Milne v Police - [2022] NZHC 1227

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-105

[2022] NZHC 1227

BETWEEN
EDWARD MILNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 May 2022

Appearances:

S P Dickson for appellant J G Fenton for respondent

Date of judgment:

30 May 2022

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
S P Dickson, Barrister, Henderson Kayes Fletcher Walker, Manukau

MILNE v NEW ZEALAND POLICE [2022] NZHC 1227 [30 May 2022]

[1] Edward Milne appeals his sentence imposed by Judge Jelaš on 30 March 2022 at the Manukau District Court.1 Her Honour sentenced Mr Milne to eight and half months’ imprisonment and imposed special release conditions.2

Background

[2] Early in the morning of 10 October 2021, with an associate, Mr Milne had forced the padlock on a roller door at a central Auckland hotel’s garage. He made his way into the hotel’s restaurant and took property — primarily alcohol — with a value of $944 from its kitchen’s dry stock room. Mr Milne pleaded guilty to a single charge of burglary.3

Decision on appeal

[3]Without citing any authority for her choice, Judge Jelaš took a starting point of

10 months’ imprisonment.4 Her Honour considered imprisonment was the least restrictive outcome in the circumstances given Mr Milne’s continued threat to the public.5 She observed Mr Milne’s high RoC*RoI score,6 and considered his “need for specialist assistance” was unlikely available from community-based services.7 The Judge applied the full 25 per cent discount for his guilty plea, uplifted by one and half months for his prior offending and reduced by two weeks for his time spent in custody and on EM bail.8 Noting Mr Milne to be “highly institutionalised”,9 and with “complex needs … meet[ing] the criteria for departmental psychological services intervention”,10 she considered release conditions were warranted by: their recommendation in Corrections’ pre-sentence report; Mr Milne’s significant periods

1      Police v Milne [2022] NZDC 5566.
2      The conditions run for six months after the sentence end date, requiring Mr Milne attend psychological assessment; complete any treatment recommended by the assessment and drug rehabilitation programme at the direction of his probation officer; and not to possess, consume or use alcohol.
3      Crimes Act 1961, s 231: maximum penalty 10 years’ imprisonment.
4      Police v Milne, above n 1, at [7].
5 At [7].
6      “Risk of (re)Conviction multiplied by Risk of Imprisonment”: Leon Bakker, James O’Malley and David Riley Risk of Reconviction: Statistical Models which predict four types of re-offending (Department of Corrections, 1999).
7 At [12].
8 At [14].
9 At [1]. Mr Milne’s 13 prior sentences include ten of imprisonment, totalling 10 years and 10 months’ imprisonment.
10 At [3]–[4].

of incarceration; and his lack of mental health treatment. The Judge also remitted Mr Milne’s outstanding fines and reparations.11

[4] For Mr Milne, Sarah Dickson argues the Judge’s starting point was excessive by reference to cited cases,12 and the Judge’s rehabilitation and alcohol release conditions lack utility as setting up Mr Milne to…

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

Case: [2022] NZHC 1227
Decision Date: 30 May 2022

CaseChat Overview and Summary

In Milne v Police, the appellant, Edward Milne, appealed against his sentence of eight and a half months' imprisonment, imposed by Judge Jelaš at the Manukau District Court. Milne was found guilty of burglary, involving the theft of alcohol from a hotel's kitchen with an associate. The appeal was heard by Jagose J at the High Court of New Zealand, Auckland Registry. Milne's counsel argued that the starting point for sentencing was excessive and that the special release conditions imposed were ineffective and likely to lead to failure. The key legal issues were whether the sentence was manifestly excessive and whether the special release conditions were justified.

Jagose J found no error in the Judge's starting point of 10 months' imprisonment or in the subsequent discounts and uplifts applied. The starting point was within the appropriate range, considering the nature of the offence and Milne's criminal history. The court noted that the sentence was not manifestly excessive and was justified by the need to protect the public and facilitate Milne's rehabilitation. The imposition of special release conditions was also deemed appropriate, given Milne's history of alcohol-related offending and his need for mental health treatment. The appeal was dismissed, and the original sentence upheld.

Orders