McMillan v Police - [2019] NZHC 3323

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000163

[2019] NZHC 3323

BETWEEN
CHRISTOPHER JOHN McMILLAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 December 2019

Appearances:

E Huda for Appellant

A M Harvey for Respondent

Judgment:

16 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 10 October 2019, Christopher McMillan pleaded guilty to drugs and firearms charges and was sentenced by Judge Gilbert to six months’ home detention.

[2] Four of the charges involved possession of controlled drugs and utensils and were committed in Christchurch on 29 August 2018 (the Christchurch offending). The balance of the charges were for offences that were committed in Invercargill on 6 May 2019 (the Invercargill offending). They comprised two charges for possession of controlled drugs and utensils, and two charges for possession of a .22 calibre rifle and a sawn-off shotgun.

McMILLAN v NEW ZEALAND POLICE [2019] NZHC 3323 [16 December 2019]

[3]Mr McMillan now appeals his sentence on the grounds that:

(a)the District Court Judge adopted too high a starting point for the Invercargill offending; and

(b)the District Court was in error to uplift the starting point for his previous convictions.

Facts

[4] On 22 August 2018 Mr McMillan was stopped in his car by police in Christchurch. A search was undertaken. Police located two meth pipes, a cannabis pipe, a small “usable” amount of cannabis and four point bags containing “usable quantities” of methamphetamine. He was charged and released on bail.

[5] On 5 May 2019 Mr McMillan travelled to Invercargill together with an associate in a vehicle. They were reported to police as having been seen smoking from a glass pipe while in a McDonald’s carpark. The police attended and a search of the vehicle was undertaken. It revealed a rifle bag which contained a stolen Ruger .22 calibre rifle. Mr McMillan was arrested. When the vehicle was more thoroughly searched, police found a loaded SKB 12-gauge semi-automatic shotgun which had been cut down to 730 mm in length, and which is deemed a “pistol” under the Arms Act 1983.1 The police also located 2.2 g of cannabis and 0.012g of methamphetamine in the vehicle along with three meth pipes.

Mr McMillan’s affidavit

[6] Mr McMillan pleaded guilty to the charges. On 7 October 2019 Mr McMillan swore an affidavit for the purpose of providing evidence to the sentencing judge regarding his level of involvement in the Invercargill offending. In it he explains that his sister’s partner, Pita Wilson, asked him to drive from Christchurch to Invercargill to talk to his sister, where she lived, about a rumour she was dating another male. He explains that Mr Wilson has gang connections and serious criminal convictions. He

1 Arms Act 1983, s 2(1) definition of “pistol”.

says that Mr Wilson put his belongings, including the firearms, in his car on the front passenger side of the car.

[7] When they arrived in Invercargill they stopped at the McDonald’s carpark where he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 3323
Decision Date: 16 December 2019

CaseChat Overview and Summary

Christopher John McMillan appeals his sentence for drugs and firearms charges, imposed by Judge Gilbert, who sentenced him to six months’ home detention. The District Court Judge took the Invercargill offending as the lead offending and adopted a starting point of 20 months’ imprisonment. The Judge uplifted the starting point by two months for the Christchurch-based offending. The Judge discounted the sentence by six months for Mr McMillan’s guilty pleas. The Judge then resolved to “factor in” the time spent on remand and the time on EM bail, by making a final discount of six months. This brought the Judge to a nominal sentence of imprisonment of 12 months. The Judge considered that it was appropriate to impose a sentence of home detention given Mr McMillan’s positive pre-sentence report and the availability of a suitable home detention address. He thus imposed an end sentence of six months’ home detention. McMillan appeals on the grounds that the District Court Judge adopted too high a starting point for the Invercargill offending and that the District Court was in error to uplift the starting point for his previous convictions. The court found that the 20-month starting point was well within range and appropriate in the circumstances. The court also found that while it is unclear why the Judge applied a specific uplift for previous convictions, having said they were not relevant, the uplift was a combined uplift of only two months for previous convictions and the fact of offending while on bail. The court concluded that there was no error in the end sentence imposed by Judge Gilbert and dismissed the appeal.

Orders