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Milner v Police [2014] NZHC 3277 (18 December 2014)

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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