On the morning of 29 January 2014 the police executed a search warrant at a rural property in Arapohue, Kaipara. The property was fitted with a surveillance system — two cameras on the side of the house, one of which showed the view down the driveway towards the road and was connected to a television monitor in the lounge. There was an electronic beam across the driveway, which was not working on the day.
The Armed Offenders Squad effected first entry out of concern that the occupants of the house might be armed. They found the appellant, Keith Mills, in bed with his partner, Lateisha Jeeves.[1] Between the mattress and the base of their bed the police found a fully loaded .22 semi-automatic rifle together with ammunition. Elsewhere in the room they found a bag containing personal papers belonging to Mr Mills, a set of electronic scales and $11,010.80 cash. Mr Mills’ wallet, which was also in this room, contained $1,255.00 cash.
[1]There was another man asleep in the lounge but his presence is not relevant in this appeal.
In the spare room, between the mattress and bed base the police, found six snaplock bags and a plastic container containing 29.4 g of methamphetamine. The only identifiable fingerprint on the container belonged to Mr Mills. In the same room were electronic scales calibrated to weigh in tenths of a gram.
Mr Mills’ truck was parked outside the house. The police found a fully loaded .22 pistol in the glove box. The truck had a stolen digger on the back of it.
Following a trial in the Whangarei District Court before Judge McDonald and a jury, Mr Mills was found guilty of possession of methamphetamine for supply and possession of the .22 semi-automatic rifle other than for some lawful, proper and sufficient purpose. On the last day of the trial he pleaded guilty to the charge relating to the .22 pistol.
Judge McDonald imposed a sentence of five years and five months’ imprisonment for the drugs and firearms charges.[2] Mr Mills appeals his sentence on the ground that it is manifestly excessive as a result of:
(a)the starting point being too high;
(b)no discrete discount being given for time spent on electronically monitored (EM) bail; and
(c)insufficient credit being given for personal mitigating factors.
[2]R v Mills [2015] NZDC 20694.
Mr Mills subsequently pleaded guilty to one charge of receiving in relation the stolen digger and was sentenced to 12 months’ imprisonment cumulative on the sentence imposed for the drugs and firearms charges.[3] He does not challenge that sentence but the totality principle…
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
AGLC
Mills v R [2016] NZCA 245
Case
[2016] NZCA 245
Decision Date
CaseChat Overview and Summary
Keith Mills appealed against his sentence for possession of methamphetamine for supply and possession of a .22 semi-automatic rifle. The appeal focused on the appropriateness of the starting point, the absence of a discount for time spent on electronically monitored bail, and insufficient credit for personal mitigating factors. The Crown accepted that a modest discount for time on bail could have been given but argued that the overall sentence was within the appropriate range. Mills' counsel argued that the starting point was too high, no discount was given for time on bail, and insufficient credit was given for personal mitigating factors.
The Court of Appeal found that while the starting point could have been lower, the presence of firearms made the offending very serious. The Court considered that a starting point of six years would have been appropriate, with an uplift of 18 months to reflect the aggravating features of the offending. The Court also found that a discount of 10 per cent from the six-year starting point would have been justified to reflect Mills' personal factors. Additionally, a discount of three months for time on electronically monitored bail would have been appropriate. However, the Court concluded that the overall sentence was appropriate and dismissed the appeal.