Mills v R [2016] NZCA 245 (2 June 2016)

Last Updated: 18 June 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA612/2015 [2016] NZCA 245
BETWEEN	KEITH JOHN MILLS Appellant
AND	THE QUEEN Respondent

Hearing:	9 May 2016
Court:	Wild, Courtney and Gilbert JJ
Counsel:	M N Pecotic for Appellant J E Mildenhall for Respondent
Judgment:	2 June 2016 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] On the morning of 29 January 2014 the police executed a search warrant at a rural property in Arapohue, Kaipara. The property was fitted with a surveillance system — two cameras on the side of the house, one of which showed the view down the driveway towards the road and was connected to a television monitor in the lounge. There was an electronic beam across the driveway, which was not working on the day.
[2] The Armed Offenders Squad effected first entry out of concern that the occupants of the house might be armed. They found the appellant, Keith Mills, in bed with his partner, Lateisha Jeeves.^[1] Between the mattress and the base of their bed the police found a fully loaded .22 semi-automatic rifle together with ammunition. Elsewhere in the room they found a bag containing personal papers belonging to Mr Mills, a set of electronic scales and $11,010.80 cash. Mr Mills’ wallet, which was also in this room, contained $1,255.00 cash.
[3] In the spare room, between the mattress and bed base the police, found six snaplock bags and a plastic container containing 29.4 g of methamphetamine. The only identifiable fingerprint on the container belonged to Mr Mills. In the same room were electronic scales calibrated to weigh in tenths of a gram.
[4] Mr Mills’ truck was parked outside the house. The police found a fully loaded .22 pistol in the glove box. The truck had a stolen digger on the back of it.
[5] Following a trial in the Whangarei District Court before Judge McDonald and a jury, Mr Mills was found guilty of possession of methamphetamine for supply and possession of the .22 semi-automatic rifle other than for some lawful, proper and sufficient purpose. On the last day of the trial he pleaded guilty to the charge relating to the .22 pistol.
[6] Judge McDonald imposed a sentence of five years and five months’ imprisonment for the drugs and firearms charges.^[2] Mr Mills appeals his sentence on the ground that it is manifestly excessive as a result of:

• (a) the starting point being too high;
• (b) no discrete discount being given for time spent on electronically monitored (EM) bail; and
• (c) insufficient credit being given for personal mitigating factors.

[7] Mr Mills subsequently pleaded guilty to one charge of receiving in relation the stolen digger and was sentenced to 12 months’ imprisonment cumulative on the sentence imposed for the drugs and firearms charges.^[3] He does not challenge that sentence but the totality principle requires that it be taken into account.
[8] Initially, Mr Mills also appealed his convictions. However, Ms Pecotic advised in written submissions and confirmed before us that he had abandoned that aspect of the appeal.

Sentencing in the District Court

[9] Mr Mills gave evidence at his trial that an associate, Kaisa Taavale, had given him the money and the scales that were found in the laptop bag. He said that he did not know the methamphetamine was in the house. Mr Taavale gave evidence for the defence. He said that the methamphetamine, the $11,010.80 cash and the scales belonged to him. When Mr Taavale gave evidence at the trial he was not facing any charges arising from this matter. By the date of Mr Mills’ sentencing, however, the police had charged him with possession for supply of the methamphetamine found in Mr Mills’ house.
[10] Mr Mills’ then counsel advised the Judge that Mr Taavale had been charged but it appears that details of the charge were not before the Court and the Judge did not see it as a factor that ought to alter his approach on sentencing. He sentenced on the basis that the methamphetamine was Mr Mills’ alone and that the money had come either from prior drug dealing or was a float for future methamphetamine purchases. The Judge was entitled to approach the sentencing on this basis; Mr Mills had stood trial on the basis that the methamphetamine was either his or his and Ms Jeeves’. Since Ms Jeeves was acquitted there was, in fact, no other basis on which the Judge could have sentenced.
[11] The Judge treated the offending as falling within band two of R v Fatu, attracting a starting point between three and nine years’ imprisonment.^[4] The selection of a starting point within that band recognises not only the precise quantity of the drugs found, but the overall context of the possession for supply.^[5] The Judge noted this fact and identified the following factors as relevant to the starting point:

• (a) the amount, 29.4 g, which he put in the lower to middle of band two;
• (b) the cash, which he considered to be proceeds of or for use in drug dealing;
• (c) the methamphetamine was part of a commercial operation. Mr Mills was not an addict but merely dealing for money;
• (d) the presence of scales and snaplock bags;
• (e) the two loaded firearms, which he treated as a serious aggravating factor. The Judge noted the jury had rejected the explanation Mr Mills had given at trial of using the .22 rifle to hunt possums; and
• (f) the gang overtones, evidenced by the association with Mr Taavale, who is a member of the Headhunters gang.

[12] To reflect all of these circumstances the Judge took a starting point of five years and three months’ imprisonment. The Judge uplifted the starting point by six months to reflect the firearms charges, bringing the starting point to five years and nine months’ imprisonment. In doing so he specifically identified the need to avoid double counting in relation to the firearms charges, given that they had already been included as an aggravating factor on the methamphetamine charge.
[13] In terms of mitigation, the Judge declined to give any credit for Mr Mills’ lastminute plea on the pistol charge. He did, however, allow a discount of four months to reflect medical problems that would create difficulties in prison.
[14] On this approach one would expect the end sentence to have been five years and five months’ imprisonment for the methamphetamine charge and a lower, concurrent sentence for the firearms charges. However, the Judge imposed the final sentence in this way:

[28] In relation to the methamphetamine, you will be convicted and sentenced to four years 11 months. In relation to the firearms, to six months cumulative on the four years 11 months, making a total end sentence of five years, five months.

[15] Although it is not clear how the final sentences were constructed, they appear not to have been based on the starting point the Judge had indicated earlier. It is, however, clear that the Judge considered that, on a totality basis, an end sentence of five years and five months’ imprisonment properly reflected the overall offending. As this Court often points out, the way in which a sentence is constructed is not as important as whether the end sentence is an appropriate response to the offending.^[6]

Appeal

Starting point

[16] Because the Judge appears to have departed from his original starting point it is simpler to treat Ms Pecotic’s submissions on this aspect as testing the appropriateness of the end sentence, which she submitted was excessive and did not properly reflect the facts of the case.
[17] In terms of a starting point Ms Pecotic referred us to R v McPherson and Yuen v R as examples of similar offending but that involved higher amounts of methamphetamine.^[7] McPherson was a Solicitor-General’s appeal involving the possession for supply of 40 g of methamphetamine. This Court quashed a homedetention sentence and substituted a term of imprisonment, indicating that a starting point of four years’ imprisonment would have been appropriate. In Yuen v R this Court approved a four-year starting point for offending involving 51.5 g of methamphetamine. In that case the methamphetamine was packaged for sale and was plainly part of a commercial operation. In both of these cases there was clear evidence of commerciality, including in the case of Yuen $5,000 cash, bags and scales. In both cases there was evidence through intercepted communications of dealing. Because these cases involved more methamphetamine than the present case Ms Pecotic suggested an appropriate starting point in this case would have been less than four years, in the vicinity of three to three and a half years’ imprisonment.
[18] These cases are of only limited assistance, however, because they did not involve firearms, which is the most notable aggravating feature in this case. We agree that, absent the presence of the firearms, an appropriate starting point would have been lower than McPherson and Yuen and in the range of three and a half to four years. But this Court has indicated that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing.^[8]
[19] In R v Fonotia the offender had 40 g of methamphetamine and $16,000 in cash together with drug paraphernalia. On the Solicitor-General’s appeal in that case these circumstances were regarded as justifying a provisional starting point of five years’ imprisonment. However, the offender also had a pistol, a loaded shotgun, a stun gun and mace. The presence of these weapons was regarded as a serious aggravating factor that justified an uplift of 15 months.^[9] Therefore, for similar, albeit slightly worse offending, the starting point in Fonotia was six years and three months’ imprisonment.
[20] R v Singh concerned similar offending to Fonotia.^[10] The appellant was the passenger in a vehicle that was searched. The police found 43 g of methamphetamine as well as scales and snaplock bags. They also found a partially sawn-off shotgun, a .410 sawn-off shotgun and a loaded .32 revolver. Stevens J took a starting point of four years and six months’ imprisonment and uplifted it by one year to reflect the aggravating features, particularly the firearms. That meant a starting point of five years and six months’ imprisonment.
[21] R v Wilson involved a lower amount of methamphetamine (10 g) together with scales and a small amount of cash.^[11] In close proximity to the drugs, however, the police also found a pistol and ammunition. John Hansen J took a provisional starting point of three years’ imprisonment, which he uplifted by one year to reflect the presence of the weapons.^[12]
[22] The offending in this case is closer to that in Fonotia and Singh. The amount of methamphetamine is less but the presence of two loaded weapons, one of which was close at hand and clearly intended to be used in conjunction with the surveillance system warning of anyone approaching, made the offending very serious. We consider that four and a half years’ imprisonment would have been an appropriate provisional starting point, with an uplift of 18 months to reflect the aggravating features of the offending. The appropriate starting point would therefore have been six years’ imprisonment. Such a starting point would, however, have made any further uplift for the firearms offences unnecessary; lesser concurrent sentences for the firearms offences could reasonably have been expected.

Discount for personal factors

[23] The pre-sentence report referred to Mr Mills having sustained a brain injury from a workplace accident that continues to cause him pain. He also has a recurrent shoulder problem that requires ongoing physiotherapy. Perhaps most significantly, however, Mr Mills lost an eye following an assault by another prisoner. In a letter provided for the purposes of sentencing Mr Mills’ doctor expressed the view that Mr Mills is suffering a form of post-traumatic stress from that attack, which causes him to have flashbacks, anxiety and poor sleep, that has not been acknowledged or dealt with in the prison system.
[24] These apparently serious, varied and, to some extent untreated conditions did justify a discount. Although personal circumstances are not readily taken into account in sentencing for drug-related offending,^[13] they will clearly make prison more difficult for Mr Mills and an allowance was appropriate, as the Judge recognised.^[14]
[25] The Judge indicated his intention to allow a discount of four months from the starting point of five years and nine months’ imprisonment to recognise Mr Mills’ medical issues. Although we do not know how the end sentence was actually constructed, that proposed discount would have reflected a discount of 5.8 per cent from the Judge’s original starting point of five years and nine months’ imprisonment. We consider that a somewhat higher discount of 10 per cent would have been justified. By way of comparison, in Purua v R this Court considered that a discount of about five per cent was adequate to reflect health issues that were less severe than those from which Mr Mills’ suffers.^[15]
[26] A discount of 10 per cent from our six-year starting point would take the sentence to five years and five months’ imprisonment.

Discount for time on EM bail

[27] Mr Mills was on electronic bail for eleven and a half months prior to sentencing and subject to a 24-hour curfew during that time. Both Crown and defence raised the question of a discount to recognise the issue but the Judge did not refer to it. Before us Ms Mildenhall, for the Crown, acknowledged that a modest discount could have been given but submitted that the total sentence was nonetheless within the appropriate range and no adjustment was required at this point.
[28] The length of time Mr Mills spent on EM bail was significant and would, in the usual course, have been recognised.^[16] We note from the pre-sentence report that while Mr Mills was on EM bail he was carrying out carpentry work for his stepfather. It therefore seems that he was not deprived of the opportunity to undertake meaningful work during that time. In the circumstances we consider that a discount of three months would have been appropriate and would have brought the end sentence to five years and two months’ imprisonment.

Result

[29] On our analysis an end sentence of five years and two months’ imprisonment would have been appropriate. We do not, however, consider that the end sentence that the Judge imposed can be said to have been so much higher as to be outside the available range and therefore manifestly excessive.
[30] Given our conclusion that the sentence imposed was not manifestly excessive, no change is required to the later sentence imposed on Mr Mills for the charge of receiving. That sentence was also within the available range and included a very significant discount to recognise the totality of the offending. We consider, therefore, that the overall sentence was appropriate.
[31] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] There was another man asleep in the lounge but his presence is not relevant in this appeal.

^[2] R v Mills [2015] NZDC 20694.

^[3] R v Mills [2015] NZDC 23963.

^[4] At [17], citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34(b)].

^[5] R v Fatu, above n 4, at [31]; R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [39].

^[6] See for example: R v Williams CA91/00, 31 May 2000 at [11]; R v Barker CA57/01, 30 July 2001 at [10] and [12]; R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 (CA) at [16]–[18]; and Kahui v R [2013] NZCA 124 at [25].

^[7] R v McPherson [2009] NZCA 487; Yuen v R [2010] NZCA 521.

^[8] Fonotia v R, above n 5, at [41]; and Haggie v R [2011] NZCA 221 at [23].

^[9] There was a further uplift for an unrelated factor that is not relevant to this case.

^[10] R v Singh HC Rotorua CRI-2006-070-7259, 17 July 2008.

^[11] R v Wilson HC Auckland CRI-2008-090-7272, 5 December 2008.

^[12] There was a further uplift to reflect other aggravating features that are not relevant for present purposes.

^[13] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

^[14] R v Mills, above n 2, at [27].

^[15] Purua v R [2011] NZCA 489.

^[16] As required by s 9(2)(h) of the Sentencing Act 2002.