Milne v Police - [2020] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2020-419-000004

[2020] NZHC 358

BETWEEN
MATTHEW ROSS MILNE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 February 2020

Counsel:

M James for Appellant

K Whyte and S Hames for Respondent

Judgment:

3 March 2020

JUDGMENT OF DUFFY J

This judgment was delivered by me on 3 March 2020 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
G Walsh, Barrister, Hamilton Crown Solicitor, Hamilton

MILNE v NEW ZEALAND POLICE [2020] NZHC 358 [3 March 2020]

[1] Following a judge-alone trial in the District Court before Judge Down, Matthew Milne was convicted on one charge of strangulation1 and one charge of assault with intent to injure;2 both of which arose out of a single domestic violence incident. For the offence of strangulation, he was sentenced to two years’ and eight months’ imprisonment and for the assault with intent to injure he was sentenced to a concurrent term of 18 months’ imprisonment.3 Mr Milne now appeals against those sentences.

Facts

[2] At the time of the current offending Mr Milne and the victim had been in a domestic relationship for five and a half years and the pair had 20 month old twins.

[3] On 1 January 2020, Mr Milne, the victim, the young twins and Mr Milne’s teenage son (from a previous relationship) went to Mr Milne’s brother’s address for a New Year’s day get together. While there Mr Milne and his son consumed an excessive amount of alcohol, then they all left the address before lunch time. During the return journey home Mr Milne became aggressive toward the victim, eventually she stopped the vehicle they were in and told him to get out, which he did. His son also left the vehicle. Both men started to walk towards Cambridge. The victim drove off.

[4] Some time passed during which there were “numerous” phone calls between Mr Milne and the victim.4 The victim decided that Mr Milne must have calmed down, so she returned to pick him up. When she pulled up in the vehicle, Mr Milne opened the door and launched himself into the vehicle. He then ripped sunglasses off the victim’s head, grabbed her by the shoulders and head butted her to her left cheek, below her eye.

[5] The victim attempted to leave the vehicle, but Mr Milne pinned her to the door frame. He put both his hands around her throat and strangled her until she felt as if

1      Crimes Act 1961, s 189A(b). Maximum penalty 7 years’ imprisonment.
2      Section 193. Maximum penalty 3 years’ imprisonment.
3      Police v Milne [2020] NZDC 1158.
4 Above at [4].

she would pass out. The victim then tried to waive down passing traffic for help, all the while the young twins were screaming in the back of the vehicle. Mr Milne was later apprehended by police and charged with the present offences.

District…

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: [2020] NZHC 358
Decision Date: 3 March 2020

CaseChat Overview and Summary

In Milne v Police, Matthew Ross Milne appealed against his conviction and sentence for strangulation and assault with intent to injure arising from a domestic violence incident. The appeal focused on the sentence imposed by the District Court for the strangulation offence, which Milne argued was manifestly excessive. The High Court allowed the appeal in part, reducing the sentence for the strangulation offence but upholding the sentence for the assault with intent to injure offence.

The court examined the appropriate approach to sentencing for strangulation offences, considering the factors relevant to assessing the seriousness of the offending, including strangulation in the context of a domestic or intimate relationship, threats, loss of consciousness, multiple events, other violence/injury, significant impact on others, and breach of a protection order. The court recognised that the number of aggravating factors was not as important as the overall nature and culpability of the offending.

Applying this approach, the court found a starting point of two years' imprisonment appropriate for Milne's strangulation offending, which was within the upper end of the first band identified by Cooke J in Ackland v Police. The court considered the offending to be less serious than in Ackland and T v Police, but more serious than in Houkamau v Police. The court uplifted the starting point by six months to take account of the assault with intent to injure charge. The court found the three months' increase for prior convictions and the four-month deduction for remorse to be appropriate in the circumstances.

The court concluded that the sentence imposed by the District Court was manifestly excessive, as there was approximately a 10 percent difference between the sentence imposed by the District Court and the sentence that the High Court had reached. The appeal against the sentence for the strangulation offence was allowed, and the sentence of two years and eight months' imprisonment was quashed. In substitution of the original sentence, Milne was sentenced to two years and five months' imprisonment. The appeal against sentence for the assault with intent to injure offence was dismissed.

In summary, the High Court allowed the appeal against the sentence for the strangulation offence and reduced the sentence to two years and five months' imprisonment, while upholding the sentence for the assault with intent to injure offence. The court emphasised the importance of considering the overall nature and culpability of the offending when assessing the seriousness of strangulation offences and applying the appropriate starting point for sentencing.

Orders