District Court New South Wales Medium Neutral Citation: Milson v R (No 2) [2013] NSWDC 268 Decision date: 28 August 2013 Before: Cogswell SC DCJ Decision: Sentence appeals upheld. Catchwords: CRIMINAL LAW - Particular offences - contravening prohibition/restriction in domestic violence order - breach committed in mitigating circumstances. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 20(2). Crimes (Domestic and Personal Violence) Act 1999 (NSW), ss 13(1), 14(1). Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12. Category: Principal judgment Parties: Jason Milson (Appellant) Regina (Respondent) Representation: Counsel: P M Strickland SC (Appellant) Solicitors: Armstrong Felton (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/121417 Judgment 1These are my reasons for allowing an appeal by Jason Milson against sentences imposed on him on 8 January 2013 at Tweed Heads Local Court. 2On that day Mr Milson received four prison sentences from Local Court Magistrate Dakin in respect of four domestic violence offences. Mr Milson appealed from the sentences and I heard the appeals on 15 July 2013. 3Two of the offences were committed in January 2011. The first was committed on 20 January 2011 when the victim of the offence, Mr Milson's former partner, was at sport training. The second offence was committed in the same month when Mr Milson knew that he was going into custody, and he saw his daughter. 4Mr Milson had an apprehended domestic violence order against him. The person who benefited from the order was his former partner. On 20 January 2011 his former partner, whose name is Nicole Cantrill, had been to training in a sport that she engaged in. She left the training with her coach. She got a telephone call from Mr Milson saying "Where are you?" She said she was on her way home. She was dropped home and saw that Mr Milson was standing in the driveway. Mr Milson yelled out "Who the fuck is that?" Ms Cantrill told him that it was her coach. Ms Cantrill entered the house and then went to get her and Mr Milson's daughter from Mr Milson's car. Mr Milson had been looking after the little girl. They engaged in an argument before parting company. 5A week or two later, on 22 January 2011, Ms Cantrill was at her home with her two children. One of them was the daughter that she shared with Mr Milson. It was the early evening and the little girl was jumping on the trampoline when she said "Dad, Dad". She jumped off the trampoline and ran over to where Mr Milson was standing on the driveway side of the fence. Ms Cantrill saw him and correctly observed, because of the terms of the apprehended domestic violence order, "You're not allowed here." Mr Milson said, "I just want to give Mahley a hug and kiss before I go". Ms Cantrill picked up Mahley, their daughter, and allowed Mr Milson to give her a hug and a kiss. He then left. 6As a result of the behaviour that I have described, Mr Milson was charged with contravening a prohibition or restriction in a domestic violence order. They were both offences against s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He was given good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but later breached the bonds and received 4 month prison sentences instead of the bonds. It is from those sentences that he appeals. 7The second pair of offences occurred a year and a half later on 24 July 2012 up in Tweed Heads. Ms Cantrill went to visit her grandmother and when she was leaving she saw Mr Milson's car. She was followed by that car and at one stage Mr Milson's car drove up beside her on the wrong side of the road. She could see Jason Milson in the car. They stopped at traffic lights and she again saw Jason Milson this time pointing at her. At another stage she heard Jason Milson say "You fucking dog, I'm gunna get you." Mr Milson's car was being driven by his girlfriend. Ms Cantrill had her six year old son in the car for the whole time. As a result of that behaviour, Mr Milson was again charged with contravening a prohibition or restriction in an apprehended domestic violence order. That is an offence against s 14(1) of the Crimes (Domestic and Personal Violence) Act. But this time he was also charged with a more serious offence of stalking or intimidating, intending to cause fear of physical or mental harm, an offence against s 13(1) of the same legislation. 8The first incident, when Mr Milson was engaging with Ms Cantrill after she had finished her training was, in my opinion, no more than an argument in the context of dropping off a child after access. I accept that it was Ms Cantrill who asked Mr Milson to look after the child, and the arrangement obviously involved him dropping her back. Mr Milson gave evidence to that effect when he was called by his counsel, Mr P M Strickland SC. That arrangement had the potential to lead to some dispute. The arrangement itself is unchallenged in evidence. I regard the objective seriousness of that offence as very low. 9The second offence which involved him kissing and hugging his daughter was more than a technical breach but it occurred in very mitigating circumstances. Mr Milson knew that he was going to go into custody. His attention was focussed on his daughter rather than on Ms Cantrill and he did exactly what he said he would do. He gave his daughter a hug and a kiss before leaving. 10However the Tweed Heads offences were aggravated by Mr Milson being on good behaviour bonds for the earlier offences, and by having criminal convictions for those earlier offences. Once again, although his behaviour was aggravated by those circumstances, the offences themselves were relatively low in objective gravity. 11I propose to take no action in respect of the breaches of the bonds imposed as a result of the January 2011 offences. 12However the Tweed Heads offences are another matter. Although objectively relatively low in seriousness, they were committed when Mr Milson was on a good behaviour bond and he already had a criminal record for such behaviour. The second offence is the more serious offence, and carries a significant maximum penalty. 13In respect of the first offence, I regard the only appropriate penalty as one of imprisonment, and I would impose a sentence of 4 months imprisonment. In respect of the second offence, I also regard the only appropriate penalty as imprisonment, and I would impose a sentence of 8 months imprisonment. However, because of the circumstances in which the offences were committed, I propose to suspend the execution of both sentences under s 12 of the Crimes (Sentencing Procedure) Act. 14Accordingly, I dispose of these four appeals against sentence by the following orders. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), I set aside the sentences imposed in respect of the offences committed in January 2011. Instead of those sentences ... HIS HONOUR: good, I have made the formal orders. Hopefully they were consistent, thank you for reminding me. 15It is for the reasons that I have just announced that I made the orders which did. I will just look at my orders made in respect of the other matter. BLACK: Does your Honour require some assistance in relation to the orders made on the last occasion? HIS HONOUR: I've got them in front of me, thanks Ms Black. I set aside the conviction in respect to the Limitation Act matter, didn't I, or rather the limitation period? ********** 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