Milburn v Police
[2022] NZHC 1238
•31 May 2022
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 and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3
[8] As well as the summary of facts, a victim impact statement and submissions from Mr Milburn’s then counsel in favour of the s 106 application, as alluded to above the Judge also had before him an affidavit from Mr Milburn and a full restorative justice conference report.
[9] The Judge began by referring to Mr Milburn’s affidavit, the restorative justice conference report and the victim impact statement.4 He noted Mr Milburn’s brother was recovering quickly and denied any emotional harm. The Judge said it was important to note that in the restorative justice report Mr Milburn’s brother made it clear that he did not want Mr Milburn to suffer any sanction as a result of what had occurred.
[10] The Judge then noted that, in his affidavit, Mr Milburn said he was driving at the notified speed limit. The Judge said this was “contrary to what was said at the scene”. The Judge then observed:
[4] … He says his Ute began swerving and did so about three times, then he lost control. The car flipped. He speculates there might have been ice on the road. That is not supported by any police observations or anyone who was present at the scene. Understandably, it is an after the fact rationalisation of what might have happened, but the true position as I see it must be as Stephen said to a bystander immediately after the accident that he was going too fast. That is the carelessness which leads to his guilty plea.
2 No conviction was entered at the time the plea was made as it was indicated an application for a discharge without conviction would be made.
3 Sentencing Act 2002, s 107.
4 Police v Milburn [2022] NZDC 4847.
[11] With further reference to Mr Milburn’s affidavit, the Judge next referred to the assistance Mr Milburn provided to his badly injured brother and noted that he had suffered since the accident because he had injured his brother. The Judge also referred to the assistance Mr Milburn had given his brother during his recuperation.
[12] The Judge then addressed Mr Milburn’s concern that a conviction could result in him losing his job as an apprentice builder because he was required to drive a van to and from work. He noted that this concern was not independently substantiated by Mr Milburn’s employer, but in any event, the Judge said, and counsel accepted, that Mr Milburn could apply under s 103 of the Land Transport Act for a limited work licence after the mandatory one month stand down period.
[13] The Judge also referred to the submission that Mr Milburn needed his licence to take his brother to and from his appointments. He observed that other family members were likely to be available for that purpose during the one month stand down period.
[14] The Judge did not place much weight on the submission that a conviction might hinder Mr Milburn’s chances of acquiring a firearms licence. He accepted, however, that the stigma of a conviction was an important consideration, but correctly observed that it is only one factor to be considered when applying ss 106 and 107 of the Act.
[15] The Judge then referred to the two-step process required to be undertaken when determining an application for a discharge without conviction.
[16] The Judge first addressed the gravity of the offending. In doing so, he first took into account matters personal to Mr Milburn, accepting that a number were in his favour, including his youth, lack of previous convictions, early guilty plea, his apology to his brother, his engagement in formal restorative justice and his brother’s view that he did not want Mr Milburn to suffer any consequence at all. In relation to the offending the Judge had already noted Mr Milburn’s submission about the speed he was travelling and his suggestion there may have been ice on the road.5 He assessed
5 Police v Milburn, above n 4, at [4]
the gravity of the offence as low to moderate, following this finding with remarks about speed,6 and concluded that Mr Milburn had been “going too fast”.7
[17] The Judge considered the likely direct and indirect consequences of a conviction, noting that “it is a question of likelihood and not certainty”,8 and that the consequences are required to be out of all proportion to the gravity of the offending. The Judge was not satisfied that they were. He was not satisfied that Mr Milburn would lose his job or that the stigmatic effect of a conviction for careless vehicle operation causing injury would be so severe that it would be out of all proportion to the gravity of the offending. The Judge acknowledged Mr Milburn was suffering from what he had done to his brother, but he considered a conviction would not add considerably to that grief, as Mr Milburn would “need to deal with that whether convicted or not”.9
[18] The Judge refused Mr Milburn’s application for a discharge without conviction as he concluded the grounds for it had not been made out.
[19] Taking into account Mr Milburn’s age, his early guilty plea, his lack of previous convictions and remorse, as well as the degree of carelessness, the Judge convicted Mr Milburn and fined him $500, ordered him to pay costs of $130, and disqualified him from holding or obtaining a driver’s licence for the minimum period of six months. No issue is taken with this sentence if the appeal against the refusal to grant a discharge without conviction fails.
Legal principles
[20] An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.10 The basis for determining such appeals was outlined by the Court of Appeal in Jackson v R where it held:11
6 Police v Milburn, above n 4, at [13]–[15].
7 At [14].
8 At [12].
9 At [12].
10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
11 At [12].
[12] … we are satisfied that the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[21] I agree that this means that an error must be identified by the appellant. The Court will then consider if the error resulted in a miscarriage of justice. If so, the conviction will be set aside. The Court of Appeal adopted this approach in Ovtcharenko v Police.12
[22] Mr Jepson submits the material error of the Judge in the District Court and therefore the miscarriage of justice is the:
(a)incorrect finding the appellant was speeding;
(b)focusing on the effect on the appellant’s employment and loss of licence;
(c)not giving appropriate weight to the views of the victim that he wanted the appellant “off with this charge”;
(d)not giving appropriate weight to the effect a conviction would have on a young man of 19; and
(e)not giving appropriate weight to the psychological effect of having to relive the events at times when a conviction may need to be disclosed or explained.
Discussion
[23] I start by assessing whether the Judge determined that the appellant was speeding and if so, whether it was speeding in excess of the speed limit or speeding within the speed limit but not in accordance with the conditions.
12 Ovtcharenko v Police [2017] NZCA 65.
[24] I have already referred to paragraph [4] of the Judge’s decision where he addressed Mr Milburn’s suggestion that there may have been ice on the road and that he was driving at the notified speed limit. In relation to the presence of ice on the road, the Judge referred to this as speculation because he said it was not supported by any Police observations or anyone who was present at the scene. However, in his submissions before me, Mr Jepson advised that the Police did not arrive at the scene until an hour after the accident. It is also not clear what observations from others at the scene the Judge was referring to, as this is not revealed in the summary of facts.
[25] I have already referred to the contents of Mr Milburn’s affidavit about the potential for the presence of ice on the road and his explanation recorded in the restorative justice report. As well, Mr Milburn deposed that he is very familiar with the roads he and his brother were travelling on that morning as they had travelled from Hamilton to Pirongia to drop off a trailer to their grandparents and, as he noted, he regularly visits his grandparents.
[26] Although I acknowledge that independent evidence about the weather that morning could have been provided and was not, the basis for the Judge’s finding that the presence of ice on the road was speculation cannot be made out by reference to any matters he considered.
[27] As well, it appears that the Judge did not accept that Mr Milburn was driving at the notified speed of 80 kilometres per hour limit, because he said this was “contrary to what was said at the scene”. This comment can only relate to Mr Milburn’s explanation referred to in the summary of facts where he stated to a witness he was “going too fast and lost it.” The important point is however that this comment could apply equally to travelling in excess of the speed limit or within the speed limit in conditions which meant it was not safe to travel even at the stated speed limit.
[28]As well, and in relation to the gravity of the offending, the Judge said:
[13] I assess the gravity of the offence as low to moderate. Young men and women speed, so do older men and women. Speed is dangerous and has been demonstrated in this case. People die or are seriously injured. It is not as Ms Beech has submitted a momentary lapse such as might occur when
changing the station on a radio, changing a CD or turning to speak to children in the back seat.
[14] The decision to speed is conscious and deliberate and involves putting the foot down in circumstances where it becomes careless and sometimes even dangerous. It is not momentary. Stephen’s own words at the scene that he was going too fast and lost it demonstrate that.
[15] So, I have reached the conclusion that against a low to moderately serious act of careless use of a motor vehicle causing injury the direct or indirect consequences of a conviction, as detailed to me, are not out of all proportion to the gravity of the offence.
[29] I accept Mr Jepson’s submission that an inference from these passages is that the Judge may well have determined that Mr Milburn was travelling above the 80 kilometre per hour speed limit. However, I agree that an equally available inference from Mr Milburn’s comment at the scene is that he was not travelling above the speed limit, but the weather conditions were such that travelling at the speed limit was not appropriate. In either scenario, the speed at which Mr Milburn was travelling could have contributed to the accident, however his culpability for the speed at which he was travelling could well be assessed to be less if he was travelling at or under the speed limit.
[30] There was no obligation for the Judge to accept inferences more favourable to Mr Milburn.13 But, as Mr Jepson submitted, the problem is that it is impossible to discern what impact the latter inferences would have had on the Judge’s assessment of the gravity of the offending.
[31] Although the basis for these inferences was referred to, I am not satisfied that they were presented to the Judge in such a direct way as I have laid out. This is not surprising, given that the matter would have been dealt with in a busy circuit Court list. Despite this, technically an error can be established because the two available inferences were not analysed, and it is not clear what impact that has had on the Judge’s assessment of the gravity of the offending and thereafter on the exercise of his discretion.
13 R v Tallentire [2019] NZHC 1749; Edwardson v R [2017] NZCA 618; Hutchins v R [2016] NZCA 173 at [31].
[32] In relation to the remaining matters referred by Mr Jepson, I am not persuaded that the Judge made any error. The Judge considered Mr Milburn’s employment and loss of licence, but I am not persuaded that he focused unnecessarily on them. Neither am I persuaded that the Judge failed to give appropriate weight to the views of the victim. The Judge referred to the restorative justice report and the victim impact statement, as well as the fact that Mr Milburn’s brother did not want him to be subject to any sanction. Nor am I satisfied that the Judge failed to give appropriate weight to the age of the appellant or the psychological effects on him. I am not persuaded by Mr Jepson’s argument that every time Mr Milburn is required to disclose or explain his conviction, this will inevitably require him to relive the events that occurred. The appropriate place to deal with this sort of issue is in a therapeutic environment, but there is no evidence that steps have been taken to engage such assistance.
[33] In addition, Mr Harris submitted the Criminal Records (Clean Slate) Act 2004 applies to the appellant, which means that after seven years this conviction will no longer be required to be disclosed in New Zealand. I accept that it could be required in certain countries when and if the appellant travels overseas, however I am not persuaded, given the nature of this offending and the penalty imposed, that this would provide any difficulties for him.
[34] As outlined above, an appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence, but primarily against conviction. It is necessary to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering a conviction or if the Judge erred in applying the principles found in s 107 of the Act.14
[35] The question for me is therefore whether the errors in relation to the potential for ice on the road and whether Mr Milburn was exceeding the speed limit resulted in a miscarriage of justice.
[36] I am not persuaded they did. The Judge assessed the gravity of Mr Milburn’s offending as to low moderate, an assessment which was open to him and which, in all the circumstances, was fair. Mr Milburn had pleaded guilty to careless driving causing
14 Jackson v R, above n 10, at [12].
injury, and was by his own admission driving too fast. Drawing the inference most favourable to Mr Milburn would have a relatively small mitigating effect on his culpability and on the overall assessment of the gravity of the offending.
[37] I have already determined that the Judge made no error in assessing the consequences of conviction on Mr Milburn as low. Those consequences could not, therefore, have been out of all proportion to the gravity of the offence.
Result
[38]The appeal is dismissed.
Harland J
0
3
0