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High Court of New Zealand Decisions |
Last Updated: 23 December 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000115
CRI 2014-409-000116 [2014] NZHC 3277
ETHAN WIKAIRA MILNER
v
POLICE
Hearing:
|
11 December 2014
|
Counsel:
|
N Hansen and P J Doody for Appellant
B Hawes for Respondent
|
Judgment:
|
18 December 2014
|
JUDGMENT OF WHATA J
[1] Mr Milner was convicted on charges of burglary, driving while
forbidden, driving with excess breath alcohol and assault
on a prison officer.
He was sentenced to two years and four months’ imprisonment.
[2] He now appeals against sentence on the ground that it was
manifestly excessive.
[3] I allowed the appeal and delivered my assessment orally, but noted,
without objection, that I would issue the full written
judgment in due course.
This is the full judgment.
MILNER v POLICE [2014] NZHC 3277 [18 December 2014]
Background
[4] The facts of the offending are set out in the sentencing notes of Judge G S MacAskill. They are not disputed. The Judge described the offending in this way:1
[2] As to the facts relating to your offending, there are four summaries: (a) On 26 March 2013 you were forbidden from driving any
motor vehicle until you had obtained a driver’s licence. On 24 May you drove a motorcycle on Dunarnan Street, Christchurch. You were affected by alcohol. An evidential breath test produced a result of
714 micrograms of alcohol per litre of breath.
(b) On 13 May 2014 you were at Super Liquor in Pages Road. You stole
a 15 pack of Steinlager beer, taking it from
the shelf. I understand
the property was recovered.
(c) On Thursday 3 July 2014 at 3.45 pm, you and your associate were on
Marine Parade, Christchurch. You approached a
residential address. You
entered it through a ranchslider window, which you smashed. You took a quantity
of alcohol, jewellery,
electronics and two guitars, and left the address. You
were located by the occupant who returned home on the property. That, of
course, is always of concern because of the potential for violence, particularly
in your case. I understand the property was recovered.
I have not been given
a reparation figure for the broken ranchslider. Perhaps the prosecutor could
mention that at the end of
sentencing.
(d) Then, on 14 July you were a prisoner remanded in custody at
Christchurch Men’s Prison. The victim was a prison officer.
He went to
pass a visitor form to you. You punched him on the right side of his face. You
went to the guardroom and punched him
three more times on the right side of his
face. You were pushed out of the guardroom and taken to the ground by a number
of other
officers and had to be restrained. The victim received a broken tooth
to the bottom-right side of his mouth. In explanation you
said, “I am
sick of yous locking up my bros.” There is a victim impact statement for
the prison officer and I have read
that. I note that he says that he received
the broken tooth. He mentions that it may have to be removed as it would be
difficult
to fix. He is covered by ACC but has suffered some emotional harm,
which is capable of being remedied by reparation.
[5] The Judge then went on to make the statement:
[3] Rather than review your list for prior convictions, I shall adopt the summary in the pre-sentence report and I will read the first paragraph of the summary on page 2:
Violence propensity. Offendings supportive attitudes and drug and alcohol
use are considered to be the key offending related factors
in Mr Milner’s
current offending. Mr Milner’s conviction history spans three years
during which he has accumulated
a large number of offences, which predominantly
involve dishonesty, driving related and violence towards people and property.
Mr
Milner also has a number of offences resulting from non-compliance with
community- based sentences. Given this high rate of offending
Mr Milner is
considered to pose a high-risk of further offending as violence has played a
part in both current and previous
offending as well as assessed as being at
moderate risk of harm.
[6] The Judge then listed the number of factors he considered were
relevant, including: Mr Milner’s high emotional state
at the time he
assaulted the prison officer, his motivation to address his substance and anger
issues, his addiction to methamphetamine
and his entry into Hillmorton Hospital
due to psychosis, the need to denounce his offending to hold him to account and
to deter him
from offending and to rehabilitate him. The Judge formed the view
that a sentence of less than imprisonment was precluded by
the seriousness
of the offending, his offending record and his responsiveness to sentences
previously imposed and non-compliance
with community based
sentences.
[7] The burglary charge was taken as the lead charge and a starting
point of imprisonment of three years. The Judge took into
account his offending
on bail, the initial offending and his previous offending. He deducted eight
months for guilty pleas. He
then imposed sentences of six weeks for drink
driving, one month for theft and four months for the assault. On the driving
while
forbidden charge he was convicted and discharged.
[8] Reparation of $500 was also ordered.
[9] Ultimately he was sentenced to imprisonment of two years and four
months with the other sentences to be served concurrently.
[10] The Judge said:
[10] I take the lead charge as the charge of burglary. On that charge I shall impose a sentence on a totality basis. I take the starting point of imprisonment for three years. That takes into account your offending on bail after the initial offending and your previous offending. I deduct eight months for your guilty pleas. You are sentenced on that charge for prison for
two years and four months, with the following concurrent sentences of
imprisonment I i mpose. On the drink -driving charge six
weeks. On the theft
one month. On the assault of a prison officer four months. On the driving
while forbidden charge you are convicted
and discharged.
Jurisdiction
[11] Section 250 of the Criminal Procedure Act 2011
states:
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in
accordance with this section.
(2) The first appeal court must allow the appeal if satisfied
that—
(a) for any reason, there is an error in the sentence imposed on
conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other
case.
[12] In order to succeed on appeal there must be a material error. It is
now settled that the longstanding approach to sentence
appeals remains apposite.
A sentence which is manifestly excessive, wrong in principle, or flawed on its
face, may be corrected on
appeal.2
Grounds of appeal
[13] Ms Hansen identifies the following grounds of appeal:
(a) Given that Mr Milner was a first time offender, in relation to
burglary, and that the burglary was at the relatively minor
end of the scale,
analysis of case law establishes that the starting point was too
high;
(b) It is impossible to discern what proportion of the starting point is attributable to the burglary and what is attributable to the other offending;
(c) In any event, the uplift was excessive in terms of the total
starting point;
(d) The Judge erred by not reviewing Mr Milner’s list of prior
convictions and instead relied on the pre-sentence report.
On closer
examination Mr Milner’s criminal history discloses 31 previous convictions
but of those only three are dishonesty
related and there are no previous
convictions for burglary;
(e) Citing the guideline judgment of Senior v Police, in the
case of a first time burglar, a prison sentence may be imposed though frequently
this is not the case.3 The range identified by the Court of
Appeal was a starting point of approximately 18 months’ to two
years and six months
imprisonment. Further the Court of Appeal in
Tutakangahau v R identified the relevant range for burglary as between 12
and 15 months’ imprisonment;4
(f) The Judge put undue weight on the fact that Mr Milner was located
at the property. Closer examination of the facts reveal
that Mr Milner was
running away from the property at the time he was seen;
(g) While the summary of facts refers to a co-accused, Mr
Milner maintains that the co-accused while nearby was not
involved in the
burglary;
(h) Other cases including Newton v Police and Kati v Police
indicate that a starting point of 15 months is at the high end for a first
time burglary;5
(i) The balance of Mr Milner’s convictions carry relatively low
penalties;
and
3 Senior v Police (2000) 18 CRNZ 340 (HC).
4 Tutakangahau v R, above n 2.
5 Newton v Police [2012] NZHC 2829; Kati v Police HC Napier CRI 2011-441-19, 11 July 2011.
(j) Counsel can only speculate on the nature of any uplift given
the approach to sentencing.
[14] As to the other charges and aggravating features, while Mr
Milner had accrued six previous violence related convictions,
the worst of
which was a conviction for threatening to kill/do grievous bodily harm in 2012,
any uplift to the starting point for
this previous offending could still have
brought the appropriate starting point to well under three years.
[15] While the Judge appeared to acknowledge Mr
Milner’s youth and rehabilitation, and his drug and alcohol
issues,
they were not in fact taken into account when fixing sentence.
Submissions for the Crown
[16] The Crown accepts that the three year starting point
incorporated consideration of the other offending which
had the effect of
increasing the starting point from a point it otherwise would have been. It
submits nevertheless:
(a) The burglary charge was clearly the most serious matter. There is
no tariff for burglary sentencing but the following passage
is drawn from
Arahanga v R:6
... Burglary of a domestic residence is a significant aggravating feature at
sentencing due to the heightened risk of confrontation
with the occupants.
Dwelling-house burglaries at the relatively minor end of the scale tend to
attract a starting point of approximately
18 months’ to two years six
months’ imprisonment.
(Footnotes omitted)
(b) The three year starting point incorporated a number of aggravating
features both related to the offending and personal to
Mr Milner.
(c) In this context a three year starting point was well within the range available to him.
(d) The assault on a prison officer is clearly a matter that warranted
an uplift to the burglary starting point. The assault
was serious and the
appellant can consider himself fortune to have such a low level of
charge.
(e) Mr Milner has a number of previous convictions.
(f) The pre-sentence report recommended a term of imprisonment which
would allow Mr Milner time to reduce his security classification.
(g) A discount of eight months was applied for the guilty pleas even
though they were entered after some initial delays in respect
of one or two
charges.
Assessment
[17] I am prepared to accept Ms Hansen’s submission that the
Judge’s assessment of the starting point did not separate
out the starting
point on the lead charge. It thereby created some confusion as to how the
Judge arrived at the starting point
on a totality basis. I turn then to
undertake my own evaluation as to the proper sentence.
[18] First, as noted by the Court of Appeal in Arahanga v R, burglary of a domestic residence is a significant aggravating feature. Such burglaries, even at a relatively minor end of the scale are said to attract a starting point of approximately
18 months’ to two years and six months’ imprisonment. The facts are that Mr Milner entered a residential address by smashing a ranchslider window and he took alcohol, jewellery, electronics and guitars and then left the address. He was in fact located by the occupant and even assuming he was running from the property, the potential for violence, as the Judge pointed out, was real. It is exactly the type of issue that the Court of Appeal in Arahanga was concerned about. Balanced against this, the Court of Appeal in Tutakangahau v R suggested that the range mentioned in Arahanga is high. Tutakangahau also appears to have approved the starting point taken in
Newton v Police.7 That case is similar to the extent that it involves a daylight home
burglary. Mr Hawes seeks to distinguish this case on the basis that there
were two offenders in this case and that they disturbed
an occupant. I accept
that those elements warrant a specific uplift on what was a starting point of 15
months in Newton so that I reach a starting point of 18 months for the
offending in this case.
[19] Turning then to the other offending, I consider it is appropriate to
take a cumulative approach to that offending particularly
having regard to the
fact that there was no connection between them and there is a need to ensure
that Mr Milner is separately held
accountable on each of the offences. I
consider that the next most serious aspect of the offending was the assault on a
prison officer.
Plainly, it is significantly aggravating that Mr Milner has
chosen to violently attack a person who has been reposed with
the
responsibility of ensuring the care and secure imprisonment of Mr Milner.
Prison officers are in a particularly vulnerable
position and any violence
towards them must be met with a sentence which properly reflects the concern of
this Court for such behaviour.
The maximum sentence for such an offence is six
months. While I was not taken to any authorities directly on point, I am
satisfied
that a sentence of four months for this offending is proportionate to
the scale of the violence and reflective of the need to denounce
Mr
Milner’s conduct. The theft and driving while forbidden charges are at the
lower end of the scale and would unlikely attract
a prison sentence. That
offending should instead be taken into account in terms of aggravating features
personal to Mr Milner when
I come to set the final starting point.
[20] For present purposes, however, the result of this analysis is that a cumulative starting point taking into account the burglary offending and the assault offending is
22 months and this is commensurate in my view with the nature of that
offending.
[21] Turning then to the aggravating features personal to Mr Milner, as I have mentioned he also faced and was convicted on two charges, namely driving while forbidden and theft. There is an extensive history of prior offending. This is particularly surprising given Mr Milner’s relatively young age. Nevertheless, Mr Milner has approximately 29 prior offences, including multiple offences for wilful damage, resisting police, theft of property, assaulting the police, threatening to kill, breach of community work, breach of conditions of supervision, driving a motor
vehicle in a dangerous manner and procuring and possessing a
cannabis plant. Given this extensive prior offending, including
offending that
is comparable to the charges on which Mr Milner was convicted, an uplift in
penalty of six months would in my view
be appropriate. In this regard I agree
with the pre-sentence report’s assessment that was recorded by the Judge
at paragraph
[3] of his judgment. In short, given the high rates of offending,
including comparable offending for which Mr Milner is charged,
he presents a
high risk of further offending including violence offending.
[22] This results in a combined starting point of 28 months. In terms of discount, notwithstanding the number of offences, Mr Milner is only 20 years of age. That must mitigate the extent of the penalty as it is now settled that recognition of youth must be taken into account when fixing sentence and in particular two factors are relevant, namely the relative immaturity of young men and the disproportionate
effect that a sentence of imprisonment can have on a young person.8
I would
therefore allow a discount of ten per cent for that factor. I would also
allow a further
25 per cent on guilty pleas acknowledging that there was some, albeit minor,
delay on some of the charges. Taken together that would
result in a discount of
35 per cent on the starting point of 28 months. In the result, were I
sentencing Mr Milner I would have
imposed a sentence of 18 months’
imprisonment.
[23] The outcome of this analysis means that I consider that the sentence
imposed by Judge MacAskill is manifestly excessive.
That being the case, I
allow the appeal and impose a sentence of 18 months’
imprisonment.
[24] I am advised that there was a reparation order for the assault and
on the drink driving charge there was disqualification
conditions. Those
sentences remain in place.
Solicitors:
P J Doody, Christchurch
Raymond Donnelly & Co, Christchurch
8 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446.
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