Milne v Police - [2023] NZHC 3614

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…

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.

Continue reading Milne v Police

Details

AGLC: Milne v Police [2023] NZHC 3614
Case: [2023] NZHC 3614
Decision Date: 11 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Nicholas Steven Milne appealed against his sentence of two years and four months' imprisonment imposed by the District Court following convictions for various offences including burglary, dishonesty, driving, and possession of drugs and weapons. Milne argued that the District Court failed to appropriately discount his sentence, suggesting that a sentence of home detention would be more suitable. The High Court was required to determine whether the District Court erred in its sentencing and if a different sentence should be imposed.

The High Court found that the District Court did not err in its application of discounts for the offer to make amends, addiction, and background factors. The Court held that Milne's offer to make amends did not warrant a discount as it was not genuinely fulfilled and lacked acceptance by the victim. The Court also found that the District Court appropriately considered the evidence of addiction, and there was insufficient nexus between Milne's addiction and the current offending to warrant a significant discount. Additionally, the Court ruled that Milne did not deserve credit for time spent on electronically monitored bail due to his non-compliance with bail conditions. The Court concluded that the slight adjustments to the discount for background factors and the removal of credit for time spent on bail resulted in a minimal change to the overall sentence, amounting to little more than tinkering.

The appeal was dismissed, and the original sentence of two years and four months' imprisonment was upheld. The High Court found that the sentence imposed by the District Court was not manifestly excessive and appropriately reflected the relevant sentencing principles.

Orders