Millar v The Queen
[2019] NZHC 2700
•22 October 2019
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2019-412-000020
[2019] NZHC 2700
BETWEEN DARRYL JOHN MILLAR
Appellant
AND
THE QUEEN
Respondent
Hearing: 23 September 2019 Appearances:
N M Laws for the Appellant R D Smith for the Respondent
Judgment:
22 October 2019
JUDGMENT OF NATION J
Introduction
[1] On 27 July 2017, the appellant Mr Millar and the victim, a woman with whom he was then in a relationship, were in a car together. They argued. It resulted in Mr Millar punching the victim more than once. She suffered severe bruising, a laceration and swelling to her face.
[2] On 29 July 2017, Mr Millar sent the victim a message saying he was going to put naked photos of her on her Facebook page. She told him not to, saying that would be an offence. Mr Millar nevertheless posted seven photos on her Facebook page, using the victim’s account. The photos showed the victim with no clothes on, her face clearly visible.
MILLAR v R [2019] NZHC 2700 [22 October 2019]
[3] Mr Millar first appeared in Court for this offending on 29 August 2017. He was granted EM bail on 2 November 2017. He failed to appear at Court for a scheduled back-up jury trial. Warrants for his arrest were issued on 18 May 2018. He was subsequently arrested on 29 May 2018 and remanded in custody. He pleaded guilty on 12 June 2018 to charges of male assaults female and causing harm by posting a digital communication, after the Crown agreed the charge of injuring with intent to injure would be reduced to male assaults female and to not pursue a charge of threatening to kill.
[4] He was sentenced on 8 August 2018 to a total of two years and five months’ imprisonment.1 He appealed that sentence on the basis it was manifestly excessive.
District Court decision
[5] The Judge adopted a starting point of 18 months for the charge of posting a harmful digital communication. He did so with reference to Brittin v Police, in which a starting point of 12 months was taken.2 The Judge considered the present offending to be more serious than that in Brittin because the victim had asked Mr Millar not to post the photos, and because of the demeaning comments accompanying those photos about her sexual availability.
[6] As to the charge of male assaults female, the Judge considered the aggravating factors to be the use of actual violence, the harm caused, the vulnerability of the victim and Mr Millar’s premeditation. He adopted a 12 month starting point for this charge.
[7] Judge Ingram uplifted the starting point by six months to account for Mr Millar’s prior convictions, bringing the sentence to three years. He considered the totality principle and decided there was no need to interfere with the starting points taken, because the charges were of separate kinds. His Honour then allowed a credit of three months for Mr Millar’s guilty pleas, and another four months for him having been on electronically monitored (EM) bail for seven months or more. The end sentence imposed was therefore two years and five months’ imprisonment.
1 R v Millar [2018] NZDC 16646; 14 months on the harmful digital communication charge, 15 months on the assault charge.
2 Brittin v Police [2017] NZHC 2410.
Leave to appeal
[8] The appeal was filed out of time. The reason for this has been adequately explained. The Crown accepted it was appropriate for leave to be granted for the appeal to be filed out of time so it could be considered on the merits. Leave is granted accordingly.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 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 there has been an error in the imposition of the sentence and a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower Court’s decision, a 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 on an appeal is on the end sentence.6
Appellant’s submissions
[10] Mr Laws contended the starting point adopted for the harmful digital communications charge was too high. He suggested the fact Mr Millar gave the victim notice of his intention to post the photos was not aggravating and highlighted that the post itself did not include any of the victim’s contact details as had been the case in Brittin. Mr Laws submitted Mr Millar’s offending was more similar to that in Police v Kelly because, in both that case and the present case, the appellant took the photos.7 The photos had not been sent to him. Mr Laws argued the photos were less explicit than in Brittin and, since the photos were posted on the victim’s account, she could
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 R v R [2019] NZCA 135 at [25].
7 Police v Kelly [2016] NZDC 12912, [2017] DCR 553.
have immediately taken them down herself. A nine month starting point was adopted in Kelly. Mr Laws submitted that would also be appropriate here.
[11] Counsel further argued that the sentences imposed for each charge should have been dealt with concurrently as the offences were a connected series of events that occurred close in time. Mr Laws submitted that, even if it is accepted the charges were properly imposed cumulatively, the Judge did not give appropriate regard to the totality principle.
[12] Finally, Mr Laws submitted that Mr Millar should have received a greater discount for his guilty pleas. The sentencing Judge allowed an eight per cent discount. Based on the sentence calculation in his submissions, Mr Laws appeared to submit that a 15 per cent discount would have been appropriate.
[13] In oral submissions before me, Mr Laws emphasised the significance of the photographs having been placed on the victim’s Facebook page using her own account. He acknowledged that, because Mr Millar was able to do this using his partner’s password, this involved a breach of trust and could also have caused additional distress to the victim in the way others, looking at her Facebook page, might have thought the images had been posted there with her consent. He submitted however that, because she had been warned the images would be posted, she had the means to prevent that by changing her password. She also had the ability to remove the images from the site, as she did.
[14] Mr Laws also submitted that, due to the way the Judge had considered totality, the end sentence for the offending was manifestly excessive.
Respondent’s submissions
[15] For the Crown, Mr Smith submitted that both the starting points and end sentence were well within the range available to the Judge. He contended that Mr Millar’s notice of an intention to post the images was aggravating because it amounted to threatening conduct, consistent with the attempted manipulation and control of his domestic partner. Mr Smith further submitted the offending was made more serious because the images were posted as if by the victim on her own account, and because
Mr Millar had taken the photographs himself and the victim did not know he had them. On this basis, Mr Smith said a starting point of 18 months was available to the Judge.
[16] Mr Smith further submitted the Judge was correct to impose cumulative sentences. He referred to s 84 Sentencing Act, which provides that cumulative sentences are appropriate where the offences are different in kind, “whether or not they are a connected series of offences”. Mr Smith contended the Judge did not need to make an adjustment for totality because the total sentence was proportionate to the seriousness and aggravating features of each offence.
[17] As to the guilty plea discount, Mr Smith submitted the discount given was appropriate in the circumstances. Mr Millar was originally charged with injuring with intent to injure, threatening to kill and posting a harmful digital communication. Prior to his jury trial, Mr Millar absconded and was subsequently arrested. He pleaded guilty after the Crown dropped the charge of threatening to kill and amended the charge of injuring with intent to injure to one of male assaults female. Mr Smith said Mr Millar had already received a benefit from this change in the charges and to also allow substantial credit for his guilty plea would have been inappropriate.8
Analysis
[18] On sentencing the Judge carefully went through the required steps on the now conventional approach to sentencing. He discussed in detail the actual offending for which Mr Millar had to be sentenced. He had regard to matters relating to Mr Millar personally, information as to his previous offending and his attitude towards his offending which, in this instance, was of an aggravating nature. The Judge considered whether there should be concurrent or cumulative sentences and acknowledged his need to consider the ultimate sentence in terms of the totality of the offending. He then considered and gave credit for time spent on EM bail and the guilty pleas.
[19]I consider the offences in the sequence in which they occurred.
8 Citing Jones v R [2012] NZCA 162 at [36].
[20] On the information in the summary of facts, the assault was a serious one. The Judge noted the injuries the victim suffered. He said the photographs showed “unequivocally a pretty serious assault”. It was premeditated. Mr Millar had threatened the victim before hitting her.
[21] I have seen photographs of her injuries. The victim, who was then aged 25, suffered severe bruising to the eye area, further bruising in the lower cheek area and a nasty laceration below her eye. She was struck with a closed fist and this must have been on several occasions. She was so fearful of what was happening that she ran from the car and attempted to flag down a Police car. Of some significance in the context of this appeal was that the photographs clearly demonstrate that the victim suffered injuries of the sort that would have been sufficient to prove Mr Millar was guilty of the offence of injuring with intent to injure, an offence which would have carried a maximum penalty of five years, in contrast to the maximum sentence of two years on a male assaults female charge.
[22] The Judge adopted a starting point sentence of 12 months’ imprisonment on that charge. Mr Laws, for Mr Millar, accepted that a starting point sentence of 12 months’ imprisonment for this offending was consistent with comparable sentencing levels. Mr Smith for the Crown submitted the starting point could have been higher. I agree with that submission.
[23] The offence of causing harm by posting a digital communication was committed two days after the assault. It is apparent from the summary of facts that, at the time Mr Millar threatened he was going to put naked photos of the victim on her Facebook page, he was wanting to have continuing contact with her. She replied to his threat by telling him to go away and it was a crime to post such pictures on social media. He told her he did not care. This happened in the context of their having been in an on-again off-again relationship over the previous four months.
[24] The District Court sentencing took place after the case had been prepared for trial. With reference to a formal written statement obtained from the victim, the Judge was told the victim had not provided Mr Millar with the photographs he was threatening to post on her Facebook page. The Judge was told that Mr Millar had taken the photographs himself without the victim knowing he had done so.
[25] I was told by the Crown that the photographs were posted soon after the threats were made but also that the victim took them down shortly after they had been posted.
[26] When the Police asked Mr Millar about the photographs, he admitted having made the threat referred to in the summary but denied actually posting the photographs. He told the probation officer who prepared the pre-sentence report that he still denied posting the photographs and said he “only pleaded guilty to get it over with”.
[27] There is no guideline judgment for this offending. The legislation providing for this offence only came into effect in 2015. There appear to have been few reported decisions for sentencing for the offence. The only High Court judgment dealing with this offence which I am aware of is Brittin v Police.9 That case was considered by the Judge in the District Court and was a focus of submissions before me.
[28] The sentencing Judge said the offending was more serious than Brittin because of the demeaning comments accompanying the images about the victim’s sexual availability. Those comments were not referred to in the summary of facts. In response to my query as to what the Judge’s comment was based on, I was told that, in preparation for trial, photographs of the images placed on Facebook with their accompanying message and also other messages from Mr Millar to the victim, were in a sealed envelope available to the Judge on sentencing. Ultimately, the photographs and related messages were made available to me in a similar fashion.
[29] It appeared from the photographs that the victim was aware the photographs were being taken but there was nothing to suggest she was posing for them or had invited Mr Millar to take them. Having the photographs available for people to see on Facebook would have been deeply embarrassing for her and a gross abuse of her privacy. The most explicit photograph of her was accompanied by a message in gross terms that she was available for sex. The comment undoubtedly caused her to feel humiliated, thinking that people who saw the images would have considered her a prostitute.
9 Brittin v Police, above n 2.
[30] With the images and accompanying comment having been posted on her Facebook page, anyone looking at the page would have inferred that she had placed them there.
[31] The Judge noted that, in Brittin, a starting point of 12 months’ imprisonment was considered appropriate. The Judge said he considered the circumstances of this case were “significantly worse” than those in Brittin. He referred to Mr Millar having made the posting after he had been told not to by the victim. He referred to the “particularly demeaning” comments indicating sexual availability that were associated with the photographs. The Judge considered this offending was more towards the upper end of the scale rather than the middle. He also said he was having particular regard to the protective purpose of the legislation. He considered that, if the main feature of the legislation was the deterrent effect it was intended to have, deterrence in his view had to be the prominent sentencing principle in cases of this sort. He considered the sentence had to be fixed in a way that would discourage abusive behaviour when it was done for the sole purpose of creating reputational damage and doing psychological harm.
[32] The Judge adopted the 18 months’ imprisonment starting point as, what he considered to be, the minimum required to meet the seriousness of the circumstances.
[33] In Brittin, Woodhouse J referred to the definition in the Act of the offence and of “harm” as an essential element of the offence. He noted that, for an offence under s 22 to be committed, there must be serious emotional distress and this was required not only in relation to the effect on the victim but it also had to be what the defendant intended. He said it followed from this that the fact such harm was caused and was intended would not mean the offending would have to be considered more serious.
[34] Woodhouse J made it clear that the offence and penalties under s 22 were intended to deter inflicting harm from posting digital communications. His Honour was critical of the emphasis the sentencing Judge there had placed on the paramountcy of principles of deterrence, denunciation and holding the offender to account on the basis that deterrence was a stated purpose of the Act. He nevertheless said the statement of the purpose in the Act was relevant. Ultimately, the error Woodhouse J identified in the sentencing was that the Judge had given substantial weight to
deterrence when the information before the Court was that the likelihood of the defendant there reoffending in this way was minimal.
[35] Mr Laws for Mr Millar did not submit the Judge had made any error here in referring to deterrence as the dominant sentencing principle to be considered in the case. I consider that it was certainly a relevant principle. Whether it had to be the dominant principle was to be assessed both with regard to the purpose of the legislation and the particular circumstances of the case, and the defendant who was being sentenced.
[36] In this particular case, it was appropriate for the Judge to stress that, in terms of the purpose of sentencing, he needed to hold Mr Millar accountable for what he had done, promote a sense of responsibility, denounce his conduct and deter him and everybody else from the sort of offending he had been involved in. Those comments were made in relation to all of Mr Millar’s offending and appropriately so as to the harmful digital communication offence.
[37] With his guilty plea, Mr Millar had acknowledged the harmful posting of the photographs. He had posted the images despite being told by the victim that it was a crime to do so. The pre-sentence report indicated he had no remorse and was not taking responsibility for what he had done.
[38] It was a significantly aggravating feature of the offending that the posting and the threat to do it had been carried out in an attempt to have the victim behave in the way he wanted. The posting and threat involved serious bullying-type conduct and were a form of blackmail.
[39] This offending did involve a significant breach of trust. Mr Millar was able to post these photographs on the victim’s Facebook page through his having been entrusted with her password. There had also been a breach of trust in the way he had taken photographs of her and had kept them without her knowledge.
[40] The photographs were used in a way which was particularly demeaning because of the comments associated with them.
[41] The fact Mr Millar posted the photographs after threatening to do so also indicated the offending was premeditated and not impulsive.
[42] The communication was not to just the victim. Because the images were posted on Facebook, there was the potential for others to see them, to have copied them or to have circulated them in a way that was beyond her control.
[43] Despite those matters, I would not however have categorised this offending as significantly more serious than that in Brittin. In Brittin, the photographs posted (which had originally been provided by the complainant to the defendant) were themselves of a significantly more explicit and sexual nature. Associated with the photographs was a caption which, in a particularly demeaning way, indicated the victim was available for sex. The photographs were not posted on the victim’s site. They were placed on the Facebook page NZ Kinky Temptations R18+, so the victim did not have the ability to remove them. The defendant not only posted the photographs, with the associated comment, he provided the victim’s name and mobile phone number. This led to the victim being contacted by various males, who were unknown to her, asking if she was available for sex. In this case, the victim at least had the ability to remove the posts and was able to do so relatively quickly.
[44] However, I do not consider there was an error with the sentencing simply because there was a disparity between the starting point sentence adopted in this case and that in Brittin.
[45] On sentencing here, the Judge said he needed to be consistent with sentences imposed on others in similar circumstances.
[46] In my assessment, the starting point in Brittin could have been higher. That is not intended as a criticism of the ultimate sentence in that case which took into account various mitigating factors relating to the defendant personally which are not relevant here.
[47] Brittin is only one judgment of the High Court. It did not purport to be a guideline judgment. That judgment does not attempt to identify an appropriate sentencing level for similar offences in similar circumstances.
[48] The sentencing Judge in this case assessed the offending as “towards the upper end of the scale of culpability” rather than towards the middle. He considered “18 months’ imprisonment would be the minimum required to meet the seriousness of the circumstances, bearing steadily in mind the protective purpose of this legislation”.10 I agree with that assessment.
[49] I acknowledge that, because the images were placed on the victim’s Facebook page following a warning, she had the means to monitor what was put on that page and to reduce the harm that would result from the posting through removing it reasonably promptly.
[50] Balanced against that however is the fact that, by putting the images on her page and through the accompanying comment, the defendant represented that she was responsible for what was there.
[51] The Crown here nevertheless accept that the starting point adopted by the sentencing Judge could be considered stern.
[52] Through adopting a starting point of 18 months for the harmful digital communication offence, the Judge arrived at a starting point for both offences of two years and six months’ imprisonment. He then uplifted that by six months on account of Mr Millar’s 15 pages of prior convictions. That was a significant uplift. Mr Millar had numerous convictions for offences of dishonesty, some 20 or so charges for driving while disqualified, failing to provide information as to the driver or providing false information as to identity, and similar. He had relatively few convictions involving family violence.
10 R v Millar, above n 1, at [8].
[53] On 3 November 2009, he received concurrent prison sentences for a total of three months’ imprisonment on a charge of common assault (family violence) committed on 15 April 2009, and charges of wilful damage, male assaults female and contravening a protection order (all related to family violence) committed on 19 September 2009.
[54] On 28 April 2015, Mr Millar received a cumulative prison sentence of four months for an offence of male assaults female (in the context of family violence) committed on 5 November 2014.
[55] Mr Laws, for Mr Millar, did not submit the uplift of six months was inappropriate. Mr Millar had not been deterred from further instances of domestic violence through the sentences imposed on 3 November 2009 and 28 April 2015. Nevertheless, I assess it as being stern. Prior offending of a similar type generally carries greater weight than prior offending of a different character altogether.11
[56] I consider an uplift of three months’ imprisonment on the earlier starting points would have been appropriate.
[57] Mr Laws then submitted that either the sentencing Judge should have imposed concurrent sentences or there should have been some downward adjustment for totality. He submitted that, in accordance with authority, the Judge could have chosen to impose concurrent sentences given the offences were committed in the context of a then breakdown in Mr Millar’s relationship with the victim of his offending.12
[58] The sentencing Judge expressly considered the relevant provision of the Sentencing Act 2002. It provides:
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
11 Simon France (ed) Adams on Criminal Law - Sentencing (online ed, Thomson Reuters) at [SA9.15].
12 Kaa v Police [2016] NZHC 2139.
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
[59]These offences were different in kind.
[60] The Judge expressly had regard to the totality of the offending. He determined that there was no need for him to interfere with the overall starting point he had adopted.
[61] Mr Laws submitted that, whether there should have been and should now be an adjustment downwards on account of totality, would have to be determined with regard to the starting point sentences that have been adopted for the two offences. He submitted that, with the starting points adopted by the sentencing Judge, there should have been such an adjustment.
[62] The Crown acknowledged that, wherever a sentence is being imposed on a number of discrete offences, the court must have regard to the totality of the offending.13 In particular, where a court is imposing cumulative sentences of imprisonment, the court must ensure the total period of imprisonment is not wholly out of proportion to the gravity of the overall offending.14
[63] Where the overall sentence is not wholly out of proportion to the gravity of the offending, no reduction is required.15
13 Sentencing Act 2002, s 85(2).
14 Sentencing Act 2002, s 85(2).
15 Ashcroft v R [2014] NZCA 551 at [32].
[64] Mr Smith submitted for the Crown that Mr Millar was not entitled to have his sentence adjusted downwards merely because he had offended against the same victim in different ways.
[65] Here, there were two distinct episodes of offending, each serious offending of its kind. I do not consider there was any error in the Judge refusing to impose concurrent sentences or in refusing to reduce the end sentence with regard to the totality of the offending.
[66] The Judge then gave Mr Millar a credit of three months (eight per cent) on his adjusted starting point for his guilty pleas.
[67] Mr Laws did not argue that, as a percentage, Mr Millar should have received a credit of more than the Judge’s allowance of eight per cent for guilty pleas but, in his submissions as to how an appropriate sentence could be arrived at, he proposed an adjustment for a guilty plea of around 15 per cent.
[68] I consider the credit the Judge gave Mr Millar as a percentage was generous. As the Supreme Court emphasised in Hessell, a sentencing Judge has a discretion as to whether there should be such a credit and the extent of it, up to 25 per cent.16
[69] One of the reasons for the credit is the way a guilty plea avoids the expense and burden of a trial to the community and the State. Here, the Police and the Court had made all the necessary arrangements and done the work necessary to prepare for a trial when Mr Millar was facing his original charges. While on EM bail, Mr Millar cut off his bracelet and absconded with the victim. The scheduled trial could not proceed with a consequent waste of the resources and work that had been done for that trial to proceed.
[70] Credit is also given for a guilty plea because of the way such a plea indicates a defendant is taking responsibility for his actions, recognising that he has committed the offence he is charged with. Inherent in most guilty pleas is usually also an element of remorse. Here, the pre-sentence report available to the Judge indicated that Mr
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Millar had no remorse for the offending on the charges to which he had pleaded guilty. Despite his guilty plea, he denied he had committed the harmful digital communication offence.
[71] His guilty pleas did avoid the need for the Crown to go to trial in a situation where it was likely the victim would not give evidence against Mr Millar. Her absence would not necessarily have meant the Crown could not have succeeded on a continuing prosecution.
[72] The guilty pleas were entered after the Crown agreed to withdraw a threatening to kill charge and to reduce the charge of injuring with intent to one of male assaults female. Through the reduction in the charge he faced, Mr Millar had thus already received a significant benefit in return for his guilty pleas. To have allowed Mr Millar a further significant credit on the basis that he pleaded guilty to the amended charges at the first reasonable opportunity would be to give him “a quite unmerited double benefit” in the way the Court of Appeal has said would not be appropriate.17
[73] In all the circumstances of this case, I would not have given Mr Millar any credit for his ultimate guilty pleas.
[74] The sentencing Judge gave Mr Millar a credit against the starting point sentence he had arrived at of four months on account of the seven months he had spent on EM bail. In that way, the Judge took into account the time Mr Millar had spent on EM bail, as he was required to by s 9(2)(h) Sentencing Act.
[75] In taking time spent on EM bail into account, the Court must consider the period of time spent on bail, the relative restrictiveness of the conditions, the offender’s compliance with bail conditions and “any other relevant matter”.18 Before me, no issue was taken with that allowance. In written submissions to the District Court, neither counsel had made submissions as to whether there should be such an allowance and what it should be.
17 Jones v R, above n 8, at [37].
18 Sentencing Act 2002, s 9(3A).
[76] In Chea v R, the Court of Appeal said there was an error in making no allowance for time spent on EM bail.19 However, in that case, the error was in the context of the Court of Appeal deciding that the sentencing Judge had given inadequate reasons for his decision to make no allowance.
[77] In Goodman v R, the Court of Appeal upheld a sentencing Judge’s refusal to provide for a discount on account of time spent on EM bail where the offender had been charged with serious drug offences during the time he spent on EM bail.20
[78] In Gage v R, the Court of Appeal said there had been no error in an offender being given no discount for some five months he had been on EM bail prior to trial because of his further offending while on ordinary bail.21
[79] In O’Connor v R, the Court of Appeal said there had been an error in not making an allowance for EM bail where the sentencing Judge had considered the offender was fortunate to be on bail and because he had ultimately removed his bracelet.22 That latter breach had however occurred when the offender was facing significant family issues and he promptly rang the authorities to advise what he had done and waited at the address for the authorities to arrive.
[80] The allowance for EM bail is an evaluative exercise. The allowance for EM bail has often been described as “modest”. The terms of EM bail for Mr Millar were moderately restrictive.
[81] It was a condition of EM bail that he reside at the specified address and be subject to a 24 hour curfew but he was permitted to attend employment as and when directed by the Department of Corrections. He was not to associate with or have any contact directly or indirectly with the victim of his offending. It is apparent, from the way he cut off his bracelet and absconded with the victim, that he was seriously in breach of his EM bail conditions.
19 Chea v R [2016] NZCA 207.
20 Goodman v R [2016] NZCA 64.
21 Gage v R [2014] NZCA 140.
22 O’Connor v R [2014] NZCA 328, (2014) 27 CRNZ 302.
[82] In those circumstances, I would have made an allowance of two months for the seven months he had spent on EM bail.
[83] In the sentencing in the District Court, the Judge stated that Mr Millar would not have been a suitable person for any electronically monitored sentence given the way he had removed his bracelet and absconded while on EM bail. I am of the same view.
Overall assessment
[84] The only error I have identified that might have led to a reduction in the sentence was the extent of the uplift for all of Mr Millar’s previous offending. He was however treated generously in terms of the allowance for a guilty plea and the time he had spent on EM bail.
[85]On an appeal, the focus must be on the end sentence.
[86] For all the reasons set out, I have not been persuaded the sentences imposed on Mr Millar were manifestly excessive.
[87]The appeal is dismissed.
Solicitors:
Ross Dowling Marquet Griffin, Solicitors, Dunedin RPB Law, Dunedin.
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