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 fail.

Approach to appeals against sentence

[5]    I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.13 In any other case, I must dismiss the appeal.14 The approach previously taken by courts on sentencing appeals continues to apply;15 the measure of error is the sentence be “manifestly excessive” — the principle is “well-engrained” in this Court’s approach to sentencing appeals.16 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.17

Discussion

[6]    I cannot identify any error in the Judge’s selection of a 10-month starting point, or in her subsequent discounts and uplifts (which are not in any event disputed). They all were arrived at after Her Honour’s thorough analysis of Mr Milne’s background and offending. There can be (and is) no suggestion imprisonment was not the least restrictive sentence available in Mr Milne’s circumstances.18 While citation of

11 At [16]–[18]. The Judge substituted a further week’s imprisonment for the remission. Ms Dickson explained she apprehends, from a note provided to her by Corrections over the weekend, Mr Milne wishes also to challenge that additional week (but not the remission), but she has not been able to obtain Mr Milne’s direct instruction on the point. Given the uncertainty, and the Crown’s lack of opportunity in any event to respond, I was not prepared to consider the issue. If it is to be pursued, which I do not encourage, it may be the circumstances would permit this appeal’s rehearing on that point.

12     Secker-Alison v Police [2018] NZHC 3277; and Wratt v Police [2012] NZHC 3137.

13     Criminal Procedure Act 2011, s 250(2).

14     Section 250(3).

15     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

16     At [33] and [35].

17     Ripia v R [2011] NZCA 101 at [15].

18     Sentencing Act 2002, ss 8(g) and 16.

authority would have been explanatory, the Judge’s starting point was well within the range available to her.

[7]    No contest is taken with the factors for consideration on sentencing for burglary.19 While there is no tariff case for burglary, a range of 18–30 months’ imprisonment is considered apposite for residential burglaries “at the relatively minor end of the scale”, “due to the heightened risk of confrontation with the occupants”.²⁰

[8]    Of materiality here is: some degree of co-ordination with Mr Milne’s associate forcibly to enter the hotel in the early hours of the morning; the property’s semi- residential and otherwise occupied nature carrying risk of confrontation with its occupants (although, as unrealised, not to be overstated); and unrecovered stolen property valued near $1000. Particularly given Mr Milne’s admitted alcohol issues, his offending might thus be thought both premeditated and targeted, rather than purely opportunistic.

[9]    One-year starting points have been upheld or imposed on appeal for burglaries of property in the vicinity of occupants,21 or in the company of associates.22 Higher starting points are available for burglaries of occupied premises, such as the instant hotel.23 Her Honour’s lower starting point was applied by this Court on appeal for unaccompanied non-residential burglary of marginally higher value.24 Comparatively, the cases cited by Ms Dickson are of burglaries of unoccupied premises to lesser or unknown values. A nine-month starting point was adopted for an unaccompanied non-residential burglary where the items were recovered.25

[10]   I also see no basis on which to cavil with the Judge’s imposition of special release conditions. Mr Milne’s protest rehabilitation has not previously been successful is no reason now to give up on its prospect. His acknowledgement of the role alcohol plays in his offending justifies its prohibition. The Judge’s choice and

19     R v Nguyen CA110/01, 2 July 2001.

20     Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].

21     For example, R v Columbus [2008] NZCA 192; Cronin v Police [2012] NZHC 3498; and Hansen v Police [2017] NZHC 425.

22     For example, Craigie v R [2012] NZCA 67; and Tuikolovatu v R [2012] NZCA 203.

23     Kelly v Police [2017] NZHC 2689 at [33]–[34].

24     Faith v Police [2018] NZHC 1576.

25     Vale v Police [2020] NZHC 3520.

application of the conditions shows her precise regard for the conditions’ statutory purpose, particularly to reduce the risk of Mr Milne’s reoffending and to facilitate and promote his rehabilitation.26 To that end, Mr Milne’s commendable acceptance of  Her Honour’s psychological assessment condition is a necessary but incomplete response. The balance of conditions is required to give Mr Milne’s acceptance some substance.

[11]The Judge’s sentence is not at all excessive, let alone manifestly so.

Result

[12]The appeal is dismissed.

—Jagose J

26     Sentencing Act, s 93(3).