Mills v The Queen
[2016] NZHC 2941
•6 December 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-337 [2016] NZHC 2941
BETWEEN COURTNEY MILLS
Appellant
AND
THE CROWN Respondent
Hearing: 15 November 2016 and 6 December 2016 Appearances:
A Ives for Appellant
HD Benson-Pope for RespondentJudgment:
6 December 2016
ORAL JUDGMENT OF TOOGOOD J
Mills v The Crown [2016] NZHC 2941 [6 December 2016]
[1] On 4 July 2016, Judge GA Andrée Wiltens in the District Court at Manukau sentenced Ms Courtney Mills to 22 months’ imprisonment on a charge of aggravated robbery.1 The Judge also imposed a concurrent sentence of one month imprisonment for assault,2 four breaches of bail,3 possessing a cannabis grinder,4 and possessing a
gram of cannabis.5
[2] Ms Mills now appeals against her sentence on the grounds that it was manifestly excessive, and that the Judge erred in law by declining to substitute a sentence of home detention.
Background
[3] The most serious offending involved Ms Mills and four associates following
through on a plan to obtain ‘legal highs’ by means of an aggravated robbery.
[4] On 4 April 2014, Ms Mills sent a text message to the victim with the purpose of inducing him to meet her at the Russell Road shops in Manurewa. When the victim arrived, Ms Mills approached his car and got into the passenger seat. An associate then approached the driver’s door, put his hand through the partially open window and attempted to remove the victim’s keys from the ignition.
[5] The associate then opened the rear door of the vehicle and took the victim’s bag, which contained property worth $300. When the victim tried to stop this, the associate punched the victim seven or eight times in the head. When the victim fell to the ground, the associate also kicked him a number of times in the head and upper body. He suffered a fractured rib, a sore back, and scratches to his face. Ms Mills was 16 years old at the time of that offending.
[6] The charge of assault results from an attack on a train conductor on
14 October 2014. Ms Mills had punched the conductor twice in the face after he confronted her about bringing a puppy on the train. The charges for possessing
1 Crimes Act 1961, s 235(b); maximum penalty, 14 years’ imprisonment.
2 Summary Offences Act 1981, s 9; maximum penalty, six months’ imprisonment or $4000 fine.
3 Bail Act 2000, s 38; maximum penalty, one year imprisonment or $2000 fine.
4 Misuse of Drugs Act 1975, s 13; maximum penalty, one year imprisonment or $500 fine.
5 Misuse of Drugs Act, s 7; maximum penalty, three months’ imprisonment or $500 fine.
cannabis and a cannabis grinder, were the result of a Police search of Ms Mills’s car
on 1 April 2015.
Sentence indication
[7] On 15 February 2015, Judge Johns delivered a sentence indication related to Ms Mills’s involvement in the aggravated robbery. The Judge considered that Ms Mills did not intend the level of violence that was actually used. She adopted a starting point of two and a half years’ imprisonment, and then noted a discount of 40 to 50 per cent was appropriate to reflect Ms Mills’s youth and guilty plea. The Judge noted that home detention would be imposed if an address was available.
[8] On 16 February 2015, Ms Mills accepted the sentence indication and pleaded guilty.
Delays in sentencing and breaches of bail
[9] Ms Mills, however, failed to appear at her scheduled sentencing on
4 July 2015. She made a voluntary appearance in Court in March 2016, at which point a nominal sentencing date was set for 1 April 2016. The Registrar advised Ms Mills that her sentence indication had expired due to her failure to appear at sentencing.
[10] Ms Mills failed to appear on 1 April, and also at a number of subsequent interviews with probation officers. Judge Andrée Wiltens warned her on
20 May 2016 that if she failed to co-operate, imprisonment would be the only option.
[11] She did not appear for sentence on 1 July 2016. She was arrested the next day before being sentenced by Judge Andrée Wiltens on 4 July 2016.
Sentencing notes
[12] At sentencing, Judge Andrée Wiltens began with the 18 month endpoint from Judge Johns’s sentence indication. He then applied a two-month uplift for the assaults, four months for the breaches of bail, and three months for the cannabis
related offending; then looking at totality, he reduced the effective end sentence to
22 months’ imprisonment to be imposed on the aggravated robbery. He imposed a one month imprisonment sentence concurrent on the other charges. He also gave Ms Mills leave to apply for home detention under s 80I of the Sentencing Act 2002, but granted leave on the proviso that a suitable address could be found and that
Ms Mills could “satisfy the Probation Service to take a chance on [her]”.6
[13] On 22 September 2016, Judge Andrée Wiltens issued a ruling in which he declined Ms Mills’s application for home detention.7 He noted that although a suitable address had been identified, he was not convinced by that stage that Ms Mills’s attitude towards authorities was such that she was a suitable candidate for home detention.
Approach on appeal
[14] Section 250(2) of the Criminal Procedure Act provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.8
[15] An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.9
Despite the section making no express reference to “manifestly excessive”, this principle is well-engrained in the Court’s approach to sentence appeals.10 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence
given, rather than the process by which the sentence is reached.11
6 At [11].
7 R v Mills [2016] NZDC 18639.
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]
10 Tutakangahau v R at [33] and [35].
11 Ripia v R [2011] NZCA 101 at [15].
Appeal
[16] Ms Ives has submitted that the sentence was manifestly excessive for the following reasons:
(a) First, the Judge misinterpreted Judge Johns’s sentence indication as including a 40 per cent discount. In fact, the sentence indication indicated that a discount for youth and guilty plea of 40 to 50 per cent would be available; and
(b) Second, the Judge’s uplift for the other offending was excessive and
disproportionately severe, even when reduced for totality.
[17] I do not accept the first of those points. In adopting a sentence starting point of 18 months’ imprisonment, Judge Andrée Wiltens merely applied the sentence at the higher end of a range indicated by Judge Johns. I see no reason to interfere on that basis alone.
[18] As to the second point, I accept that the Judge’s uplifts for the other offending could be seen as stern. As I have said, however, sentence appeals are to be considered in terms of the end sentence reached, not on the process by which the sentence was calculated.
[19] In the guideline Court of Appeal judgment for sentencing of aggravated robberies,12 the Court considered that street robberies involving a group of offenders acting together to enforce demands through bullying or menacing conduct should attract starting points of between 18 months and three years’ imprisonment.13 The use of actual violence should attract a higher starting point.
[20] The aggravating factors in this case include pre-meditation, the number of people involved, and the actual violence used against the victim. I accept, however, that Ms Mills had a lesser role in the robbery and that the violence went further than
she anticipated. In light of these matters, I consider Judge Johns’s starting point of two years and six months’ imprisonment was one which was available.
[21] Ms Mills’s offending is indicative of youthful impetuosity given that she was only 16 years old when it occurred. Such a case would be ordinarily be dealt with in the Youth Court. A youth discount in the realm of eight months is therefore appropriate.14 A further discount of 25 per cent is necessary to recognise Ms Mills’s early guilty plea.15 Those deductions bring the sentence for the aggravated robbery to just below 16 months’ imprisonment.
[22] In my view, an uplift of no more than three months' imprisonment is necessary to reflect Ms Mills’s successive breaches of bail, her assault on the train conductor, and the cannabis related charges. That would bring her end sentence to just under 19 months’ imprisonment. When considered in that light, the sentence of
22 months’ imprisonment was manifestly excessive.
[23] The other ground of appeal related to the Judge’s decision to decline Ms Mills’s application for home detention. For the respondent, Mr Benson-Pope accepted that Judge Andrée Wiltens acted inconsistently with the express wording of s 80I by granting leave to apply for home detention with a proviso relating to Ms Mills’s behaviour. Counsel accepted the appeal should be allowed on this ground, and at the earlier hearing expressed no objection to the question of home detention being decided by this Court, so long as it was considered in light of a fresh Corrections report. That was a proper position for counsel to take.
[24] I adjourned the hearing from 15 November 2016 to today and directed that
Ms Mills be produced to appear in Court, and I acknowledge her presence.
[25] I have since received an updated Corrections report. It noted that a suitable address was available with Ms Mills’s father, that he was willing to help his daughter rehabilitate, and that he would not tolerate any anti-social behaviour by her.
[26] The report states, however, that Ms Mills continues to behave in a challenging and uncooperative manner in prison, and that she has an untreated anger management problem. She also has a history of non-compliance with both community-based sentences and Police-imposed bail conditions. She failed to appear in court when doing so would have virtually guaranteed her a sentence of home detention.
[27] It is not Ms Mills’s fault that, because of the appeal, she has been unable to complete any programs which she might have wanted to attend; but the consequence is that there are serious concerns about her ability to comply with a sentence of home detention.
[28] I acknowledge that it is necessary to impose a sentence which involves the least restrictive outcome, but in light of the background I cannot accept the submission that a sentence of home detention should be substituted, even though Ms Mills qualifies by the length of the prison sentence. It is regrettable that she did not respond positively when Judge Johns held out an opportunity for her to avoid imprisonment. I understand that she was anxious about the fate of her unborn child at that point but absconding was not the answer: Ms Mills made a bad choice and that increases the risk that she will do so again. Moreover, Ms Mills does not appear to have responded positively while in prison and her poor attitude persists, at least so far as the probation officer is concerned.
[29] I have read a letter provided by Ms Mills to the Court in which she expresses her acknowledgement that her past behaviour cannot continue. She has two children who will no doubt come to depend very much on her and it is quite clear that from the time that she has spent in custody since her sentence, she has learned that she must change her behaviour if she is not to spend a lot more time in prison. I can only encourage Ms Mills to take advantage of the courses that are available to her for the rest of her term.
Outcome
[30] On the ground that the sentence imposed was manifestly excessive, however, I allow the appeal.
[31] I set aside the sentence of 22 months’ imprisonment imposed in the District Court on the charge of aggravated robbery and substitute a sentence of 19 months’ imprisonment on that charge. I confirm the other sentences.
[32] You may stand down, Ms Mills.
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Toogood J
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