McMillan v Police
[2019] NZHC 3323
•16 December 2019
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 hoped to send a message via Facebook Messenger to his sister, warning her of their impending visit because he “did not want Pita to walk into my sister’s home and see another male in the house in circumstances where he had access to [a] sawn-off [sic] shotgun”. However, because had no money he could not connect his mobile phone to the fast food store’s WiFi. He then fell asleep and was woken by two female police officers who said they had seen someone in the car smoking drugs and who initiated the search which led to the charges. He states he does not accept that he was smoking methamphetamine while parked in the McDonald’s carpark in Invercargill.
District Court decision
[8] Judge Gilbert took the Invercargill offending as the lead offending and adopted a starting point of 20 months’ imprisonment. The features aggravating this offending were the presence of a sawn-off shotgun (which was immediately accessible and loaded ready for firing), the presence of drugs, and the fact that the offending occurred while Mr McMillan was on bail. The Judge applied an uplift of two months for the Christchurch-based offending.
[9] Although the Judge acknowledged the previous convictions were not relevant to the current offending, he uplifted the sentence by two months saying it was to reflect his previous convictions and the fact that he was on bail when he committed the Invercargill offending.
[10] The Judge discounted the sentence by six months for Mr McMillan’s guilty pleas. He then resolved to “factor in” the time spent on remand and the time on EM bail, seven weeks and three and a half months respectively, by making a final discount of six months. This brought the Judge to a nominal sentence of imprisonment of 12 months.
[11] 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.2
Principles on appeal
[12] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.6
Submissions
Appellant’s submissions
[13] Mr Huda for Mr McMillan submits the Judge did not properly assess Mr McMillan’s level of involvement in respect of the Invercargill offending. He says Judge Gilbert focused only on the gravity of the offending itself and not the degree of culpability attaching to Mr McMillan.7 In assessing culpability Mr Huda says the Judge was required to “grapple with the affidavit evidence” which addressed the offender’s culpability under s 9(2)(d) of the Sentencing Act 2002. This subsection
2 Being half of the nominal sentence of imprisonment and in accordance with the general approach of “halving” the nominal sentence, consistent with the automatic early-release provision for sentences of imprisonment of 24 months or less under s 86(1) Parole Act 2002.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
6 Skipper v R [2011] NZCA 250 at [28].
7 Sentencing Act 2002, ss 8(a) and 9(2)(d).
provides that the sentencing court “must take into account”, to the extent that is applicable in the case, that “there was a limited involvement in the offence on the offender’s part”.
[14]He says the Judge’s statement that he had:
… read some material which seeks to put some context around what occurred but in my view whatever way it is cut you have pleaded guilty to possession of these weapons and it is unquestionably serious and dangerous offending.
was insufficient to meet this requirement.
[15] While Mr Huda accepts Judge Gilbert was entitled to decide what weight should be given to that evidence, there is no evidence that he made such an assessment.8 If the Judge rejected the evidence, he was required to expressly state that. In failing to say what weight, if any, he put on the affidavit evidence, or alternatively, in failing to give reasons why he rejected that evidence, Mr Huda submits that the Judge has erred in not taking into account mandatory considerations under ss 8(a) and 9(2)(d) of the Sentencing Act.
[16] Moving to the starting point adopted, Mr Huda submits that, but for the affidavit evidence, the starting point was, “while stern, within range”, and he cites a number of cases to illustrate this submission.9 However, he concludes:
…if this Court accepts [the affidavit evidence] as fact and decides to place even moderate weight on the facts found to exist, then the starting point for the Invercargill-offending should be decreased by up to two months.
[17] Mr Huda also submits that the Judge was wrong to make an uplift to account for Mr McMillan’s previous convictions because they were not relevant to his present offending.10 In saying that, he cites Reedy v Police where I said:
(a)the presence of previous convictions “in and of itself does not justify an uplift”;11
8 Citing s 24 Sentencing Act as to “proof of facts”.
9 Smith v Police [2014] NZHC 2196; Moore v Police [2015] NZHC 3113; and Gunning v Police
[2019] NZHC 309.
10 Sentencing Act, s 7(1).
11 Reedy v Police [2015] NZHC 1069 at [18] and [19(a)]; at [18] and [19(b)]; and [18] and [19(c)].
(b)an uplift for previous convictions must have “some relevance” to the previous offending; and
(c)any uplift must be proportionate to the starting point sentence.
[18] Because the previous convictions were not relevant to this offending and so did not warrant an uplift, Mr Huda says the nominal sentence, before the guilty plea discount, should be reduced by one month.
[19] While these adjustments might only mean the end sentence is adjusted by one month he urges me to adjust it because the errors identified were errors in the application of the relevant sentencing principles.
Respondent’s submissions
[20] Mr Harvey began by pointing out that in a busy District Court not every step in the judge’s thought process will be spelt out in the sentencing notes, and that the real issue to consider is whether the end sentence is appropriate having regard to all the relevant considerations.
[21] He submitted that it is clear from the judgment that the judge did read the affidavit evidence, but did not see it as warranting a reduction in sentence. Furthermore, Mr Harvey submits the affidavit evidence, in fact, makes Mr McMillan’s offending worse as:12
(a)Mr McMillan was the driver of a vehicle, in which he knew firearms were being stored, one of which was easily accessible (and loaded);
(b)Mr McMillan agreed to be the driver despite his knowledge of his co-offender’s criminal background and the presence of weapons. There was no suggestion in the affidavit of duress, threats or actual violence; and
12 Abridged.
(c)Mr McMillan knew the purpose for visiting his sister was to force a confrontation, where firearms might be needed.
[22] Mr Harvey says the appellant appears to be shifting blame on to Mr Wilson without acknowledging the pivotal role he played by driving Mr Wilson to Invercargill with the firearms. There is nothing in the evidence which would warrant a reduction of two months from the starting point adopted.
[23] Mr Harvey appears to accept that the Judge may have been better not to make any uplift for Mr McMillan’s criminal history (as part of his global two-month uplift for criminal history and offending on bail). Notwithstanding that, he says it was open to the Judge to make an uplift of two months solely on the basis that the Invercargill offending was committed while he was on bail for the Christchurch offending.
[24] Mr Harvey submits that the six-month discount to reflect the three and a half months spent on EM bail and the seven weeks spent in custody was generous. He notes that in Longman v Police Simon France J said that it was far from inevitable that an offender will receive any discount for a short period on EM bail.13 Mr Harvey submits that Mr McMillan receiving a global discount of 50 per cent was generous. Thus, the end sentence of six months’ home detention cannot properly be said to be manifestly excessive.
Analysis
Approach to appeals against sentence
[25] The Court of Appeal has emphasised that a court should focus on the end sentence, not the path by which the end sentence was reached and, as I have recently noted, an appeal court should not engage in mere “tinkering”.14 I do accept, though, that the Court of Appeal in Tutakangahau v R said:15
13 Longman v Police [2017] NZHC 2928 at [13].
14 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler v Commissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
15 Tutakangahau, above n 4, at [36].
[W]e need to acknowledge that there may be cases, although not common, where what has gone wrong as such as to require correction albeit the sentence imposed is within range.
[26] However, I note the Court there also indicated that the type of case where that might occur is where there is an arithmetical error on the face of the judgment which would have been corrected if it had been drawn to the attention of the sentencing Judge at the time.16 In other words, the correction is intended to give effect to the sentencing judge’s intentions. The issue here is, first, whether there were errors in applying the sentencing principles and, second, whether they warrant adjusting the end sentence.
Starting point
[27] The cases cited by Mr Huda as to the appropriate starting point do not satisfy me that a 20-month starting point was out of range in the circumstances.17 A feature absent in those cases but present in this case is what the Judge described as a “bad combination” of methamphetamine and firearms. I also consider the fact the weapons were in a vehicle with them, rather than simply stored on a property, was an aggravating feature as it suggests a more immediate risk of their use.
[28] The real issue raised by Mr Huda is whether the Judge erred by ignoring the affidavit evidence as to the offender’s involvement and therefore his culpability in the offending and whether, on appeal, that warrants a lesser starting point.
[29] The gist of Mr Huda’s submission is that the Judge was entitled to consider and reject the evidence, but he could not simply ignore it which is what Mr Huda says he has done. However, I consider it is implicit that the Judge has considered the evidence but determined it does not warrant an adjustment to the starting point.
[30] More importantly, though, I do not consider it limits the appellant’s culpability or involvement in a way that would warrant a reduction of the starting point. As Mr Harvey for the Police notes, Mr McMillan knew what the purpose of driving his co-offender to his sister’s address was. It was not to be a friendly meeting and Mr McMillan assisted him to get to the city where the confrontation would occur.
16 Tutakangahau, above n 4, at [36].
17 Smith v Police, above n 9; Moore v Police, above n 9; and Gunning v Police, above n 9.
[31] While Mr Huda points to the Court of Appeal’s decision in Zhang, which says that sentencing discounts may apply where an offender has acted under duress, short of a full defence, or the undue influence of a person upon whom the defendant is dependent, such duress or undue influence is not evident from the affidavit filed.18 Mr McMillan’s affidavit simply states:
9.On the evening of 9 May 2019, Pita asked me to drive him from Christchurch to Invercargill. The purpose of the travel was for him to visit my sister Ashleigh in relation to a rumour that she was dating another male while remaining in a relationship with Pita. …
10.Pita put his belongings, including the firearms, in my car. The sawn-off [sic] shotgun was placed in and remained on the front-passenger’s side of the car where, as the Police Summary of Facts records, the police found it. Then, I drove Pita, who was seated on the front passenger seat, from Christchurch to Invercargill overnight.
[32] In relation to Pita’s gang connections Mr McMillan said he became a subject to assaults, threats and demands for money which were as a result of Mr Wilson reading a statement he made to the police where he confirmed that the items in the car belong to Mr Wilson. However, this set of difficulties arose after the alleged incident and as a result of making a statement about it. There is nothing in the affidavit to suggest that Mr McMillan was an unwilling participant in the drive to Invercargill.
[33] While there is also an addendum to the PAC report which suggests he was “ordered” to drive Pita to drive around Christchurch prior to this incident, none of this is in the sworn affidavit which presumably was intended to present a full and accurate picture to the Judge.
[34] In my view, there is nothing in the affidavit evidence which would allow the Court to characterise his culpability or involvement as limited. For these reasons, I considered the 20-month starting point to be well within range and appropriate in the circumstances.
18 Zhang v R [2019] NZCA 507 at [154].
Uplifts for personal circumstances
[35] In relation to the claimed uplift for previous convictions, I accept that it is unclear why the Judge, having said they were not relevant, applied a specific uplift for them. Furthermore, it is a relatively brief criminal history with all bar one conviction having occurred between seven to 13 years ago.
[36] One possible analysis is that the Judge saw Mr McMillan’s previous convictions for breaching Court orders as being connected to, and informing, the aggravating factor of offending while on bail, rather than as a standalone uplift for previous convictions, but I cannot be certain of that. That said, the uplift was a combined uplift of only two months for previous convictions and the fact of offending while on bail. Given a two month uplift for the second tranche of offending occurring while on bail was itself appropriate, I am not prepared to nominally reduce this part of the sentence by, say, one month as Mr Huda urged me to do.
Discounts for personal circumstances
[37] The Judge gave a joint discount of six months for both time spent remanded in custody, and time spent on EM bail. That was to the appellant’s benefit. While s 9(2)(h) provides that time spent on EM bail is mitigating factor personal to the offender that must be taken into account, no allowance may be made for time spent in custody pre-sentence at this stage of the sentencing process.19 Thus, only the time spent on EM bail should have been factored in and such a discount should have been made to the starting point before reducing the end sentence to account for the guilty pleas.
[38] The Judge’s decision to adjust the starting point for the guilty pleas first, and to give a credit for time in custody was substantially in the defendant’s favour.
[39] Furthermore, the six month discount afforded for the seven weeks spent on remand and the three and a half months on electronically monitored bail, exceeded the combined length of time spent in custody and on bail.
19 Sentencing Act, s 82.
[40] In Longman v Police, Simon France J considered a one-month discount for two and a half months spent on EM bail (“not a particularly long period of EM bail”) was sufficient in terms of s 9(2)(h) Sentencing Act.20 Both the Court of Appeal and this Court have in various cases determined that where restrictive EM bail conditions have been imposed, a discount equating to less than half the time spent on EM bail is appropriate.21 In the present case, the time spent by Mr McMillan on EM bail was three and a half months. A maximum of a two-month discount would likely have been appropriate. The time spent in custody was only relevant to the conversion of the sentence to one of home detention which I discuss further on.
Guilty plea
[41] Mr McMillan was afforded a full 25 per cent discount for the guilty plea. However, that was applied to the two year starting point, before the discount of six months for time spent in remand and on EM bail. Had it been applied to the end sentence of 22 months, which is the accepted approach, he would only have received five months, not six months.
Home detention
[42]Home detention was appropriately determined as the sentence to be imposed.
Discount for time spent remanded in custody
[43] In Longman v Police, Simon France J considered the approach to making a reduction to a sentence of home detention to account for time spent remanded in custody was to give full credit.22 He said, “full equivalence should be the norm”.23 This deduction is to be made from the nominal end sentence of imprisonment before the length of home detention sentence is set.24
20 Longman, above n 13, at [13].
21 Parata v R [2017] NZCA 48 at [12] and [15]; R (CA 528/16) v R [2017] NZCA 210 at [14];
Wharrie v R [2019] NZHC 633 at [28]; and R v Rose [2017] NZHC 1488 at [46].
22 Longman, above n 13, at [9].
23 At [9], citing Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.
24 See Longman, above n 13; and Parkinson v Police [2019] NZHC 1710 at [24].
[44] Mr McMillan spent seven weeks and one day (50 days total) in custody before being granted EM bail. Therefore, an appropriate deduction from his nominal end sentence of imprisonment would have been an equivalent period, but, for ease of calculation it can be treated as two months. However, as I have already noted, this deduction was applied much earlier in the sentencing process and was more generous than the reduction he would have received at this stage.
Sentence recalculation in light of adjustments
[45] According to my above analysis, the sentence ought to have been arrived at is as follows:
Starting point 22 months
Uplift for offending on bail 2 months
Discount for time on EM bail (2 months)
Total before guilty pleas 22 months
Discount for guilty plea (5 months) Nominal sentence of imprisonment 17 months Discount, time in custody (due to home detention) (2 months)
Total before converted to home detention 15 months
End sentence of home detention 7 and a half months
[46] As will be apparent, the Judge’s discounts were generous and as a result I would have imposed a longer end sentence of home detention. It is clear the Judge’s end sentence was well within range and neither manifestly excessive nor inadequate.25
Conclusion
[47] Although I have identified discrepancies in the sentencing process, on balance, these have been in the defendant’s favour and I am satisfied there was no error in the end sentence imposed by Judge Gilbert.
25 Tutakangahau, above n 4, at [32]–[35].
[48]The appeal is therefore dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch E Huda, Barrister, Christchurch
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