Millerchen v Police - [2012] NZHC 749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-51 [2012] NZHC 749

BETWEEN KELLY JOSEPH MILLERCHEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 April 2012

Counsel: P H H Tomlinson for Appellant
S McMullan for Respondent

Judgment: 24 April 2012

JUDGMENT OF POTTER J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 9.30 a.m. on 24 April 2012.

Solicitors: Crown Solicitor, Auckland – sam.mcmullan@meredithconnell.co.nz

Copy to: P H H Tomlinson, Auckland – petertomlinson@xtra.co.nz

MILLERCHEN V NEW ZEALAND POLICE HC AK CRI-2012-404-51 [24 April 2012]

Introduction

[1] Kelly Joseph Millerchen appeals against a sentence of two years two months imprisonment imposed by Judge Moore1 on the grounds that it is manifestly excessive.

[2] The appeal was filed on 22 February 2012. It is some five months out of time. The appellant seeks leave to appeal out of time. His counsel, Mr Tomlinson, presented a draft affidavit which outlines the reasons for the appeal being filed late but it has not been sworn by Mr Millerchen. The Crown does not oppose leave being granted although opposing the appeal on the merits. Leave to appeal will therefore be granted.

Charges

[3] The appellant pleaded guilty to the following charges on 19 August 2011:

(a) Demanding with menaces pursuant to s 239(2) of the Crimes Act

1961. The maximum penalty is seven years imprisonment.

(b)Theft pursuant to s 219 of the Crimes Act 1961. The maximum penalty is seven years imprisonment.

(c) Disorderly behaviour pursuant to s 4 of the Summary Offences Act

1981. The maximum penalty is a fine not exceeding $1,000.

(d) Resisting police pursuant to s 23 of the Summary Offences Act 1981.

The maximum penalty is three months imprisonment or a fine not exceeding $2,000.

(e) Shoplifting (under $500) pursuant to s 219 of the Crimes Act 1961.

The maximum sentence is three months imprisonment.

1 New Zealand Police v Millerchen District Court North Shore CRI-2011-9044-3633, 19 August
2011.

(f) Failure to answer police bail pursuant to s 24 of the Bail Act 2004.

The maximum penalty is a fine not exceeding $1,000.

Factual background

[4] On 28 November 2010 Mr Millerchen went to the victim’s house with an associate who was carrying a revolver. Mr Millerchen showed the revolver to the victim and demanded drugs and $5,000. He took the victim’s surveillance camera and a rifle.

[5] On 5 December 2010 the appellant returned with his associate to the same property while the victim was out. He took vehicle parts, tools and a stereo to a total value of $30,000.

[6] While he was on bail for this offending Mr Millerchen incurred the remaining charges. On 25 March 2011 he and his partner were arguing in public. When the police arrived the appellant began to abuse them and resisted the police handcuffing him after being warned several times that he was being placed under arrest. Additional officers had to be called to subdue him.

[7]…

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: [2012] NZHC 749
Decision Date: 24 April 2012

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Kelly Joseph Millerchen against his sentence of two years and two months imprisonment, imposed by Judge Moore. The appellant argued that the sentence was manifestly excessive. Millerchen pleaded guilty to multiple charges, including demanding with menaces, theft, disorderly behaviour, resisting police, shoplifting, and failing to answer police bail. The appellant argued that the nine-month uplift for his history of offending was excessive and that a 25 per cent discount for his guilty pleas should have been applied. The Crown opposed the appeal on the merits, arguing that the starting point of two years was appropriate, the uplift of nine months was not out of range, and the discount for the guilty pleas was sufficient. The Court of Appeal has stated that in assessing whether a sentence is manifestly excessive, it is not the manner in which the sentence is structured which is important, but whether the end sentence imposed is manifestly excessive having regard to the circumstances of the offending and the offender. The court considered the overall offending for which the appellant was to be sentenced, and in light of his history of offending, found that the sentence of two years and two months imprisonment for the totality of the appellant’s offending was not manifestly excessive.

The appeal was dismissed.

Orders