Millerchen v Police [2012] NZHC 749 (24 April 2012)

Last Updated: 13 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-51 [2012] NZHC 749

BETWEEN KELLY JOSEPH MILLERCHEN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 16 April 2012

Counsel: P H H Tomlinson for Appellant

S McMullan for Respondent

Judgment: 24 April 2012

_{JUDGMENT OF POTTER J}

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 9.30 a.m. on 24 April 2012.

_{Solicitors: Crown Solicitor, Auckland – [e-mail]}

_{Copy to: P H H Tomlinson, Auckland – [e-mail]}

MILLERCHEN V NEW ZEALAND POLICE HC AK CRI-2012-404-51 [24 April 2012]

Introduction

[1] Kelly Joseph Millerchen appeals against a sentence of two years two months imprisonment imposed by Judge Moore1 on the grounds that it is manifestly excessive.

[2] The appeal was filed on 22 February 2012. It is some five months out of time. The appellant seeks leave to appeal out of time. His counsel, Mr Tomlinson, presented a draft affidavit which outlines the reasons for the appeal being filed late but it has not been sworn by Mr Millerchen. The Crown does not oppose leave being granted although opposing the appeal on the merits. Leave to appeal will therefore be granted.

Charges

[3] The appellant pleaded guilty to the following charges on 19 August 2011:

(a) Demanding with menaces pursuant to s 239(2) of the Crimes Act

1961. The maximum penalty is seven years imprisonment.

(b) Theft pursuant to s 219 of the Crimes Act 1961. The maximum penalty is seven years imprisonment.

(c) Disorderly behaviour pursuant to s 4 of the Summary Offences Act

1981. The maximum penalty is a fine not exceeding $1,000.

(d) Resisting police pursuant to s 23 of the Summary Offences Act 1981.

The maximum penalty is three months imprisonment or a fine not exceeding $2,000.

(e) Shoplifting (under $500) pursuant to s 219 of the Crimes Act 1961.

_{The maximum sentence is three months imprisonment.}

1 New Zealand Police v Millerchen District Court North Shore CRI-2011-9044-3633, 19 August

2011.

(f) Failure to answer police bail pursuant to s 24 of the Bail Act 2004.

The maximum penalty is a fine not exceeding $1,000.

Factual background

[4] On 28 November 2010 Mr Millerchen went to the victim’s house with an associate who was carrying a revolver. Mr Millerchen showed the revolver to the victim and demanded drugs and $5,000. He took the victim’s surveillance camera and a rifle.

[5] On 5 December 2010 the appellant returned with his associate to the same property while the victim was out. He took vehicle parts, tools and a stereo to a total value of $30,000.

[6] While he was on bail for this offending Mr Millerchen incurred the remaining charges. On 25 March 2011 he and his partner were arguing in public. When the police arrived the appellant began to abuse them and resisted the police handcuffing him after being warned several times that he was being placed under arrest. Additional officers had to be called to subdue him.

[7] On 27 May 2011 the appellant was stopped by security at a supermarket after he placed items in his jacket pockets and left the supermarket without paying. The total value of the items was $54.10.

District Court judgment

[8] Judge Moore took the demanding with intent to steal and theft charges as the lead charges. He treated both as part of continuing offending.

[9] The Judge was decidedly unimpressed by the appellant’s extensive criminal history and noted the only reason his criminal offending stopped in 2008 for a period, was that he had been sentenced to three years imprisonment. The Judge noted there were a total of 34 breaches of sentence and prohibitions in the appellant’s record.

[10] The Judge took a starting point of two years imprisonment, applied an uplift of nine months for the appellant’s extensive history of offending and allowed a discount of 20 per cent for his guilty plea. The end sentence was two years two months imprisonment on the two lead charges. On each of the other charges the Judge imposed a sentence of one month to be served concurrently. He said the other offences were not in themselves sufficiently serious to require cumulative sentences.

Circumstances of the offender

[11] Mr Millerchen is 42 years old and is unemployed although at the time of the offending he was in regular employment. He has been diagnosed with ADHD for which he says he takes daily medication. His criminal history is extensive dating back to 1985. His convictions include six convictions for receiving, 24 for burglary, nine for theft, one for threatening, two for assault and one for aggravated robbery. As the Judge noted, he was imprisoned for three years in 2008 for burglary offending.

[12] The writer of the pre-sentence report says that while Mr Millerchen showed some insight into his offending he has a well established pattern of similar offending and given the recidivist nature a sentence of imprisonment was recommended.2

Appellant’s submissions

[13] Mr Millerchen claims that a sentence indication had been given to him of a community based sentence, which Judge Moore failed to acknowledge at sentencing. However, there is no notation of such an indication in the Court records. Mr Tomlinson accepted that he could not pursue this aspect.

[14] The Judge’s starting point of two years is not challenged. The appellant submits that the sentence is manifestly excessive on two grounds. First, that the uplift of nine months on account of the appellant’s history of offending is excessive. Mr Tomlinson submitted that an uplift of three months would have been more

_{appropriate. He acknowledged the appellant’s history of dishonesty offending but}

2 The Judge did not refer to the pre-sentence report in his sentencing notes.

submitted there is no relevant history of offending involving stand-over tactics, apart from the aggravated robbery conviction in 1994. Secondly, he submits that a maximum discount of 25 per cent for the appellant’s guilty pleas should have been allowed on the basis of Hessell v R.3

Crown’s submissions

[15] The Crown submits that the starting point was appropriate, even generous, that the uplift of nine months was not out of range, that the 20 per cent discount for the appellant’s guilty plea was sufficient and that the end sentence of two years two months imprisonment adequately reflects the criminality of the appellant’s offending.

[16] In relation to the uplift the Crown referred to R v Casey4 where the Court of Appeal said that the sentence should not be increased merely on the ground that it would result in the prisoner being, in effect, sentenced again for an offence for which he has already served his sentence. However, previous convictions must not be ignored completely as the offender’s character frequently affects the question of the nature and gravity of the crime. Previous convictions may also indicate a predilection to commit a certain type of offence, in which case, the Court should lengthen the period of confinement to protect the public.

[17] The Crown submits that in light of the appellant’s recidivist behaviour it was open to the sentencing Judge to conclude that a more lenient sentence would only be met with further aggression and that a lengthy sentence of imprisonment was the only way of protecting the community from the appellant’s offending.

Evaluation

[18] The Court of Appeal has repeatedly said that in assessing whether a sentence is manifestly excessive, it is not the manner in which the sentence is structured which is important, but whether the end sentence imposed is manifestly excessive

having regard to the circumstances of the offending and the offender. This principle was recently stated in Mita v R.5

[19] The uplift of nine months applied by the Judge to the starting point of two years was 37½ per cent, and was thus significant. However, Mr Millerchen is a recidivist offender and while Mr Tomlinson correctly observes that his history of offending does not show a predilection for offences involving stand-over tactics, he has demonstrated over a very lengthy period that he poses a risk to the public particularly in relation to property offending.

[20] It would have been available to the Judge to structure the sentence differently. For example, taking the demanding with menaces offence as the lead charge and from a starting point of two years, applying an uplift of, say, six months to reflect the theft and other offending. To that, there would have to be applied an uplift of at least three months on account of the appellant’s history of offending.

[21] A discount of 25 per cent could have been allowed for the guilty pleas, but as the Crown noted there was a full and clear statement from the victim relating to the demanding with menaces and theft offending, and the Crown’s case against the appellant was strong. All circumstances are relevant.6

[22] Standing back and considering the overall offending for which the appellant was to be sentenced, and in light of his history of offending, I do not consider that the sentence of two years and two months imprisonment for the totality of the appellant’s offending is manifestly excessive.

Result

[23] The appeal is dismissed.