Milne v Police
[2023] NZHC 3614
•11 December 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-167
[2023] NZHC 3614
BETWEEN NICHOLAS STEVEN MILNE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 November 2023 Appearances:
D Lotz for Appellant
B W D Alexander for the Respondent
Judgment:
11 December 2023
JUDGMENT OF PRESTON J
(Appeal against sentence)
This judgment was delivered by me on 11 December 2023 at pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
MILNE v NEW ZEALAND POLICE [2023] NZHC 3614 [11 December 2023]
Introduction
[1] Nicholas Milne was sentenced in the District Court1 to two years, four months’ imprisonment following convictions for offending including burglary and several other counts of dishonesty offending, driving offending, aggravated assault, possession of cannabis and drug paraphernalia, wilful damage, and possession of a knife.
[2] Mr Milne appeals this sentence on the basis that further discounts were available, such that a sentence of home detention would be available and appropriate.
Facts
[3] On 13 October 2022, Mr Milne was stopped by police and forbidden from driving without the correct class of driver licence. On 30 October 2022, police saw Mr Milne driving in Linwood. When he drove into an address on Rosanna Place, police blocked the driveway with their vehicle and flashed red and blue lights. Mr Milne reversed the vehicle into the patrol car several times before trying to ram through the fence, damaging palings and rails. He was eventually apprehended. A search of the vehicle revealed 1.38 grams of cannabis, a cannabis grinder, and a small knife.
[4] On 7 January 2023, police attended Mr Milne’s residence where they found several zip lock bags containing drug residue, three cannabis pipes, two grinders, and two methamphetamine pipes.
[5]On 31 January, CCTV caught Mr Milne driving on Cashel Street.
[6] On 7 February 2023, the defendant was at a Christchurch park and was told he was under arrest. There was a warrant for his arrest, he had accrued nine bail breaches, and he had been actively avoiding police for over a month. When informed that he was under arrest, he attempted to flee but was tasered. A search of his backpack revealed just under a gram of cannabis.
1 New Zealand Police v Milne [2023] NZDC 16537.
[7] On 28 February, 7 March, 14 March, 12 April, 14 April, 23 April, 24 April, 1 May, and 13 May, Mr Milne attended multiple locations in Christchurch and stole several bikes, associated bike equipment and components, and an electric scooter.
Principles on appeal
[8] Appeals against sentence are available 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 be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.2 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3
District Court Decision
[9] Judge Couch took the burglary charge as the lead offending along with some of the other thefts. Aggravating the offending was Mr Milne’s premeditation, and a starting point of two years’ imprisonment was adopted.
[10] The 30 October offending, involving the ramming of the police car, attracted a nine-month uplift. The sentence was further uplifted for the remainder of the offences by three months. This led to a global starting point of 36 months, reduced to 32 months to reflect totality.
[11] The Judge acknowledged offending while on bail and Mr Milne’s previous convictions as personal aggravating features, applying uplifts of 10 and five per cent respectively.
[12] A discount of 20 per cent was applied for Mr Milne’s guilty pleas, which were not entered at the first opportunity but followed some charges being withdrawn.
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Ripia v R [2011] NZCA 101 at [15].
[13] This yielded a sentence of 30.4 months’ imprisonment, which the Judge reduced to 28 months to reflect seven weeks of electronically-monitored bail.
Submissions
Appellant submissions
[14] Mr Lotz, for Mr Milne, submits further discounts were available to the Judge in respect of an offer to make amends, addiction, and factors identified in a s 27 report which he seeks leave to adduce on the appeal.
[15] Mr Milne offered to pay $1,000 in reparations; an amount which Mr Lotz says is significant to Mr Milne who is financially strained. He argues a five per cent discount would appropriately reflect the offer.
[16] Mr Lotz submits that an alcohol and other drug assessment identified a clear causative link between Mr Milne’s addiction and the offending. Mr Milne was using methamphetamine daily and stated he stole in order to fund the addiction. A discount of between five and 10 per cent is suggested to account for addiction.
[17] A cultural report, not put before the District Court Judge, is sought to be admitted on appeal. Mr Lotz says that report was not available at the time due to the short time between Mr Milne’s guilty pleas and sentencing. Counsel contends the report contains material which is relevant and cogent, speaking to Mr Milne’s drug use, normalisation of crime from a young age, and intergenerational transmission of substance abuse. He contends for a further discount of between 10 and 15 per cent.
[18] Mr Lotz notes that, if his suggested discounts are adopted, a sentence of home detention becomes available. He says Mr Milne was relatively compliant while on EM bail for seven weeks and has remained “clean”. Mr Lotz argues that home detention is the appropriate outcome which provides Mr Milne with necessary rehabilitative support in order to reduce his risk of re-offending.
Respondent submissions
[19] Mr Alexander, for the Crown, submits that no discount for the reparation offer is warranted because Mr Milne identified one of the E-bike owners to whom he wanted to make a reparation payment but this never eventuated. Therefore, counsel argues, there is no principled basis for a discount for the offer.
[20] Mr Alexander submits the Judge formed the view that the offending was not driven by addiction such that it warranted a discount. He points to Mr Milne’s account that he was around people who “shouted it” and that he afforded methamphetamine by taking things from his mother and her flat mate as well as by committing other crimes. Counsel says the report does not indicate an offender committing crimes to fund a strong and overbearing addiction, a point supported by Mr Milne ceasing methamphetamine use with no experience of cravings of withdrawals.
[21] As to the new s 27 report, the Crown argues Mr Milne would have been aware that the proposed sentencing date would not allow time for a report to be prepared but elected to pursue that date regardless. The report is therefore not fresh as it could have been obtained if a different date was sought. If the report is accepted on appeal, Mr Alexander acknowledges it may have made a difference to sentencing at the District Court stage. Nevertheless, he submits the sentence that was handed down was within range and not manifestly excessive.
Analysis
[22] Neither counsel takes issue with the global starting point adopted in the District Court, and the appeal is focussed on the sentencing discounts available to Mr Milne.
Should the Judge have given credit for the offer of amends?
[23] By s 10 of the Sentencing Act, the Court must consider an offender’s offer to make amends. But a mere offer, without more, does not automatically entitle credit. The Court must consider whether the offer was genuine and capable of fulfilment, and
whether it was accepted by the victim.4 Those matters will determine its weight. An offer which is meagre or unrealistic, lacking in genuine intention or which the victim rejects, is unlikely to count for much if at all.5
[24] The Judge does not appear to have considered the offer. However, as Mr Lotz accepted at the hearing, there was no payment into court before or at sentencing. Nor is there any evidence offered beyond counsel’s indication that Mr Milne had capacity to fulfil the offer.
[25]I am not persuaded Mr Milne’s offer justified a credit, for two reasons.
[26] First, offers of reparation are relevant insofar as they represent a genuine effort to accept responsibility for the offence, may go some way to remedying harm, and constitute a penalty to the offender.6 The pre-sentence report records Mr Milne denying and minimising aspects of his offending and possessing a lack of insight into the impact of his offending. The s 27 report contains a report of Mr Milne placing a measure of blame on his ex-partner for his convictions. Restorative justice made several unsuccessful attempts to contact Mr Milne.
[27] Second, Mr Lotz indicates the appellant had saved the amount of $1,000 as offered, at some financial hardship to himself. However, Mr Milne did not make any voluntary payment, whether into Court or direct to a victim, in support of the offer. Nor has he made any payment subsequently, notwithstanding that the offer was said to be “to make amends or go toward reparation at sentence”, and an order for reparation was made.
4 Sentencing Act 2002, s 10(2).
5 Sweeney v New Zealand Police HC New Plymouth CRI-2011-443-028, 26 August 2011 at [39], citing R v Singh (2003) 20 CRNZ 158 (CA); and R v Holt CA59/06, 30 May 2006 at [65]–[66].
6 Grant v R [2018] NZCA 452.
[28] The two authorities counsel relied upon, R v Growden7 and R v Johnson,8 do not assist the appellant. In both cases, the court was considering the credit available in respect of a payment of amends which the appellant had made prior to sentencing. The Court of Appeal’s observation in Johnson is apposite:9
…s 10(1)(a) payments by an offender to a victim must be properly taken into account as mitigating circumstances in a sentencing process. But the weight given to such a factor will generally be limited. The payment is not necessarily indicative of remorse; it may simply reflect a strong desire not to go to prison and a willingness to pay any money that will help to achieve that goal. …
Background factors
[29] I deal with addiction and other personal background factors together. The key feature of the information on Mr Milne is the connection between his use of drugs and the offending.
[30] Generally, s 27 reports will not be admitted for the first time on an appeal.10 Whether such evidence will be admitted normally depends on the report being credible and fresh, but the overriding criteria is the interests of justice.11
[31] The report is not fresh. Mr Milne initially pleaded guilty to the drugs charges, aggravated assault, driving charges, wilful damage, and possession of a knife on 12 June 2023. Pre-sentence reports were called for including alcohol and drug assessment and home detention appendices. Mr Lotz at the hearing frankly acknowledged that the appellant elected to proceed with a short sentencing date after the later guilty pleas were entered in relation to the dishonesty offending. He did so on the strength of the advice in the pre-sentence report, and Mr Milne was not minded to obtain a s 27 report. The spree of dishonesty offending, committed while on bail, took the lead in sentencing and is the conduct to which the s 27 report and other addiction information most relevantly pertains.
7 R v Growden CA 67/05, 25 October 2005.
8 R v Johnson [2010] NZCA 168.
9 At [28].
10 Carroll v R [2019] NZCA 172 at [8].
11 Salt v R [2022] NZCA 611.
[32] The inference is that Mr Milne was content to rest on the recommendation within the PAC report for home detention, and, unhappy with the outcome, now wishes to improve his case on appeal by adducing the s 27 report. That is clearly unsatisfactory. While an option would be to remit the matter back to the District Court to consider afresh, for the reasons set out below, I do not do so.
[33] As to the cogency of the material in the report, the information on addiction is similar in many respects to that already present in the alcohol and other drug assessment and the pre-sentence report. There is more detail in some respects and less in others.
[34] Were this all there was, Mr Milne’s case would be similar to the case of Salt v R, where the Court of Appeal did not admit the report.12
[35] However, the report also contains more information: as to physical abuse by Mr Milne’s mother’s partner; Mr Milne leaving school after obtaining only NCEA level 1; exposure to parental substance abuse; and, most relevantly, a normalisation of criminal activity from a young age. At age 14, Mr Milne was involved with breaking into cars with friends and children of gang members to steal material in order to buy items he wanted and finance the purchase of substances. He would go on to commit burglaries with those friends. The report provides further insight into Mr Milne’s issues with addiction as well as highlighting independent factors possessing a nexus to the offending.
[36] By a slim margin, and having regard to the interests of justice, I consider the additional information is sufficient to warrant the report’s admission.
[37] Mr Milne began using alcohol, cigarettes and cannabis around age 12. He began using synthetic cannabis in his late teens, MDMA in his 20s, and methamphetamine at 24. He quickly became a relatively heavy user and peaked in his usage, around a quarter of a gram daily, in around February and March 2023. In the pre-sentence report, Mr Milne said his dishonesty offending was in order to support his methamphetamine habit. The s 27 report records Mr Milne’s statement that he was
12 At [30] – [32].
spending his entire benefit on methamphetamine and using crime to further fund purchases of the drug.
[38] I note Mr Milne’s history with drugs and the operative effect of his methamphetamine use is almost solely based on self-reporting. The Supreme Court in Berkland v R acknowledged independent evidence would likely be more cogent than self-reporting, but there was no reason to consider the latter as incapable of proving the relevant facts.13 Mr Milne’s account across all three reports is broadly consistent, there is some corroborative information from his mother, and he has previously engaged in addiction rehabilitation and received drug-related convictions.
[39] I am satisfied the information in the report discloses a pattern of substance use and addiction which has underpinned some of Mr Milne’s offending from a young age. What is less clear is the extent to which that addiction was causative of the current offending. By Mr Milne’s own admission, his use of methamphetamine does not indicate his addiction was overbearing or heavily impairing the degree to which he made logical decisions for his offending. He says he relied on people who “shouted” the drug and was able to abstain without experiencing cravings or withdrawals.
[40] Given the available evidence within Mr Milne’s own self report, the pre- sentence report, the alcohol and drug report, and his history, I accept that an available inference is that the Judge declined to apply a discount due to the lack of a sufficient nexus with the present offending.
[41] I reject Mr Lotz’s related submission that a rehabilitative sentence was required having regard to the evidence of addiction, for a number of reasons.
[42] There is at best an attenuated nexus with the current offending. The degree of connection between the appellant’s substance use, addiction and previous offending may also, in my view, be less clear than counsel contends. I note that while addressing addiction is rarely linear, Mr Milne has previously been offered and engaged in many rehabilitative opportunities. He has a poor record of compliance with rehabilitative sentences. There are two convictions for breaching community detention, two
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [129].
convictions for breaching release conditions and three convictions for breaching sentences of community work. Mr Milne committed almost all of the present offending while on bail. His counsel points to the appellant’s abstinence for the seven weeks he was admitted to EM bail, but I note Mr Milne also breached the terms of his bail during that period.
[43] The appellant indicated in the alcohol and drug report that he observed a two- year period of abstinence when his daughter was born. As the pre-sentence report identified, the current offending – in which I have found a limited causative nexus – is not dissimilar to his past offending. All this to say that, while Mr Milne’s substance use and addiction has played a part in his offending history, his attitudes of entitlement and anti-social choices, noted in the pre-sentence report, appear relevant to the assessment of the degree to which addiction has influenced his offending.
[44] In light of the information within the reports and including (on appeal) the s 27 report, I consider any credit available having regard to Mr Milne’s substance addiction must be significantly tempered. Recognising the normalisation of crime in his youth and his limited education, and an addiction that diminished rational choice to some limited extent, a global discount of no more than 10 per cent for background factors would have been appropriate, and less may have been available.
Time spent on bail
[45] A further relevant factor is the credit applied in respect of the time Mr Milne spent on EM bail.
[46] Time spent on EM bail is a factor which must be considered by the Court pursuant to s 9(2)(h) of the Sentencing Act. Relevant to this assessment is the period of time spent, the relative restrictiveness of conditions, Mr Milne’s compliance, and any other relevant matter. While the amount of discount is discretionary, and discounts reflecting 50 per cent of the time spent on EM bail are common,14 an offender will often receive no credit where they have not complied with conditions.15
14 Glassie v R [2022] NZCA 556 at [74].
15 R v Tuikolovatu [2012] NZCA 203 at [5].
[47] The District Court Judge provided Mr Milne 2.4 months’ credit for only seven weeks spent on EM bail. The terms of bail were not particularly restrictive for EM bail. In that short period, the appellant breached EM bail once. In my view, providing any credit would have been generous. I note Mr Milne spent around seven months on bail simpliciter, with a curfew condition. However, most of his offending occurred during this period, and no discount is warranted.
Impact of adjusted credit on sentence – was the sentence manifestly excessive?
[48] As the Court of Appeal has emphasised, the focus on appeal is on the correctness of the end-sentence, not the process by which the sentence was reached.16
[49] The appellant does not dispute the starting point, uplifts or discounts which were afforded at sentencing.
[50] I have found no discount was warranted for the appellant’s offer of amends. The application to adduce the fresh s 27 report on appeal must be seen in context of the appellant’s election at sentencing to proceed without, when he could have sought an adjournment of sentencing. That might well have resulted in the report being declined on appeal and the matter being remitted to the District Court. However, in the interests of justice, here including avoiding further “churn” in the court’s system as a result of a remission, the Court has admitted the report including additional material on background factors in addition to the substance use information.
[51] An additional discount of 10 per cent to account for those background factors would lead to an end-sentence of 27 months’ (rounding down from 27.2) imprisonment. No credit should have been applied for time spent on EM bail. The resulting adjustment of only one month is not material and would amount to tinkering.
16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
Conclusion
[52]It follows the appeal must be dismissed.
………………………………………
Preston J
Solicitors:
Lawhub, Christchurch
Crown Solicitor, Christchurch
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