Milburn v Police - [2022] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-18

[2022] NZHC 1238

BETWEEN
STEPHEN SAMUEL AMITTAI MILBURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 May 2022

Appearances:

M L Jepson for appellant B B Harris for respondent

Judgment:

31 May 2022

JUDGMENT OF HARLAND J

This judgment was delivered by me on 31 May 2022 at 2:30 pm

Registrar/Deputy Registrar Date……………………………..

Solicitors/Counsel:
M L Jepson, Hamilton Crown Solicitor, Hamilton

MILBURN v NEW ZEALAND POLICE [2022] NZHC 1238 [31 May 2022]

Introduction

[1] The appellant, Mr Milburn, appeals the decision of the District Court refusing to grant an application to discharge him without conviction following his plea of guilty to one charge of careless or inconsiderate vehicle operation causing injury.1

[2]The appeal is opposed by the respondent.

Background facts

[3] Mr Milburn is 18 years of age. On Saturday, 3 July 2021 (when he was 17) he was driving a Toyota utility vehicle east along Bell Road at Ngāhinapōuri. Bell Road is a rural road with a speed limit of 80 kilometres per hour. His brother Daniel, the victim, was his passenger.

[4] Mr Milburn lost control of the vehicle while driving around a bend. The vehicle skidded, then rolled. His brother received serious injuries including a fractured skull, a traumatic brain injury, scalp injuries, a fractured left shoulder blade, two fractured ribs, a broken finger, lacerations and extensive damage to his right hand.

[5] After the accident Mr Milburn said to a member of the public, who was present, that he was going too fast and “lost it”. This comment was specifically referred to by the Judge in his sentencing notes, a matter I return to shortly.

[6] In the affidavit Mr Milburn presented to the District Court, he outlined that the accident occurred sometime after 9.30 am on a winter morning. He said that it was cold and, although he could not be certain, there may have been ice on the road. In the restorative justice report, also available to the District Court Judge, Mr Milburn explained that it was the first hard frost of the year and he believed there was ice on the road. At sentencing it was submitted that the presence of ice may have contributed to the loss of control of the vehicle. This is also a matter I return to later in this judgment.

1 Land Transport Act 1998, s 38: maximum penalty three months’ imprisonment or a fine of $4,500. The Court must also order disqualification from driving for at least six months.

The judgment under appeal

[7] On 22 March 2002, Mr Milburn appeared before Judge Mabey QC at the District Court at Te Awamutu for sentence, having earlier pleaded guilty to the charge.2 He advanced an application to be discharged without conviction under s 106 of the Sentencing Act 2002 (the Act). The Act provides that the Court may discharge a defendant without conviction if it is satisfied that the direct…

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.

Keep reading for free

Create a free CaseChat account to read Milburn v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 1238
Decision Date: 31 May 2022

CaseChat Overview and Summary

The High Court of New Zealand was asked to review the decision of the District Court in the case of Milburn v Police. The appellant, Mr. Milburn, sought to appeal the District Court's decision which had refused to grant him a discharge without conviction following his guilty plea to a charge of careless or inconsiderate vehicle operation causing injury. The respondent, the New Zealand Police, opposed the appeal. The central legal issue was whether the District Court's decision not to grant a discharge without conviction constituted a material error leading to a miscarriage of justice.

The Court examined the District Court's reasoning and found that the Judge did not consider all possible inferences about the circumstances of the accident, specifically whether the road conditions or the speed at which Mr. Milburn was driving could have contributed to the accident. The High Court noted that while the Judge assessed the gravity of the offence as low to moderate, the failure to consider all available inferences meant that the full context of the incident was not adequately evaluated. However, the High Court ultimately determined that these errors did not result in a miscarriage of justice because even the most favourable inferences would have only had a small mitigating effect on the overall assessment of the gravity of the offence.

Consequently, the appeal was dismissed, and the decision of the District Court stood. The High Court found that the consequences of a conviction for Mr. Milburn were not out of all proportion to the gravity of the offence, and therefore, the District Court's decision was upheld.

Orders