Police v Marcus-Miln [2019] NZDC 24800 (5 December 2019)

Last Updated: 15 February 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WAITAKERE I TE KŌTI-Ā-ROHE KI WAITĀKERE

CRI-2019-090-002519 CRI-2017-090-006413

[2019] NZDC 24800

NEW ZEALAND POLICE

Prosecutor v

PAUL ANDREW MARCUS-MILN Defendant

Hearing:	5 December 2019
Appearances:	Sergeant D McKenzie for the Prosecutor P Heaslip for the Defendant
Judgment:	5 December 2019

NOTES OF JUDGE N J SAINSBURY ON SENTENCING

[1] Mr Marcus-Miln you are for sentence on 32 charges. It is a necessary part of the sentencing process for me to go through each of the charges and the circumstances relating to them. For obvious reasons that will take a little bit of time. What I will do for the purposes of the sentencing notes is to adapt a schedule which lists all of the charges, their CRN numbers, their date, their maximum penalty. I will it at the end of the sentencing notes, with it including the sentence that applies to each charge rather than immediately read though all those details. That means the schedule becomes part of the sentencing process.1

1. The schedule will be in the order in that offences occurred, rather than by the crn number or when charged.
   

NEW ZEALAND POLICE v PAUL ANDREW MARCUS-MILN [2019] NZDC 24800 [5 December 2019]

[2] I do need to go through the circumstances of the offending. Various of the charges happened in blocks and I will just deal with them as they are set out in their respective summaries of facts. The overall offending runs from early 2017 through to mid-2019.

[3] I start with the offence of shoplifting that relates to 30 March 2017.2 This involved you going to [store 1] in New Lynn. You took a Dremel tool kit and did not pay for it. It was worth $89. As a result you were charged with shoplifting under

$500.

[4] Next, is shoplifting, which relates to 27 June 2017.3 You and an associate have gone to [store 1] in New Lynn. You have taken a socket set and spanner, concealed them under your shirt and left without paying. They had a value of $211.86.

[5] Next is a charge of common assault from 18 July 2017.4 You were at the cinema in New Lynn. You were with your partner and her [child]. Another movie goer has become annoyed about the excessive noise from you and your partner. The victim of the offending said to your partner that she was rude. You have gone over to where the victim was seated, stood over him, leant in his face, told him not to speak to your partner like that and then while the victim was still seated struck him in the face. This has ended up in a scuffle. Others have had to separate. The end result is the victim suffered a black eye.

[6] Next are charges of shoplifting and trespass.5 You were trespassed from [store 2], back in December 2016. On 4 August 2017 you were in [location deleted], you have gone into [store 2], you have concealed a bottle of fragrance and attempted to leave without paying. You were stopped by security and they recovered the item. The fact that you stole the fragrance and were back in [store 2] means that you face both charges of shoplifting under $500 and trespass.

2 CRN 17090004809.

3 CRN 17090004544.

4 CRN 17090005116.

5 CRN 17090005531 and CRN 17090005532.

[7] The next matter is shoplifting under $5006. This relates to 11 August 2017. You entered [store 3]. You were seen removing two knives from a shelf, putting them down the front of your pants and then trying to leave. You managed to take off with the knives. Their value is $289.98.

[8] The next matters are charges of possession of utensils for consuming methamphetamine and possession of cannabis.7 This relates to events on 7 December 2017. The police attended an incident at an address in Karekare. You were visiting. The police saw in the address point bags with methamphetamine residue and a needle and syringe. These belonged to you. Also found was some cannabis plant material. It was comparatively small. There would have been enough for one cannabis cigarette and nothing more. The upshot of the charge is possession of utensils and possession of cannabis.

[9] There is a charge of shoplifting from 5 February 2018.8 On that day you went to [a supermarket]. You have taken cheeses and sushi rolls putting them into a satchel you were wearing. You have left via self-checkout. You purchased a soft drink but did not pay for the other items. You were stopped by store security who have taken the bag. You have then run off. The items have a value of $193.94.

[10] Next wilful trespass on 30 April 2018.9 You had been trespassed from [the supermarket], back in February 2018. On 30 April the same year you went to the [supermarket] building. You have stood in the entrance of the building while your partner went inside. As your partner left you were confronted by staff. The police were called and you were arrested because you were at the building in breach of the trespass notice.

[11] Next is a charge of shoplifting.10 It relates to 20 June 2018. You had gone to [store 4], selected an item valued at $29.99, put it under your clothing and left without paying. You were stopped by the police and the item was recovered. The result was you were charged with shoplifting.

6 CRN 17090008249.

7 CRN 17090008775 and CRN 17090008775.

8 CRN 18004001797.

9 CRN 18004005375.

10 CRN 18090004197.

[12] Next is burglary.11 On 21 September 2018 you had gone to an address in Sunnyvale. You managed to break the lock on the back door. At the time the property was on the market, so it was vacant. But it had been staged with furniture brought in for the purpose. A stand-alone lamp and towel were taken. The break in happened at

11.57 pm so it fits into a category of being a nighttime burglary.

[13] On 19 November 2018 you were at your home address in Mount Roskill. Your ex-partner was living there. You have gone into her bedroom, laid on top of her, put your hands next to her head and then leaned into her face and started yelling. You have punched her several times with your right hand in a fist. She managed to protect herself by putting both arms over her head. You put your right arm around her neck and put her in a choke hold. You then punched her several more times with your right hand while she protected herself with a pillow. Eventually a flatmate called the police and you left.

[14] Then on 7 December you were going along Mount Smart Road with the same victim. You were both having a loud argument. You have sworn at her and this was sufficiently concerning for a passer-by to intervene. You have gone over to that passer-by, put your right hand into his face and shoved him hard causing him to fall to the ground. You have then left. As a result of these two incidents of violence to your ex-partner you have been charged with assault with intent to injure and injuring with intent to injure done with reckless disregard.12

[15] The next matter relates to events on 23 January 2019, as a result of which you were charged with theft. 13 You were in the carpark at [a gym]. The victim was in her car. Her cellphone was on the passenger’s seat. You have reached in through the window of her car and taken the cellphone. She has run after you demanding her cellphone back. When finally confronted you said you had left the phone on the bonnet of a car. She found her phone nearby on the ground. When spoken to by the police you admitted that this was a stupid thing to have done.

11 CRN 18090007438.

12 CRN 18004016496 and CRN 18004016497.

13 CRN 19090000594.

[16] From 8 February 2019 is a charge of shoplifting.14 You and a female have gone to [store 5]. You have gone into the clothing section, removed a security tag and then handed the item of clothing to your associate and left the store without paying. The value is $382.89.

[17] Next there are charges of receiving stolen property and using a document (of which there are four).15 Starting with the receiving and using a document. Sometime between 16 and 17 March 2019 a wallet was stolen from a parked car. The wallet contained the victim’s visa, debit and ASB credit cards. Sometime late that evening and early the next day you have received the stolen debit card and credit card. At 1.41 on 17 March you have been at a petrol station in Titirangi and you have used one of the cards to purchase miscellaneous items. At 2.41 am this was repeated at the BP in Glendene. In this case two purchases were made. Then at 6.09 in the morning on 17 March you have gone to Caltex in New Lynn and again used one of the cards. At 6.45 on 17 March you have gone to the Z New Lynn and again used one of the cards. Those actions of going to the four petrol stations and using the cards is what amounts to using the document. Having the credit card is of course the receiving.

[18] There is a charge of theft from 31 May 2019.16 This involved theft of a car part worth $37.

[19] I then turn to a number of charges contained in the one summary of facts. These are aggravated assault, escaping custody, resisting police, unlawfully in a building and two charges of wilful damage.17 They relate to events on 2 June 2019. You were a passenger in a car stopped by the police in Henderson. One of the officers who stopped you identified you as having a number of arrest warrants for failing to appear. You have then attempted to abscond, but you were grabbed by the constable. You violently resisted and managed to break free by shoving the constable away. There has then been a short foot chase. You have jumped over a fence into [a

14 CRN 19090003632.

15 CRN 19090003633, CRN 19090003634, CRN 19090003635, CRN 19090003636 and

CRN 19090003637.
16 CRN 19090006128.

17 CRN 19090003609, CRN 19090003610, CRN 19090003611, CRN 19090003612,

CRN 9090003614 and CRN 19090003613.

retirement village]. The police Eagle helicopter and dog unit were requested and a short time later you were located hiding in the shrubs in the retirement village.

[20] As you were approached you then absconded by climbing the outside of the building for some three floors. You ripped off a vent cover and jumped into the piping. You then smashed your way through the ceiling into one of the apartments. Eventually you were taken into custody. Needless to say, having someone smash their way into their apartment from the roof was deeply distressing to the 82 year old retiree who was living in it.

[21] The wilful damage relates to the breaking of the roof and then the ceiling, both being separate charges. Unlawfully in a building is of course getting into the building itself. Resisting arrest, escaping custody and aggravated assault all arise out of your efforts to get away from the police constable.

[22] Finally, there are three charges of failing to appear in Court.18 They are simply what they say. You were supposed to be here at Court on 7 November 2017, 23 November 2017 and 4 February 2019 respectively and you were not. Similarly, there is a breach of supervision where you have failed to report as you were supposed to under that sentence.19

[23] It is acknowledged that this offending has been very much driven by issues of addiction. You have had, at different time, serious addiction issues. This is well set out in the report that was prepared by CADS when you were considering whether you might be able to go into the Alcohol and Other Drug Treatment Court. What that report usefully sets out is your background, it emphasises how long this addiction has been entrenched in your life. You were recommended for the Alcohol and Other Drug Treatment Court. It was accepted that you have a serious addiction, that it does drive your offending and that you do need serious and intensive assistance to deal with it. Unfortunately the accumulation of so many offences over this period of time meant that the sentence you were likely to receive was in excess of the criteria for the Alcohol and Other Drug Treatment Court.

18 CRN 17004015560, CRN 17004016348 and CRN 19004001650.

19 CRN 17004504623.

[24] As you may recall you sought a sentence indication before me back in August this year. I agreed very much with the submissions filed on your behalf which frankly were realistic. The scope of the offending meant that a starting point even slightly lower than five years but up to five years once your previous was taken in to account was probably the best one could hope for in terms of range. I indicated that there would be a discount of 20 percent for the guilty plea and left open other matters that might help further reduce that sentence. That mean you were outside the criteria for the Alcohol and Other Drug Treatment Court because the end sentence was not going to be one of three years or below.

[25] Since that time there are two factors that have a positive bearing on that sentence and allow me to review the position I took then. One is the material in the CADS report backed up by the letters and material that has been filed on your behalf. That makes it clear just what an influence addiction has had on your offending and also that that addiction will almost inevitably have been influenced by some of the difficulties you had growing up. It also indicates that you are willing to try to confront this addiction and try to do something about it and that is to your credit.

[26] The other factor that assists is that the Court of Appeal in a case relating to high level methamphetamine offending has made it clear that the Courts need to be alert to the effect addiction can have as assessing the culpability of an individual. In essence what the Court of Appeal in Zhang v R said is that there can be circumstances where the real driver of the offending is an addiction and the Court can treat that as the equivalent of a mental illness.20 It takes over the person’s life to the extent that they are not making decisions that are purely rational, it is the addiction that is driving them. In the same way as we provide discount for those who through illness are not able to make decisions with complete rationality we need to consider whether that needs to be factored in for certain types of addiction driven offending.

[27] I need to make it clear, this is not a way of saying that because you are committing crime in order to get drugs you are somehow entitled to some sort of discount. It is a more sophisticated and nuanced argument than that. It acknowledges that there are some people who have a very real dependence and addiction which takes

20 Zhang v R [2019] NZCA 507.

control of their lives. If the addiction can be dealt with they will be in a very different situation. From what I have read, particularly in the CADS report, I think that very much applies to you.

[28] Accordingly, I would factor that in when assessing the starting point. One of the difficulties with this sentencing is that I am looking at different groups of offending over a long period of time. Separate offending needs to be considered separately in terms of sentencing and that needs to be reflected in the final sentence. At the same time I cannot just bolt together a series of sentences and get to a disproportionate result.

[29] What your history reveals to me is someone very much stealing to fund a life where drug addiction is the overwhelming feature. Whether shoplifting is to get food to eat because you spent your money on drugs or to get items that can be sold for drugs does not really much matter. However, there is also more serious offending. The burglary is serious in and of itself. This was a burglary at night. It may well be that the house was empty and that helps you because it would be far worse if it was the house where someone was living. I just note Mr Marcus-Miln emphasised to me that he knew the house was empty. Be that as it may, going into someone’s property like that is still in and of itself serious.

[30] The violence charges are in and of themselves serious. The escaping custody and attempting to do that by breaking into a building occupied by others, particularly a retirement home is of itself serious. The using the document at the service station is an interesting series of offences. On one hand the amounts taken are relatively small, that is because the cards can be used without being checked up to a comparatively limited amount. But it is very much a pervasive crime. People break into cars to steal wallets in order to get these cards and hand them on. It does damage through that and is incredibly inconvenient and desperately annoying to those who have their cards and wallets stolen. Because these cards are set up to be so easy to use this is offending that is all too common. I consider it is appropriate that that should be reflected as something serious of and in itself.

[31] So, there is the overall pattern of shoplifting which in the context of your history is concerning. There is the burglary. There is the violence. There is the escaping police. There is the using the credit card. All of those should have some separate reflection in the overall sentence. That was the reason why I got to a total of five years as a starting point at the time of the sentence indication. I do not change from that as being the appropriate starting point for someone with your history, which very much informs that assessment. However, I acknowledge now that you also are driven by addiction and it is appropriate that there be a reflection of that by way of a discount from that starting point that might not have otherwise been there.

[32] From that five years I am going to deduct a further year which brings the sentence down to four years. That takes into account both the factors driven by addiction and the fact that now you are willing to do something about it. That is very much to your credit.

[33] You are entitled to credit for the guilty plea. I indicated that a discount of 20 percent would be appropriate. If I deduct a further 10 months for that it comes to a figure of 38 months.

[34] It might be possible to have added a greater uplift, if you like, for your previous but I am going to simply leave it at that. I think, as I indicated, I took it into account on that starting point. However, that means on a totality basis, that is all the offending rounded together, an end sentence of three years two months is imposed.

[35] I am going to use the burglary offence as the lead offence but it covers everything. What that means is that there will be a sentence of three years two months on the burglary. Then there will be a series of concurrent sentences for the other matters. So the final sentence is still three years two months. Those sentences will be as follows: breach of supervision, 4623, one month; aggravated assault, 3609, one year; escaping custody, 3610, one year; resisting police, 3611, one month; unlawfully in a building, 3612, one month; wilful damage, 3613, one month; wilful damage, 3614, one month; shoplifting, 3632, one month; receiving, 3633, one month; using a document, 3634, one year; using a document, 3635, one year; using a document, 3636, one year; using a document, 3637, one year; theft under $500, 6128, one month;

breach of bail, 1650,one month; theft, 0594, one month; assault with intent to injure, 6496, one year; injuring with reckless disregard, 6497, one year; burglary, 7438, three years two months; shoplifting, 4197, one month; wilful trespass, 5375, one month; shoplifting, 1797, one month; possession of utensils, 8775, one month; possession of cannabis, 8776, one month; breach of bail, 6348, one month; shoplifting, 8249, one month; breach of bail, 5560, one month; theft, 5531, one month; trespass, 5532, one month; common assault, 5112, two months; theft, 4544, one month; and theft, 4809, one month.

[36] I hope when it comes to you being considered for parole that the CADS report, which I direct should be provided to the Parole Board, means that steps are taken to see if there can be a rehabilitative placement available for you. There is no question that that is vitally important if you are to avoid continuing to come back to Court for the rest of your life.

[37] I order destruction of the utensils and of the cannabis, 8775 and 8776 respectively. I am not ordering reparation because it is simply not realistic.

Judge NJ Sainsbury

District Court Judge

Date of authentication: 22/01/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.

Schedule of Charges and Sentences

CRN	Date	Offence	Provision	Sentence
17090004809	30 March 2017	Theft (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
17090004544	27 June 2017	Theft (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
17090005116	18 July 2017	Common Assault	Crimes Act 1961 s 196	2 months prison
17090005531	4 August 2017	Theft (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
17090005532	4 August 2017	Wilful Trespass	Trespass Act 1980 s 4(4) & 11(2)(a)	1 month prison
17090008249	11 August 2017	Shoplifts (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
17004015560	7 November 2017	Failing to appear (Court)	Bail Act 2000 s 38(a)	1 month prison
17004016348	23 November 2017	Failing to appear (Court)	Bail Act 2000 s 38(a)	1 month prison
17090008775	7 December 2017	Possession of utensils	Misuse of Drugs Act 1975 s 13(1)(a) & (3)	1 month prison, order for destruction of utensils
17090008776	7 December 2017	Possession of cannabis	Misuse of Drugs Act 1975 s 7(1)(a) & (2)	1 month prison, order for destruction of drug
17004504623	12 December 2017	Breach of supervision	Sentencing Act 2002 s 70(a)	1 month prison
18004001797	5 February 2018	Shoplifts (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
18004005375	30 April 2018	Wilful Trespass	Trespass Act 1980 s 4(4) & 11(2)(a)	1 months prison

18090004197	20 June 2018	Shoplifts (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
18090007438	21-22 September 2019	Burglary	Crimes Act 1961 s 223(1)(a)	3 years and 2 months prison
18004016496	19 November 2018	Assault intent to injure	Crimes Act 1961 s 193	1 year prison
18004016497	7 December 2018	Injures with reckless disregard	Crimes Act 1961 s 189(2)	1 year prison
19090000594	23 January 2019	Theft (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
19004001650	4 February 2019	Failing to appear (Court)	Bail Act 2000 s 38(a)	1 month prison
19090003632	8 February 2019	Shoplifts (under $500)	Crimes Act 1961 s 219 & 223(d)	1 month prison
19090003633	16-17 March 2019	Receiving (under $500)	Crimes Act 1961 s 246 & 247(c)	1 month prison
19090003634	16 March 2019	Using a document	Crimes Act 1961 s 228(1)(b)	1 year prison
19090003635	16 March 2019	Using a document	Crimes Act 1961 s 228(1)(b)	1 year prison
19090003636	16 March 2019	Using a document	Crimes Act 1961 s 228(1)(b)	1 year prison
19090003637	16 March 2019	Using a document	Crimes Act 1961 s 228(1)(b)	1 year prison
19090006128	31 May 2019	Theft (under $500)	Crimes Act 1961 s 219 & 223(b)	1 month prison
19090003609	2 June 2019	Aggravated assault	Crimes Act 1961 s 192(1)(c)	1 year prison
19090003610	2 June 2019	Escapes custody	Crimes Act 1961 s 120(1)(c)	1 year prison
19090003611	2 June 2019	Resist Police	Summary Offences Act 1981 s 23(a)	1 month prison

19090003612	2 June 2019	Unlawfully in a building	Summary Offences Act 1981 s 29(1)(a)	1 month prison
19090003614	2 June 2019	Wilful Damage	Summary Offences Act 1981 s 11(1)(a)	1 month prison
19090003613	2 June 2019	Wilful Damage	Summary Offences Act 1981 s 11(1)(a)	1 month prison