Milligan v The Queen

[2021] NZHC 1069

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2021-441-10

[2021] NZHC 1069

BETWEEN

THOMAS WILLIAM MILLIGAN

Appellant

AND

THE QUEEN

Respondent

Hearing:

11 May 2021 (Wellington)

Appearances:

S Jefferson for the Appellant (by AVL)

J A Eng and R E King for the Respondent

Judgment:

13 May 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 13 May 2021 at 3:00 pm

Registrar/Deputy Registrar

MILLIGAN v R [2021] NZHC 1069 [13 May 2021]

[1]    On 18 October 2019, following a judge-alone trial, Mr Milligan was found guilty of a charge of causing grievous bodily harm with intent to cause grievous bodily harm,1 two charges of threatening to kill,2 five charges of threatening to cause grievous bodily harm,3 and one charge of attempting to pervert the course of justice.4 Earlier, on 27 September 2018, he had pleaded guilty to one charge of male assaults female.5

[2]    On 27 February 2020, Judge B M Mackintosh sentenced Mr Milligan to 11 years’ imprisonment for those offences.6 Mr Milligan appeals against sentence, primarily on the basis that the Judge failed to properly take account of the totality principle, leading to a sentence that is manifestly excessive.

[3]    The appeal was filed some nine months out of time. The Crown accepts there is no prejudice and does not oppose an extension. I grant leave to appeal out of time.

The offending

[4]    Mr Milligan and the complainants Mr van Walen and Ms Baker are known to each other.

[5]    In early 2017, Mr van Walen and Ms Baker came into possession of Mr Milligan’s car. Mr van Walen and Ms Baker believed the car had been given to them by Mr Milligan. Mr van Walen considered no payment was required, the car being payment for the many times Mr van Walen had given Mr Milligan money. They took the car to the house of Ms Baker’s mother, Ms Parker. They then stripped the car.

[6]    Mr Milligan insisted he had merely loaned the car and it was to be returned. When he heard that the car had been stripped, he demanded payment. He then took matters into his own hands, making a series of escalating threats that culminated in a serious assault on Mr van Walen on 22 July 2018.

1      Crimes Act 1961, s 188(1). Maximum penalty: 14 years’ imprisonment.

2      Crimes Act 1961, s 306(1)(a). Maximum penalty: seven years’ imprisonment. A third charge was dismissed.

3      Crimes Act 1961, s 306(1)(a). Maximum penalty: seven years’ imprisonment.

4      Crimes Act 1961, s 117(e). Maximum penalty: seven years’ imprisonment.

5      Crimes Act 1961, s 194(b). Maximum penalty: two years’ imprisonment.

6      R v Milligan [2020] NZDC 3577.

[7]    The threats started around July 2017. From then until September 2017 Mr Milligan sent messages to Ms Parker threatening serious violence to Ms Baker. These messages were the basis for two proven charges of threatening to do grievous bodily harm. Threatening text messages were also sent between July 2017 and July 2018 directly to both Mr van Walen and Ms Baker. Two further charges of threatening to do grievous bodily harm were proven.

[8]    In March 2018, Mr Milligan assaulted Ms Baker. He took her by the throat and held her for about a minute. She was unable to breathe. He pleaded guilty to the charge of male assaults female.

[9]    During the assault Mr Milligan held a small axe to Ms Baker’s head and threatened to kill her. He also told her that he wanted to kill Mr van Walen. Mr Milligan was found guilty on two charges of threatening to kill.

[10]   This was the background to the assault on Mr van Walen in July 2018. Mr van Walen went to Mr Milligan’s house. He met with Mr Milligan. Another person, Mr Milligan’s co-defendant Ms Paki, was also there. Mr van Walen was sitting on a couch when he was hit from behind in the head. He lost consciousness. He woke up covered in blood and with serious injuries. Mr Milligan took Mr van Walen out to a car and Ms Paki drove him to a hospital.

[11]   Police found a hammer near the site of the attack with Mr van Walen’s blood on it. As a result of the attack, Mr van Walen’s skull was fractured, his jaw was broken in two places, there was a significant wound to the back of his neck, his left arm was broken in two places, four ribs were broken and his spleen was ruptured (requiring removal). The Judge found Mr Milligan guilty of causing grievous bodily harm with intent to cause grievous bodily harm.

[12]   The day after the assault, Mr Milligan sent a text message to Ms Baker. He told her to visit Mr van Walen in hospital and “see what being his co-offender will look like”. The Judge found Mr Milligan guilty of a further charge of threatening to do grievous bodily harm.

[13]   The charge of attempting to pervert the course of justice arose out of Mr Milligan’s interactions with a Police officer two days after the assault. Mr Milligan told the officer that another person had assaulted Mr van Walen. He provided a description to the Police officer of this person. Ms Paki provided a written statement which supported Mr Milligan’s description. The Judge concluded there was an intention to pervert the course of justice given the very detailed nature of the description provided. This could only mean Mr Milligan wanted to distract the Police inquiry with incorrect information. She found the charge proven.

District Court decision

[14]   The Judge began with the causing grievous bodily harm charge. She noted R v Taueki was the guideline judgment for serious violent offending.7 She observed that there was a sustained violent attack, including to the head, using a weapon. The attack occurred in the context of repeated prior threats of serious harm to the complainants. The Judge considered the appropriate starting point was at the higher end of band 2 or the lower end of band 3 of Taueki. The Judge took account of the steps taken by Mr Milligan to get medical assistance for Mr van Walen after the attack. The Judge adopted a starting point of eight years’ imprisonment.

[15]   The Judge said there had to be an uplift for the seven threatening to kill and do grievous bodily harm charges. Those threats were numerous, occurred over many months, and were directed to three different victims. An uplift of two years was justified.

[16]   The Judge described the assault on Ms Baker as “relatively minor in the scheme of things”. She decided not to uplift for that charge, nor give credit for the guilty plea “because the reduction would be modest in terms of the overall offending”.8

[17]   The Judge added a further uplift of 18 months’ imprisonment for the charge of attempting to pervert the course of justice. This gave a total starting point of 11 years and six months’ imprisonment for the offending itself.

7      R v Taueki [2005] 3 NZLR 372 (CA) at [34]–[41].

8      R v Milligan [2020] NZDC 3577 at [16].

[18]   The Judge then turned to personal aggravating features. Mr Milligan had prior convictions for violence, including for causing grievous bodily harm with intent to cause grievous bodily harm. His assault on Mr van Walen occurred while he was on electronically monitored bail. These features justified a further uplift of one year’s imprisonment.

[19]   The overall starting point was therefore 12 years and six months’ imprisonment. No discounts were available for mitigating features.

[20]   The Judge then took account of totality in reducing the final sentence to 11 years’ imprisonment. The Judge considered Mr Milligan’s enthusiasm for rehabilitation and willingness to participate in a violence prevention programme meant a minimum term of imprisonment was not warranted.

Grounds of appeal

[21]   On behalf of Mr Milligan, Mr Jefferson submits the end sentence was manifestly excessive. He takes no issue with the Judge’s starting point of eight years for the charge of causing grievous bodily harm. He takes issue with the Judge’s uplifts. His primary submission is that the end sentence is a crushing one that does not accord with the principle of totality in s 85 of the Sentencing Act 2002. He says, given the overall offending, the appropriate end sentence was one of nine years’ imprisonment.

Relevant principles

[22]   For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.9 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.10

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27] and [31]-[35].

10 At [36].

Decision

[23]   Mr Jefferson is right not to take issue with the starting point of eight years for the charge of causing grievous bodily harm. A starting point in Band 3 was available given the serious nature of the violence used, the seriousness of the injuries inflicted, the use of weapons, the attack to the head and because Mr Milligan was engaged in vigilante action. The Judge took a starting point at the higher end of Band 2 (though not the highest), rather than the lower end of Band 3. In my view, this starting point was lenient, even though the Judge was right to take account of Mr Milligan’s efforts to obtain medical assistance for Mr van Walen.

[24]   I see no error in the Judge’s uplift of two years for the threatening to kill and do grievous bodily harm charges. Mr Jefferson submits the threats were by social media and not of the worst kind. That the threats were conveyed by social media does not detract from their gravity. There were seven separate threats, and each was a serious one. The threats occurred over a year, and were directed to three different victims. An uplift of two years was well within range.

[25]   As to the Judge’s uplift of 18 months’ imprisonment for the charge of attempting to pervert the course of justice, Mr Jefferson says that the attempt was unsophisticated and an uplift of only 12 months was warranted. I disagree. It was a quite deliberate attempt (reinforced by his co-offender) to lead Police down a false path. In H (CA6/2016) v R the Court of Appeal upheld a sentence of 18 months’ imprisonment for offending that was regarded as at the less serious end of the range.11 The Judge’s uplift may have been stern, but it was within range.

[26]   The Judge’s last uplift was of one year for personal aggravating features. I agree with Miss King, counsel for the Crown, that this uplift was unremarkable. Mr Milligan has over 60 prior convictions, including ten for violent offending. His assault on Mr van Walen occurred while on bail.

[27]   I therefore see no basis for criticising the Judge’s overall starting point of 12 years and six months’ imprisonment. Indeed, Mr Jefferson’s written submissions did

11     H (CA6/2016) v R [2016] NZCA 101.

not challenge that starting point.12 The primary challenge to the sentence was that the Judge had failed to properly take account of the totality principle. Section 85 of the Sentencing Act provides:

85       Court to consider totality of offending

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)If only concurrent sentences are to be imposed,—

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[28]   The totality principle provides guidance in sentencing for multiple offences. In R v Bradley, the Court of Appeal said:13

For our purposes it is sufficient to say that undoubtedly it is crucial in arriving at a sentence for several offences, after considering them individually, to stand back and look in a broad way at the totality of the criminal behaviour.

[29]   The Court of Appeal particularly counselled against a sentence which might be crushing. That is, one which could deprive the defendant of all hope.

[30]In R v Barker, the Court of Appeal elaborated on this principle:14

We begin by reiterating three sentencing principles:

12     It was only in his oral submissions that Mr Jefferson challenged the Judge’s uplifts.

13     R v Bradley [1979] 2 NZLR 262 (CA) at 263.

14     R v Barker CA57/01, 30 July 2001 at [10].

·     With multiple offences the sentence must reflect the totality of the offending.

·     In respect of multiple offences this Court will not insist that the total sentence be arrived at in any particular way, and

·     the total sentence must represent the overall criminality of the offending and the offender.

[31]   The first principle requires a Judge, after dealing with lead offending first and then having regard to other offending, to stand back and review the offending “from start to finish”.15 The second principle arises because the method adopted to reach an end sentence will only justify appellate intervention if the result is “overall clearly too high”.16 Finally, the Court of Appeal considered it was established authority that the total sentence “must accurately reflect the overall culpability which is involved”.17

[32]   In R v Xie, the Court of Appeal determined these principles survived the Sentencing Act. Sections 84 and 85 provide guidance on the appropriateness of concurrent and cumulative sentences in particular cases but they do not defeat the general principle that the total sentence must represent the overall culpability of the offending and the offender.18

[33]   The Judge applied the totality principle. From her overall starting point of 12 years and six months’ imprisonment, she determined that the appropriate sentence was one of 11 years’ imprisonment.

[34]   Mr Jefferson submits that the Judge did not properly apply the principle. He says this term of imprisonment was out of all proportion to the gravity of the overall offending. He says that all the offending is related and shares a common genesis. He submits that nine years is appropriate.

[35]   I do not accept that submission. The totality principle requires, as the Court of Appeal said in R v Xie, that the total sentence represent the overall culpability of the offending and the offender. This was very serious offending. The grievous bodily

15 At [11].

16 At [12].

17 At [14].

18     R v Xie [2007] 2 NZLR 240 (CA) at [18].

harm charge itself warranted a sentence of at least eight years’ imprisonment. Had that charge stood alone, an overall sentence of nine years’ imprisonment would have been warranted (given an uplift for Mr Milligan’s prior convictions and his offending on bail). The other offending (seven threats, an assault, and an attempt to pervert the course of justice) was distinct from the grievous bodily harm charge, each offence was discrete, and each was serious. That offending would not be reflected at all in the sentence of nine years’ imprisonment for which Mr Jefferson contends.

[36]   That the offending is related and shares a common genesis (Mr Milligan’s perceived grievance over his car) does not detract from the overall gravity of the offending. Each offence was, as I have said, discrete. The offences spanned a year. There were three separate victims.

[37]   For these reasons, in my view the sentence of 11 years’ imprisonment is not wholly out of proportion to all of Mr Milligan’s offending.

Result

[38]The appeal is dismissed.

Campbell J