Nigel Milson, pictured at the Newcastle Art Gallery. Photo: Jonathan Carroll
The winner of the Australia's richest art prize, Nigel Milsom, is set to be released from prison within days after a court found the six-year sentence given to him for the armed hold up of a inner-western Sydney convenience store was unjust.
And the family of the Newcastle-based painter, who won last year's Doug Moran National Portrait Prize, says he has already planned his next exhibition and will "savour the opportunity to paint again".
Milsom, 39, was sentenced last year to a maximum six-and-a-half years in jail for the April 2012 robbery of the Glebe 7-11 store, during which he was carrying a tomahawk and heavily under the influence of drugs and alcohol.
Nigel Milsom's award-winning portrait. Photo: Peter Rae
But on Tuesday the NSW Court of Criminal Appeal said it would grant Milsom leave to appeal the sentence after his barrister, Philip Boulton, SC, successfully argued there were serious errors in the sentencing process for his client.
"What occurred was highly irregular," Chief Judge of Common Law Justice Clifton Hoeben said. " The process that was taking place was not in accordance with the law."
The court said it was not prepared to quash the sentence but indicated it would grant Milsom bail from Cessnock jail on Thursday while his appeal was heard.
Mr Boulton told the court that during sentencing hearings, all indications were that Milsom, who did not have a criminal record, would serve a maximum of two years' jail.
"It was all about if he should receive two years or less. Six years was never even in the ball park," Mr Boulton told the court. "The six-year sentence came like a bombshell."
He said the sentencing judge, Justice Peter Maiden, had failed to take into account Milsom's mental illness from his depressive disorder.
Milsom committed the robbery with his drug supplier, James Eric Simon, just weeks after he won the $30,000 Sulman Prize. The court on Tuesday heard that after he won the prize he obtained a "bag of ice" and started a binge on the drug that lasted three or four weeks.
Mr Boulton told the court that while Milsom had a long history of drug use, he was not a regular user of ice and therefore could not agree with Justice Maiden's comments that the painter would have been aware of the effect it would have on his behaviour.
He said after his client was charged and still out on bail he had managed to clean up his life.
"He was stable. He was not using drugs. He was providing parental care for his teenage son," Mr Boulton said.
Milsom's sister, Rosemarie Milsom, said her family was "overwhelmed and relieved" by Tuesday's decision.
"We all wanted this outcome but didn't dare have too much hope," she said. "Nigel's sentencing was tumultuous and full of procedural irregularities. It has been extremely tough for him in jail and I know how much it will mean to him to return home to his family on Thursday."
Weeks after he was sentenced, he was awarded the $150,000 Doug Moran National Portrait Prize for his painting Uncle Paddy, a portrait of a long-time friend of the artist's grandfather, Charles. Milsom was also a runner-up in the 2012 Archibald Prize and the won the Sulman Prize that same year.
"I know he has his next exhibition mapped out and he will savour the opportunity to paint again," Rosemarie Milsom said.
The matter returns to the NSW Supreme Court on Thursday.