District Court New South Wales Medium Neutral Citation: Milgate v R; Milgate v R [2019] NSWDC 808 Hearing dates: 29 November 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: See paragraphs [16] to [18] Catchwords: CRIME — Appeals— Appeal from Local Court to District Court — By person sentenced against sentence — Appeal dismissed CRIME — Violent offences — Assault occasioning actual bodily harm — in company — affray using unlawful violence SENTENCING — Violent offences — alcohol-fuelled violence — CCTV footage — high-level of objective seriousness — general deterrence Cases Cited: Stevens v R [2007] NSWCCA 152 Category: Principal judgment Parties: Blake Milgate Mitchell Milgate Director of Public Prosecutions Representation: Solicitors: L Graham (ODPP) S Beckham (Appellants) File Number(s): 2019/00040780 - R v Mitchell MILGATE 2019/00040611 - R v Blake MILGATE JUDGMENT 1. HIS HONOUR: The two appellants Blake and Mitchell Milgate appeal sentences imposed at Penrith Local Court on 25 October 2019 for the following offences: assault occasioning actual bodily harm while in company concerning Tyson Gampe where they were respectively in company with each other and Wendall Milgate and also an offence of affray using unlawful violence towards Shannon Rushworth and Tyson Gampe. In respect of both offences the Local Court imposed fully concurrent sentences of 18 months imprisonment with non‑parole periods of 12 months for each of the appellants. 2. The facts were agreed in the Local Court by both offenders and their lawyers; there is some slight difference in the two agreed facts documents but they were agreed facts which were before the Local Court. An attempt today was made to reopen the facts which was eventually abandoned. There is also closed circuit television footage of the incident which was tendered in the Local Court and also before me and I have had an opportunity to watch it in open court and in my chambers before giving the result of the appeal. Agreed Facts 1. The following is taken from the agreed facts and from some observations I have made from the closed circuit television. I have had regard to all of the agreed facts and what I am about to read is not as extensive as the agreed facts. The two appellants were part of a group of five men who engaged in an attack on two other men in McDonald's car park in Penrith. The agreed facts state that these two appellants walked past Mr Rushworth, one of the victims, and words were exchanged between them resulting in an argument. The agreed facts do not state what words were exchanged but whatever they were they could not amount to provocation for what then occurred. 2. The agreed facts for Blake Milgate state that the fight was initiated by the "offenders group" and that Blake Milgate threw the first punch. The agreed facts state that the closed circuit television footage shows that the five men in the "offenders group" stalked the two victims Mr Rushworth and Mr Gampe around the McDonalds car park. That can clearly be seen in the CCTV footage with the five men clearly acting in combination in a coordinated way, in my view. The agreed facts for Blake Milgate state that he round-house kicked Mr Gampe to the right side of his face at one point during the incident and that can clearly be seen on the closed circuit television footage at a time when it appears Mr Gampe is moving away in a very defensive manner. Blake Milgate can be seen on the closed circuit television footage with another member of the offender's group in what appears to be a goading of Mr Rushworth. At various times in my opinion Blake Milgate can be seen in the CCTV footage directing the actions of others in the so-called offenders' group. At some point another member of the offenders group punched Mr Rushworth to the side of the head forcefully which caused him to fall to the ground unconscious. 3. The group including these two appellants then turned its attention to Mr Gampe who had yelled at other members of the group to stop the assault on Mr Rushworth who was lying on the ground unconscious and still being assaulted by a number of members of the group. Mitchell Milgate then punched Mr Gampe to the face causing him to fall to the ground. The appellant Blake Milgate then kicked Mr Gampe in the body while he was lying on the ground. The appellant Mitchell Milgate also kicked Mr Gampe while he was in the foetal position on the ground. Mitchell Milgate, one of the appellants, at one point intervened to stop Wendall Milgate from stomping on Mr Gampe's head further after he, Wendall Milgate, had in effect stomped on his head four times. 4. The two appellants and the rest of their group ran from the scene and offered no assistance to the two victims who were left lying in foetal positions and in Mr Rushworth's case unconscious. Mr Rushworth suffered very significant injuries including a fractured skull, cheekbone, fractured ribs, fractured nose and bleeding on the brain. It is reasonably clear that the majority of those injuries are due primarily to the conduct of others in the appellants' group or the group referred to as the "offenders' group" in the agreed facts although that does not take away, in my opinion, to any significant degree, the seriousness of the affray that the two appellants engaged in. Objective seriousness of offending 1. The principles for sentencing for an offence of affray are contained in Stevens v R [2007] NSWCCA 152. The level of violence used and the scale of the affray are relevant, an offender however may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender. I have had regard to those principles when considering the appeal. Mr Gampe attended Nepean Hospital for treatment and ultimately received treatment for bleeding and swelling to the face and bruising to his left eye and cheek area. 2. The offences are objectively very serious offences. The appellants being part of a group of five males both involved themselves in extremely violent conduct towards two other men. There is an overwhelming inference that the conduct was alcohol fuelled and in that regard I have had regard to the sentence assessment report concerning Blake Milgate, of course that does not in any way mitigate the offending. The offences are well within the mid-range of objective seriousness. Appellants' subjective cases 1. I turn then to the appellants' subjective cases. In terms of Blake Milgate, he is 23 years of age therefore a relatively young adult offender. He has no record, that clearly entitles him to leniency here. The fact he has no record also entitles him to leniency as I say and also the fact he is a young adult offender brings into play those principles associated with sentencing a young adult offender, that is greater emphasis should be given in the main to rehabilitation rather than general deterrence and denunciation. He lives with his mother and siblings, he is clearly well thought of in the community and there are a number of testimonials. He has employment. 2. Blake Milgate in the pre-sentence report claimed, as I say, that he had been racially abused and one of the victims threw the first punch. There is no reference to racial abuse in the agreed facts although there is a reference to a verbal argument, but as I said earlier, whatever was exchanged in terms of words could not in any way be seen as meaningful provocation for what then followed. The suggestion that one of the victims threw the first punch is completely contradictory to the agreed facts which this appellant signed clearly on the advice of his then solicitor. 3. The sentence assessment report and testimonials suggest that he is remorseful, as reflected by his relatively early guilty plea, however the comments I have referred to in the sentence assessment report suggest that remorse should really be seen in a limited way. He is assessed in that report as having a low risk of reoffending. 4. The appellant Mitchell Milgate is 20 years of age, he too then is a young adult offender and the principles I referred to earlier are applicable in sentencing him. He has a very limited criminal record and that does not disentitle him to some leniency. He, like his brother, is from the same family. They clearly have a good background and it is a terrible travesty that they have committed such serious offences. They have strong community support and that is reflected in Mitchell's testimonials as well. Both appellants have only relatively recently lost their father and I have had some regard to that fact. Both entered early pleas of guilty and are entitled to a 25% discount for the utilitarian value of their plea. Determination of appeal 1. General deterrence, that is imposing a sentence to properly denounce the offender's conduct and to bring home the message to people in the community that this type of alcohol fuelled violence by young men will not be tolerated, looms large whenever sentencing for such serious violence in our community. Young men affected by alcohol engaging in very serious violence in a public place resulting in significant injury face very severe sentences in my view. This was very serious offending. In my view the magistrate extended leniency by making both sentences fully concurrent, he also made a finding of special circumstances. Given the level of objective seriousness, I consider that despite their subjective cases and in particular their young age and relatively little record, no other sentence than full time custody is appropriate here. I consider the terms of imprisonment imposed to be appropriate. 2. Stand up Blake Milgate please. Your appeal is dismissed, you are sentenced to a term of imprisonment of 18 months which commences today 29 November 2019, it expires on 28 May 2021. There is a non-parole period of 12 months which expires on 28 November 2020. You will be eligible to be released to parole on 28 November 2020, that applies to both offences. Have a seat. 3. Mitchell Milgate would you please stand. Mitchell Milgate your appeal is dismissed, you are sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months, it commences today 29 November 2019. The sentence expires on 28 May 2021, the non-parole period expires on 28 November 2020. You are then eligible to be released to parole, both are fully concurrent sentences. Please have a seat. Orders 1. Appeals dismissed. 2. Blake Milgate sentenced to a term of imprisonment of 18 months commencing 29 November 2019 and expiring 28 May 2021, with a non-parole period of 12 months expiring 28 November 2020. 3. Mitchell Milgate sentenced to a term of imprisonment of 18 months commencing 29 November 2019 and expiring 28 May 2021, with a non-parole period of 12 months expiring 28 November 2020. ********** 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: 19 February 2020