqualified. My understanding, I haven't got that exhibit in front of me-- HIS HONOUR: I read that. FELTON: --but it was a 12 month fixed term but 2 months taken into account so when the learned magistrate was doing the sentencing exercise it was effectively-- HIS HONOUR: Yes, he reduced it by 2 months. FELTON: Yes, that's right. So in terms of the start date, in my submission 2 months should be-- HIS HONOUR: I need to take that into account. FELTON: Yes, that's right. HIS HONOUR: Well I have in mind to backdate it by 2 months. FELTON: Yes, thank you, your Honour. HIS HONOUR: Ms Black? BLACK: Everything my friend has said is correct. Your Honour has referred to the learned magistrate's sentence as being a period of 10 months. That's initially how your Honour commenced the judgment. Perhaps - well the actual sentence imposed by the magistrate was in fact 12 months backdated, taking 2 months into account. Your Honour, my submission is that the sentence should start from today. HIS HONOUR: I understand, yes. All right, I propose to backdate it. If you'd stand up Mr Milson now. 10In respect of the driving whilst disqualified offence I sentence you to 5 months imprisonment. That will commence on 28 June 2013 and expire on 27 November 2013. In respect of the offence involving the police pursuit I sentence you to 6 months imprisonment. That will commence on 28 September 2013 and will expire on 27 March 2014. I fix a non-parole period of 5 months which will commence on 28 June 2013 and will expire on 27 November, 2013. The first date upon which you will be - no, in a moment I will direct your release on 27 November 2013. HIS HONOUR: Now can I do what I just did, that is I have fixed two sentences and one non-parole period. I don't think I can. I think I've got to aggregate them. What do you think? BLACK: I think your Honour has to either allocate the non-parole period to one of the particular sentences or make an order that it's an aggregate sentence. HIS HONOUR: I think you're right. FELTON: I agree with my friend, your Honour. HIS HONOUR: Yes, all right. 11I propose to aggregate the two sentences. The sentence I would have imposed in respect of the driving whilst disqualified is 5 months. The sentence I would have imposed in respect of the police pursuit offence is 6 months. I would have accumulated them so that the overall sentence is 9 months. I impose an aggregate sentence of imprisonment in respect of the two offences of 9 months imprisonment. It commenced on 28 June 2013 and will expire on 27 March 2014. I fix a non-parole period of 5 months to commence 28 June 2013 and to expire 27 November 2013. 12Under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) I make an order directing the release of Mr Milson on parole on 27 November 2013. HIS HONOUR: Now any conditions of parole? Both of you have a think about it. I must say I'm not sure that he needs supervision. I don't know, what do you think, Ms-- BLACK: Well, your Honour, this touches on the point that I raised earlier that I'm not sure that Probation and Parole can offer any service to prevent Mr Milson from riding his motorcycle or driving a motor vehicle. HIS HONOUR: I think you're right. I think he just has to be on unsupervised parole and if he breaches the parole he knows the consequences. BLACK: Unless, your Honour, of course has concerns about his drug use. HIS HONOUR: I'm making it good behaviour. No, I'm not concerned - I mean the evidence is that he's - have you finished the methadone or are you still on methadone? APPELLANT: Your Honour, I actually - when I was in custody in 2006 at Bathurst I was on methadone for two months and I haven't had nothing since. HIS HONOUR: Yes, that's what I thought. Have a seat. No, I'm not concerned about that. I'll make it a general good behaviour one and the usual standard orders, conditions. Unless either of you thinks I should. BLACK: Nothing comes to mind. HIS HONOUR: I think he's got his hands full. He's got prospect of employment with the construction company DigSmart. He's got a partner and a little girl. He'll have his hands full when he comes out. FELTON: Yes, your Honour, I can't offer anything other than the Traffic Offenders Program but I don't think your Honour can make an order in respect of that. HIS HONOUR: Now have I made it difficult - I'm just looking at the Correctional Services officers - have I made it difficult now? Mr Milson will stay here for the time being. You're right. Good, thank you. 13Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of Mr Milson on parole on 27 November 2013. The conditions of the parole are these: (1)That he be of good behaviour; (2)That he attend Court if he receives a notice to do so; (3)That he notify the Registrar of this Court of any change in his address. HIS HONOUR: So Mr Milson I have effectively halved - well more than halved your sentence. I've taken into account the maximum security conditions and your family and the fact that you've been on bail. You have been very lucky. The prosecutor had some very good arguments for it being increased but it does seem to me that you've made a change in your ways but I have to send you to gaol because of what you did, I've got no choice. I wouldn't be discharging my duty if I didn't. So you'll go to gaol, you'll come out in November and then it's up to you. If what Mr Felton says is right and you've reached the crossroads then you can get on with your life with your partner and your daughter. It's up to you but you've got to do your time for what you did. APPELLANT: Yes, your Honour, thank you. HIS HONOUR: And the good behaviour you understand, if you breach that whilst you're on parole you're in trouble. You've got to turn up to court if you get a notice and you must let the Registrar of the Court know where you're living. APPELLANT: Yes, your Honour. HIS HONOUR: All right, thank you. Good luck. BLACK: Your Honour, there is just the final issue of the disqualification period. According to Mr Milson's RTA record he has been disqualified - the last disqualification period he received dated from 11 May 2014 for a period of 2 years. The legislation at the time Mr Milson was charged-- HIS HONOUR: Just a second, yes, we've got to deal with your disqualification, so just - APPELLANT: Sorry, yep. HIS HONOUR: No, no, just wait there. BLACK: Your Honour, there's a 2 year disqualification period that attaches to the offence of driving whilst disqualified. HIS HONOUR: Do I need to make any orders or is that automatic? Does it follow from the statute? BLACK: No, I think your Honour is required to make the order. FELTON: Yes, your Honour. HIS HONOUR: You both agreed on the period. BLACK: Yes. HIS HONOUR: What's the order I make? FELTON: It's a period of two years to date from the-- BLACK: Expiration of the existing disqualification which is 11 May 2016 so the current disqualification period to commence for two years from 12 May 2016. 14Mr Milson will be disqualified from obtaining a driver licence for 2 years from 12 May 2016. HIS HONOUR: Is that right? BLACK: Yes, your Honour. FELTON: Yes, your Honour. HIS HONOUR: Thanks Ms Black and thank you Mr Felton. Ms Black I normally - and I will now direct that transcript be taken of the three judgments I delivered and the sentences. They'll take a few weeks so you'll just have to rely on notes I guess but at some stage they will become available. BLACK: Thank you, your Honour. HIS HONOUR: Thank you both for your assistance. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2014