R v Milliken [2012] NZHC 3052 (16 November 2012)

Last Updated: 28 November 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-019-2210

CRI-2012-019-6755 [2012] NZHC 3052

THE QUEEN

v

JEFFREY IAN MILLIKEN

Hearing: 16 November 2012

Counsel: S Cameron for Crown

K Clews for Prisoner

Judgment: 16 November 2012

_{SENTENCING REMARKS OF LANG J}

R V JEFFREY IAN MILLIKEN HC HAM CRI-2010-019-2210 [16 November 2012]

[1] Mr Milliken, you appear today for sentence having been found guilty by a jury in the District Court on charges of injuring with intent to injure, assault with a weapon and unlawful possession of firearms and ammunition. The maximum penalty in relation to the first two of those charges is five years imprisonment. The maximum penalty in respect of the firearms and ammunition charges is four years imprisonment in each case. The jury also found you guilty on a charge of being in possession of methamphetamine for supply, the maximum sentence for which is life imprisonment.

[2] In addition, you pleaded guilty in the District Court to a charge of being in possession of the pre-cursor substance pseudoephedrine. The maximum sentence on that charge is a sentence of five years imprisonment. In October 2011, the District Court declined jurisdiction to sentence you on that charge and committed you to this Court for sentence. Before this Court could sentence you, however, you absconded and a warrant for your arrest was issued.

[3] You had not been located by the time the trial in the District Court on the remaining charges began and, for that reason, the trial proceeded in your absence. You were therefore convicted following a trial at which you were not present. That is a matter that you were responsible for, and you need to take the consequences for it.

The facts

The offending on 22 February 2011

[4] The facts giving rise to the first set of charges charge arise out of an incident that occurred on 22 February 2011. You and two associates, Mr Schubert and Mr Douglas, went to an address just outside Morrinsville where you believed you would find property stolen in an earlier burglary. While you were at the address the occupier, Mr Wilson, returned, and an altercation took place. You and Mr Schubert had gone there with weapons. You had a shotgun and a pistol.

[5] During the altercation, Mr Wilson remained in his car. Mr Schubert went to his car, brought out the shotgun and went over to Mr Wilson. He rammed the barrel of the shotgun through the window into the car and jammed it into the mouth and lip area of Mr Wilson, thereby injuring him. This series of events, coupled with other skirmishes that took place during the altercation, gave rise to the charges of injuring with intent to injure and assault with a weapon.

[6] The police were eventually called, and the three of you drove away. Mr Douglas was driving the vehicle and you and Mr Schubert were passengers. After you left Mr Wilson’s property the vehicle stopped, and the firearms were deposited on the side of the road in a rural area. You then passed a police car, and Mr Douglas immediately accelerated the vehicle in an effort to get away.

[7] There followed a high-speed chase during which your vehicle was driven in an extremely dangerous manner. The police endeavoured to stop you by placing spikes over the road. Mr Douglas swerved to avoid these, and lost control of the vehicle. It then collided with a power pole, thereby trapping all of you within the vehicle. As your counsel has said, you were extremely lucky to have survived that aspect of the escapade.

[8] When the police searched you, they found two plastic bags containing traces of methamphetamine. One of these was in your wallet, and one was in the pocket of your jacket. More importantly, however, they found a plastic bag containing 10.8 grams of methamphetamine wedged down beside one of the seats in the vehicle. This led to the charge of being in possession of methamphetamine for supply.

[9] The police also found ammunition on your person and in the vehicle.

[10] The jury’s verdict makes it clear that you went to that address knowing that weapons were to be taken, and appreciating also that somebody could get hurt in the way that Mr Wilson was ultimately injured.

[11] The charge to which you pleaded guilty in the District Court arose as a result of a search that the police carried out of a rural property near Te Hoe on the afternoon of 29 March 2011. By that stage you had been released on bail following the earlier incident.

[12] When the police searched the address, you were present. Throughout the address they found items associated with the production of pseudoephedrine, which is a precursor substance used in the manufacture of methamphetamine. The police found large quantities of equipment, and also waste liquids and materials indicating that the extraction of pseudoephedrine had taken place. In addition, they found a snaplock bag containing 71.2 grams of extracted pseudoephedrine hydrochloride. The Crown says this would have been sufficient to make between 30 and 50 grams of methamphetamine.

[13] This was clearly a reasonably sophisticated laboratory that had been in operation for some period, and was designed to be used in the future. Many chemicals used in the extraction of pseudoephedrine were present, including acetone, toluene and hydrochloric acid.

[14] Of particular seriousness, as I have said, in relation to this offending is the fact that you had just a few weeks earlier been arrested and released on bail on the charge of being in possession of methamphetamine for supply.

Starting points

[15] The sentence that I impose on you is not easy to construct because of various factors that are often not present in cases such as this. I need to assess the starting points and end sentences to be imposed in each of three separate sets of offending. I then need to stand back and view the sentences in totality in order to ensure that I do not impose a sentence that is excessive having regard to your total culpability.

[16] Starting with the incident involving the injuring of Mr Wilson, I draw considerable assistance from the sentencing notes of the Judge who sentenced Mr Schubert and Mr Douglas.[1] He reviewed the authorities, and concluded that an appropriate starting point for Mr Schubert on the lead charge of injuring with intent to injure was three years imprisonment. He increased that by a year to reflect the fact that firearms had been involved, and also to reflect the efforts taken to avoid

detection. This produced an end starting point of four and a half years imprisonment. He then increased the sentence by six months to reflect charges arising out of the fact that Mr Schubert was also convicted of threatening to kill various persons at Mr Wilson’s property. You were not convicted on those charges, so they are irrelevant for present purposes. The Judge then reduced the sentence by a year to reflect provocation on the part of Mr Wilson.

[17] Mr Douglas was sentenced on the basis that his part in the offending only arose after the assault on Mr Wilson had taken place. For that reason the sentencing remarks in relation to Mr Douglas are of no real assistance in the present context.

[18] I agree that a starting point of three years imprisonment would be appropriate for the principal offender who injured Mr Wilson. That, of course, was Mr Schubert and not you. Nevertheless, you have been convicted of the same charge because the jury was satisfied that you were party to a plan with Mr Schubert to go to the property and you appreciated that Mr Wilson could well be injured whilst you were there. You were also plainly involved in the decision to take firearms, because ammunition was found on your person.

[19] Bearing in mind, however, the fact that you did not actually play any part in injuring Mr Wilson, I consider an overall starting point, taking into account all of the relevant factors to which the Judge referred, is one of two years three months imprisonment.

[20] I then need to consider the starting point to be applied in relation to the charge of being in possession of methamphetamine for the purposes of supply on 22

February 2011. The starting point for this charge is governed by the guideline judgment of the Court of Appeal in R v Fatu.[2] In that case the Court of Appeal identified bands of methamphetamine-related offending based on the seriousness of the offending. The Court also indicated starting points for offending within the different bands that it identified.

[21] Band one in R v Fatu relates to offending involving manufacturing or dealing in up to five grams of methamphetamine. Starting points for offending within this band will range between two and four years imprisonment. The second band identified in R v Fatu relates to offending involving between five and 250 grams of methamphetamine. Starting points for offending within this range will be between three and nine years imprisonment. Clearly you fall within this band, albeit towards the bottom end given that 10.8 grams of methamphetamine was found in your possession.

[22] The methamphetamine was not found in point bags, but rather in a single quantity. This suggests to me that you were not a retailer and may have been a little further up the tree than a retailer at the lowest level. The fact that you had $1700 in

$50 notes on your person when you were searched also indicates that you were dealing in the substance commercially.

[23] For that reason, I assess an appropriate starting point to be three years six months imprisonment.

[24] This is not the first occasion on which you have been before the courts on charges relating to methamphetamine. The first occasion on which you appeared in relation to methamphetamine-related offending was on 13 May 2004. On that date you were sentenced to six years and four years imprisonment respectively on charges

of manufacturing and conspiracy to manufacture methamphetamine. That offending occurred between 1 January 1998 and 23 April 2002.

[25] On the same date, you were sentenced to a concurrent term of six years imprisonment on a charge of attempting to manufacture methamphetamine. This charge relating to offending on 29 April 2002. Then, on 19 July 2004, you were sentenced to imprisonment for one year on charges of producing or manufacturing methamphetamine. That sentence related to offending on 22 May 2002.

[26] This means, Mr Milliken, that you now present as a recidivist offender. You know that the courts take an extremely dim view of offending of this type. Notwithstanding that fact, you choose to become involved.

[27] The fact that you have not learnt your lesson from earlier sentences makes the current offending more serious. For that reason, I propose to apply an uplift of ten months imprisonment to reflect previous convictions. This would leave an end cumulative sentence of four years four months imprisonment.

[28] I now need to stand back and have regard to the two starting points I have adopted, because I need to ensure that I do not impose an end sentence that is too great. The two starting points I have selected amount in total to six years seven months imprisonment. Having regard to totality principles, I regard that to be slightly high, and I propose to reduce the sentence to be imposed on the methamphetamine charge by one year one month to reflect that fact.

[29] This means that I have selected an effective end sentence of five years six months imprisonment on the charges relating to the incident that occurred on 22

February 2011.

The charge of being in possession of pseudoephidrine

[30] The second charge, that of being in possession of pseudoephedrine, is a serious charge of its type. The scale and sophistication of the laboratory are

seriously aggravating factors. The quantity of extracted pseudoephedrine that the police found also gives a hint as to the scale of the enterprise.

[31] Counsel for the Crown has provided me with a number of authorities indicating that sentences of around three years imprisonment may be appropriate for offending of this type. The authorities are of limited significance though, because in this area each case must be judged on its own facts. I consider, having regard to the scale and sophistication of the operation, that the lowest starting point that I could possibly adopt is one of three years imprisonment.

[32] Again, I need to consider whether that should be increased to reflect aggravating factors. Obviously, the fact that you have previous convictions is of significance in this context as well. There is also the added factor that you had been released on bail just a few weeks earlier on the charges arising out of the incident on

22 February 2011. That fact aggravates this offending and must be taken into account.

[33] I increase the starting point on this charge by 12 months to reflect that factor, to produce an end sentence of four years imprisonment before taking into account mitigating factors.

Mitigating factors

[34] The only mitigating factor that I can realistically take into account here relates to your guilty plea in relation to the pseudoephedrine charge.

[35] The probation report makes it clear that you have good qualities. In particular, you enjoy the love and support of your family some of whom are here today in your hour of need. Indeed, I gather that your desire to be with your family was what drove you to abscond prior to your sentencing last year.

[36] I do not, however, consider that any other factors personal to you can be taken into account to reduce the starting point I have selected. As the Court of Appeal has regularly said, personal factors count for little in offending of this type.

[37] The Crown accepts, however, that you are entitled to a discount of 25 per cent, being the maximum available in respect of your guilty plea on the pseudoephedrine charge. This reduces the starting point I have selected to a cumulative end sentence of three years imprisonment.

[38] It is now necessary for me to stand back again and look at the three end sentences to make sure they are not excessive having regard to the totality of your offending. Adding the sentences together produces an end sentence of eight years six months imprisonment. Again, I consider that to be slightly high. I consider that an appropriate end sentence, having regard to your overall culpability, is one of seven years six months imprisonment. For that reason I propose to reduce the cumulative sentence to be imposed on the second charge from three years imprisonment to two years imprisonment.

Sentence

[39] On the charge of injuring with intent to injure you are sentenced to two years three months imprisonment. On the charge of assault with a weapon you are sentenced to 12 months imprisonment. On the charges of unlawful possession of the firearms and ammunition you are sentenced to one year six months imprisonment on each charge. All of those sentences are to be served concurrently, meaning that you will serve an effective sentence on those charges of two years three months imprisonment.

[40] On the charge of being in possession of methamphetamine for supply, you are sentenced to three years three months imprisonment. That sentence is to be cumulative on the sentence imposed in respect of the charge of injuring with intent to injure.

[41] On the charge of being in possession of precursor substances, you are sentenced to two years imprisonment. That sentence is to be served cumulatively on the sentence imposed in respect of the charge of being in possession of methamphetamine for supply.

Minimum term of imprisonment

[42] Mr Milliken, you have heard me discussing with counsel the issue of a minimum term of imprisonment.

[43] The Court has the power to impose a minimum term of imprisonment whenever it sentences someone to two years imprisonment or more. The Court can do that when it is satisfied that the usual parole provisions are insufficient to reflect issues of deterrence, denunciation, accountability and the need to protect the community.

[44] In serious drug offending such as this all of those factors are generally satisfied, and they certainly would be in your case. However, I take notice of the fact that the Crown has not asked for a minimum term to be imposed. It takes that stance on a practical basis, because it consider the parole authorities are not likely to release you in any event after serving just one-third of your sentence having regard to your previous convictions.

[45] You need to know, however, Mr Milliken, that you are now well and truly a recidivist offender. Should you appear again on charges such as this, I have no doubt that a minimum term of imprisonment of near the maximum permissible will be imposed upon you.

Forfeiture

[46] The sentencing Judge in the District Court has already made an order for the destruction of the firearms and ammunition.[3] In case it has not yet been done, I now make an order for the destruction of the drugs and drug-related paraphernalia found on both 22 February 2011 and 29 March 2011. I also make an order for the

_{forfeiture of the cash that was found in your possession.}

[47] I make no order in relation to the motor vehicle that Mr Douglas was driving on 22 February 2011. If the Crown had wished to apply for an order that the vehicle be forfeited, it ought to have taken that step when Mr Douglas was sentenced.

_{[48] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

K Clews, Hamilton

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[1] R v Douglas & Anor DC Hamilton CRI-2011-019-228, 7 November 2012.

[2] R v Fatu [2006] 2 NZLR 72.

[3] R v Douglas & Anor, above n 1.