McMillan v Police - [2014] NZHC 150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-361 [2014] NZHC 150

BETWEEN BLAIR ALICK MCMILLAN Appellant

ANDPOLICE Respondent

Hearing: 5 February 2014

P Winter for Appellant
R Thomson for Respondent

Judgment: 13 February 2014

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
13 February 2014 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
P Winter, Auckland
Meredith Connell, Crown Solicitors, Auckland

MCMILLAN v POLICE [2014] NZHC 150 [13 February 2014]

[1] The appellant, Blair McMillan, appeals against his sentence in the District

Court at Auckland on 29 November 2013 on charges of:

(a) driving with excess blood alcohol causing the death of Rebecca Lee

Todd;

(b) driving with excess blood alcohol causing injury to Caitlin Frances

Todd; and

(c) driving with excess blood alcohol causing injury to Brooke Todd.

[2] The charges were all brought under s 61(1)(b) of the Land Transport Act

1998. The appellant pleaded guilty. He was sentenced to an effective term of four years’ imprisonment and disqualified from holding or obtaining a driver’s licence for a period of three years.

[3] The Judge also made the following note on the record of hearing, reflecting an offer made by the appellant at sentencing:

Reparation of $20,000 to be paid within 28 days together with a further $600 per month (back dated to March 2013) by agreement, to be paid to the “Brooke and Caitlin Todd Trust” for their future use, with trustees Vicki Newlove, Roxanne McKerras and John Lowe. (It is noted that David Rice solicitor is holding $5,400 towards the reparation.)

[4] In assessing the appropriate term of imprisonment the District Court Judge adopted a starting point of six years’ imprisonment, based on the totality of the offending, and allowed a discount for “exceptional remorse” and the offer of reparation of eight months’ imprisonment. She added a further discount of 25 per cent for the appellant’s guilty plea, which was made at the first available opportunity.

[5] The appellant contends on appeal that the starting point of six years was well in excess of what was appropriate. The appellant also argues that the discounts given on the starting point were too low. In particular, the appellant complains that the Judge did not adequately take into account the successful restorative justice conference that had taken place. Mr Winter submitted that, coupled with the

appellant’s offer of reparation and exceptional remorse, should have resulted in a greater discount than that allowed by the Judge.

[6] The respondent conceded that the starting point was too high. However, Ms Thomson submitted that while a larger discount would have been permissible for personal mitigating factors, the combined discount of one third was within the Judge’s discretion.

Facts relevant to the sentence

[7] The sentencing took place on the basis of an agreed summary of facts.

[8] The summary recorded that at about 7.45 p.m. on Friday 21 December 2012 the appellant was driving his Volkswagen station wagon…

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: [2014] NZHC 150
Decision Date: 13 February 2014

CaseChat Overview and Summary

In McMillan v Police, the appellant, Blair McMillan, appealed his sentence for driving with excess blood alcohol causing the death of Rebecca Lee Todd and causing injuries to her two daughters, Caitlin and Brooke Todd. McMillan was sentenced to four years’ imprisonment by the District Court, with a disqualification from holding a driver’s licence for three years and a requirement to pay reparation to the victims. The appellant argued that the starting point of six years’ imprisonment was too high and that the discount given for the restorative justice process and his remorse was insufficient. The respondent conceded that the starting point was too high but argued that the combined discount of one third was within the Judge’s discretion. The Court found that the starting point was indeed too high, considering the absence of other aggravating factors such as excessive speed or dangerous driving. The Court also found that a more generous discount was appropriate, reducing the sentence to two years’ imprisonment. However, due to the high blood alcohol level, the Court did not consider home detention an appropriate sentencing response and maintained the imprisonment sentence. The appeal was allowed, and the sentences were modified accordingly.

Orders