Millar v Police

[2016] NZHC 991

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2016-443-014

CRI 2016-443-015 [2016] NZHC 991

BETWEEN

JAMIE ELIZABETH MILLAR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 May 2016
Counsel:	A Leonard and K Marriner for Appellant J E Bourke for Respondent
Judgment:	16 May 2016

JUDGMENT OF BROWN J

Background

[1]      On 12 April 2016 the appellant pleaded guilty in the District Court at Hawera to one charge of burglary1 and one charge of threatening to kill or do grievous bodily harm.2   Judge L Harrison sentenced the appellant to a term of imprisonment of one year and seven months.3  The appellant appeals that sentence.

Circumstances of the offending

[2]      According to the summary of facts, the appellant and the victim knew one another but they were not in a relationship.   The appellant became fixated on the victim in the months prior to the offending and tried a number of times to befriend

her.  On 22 August 2015, the appellant was trespassed from the victim’s house as a

1      Crimes Act 1961, s 231. Maximum penalty: 10 years’ imprisonment.

2      Crimes Act, s 306. Maximum penalty: seven years’ imprisonment.

3      Police v Millar [2016] NZDC 6276.

MILLAR v NZ POLICE [2016] NZHC 991 [16 May 2016]

result of unwanted contact.  On 29 August 2015 she was issued a written warning for criminal harassment.

[3]      At approximately 12.30am on 16 December 2015 the appellant arrived at the victim’s house, having walked about one kilometre to get there.  She threw stones at the house and the victim’s car.  She then kicked the front door and banged on the front porch windows.  The victim was woken and called the Police.  The appellant smashed a window but, unable to get in, she went to the back door, smashed the glass panel on the door with a brick and unlocked the door.

[4]      She proceeded to search the house for the victim who had barricaded herself in her bedroom to protect herself.   The appellant forced her way into the victim’s bedroom and began punching her about the head and upper body, about 10 times in total. The victim managed to convince her to stop and soon after the Police arrived.

[5]      Just before 10pm on 9 February 2016 an off-duty police officer saw the appellant walking towards the area where the  victim lives and notified on-duty police officers who went to the appellant’s home.   They spoke to the appellant’s mother who told them that the appellant had sent a text to her stating that she was going to die that night and that nobody would find her.

[6]      Another police officer went to the victim’s home and arrested the appellant when she arrived.  The appellant told the police that she was there to hurt the victim like last time: that she intended to tie her up and torture her with a baseball bat, sexually abuse her and burn the house down.  She said that she was then going to steal the victim’s car and drive it into a power pole to kill herself.  At this time the appellant  was  on  bail  in  relation  to  the  burglary  charge  laid  in  respect  of  the December incident.

Sentencing notes

[7]      After recounting the relevant facts of the offending, Judge Harrison noted the harm caused to the victim, as described in her victim impact statement.  The victim said that she feared for her life during the burglary.   She suffered bruising and aggravation to the pain in her back.   The damage caused amounted to $1,200, of

which $300 was a direct loss to the victim (being her insurance excess).  The victim described how her self-confidence had been destroyed, and how she was afraid to leave home during the day or be home at night.  She has installed extra locks on her doors, her health has deteriorated and she is being treated for stress and anxiety.

[8]      Judge Harrison also discussed the potential reasons for the offending, as far as they were reflected in the appellant’s mental health.   According to the reports provided to the court, the appellant has a history of involvement with mental health services as a result of self-harming.   The appellant was said to exhibit behaviour consistent with having a personality disorder.  This involves an inability to control emotions, and a resort to self-harm and suicide attempts when faced with stressful situations.  The appellant also has a learning disability, which causes some difficulty for her understanding spoken instructions and in expressing herself.

[9]      Judge  Harrison  took  the  burglary  charge  as  the  lead  offence  because  it involved actual violence, was a prolonged period of offending and attracts a greater maximum penalty.

[10]     On the burglary charge, the Judge identified as aggravating factors that it involved actual violence, that there was a violation of the victim’s home and that the offending occurred with complete disregard for a trespass notice and a warning for harassment.   Further, the harm caused to the victim was serious and she was vulnerable, having been subjected to prior unrelenting harassment.   The appellant had walked to the house, which indicated some degree of premeditation.

[11]     On the threatening to kill charge, the aggravating factors identified were the seriousness  of  the  threats,  the  fact  that  it  was  committed  on  bail  and  the premeditation involved.

[12]     Judge Harrison also took into account as mitigating factors the appellant’s early guilty pleas, her diminished capacity to follow instructions and understand the nature of relationships, the remorse shown in a letter intended for the victim and the lack of relevant criminal history.

[13]     Counsel for the appellant and the Police were  agreed that a sentence of imprisonment was appropriate.  Judge Harrison set the starting point for the totality of offending at two years and eight months, or 32 months’ imprisonment.  From that starting point, deductions of 25 per cent for guilty pleas and 15 per cent for other mitigating factors (remorse, an offer to make amends and the appellant’s diminished capacity) were applied, bringing the end sentence to 19 months’ imprisonment.  A concurrent sentence of five months was imposed on the threatening charge.  Home detention was deemed to be an unsuitable option and no reparation order was made.

Approach on appeal

[14]     The grounds of appeal in the notice of appeal dated 12 April 2016 stated:

In imposing a sentence of 19 months, the Court made an error of law.  The Court took an excessive start point and different sentence should have been imposed.

[15]     An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011.  Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

(a)      for any reason there is an error in the sentence imposed on conviction;

and

(b)      a different sentence should be imposed.

[16]     A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment or ‘tinkering’.   The Court on appeal must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached.  In any other case the Court must dismiss the appeal.

Submissions of counsel

[17]     Ms Leonard noted that it is unusual for such an assault to be charged as a burglary, rather than as a common assault (or an assault with intent to injure) taking

the home invasion as an aggravating factor.   The burglary charge carries a higher maximum penalty and there are few comparable cases.

[18]     She referred to the case of Sila v Police where a starting point of 22 months was adopted in the High Court for charges of burglary and threatening to kill.4

Mr Sila had entered his ex-partner’s house at night, stood over her holding a large

knife and made threats to kill her.

[19]     On  appeal  Clifford J  observed  that  other  burglary  cases  provide  little guidance because they focus on cases where the burglar intends to steal property. His Honour noted that the offending could be viewed in one of two ways:  either as a charge of threatening to kill, aggravated by the unlawful entry; or as a burglary aggravated by the threat to kill.   Clifford J considered that the threatening charge would  attract  a  starting  point  of  12  months  absent  the  unlawful  entry,  and  the burglary charge would attract a starting point of 18 months absent the threats.  The total starting point of 22 months was considered an appropriate reflection of the overall criminality involved.

[20]     Ms Leonard submitted that the appellant’s offending was less serious than in

Sila and that consequently an 18 month starting point was appropriate.

[21]     The respondent cited Arahanga v R, in which the Court of Appeal noted that burglary of a domestic house is aggravating because there is a heightened risk of confrontation with the occupants.5   Domestic house burglaries at the lower end of the

scale commonly attract starting points between 18 months and 30 months.6

[22]     Mr Bourke also noted Zafar v Police, where the appellants punched in the glass windows of the front door to gain entry to a home where they intended to retrieve a gang patch and a tax from the occupants.7     One of the occupants was physically  assaulted.    Starting  points  of  three  to  four  years  imprisonment  were

adopted for the offenders and this was not overturned on appeal.

4      Sila v Police [2012] NZHC 1982.

5      Arahanga v R [2012] NZCA 480.

6 At [78].

7      Zafar v Police [2014] NZHC 3084.

[23]     Ellis J observed that the critical and most aggravating feature of the offending was that described by Judge Dawson at sentencing in this way:8

In most burglary cases the burglars seek or prefer to avoid confrontation with the occupants of the house because their principal purpose is to steal items, but this case is different.  You and your associates wanted to confront the occupants and you wanted to frighten and to intimidate them.  Your purpose was to impose your illegal gang law upon persons in the community.  This significantly raises the gravity of your offending to a higher level which must be reflected in the starting point adopted for your sentencing.

[24]     Mr Bourke  also  cited  Skipper  v  R  where  the  appellant  and  an  associate knocked on a door and then beat the victim when he answered the door.9    Property was also stolen.  At sentencing Judge Crosbie noted that an assault on an innocent bystander was a significantly aggravating factor.   On appeal the Court of Appeal upheld a starting point of four years’ imprisonment.

[25]     The respondent submitted that a starting point of 12 to 18 months would also have  been  warranted  for  the  threatening  charge.    Together,  a  starting  point  of

32 months was said not to be excessive.

Analysis

[26]     I do not agree with the appellant’s assessment of the seriousness of offending as compared with Sila.  The appellant’s offending was more serious than Mr Sila’s in a number of ways.  First, the burglary itself was accompanied by actual violence to the victim.  Secondly, the burglary was prolonged and that caused considerable fear to the victim.  Thirdly, there was an additional occasion where the appellant made specific and serious threats to the victim.   And fourthly, the appellant offended against the victim while subject to a trespass order, a warning of criminal harassment and then while on bail.

[27]     Adopting a similar approach to that of Clifford J in Sila, I will consider what the appropriate starting point on each charge would likely be.

8 At [34].

9      Skipper v R [2011] NZCA 250.

[28]     On the burglary charge alone, a starting point of up to two and a half years would have been appropriate.  In addition to the cases cited by the respondent, I note R v Tamatea, in which the Court of Appeal allowed a Solicitor-General’s appeal against the sentence imposed on charges of burglary and injuring with intent to injure.10   The starting point of three and a half years was considered to be manifestly inadequate and the Court found that the aggravating features justified a starting point for the totality of the offending of five years’ imprisonment.

[29]     In that case the offending was more serious than in the present case.  There the defendant unlawfully entered the victim’s home at night with her sister and two others.  The defendant and her sister punched and kicked the victim, then used a beer bottle to continue the attack.   The presence of multiple attackers and the use of a weapon make the assault considerably more serious than in the appellant’s case. However the decision does indicate that a starting point considerably longer than

18 months is appropriate where burglary is accompanied by actual violence.

[30]     The threatening charge, on the other hand, is slightly less serious than that in Sila because it was not made with a weapon present.  It was however premeditated, serious and specific, and it followed recent violence against the victim.  A starting point of nine months would not have been excessive.

[31]     Taking the charges together and assessing the total criminality of offending, the question is whether the starting point of 32 months was excessive.  It is at the higher end of the appropriate range of sentences, but I do not think it was manifestly excessive.  The Court of Appeal has indicated in Tamatea and Skipper that burglary coupled with an assault is a serious matter.  The total starting point must reflect the seriousness of that burglary, as well as the threatening charge and the fact that it occurred while the appellant was on bail.

[32]     In any event, it appears that the Judge added the two discounts together and applied the total discount to the starting point figure.   This resulted  in a more generous discount than if the deductions were made consecutively as recognised in Hessell v R i.e. 15 per cent off 32 months resulting in 27.2 months and then 25 per

cent off 27.2 months, bringing the end sentence to 20.4 months.11    The sentence of

19 months’ imprisonment would actually reflect a starting point of slightly less than

30 months’ imprisonment if the deductions were consecutively made.

[33]     For these reasons the appeal is dismissed.

Brown J