Milne v Police
[2020] NZHC 358
•3 March 2020
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 Court decision
[6] Judge Down found both charges proven. Mr Milne was convicted and on 23 January 2020 he came before Judge Down for sentence.5
[7] Mr Milne sought a sentence of home detention. For him to be eligible to receive this sentence Judge Down had to reach the point where he had found Mr Milne should receive a sentence of two years’ imprisonment or less.
[8] Judge Down recognised that the lead charge was the strangulation charge. The Judge was mindful of the fact this offence was only recently created by Parliament to address the inadequacies of prior assault law.6 He considered the maximum penalty and the limited recent case law. As a starting point to reflect both offences he adopted the term of two years’ and nine months’ imprisonment.7
[9] Then the Judge uplifted the sentence by three months to take account of Mr Milne’s prior convictions for similar offending, including offending against the same victim.8 He correctly stated that no discount could be given for a guilty plea, given Mr Milne’s election to go to trial. However, the Judge reduced the sentence by four months to recognise what the Judge accepted was genuine remorse, as reflected in a letter to the Court and a letter to the victim.9 This resulted in an end sentence of two years’ and eight months’ imprisonment. Because this was a long-term sentence of imprisonment Mr Milne was not eligible for a sentence of home detention.
[10] Judge Down observed that had the sentencing process resulted in Mr Milne receiving a short-term sentence of imprisonment (a sentence of two years’
5 Police v Milne [2020] NZDC 1158.
6 At [9].
7 At [10].
8 At [10].
9 At [14].
imprisonment or less) it would still have been entirely inappropriate to impose home detention, given the nature of the offending and the need to deter such conduct.10
Submissions
[11] Counsel for Mr Milne, Ms James, submits that the end sentence imposed by Judge Down was manifestly excessive, on account of the starting point being too high.
[12] Ms James refers to Ackland v Police, the first strangulation case to be appealed to this Court.11 Ms James submits that the aggravating factors present in Mr Milne’s offending, as identified by this Court in Ackland, include strangulation in the context of a domestic or intimate relationship and the presence of additional violence.12 Ms James compares Mr Milne’s offending with that of the offender in Houkamau v Police (another recent strangulation case which was appealed to this Court) where a two year starting point was adopted.13 Ms James argues that Mr Milne’s offending is distinguishable from that in T v Police (the third strangulation case appealed to this Court), on the ground Mr Milne’s offending is less serious.14
[13] Ms James also points to cases with similar facts, but where the offender was charged with injuring with intent to injure, including Hunia v Police,15 Nahi v Police16
10 At [13].
11 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.
12 At [26].
13 Houkamau v Police [2019] NZHC 2743. In Houkamau, Mr Houkamau’s offending involved him calling the victim offensive names and then proceeding to grab the victim, who was lying on the couch, and shoved her out the front door. He then punched her in the forehead and began choking her. Mr Houkamau eventually let go of the victim’s throat and pushed her to the ground.
14 T v Police [2019] NZHC 3375. Mr T and the victim had been in an argument the day prior and the victim had elected to leave the address. When she returned the next morning Mr T ran at the victim shouting, “if I’m going to jail, I’m going for a good reason” and as he shouted this he delivered a running kick to her forehead. The victim lost consciousness and awoke to Mr T dragging her into the house. The victim tried to escape out a window and Mr T grabbed her around the neck in a headlock and wrestled her to the bed. Eventually the victim lost consciousness. For the strangulation charge a starting point of three years was adopted.
15 Hunia v Police [2013] NZHC 333. In Hunia, Mr Hunia was convicted of injuring with intent to injure. The offending involved Mr Hunia grabbing the victim by her bag straps and causing her to hit her head on a nearby table. When the victim tried to leave Mr Hunia grabbed her and choked her causing her to lose her breath and faint. There was a protection order in place and the victim was 16 weeks pregnant at the time of the offending.
16 Nahi v Police [2012] NZHC 2025. In Nahi, Mr Nahi was convicted of injuring with intent to injure. Mr Nahi pushed the victim onto the bed and using both hands choked her, restricting her breathing and causing her to lose consciousness for a brief period.
and EWB v Police,17 where starting points of two years, 16 months and 20 months were adopted respectively. She argues that Mr Milne’s offending was no more serious than that involved in those cases.
[14] Ms James submits, therefore, that a starting point of no more than two years’ imprisonment ought to be adopted.
[15] Ms James does not take issue with the uplift for prior convictions imposed by Judge Down, nor the deduction for remorse, and advocates that the same adjustments be applied to her suggested starting point of two years’ imprisonment. This results in an end sentence of just below two years’ imprisonment from which she contends the appropriate sentence is one of home detention.
Approach on appeal
[16] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal against sentence if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[17]In any other case, the Court must dismiss the appeal.18
[18] The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.19 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.20 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing
17 EWB v Police [2012] NZHC 225. EWB was convicted of injuring with intent to injure. EWB threw the victim to the floor, threatened to punch her and strangled her to the point her body turned limp. There was a protection order in place at the time of the offending.
18 Section 250(3).
19 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].20 At [26]–[27].
principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
Discussion
Approach to strangulation sentences
[19] Both parties acknowledge that strangulation is the lead offence, and being a new charge there are relatively few sentences available for comparison. However, the cases of Ackland, Houkamau and T v Police are relevant and they provide helpful guidance on the appropriate approach to sentencing for this offence.
[20] In Ackland, Cooke J was aware that the appeal before him was the first appeal for a sentence involving strangulation. The judgment provides general guidance on the approach to be adopted. He traversed the background of the new offence noting it was established to fill a gap in the law because the seriousness of strangulation was failing to be captured by other charges.21 He identified factors relevant to the assessment of the seriousness of the offending, including: strangulation in the context of a domestic or intimate relationship/vulnerability of the victim; threats, particularly threats to kill; loss of consciousness; multiple events; other violence/injury; significant impact on others; and breach of a protection order.22 Then he identified three bands of offending and an appropriate range of starting points for each: (a) offending at the lower end, not involving any of the above aggravating features, would fall between six months and two years’ imprisonment; (b) offending within the mid-range would warrant a starting point of two to five years; and (c) offending at the highest range, being offending involving a number of the above aggravating factors, would result in a starting point between five and seven years’ imprisonment.23 In setting out this approach Cooke J stressed that it was not the number of factors that was important, but the overall nature and culpability of the offending, and emphasised that the factors simply provide a framework for making an assessment.24
21 At [19]. See also, Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [4.56].
22 At [26](a) – (g).
23 At [29] – [31].
24 At [31].
[21] The approach in Ackland was followed by Thomas J in Houkamau and by Doogue J in T, however both Judges expressed the view that it was important not to let the approach to sentencing become overly mechanistic.25 Specifically, Doogue J noted
[33] …Family violence is an extremely complex area and care is needed not to focus unduly, or only, on what might be described as key factors, falling into the trap of a somewhat mathematical approach to the exercise rather than a proper consideration of the subtleties of the offending. Indeed, the Commission’s report and rationale for the new offence highlights the subtleties that are often involved in coercive and controlling behaviour, of which strangulation often forms part.
[22] I agree with the approaches of Doogue and Thomas JJ to the framework set out in Ackland. Whilst I find the sentencing tariff bands helpful, I consider that the ultimate determination of a starting point will turn on the factual matrix of the particular offending, which allows regard to be had to the subtleties of the offending and the distinctive characteristics of strangulation.
[23] The starting point of two years’ and nine months’ imprisonment that Judge Down adopted reflected the offending of strangulation and assault with intent to injure. As noted by Ms Hames, for the Crown, this approach strays from the typical approach adopted at sentencing whereby the starting point is first set for the lead charge only and is then uplifted to reflect any additional charges on which the offender has been convicted. The approach adopted by Judge Down is problematic, particularly where an offender faces an array of charges, because it risks inflating the assessment of the seriousness of the offending. To assess whether the sentence that he imposed is manifestly excessive or not, I shall adopt the traditional approach, by first establishing a starting point for the strangulation offending and then adding an uplift for the charge of assault with intent to injure.
Application
[24] Mr Milne’s offending involved him grabbing the victim’s neck with both hands and choking her while pushing her up against her vehicle. This followed Mr Milne ripping the victim’s sunglasses from her head and then headbutting her to the cheek,
25 Houkamau v Police [2019] NZHC 2743 at [33]; T v Police [2019] NZHC 3375 at [35].
which accounts for the assault with intent to injure charge. During the offending the pair’s 20-month-old twins were in the vehicle. Before the offending there were “numerous” telephone calls between Mr Milne and the victim, during which he must have portrayed himself to be in a different frame of mind from when the offending occurred, because otherwise it is difficult to see why the victim would have thought he had calmed down enough for her to return to pick him up. This was not the first time he had been violent towards her, so his violence would not necessarily have come as a surprise to her. These circumstances suggest to me he must have presented himself to her during the telephone calls as calmer than he was to entice her to return, which further suggests the offending did not simply result from an explosive outburst from him. Rather, it was an occasion of him purposely asserting his control over her.
[25] Regarding the strangulation offending, which is the lead offence, the pair were in a domestic relationship, which is an aggravating factor of this offending (as per Ackland). Judge Down also identified the assault charge as an aggravating factor of the strangulation offending, but as discussed above this is not the approach I take. When assessing the aggravating features of strangulation offending it is important not to double count the presence of violence where the offender is convicted of additional violence charges. The act of strangulation involves a degree of violence. Violence which extends beyond this, such as where the victim is held down with the offender’s body weight, or as in this case, where the victim is pushed up against a solid object, will be additional violence that is an aggravating factor of the strangulation offending. However, such violence should only relate to the strangulation itself. Violence that can be separated from the act of strangulation, (like the earlier separate act here of head butting the victim below the eye), and which forms the basis of a separate charge should be assessed separately in the context of that charge. Regarding Mr Milne’s strangulation offending, some additional violence is present, but only to a minor degree.
[26] During Mr Milne’s offending his young children were present and the Crown submits that this is a further aggravating factor. I accept the experience would have been distressing for the children. However, that needs to be balanced against the fact there was seemingly no risk to the safety of the children during the offending, and the
children were of a young age, which minimises the detrimental effects of witnessing such behaviour.
[27] There is the additional fact that Mr Milne’s conduct must have caught the victim unawares and with her guard down, because her return to pick him up followed the numerous telephone calls between them.
[28] I consider a starting point of two years’ imprisonment is appropriate. This places the offending within the upper end of the first band identified by Cooke J and is consistent with his description that this band applies to offending with few to no aggravating factors.
[29] This starting point is also consistent with the limited number of comparable cases. In this regard, I consider Mr Milne’s strangulation offending to be less serious than that in Ackland and in T. In those cases, strangulation caused the victims to lose consciousness, whereas, here the victim felt she would lose conscious but there is no evidence that she did.
[30] I find the offending here to be closer to that in Houkamau, albeit more serious than in Houkamau. In Houkamau Thomas J found a starting point of two years’ imprisonment, which encompassed the offences of strangulation and assault on a family member, to be stern but available to the sentencing Judge and therefore not an error.26 Nevertheless, the sentence was reduced on appeal for other reasons.
[31] In Houkamau the offender and victim were arguing with each other, both had been drinking alcohol and the offending occurred while Mr Houkamau was attempting to remove the victim from his home. Here, the persons involved were initially in the family vehicle. There is no evidence the victim had been drinking. The behaviour of Mr Milne led to the victim asking him to leave the vehicle, which he did, but when she returned to pick him up believing he had calmed down he attacked her. Such an attack is less in the heat of the moment than the attack in Houkamau. Moreover, in Houkamau the additional offence was assault on a person in a family relationship, which is an offence that has no specific intent and it carries a lesser maximum sentence
26 Houkamau v Police [2019] NZHC 2743 at [36].
than assault with intent to injure.27 Thus, the overall gravity of the offending was less than is the case here.
[32] I consider the starting point can be uplifted by six months to take account of the assault with intent to injure charge. Significantly, the violence inherent in this charge occurred before the strangulation offending, and it involved the intentional infliction of force to the head. This results in a final starting point of 30 months’ imprisonment, which is three months shy of the overall two year and nine months’ starting point adopted by Judge Down.
[33] I consider the three months’ increase for prior convictions and the four-month deduction for remorse to be appropriate in the circumstances. And as these have not been challenged on appeal I shall not address them any further.
[34] On my assessment the end sentence would come to two years and five months’ imprisonment, which is three months shy of the end sentence adopted by Judge Down.
[35] The question then is whether the sentence I have reached shows the sentence imposed by Judge Down to be manifestly excessive or whether a reduction in sentence of three months’ imprisonment would be no more than tinkering. There is approximately a 10 percent difference between the sentence imposed by Judge Down and the sentence that I have reached. I consider this to be enough to render the sentence manifestly excessive. To reduce a sentence of imprisonment by ten percent is more than tinkering.
[36] It follows that the appeal is allowed. The sentence of two years and eight months’ imprisonment on the strangulation offence is quashed and in substitution thereof Mr Milne is sentenced to two years and five months’ imprisonment.
[37] The reduction of the sentence of imprisonment does not bring the sentence down to a short term of imprisonment, which would qualify Mr Milne for a sentence of home detention.28
27 The maximum sentence for the offence of assault on a family member is two years’ imprisonment. Crimes Act 1961, s 194A.
28 Sentencing Act 2002, s 15A provides that a sentence of home detention may be imposed where a short-term sentence would otherwise be imposed by the Court. A short-term sentence is a sentence that is 24 months or less: see s 4(1) of the Parole Act 2002, at “short-term sentence”.
[38] The concurrent sentence of 18 months’ imprisonment for the assault with intent to injure offence is within the available range and I do not propose to interfere with it. The only purpose for the appeal against that sentence was to enable it to be substituted with a sentence of home detention, had I decided to impose home detention for the strangulation offence.
Result
[39] The appeal against the sentence for the strangulation offence is allowed and the sentence of two years and eight months’ imprisonment is quashed. In substitution of the original sentence Mr Milne is sentenced to two years and five months’ imprisonment.
[40] The appeal against sentence for the assault with intent to injure offence is dismissed.
Duffy J
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