Milne v Police

[2012] NZHC 320

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000124 [2012] NZHC 320

SHODIE GRAHAM MILNE

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 February 2012

Appearances: P Dyhrberg for Appellant

MAV Raj for Respondent

Judgment:      29 February 2012

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty to burglary and indecent assault (which arose out of the same incident) the appellant was sentenced to imprisonment two years and one month.   He appeals against that sentence.

[2]      At  5:15  a.m.  the  appellant  entered  the  complainant’s  house  through  an insecure window. About nine months previously he and the complainant had been in a brief relationship.  She had not seen him since that time.  Initially the complainant thought that it was her boyfriend but after a short time she realised that it was not her boyfriend and asked the appellant to leave.

[3]      Unfortunately the appellant did not leave.   He held the complainant down, kissed her, rubbed his groin against hers, attempted to remove her underwear.  She

MILNE V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000124 [29 February 2012]

resisted.  He then touched her vagina (skin on skin) and touched her breast (also skin on skin).  Then he rolled her on her stomach and continued rubbing his groin against her and kissing her.   Eventually the complainant broke free and reached for her mobile phone. The appellant fled.

[4]      The appellant  is  35  years of  age.    He has  two  previous  convictions  for common assault in 2010, both of which attracted fines.   For present purposes the other convictions are irrelevant.   He has deep seated alcohol and drug problems. Home detention was recommended by the probation officer.  In 2003 he had suffered a serious head injury and a detailed neuro-psychological report was before the sentencing Judge, as well as references.  Information before the Judge also referred to the appellant’s self-referral after the offending to address his alcohol and drug problems.

[5]      Mr Dyhrberg explained the prolonged sentencing process which was largely attributable to the earthquakes in Christchurch.  By July 2011 Mr Milne had received the probation officer’s report recommending home detention and was hopeful that a sentence of home detention would be imposed.   He was not sentenced until late October 2011, with his hopes of home detention then being dashed.

[6]      In what can only be described as an extremely thorough sentencing process the Judge traversed numerous matters including the report from Dr Alberts, a neuro- psychologist.  He identified aggravating features of the offending: premeditation; the extent of the sexual conduct and violence; home invasion (although he accepted that this was implicit in the burglary charge); and the harm done to the victim.  On the mitigating side the Judge took into account the guilty plea, the consequences of the

2003  head  injury,  remorse,  and  post  offending  steps  the appellant  had  taken  to rehabilitate himself.

[7]      The  Judge  also  touched  on  numerous  authorities  that  had  been  cited  by counsel for the Crown.  As the result of a mix up Mr Dyhrberg had not received the Crown submissions and it was necessary for the Judge to stand the matter down so that Mr Dyrhrberg could consider those authorities.  In the end result there does not appear to have been any injustice in that regard.

[8]      Having started at three and a half years imprisonment the Judge decided not to allow any uplift for previous offending.  He allowed an 11 month discount for the guilty plea (Ms Raj has calculated that this is slightly more than 25%).  A further six months was allowed for the consequences of the head injury, remorse, and steps towards rehabilitation. As I have already mentioned, the end sentence was two years and one month imprisonment.

[9]      Excellent submissions have been advanced on both sides and I am grateful to counsel for their assistance.

[10]     In support of the appeal Mr Dyhrberg emphasised the steps that were taken by the appellant to rehabilitate himself.  As Mr Dyhrberg put it, this speaks for the appellant’s broader character.  The primary submission for the appellant is that the starting point was too high and that this resulted in a manifestly excessive sentence. No issue is taken with the discounts.

[11]     Mr Dyhrberg undertook a careful analysis of a number of authorities.   His particular focus was on R v Cooper.[1]   In essence the submission was that the starting point in this case could not be reconciled with Cooper, or indeed, other cases that have been placed before this Court.  Mr Dyhrberg contended that the starting point should have been in the vicinity of three years and the end sentence significantly below two years.

[1] R v Cooper CA32/05, 27 May 2005

[12]     For the Crown Ms Raj submitted that by compared with all the cases that have been cited, the indecent assault in this case was much worse.  That factor alone justified the starting point and end sentence.   She submitted that in any event the focus should be on the end sentence, not the starting point.

[13]     Given that there is no tariff for offending of this nature it is probably not surprising that both counsel have been at pains to draw my attention to cases involving  indecent  assaults  against  women  or  girls  within  their  own  home.

However,  as  the  Court  of Appeal  commented  in  R  v  Sipa[2]   (which  was  also  a

burglary/indecent assault case), reference to the facts of other cases in sentencing matters of this kind is of limited assistance unless matters of principle are involved.

[2] R v Lelemia aka Sipa CA405/01, 14 March 2002 at [23]

[14]     Because of the focus on Cooper it is appropriate that I make brief reference to that decision.   It involved an entry into a building and an indecent assault on a

15 year old girl.   The offending involved groping one of the girl’s breasts on two occasions.  Following trial the appellant was found guilty and sentenced to three and a  half  years  imprisonment.    The  appellant  was  33  years  of  age.    His  earlier convictions included burglary and assault, two being assaults against females.  The appeal against sentence was dismissed.

[15]     Mr Dyhrberg submitted that by comparison with that case the starting point in this case was much too high.  He noted that Mr Cooper’s previous history played a significant part in the end sentence, as did the fact that the offence was committed while Cooper was on parole.   On Mr Dyhrberg’s analysis the starting point   in Cooper must have been in the region of two years and three months.  He noted that the victim in that case was 15 years of age and that the Court of Appeal described the sentence as being at the top end of the range.  In response Ms Raj emphasised that the offending in that case was much less serious than the offending in this case.

[16]    It is extremely difficult to draw meaningful comparisons between cases involving significantly different factual scenarios.   While the points made by Mr Dyhrberg are well made, so is the point made by Ms Raj.  Once all matters are taken into  account  I  do  not  accept  that  Cooper  unequivocally  demonstrates  that  the sentence imposed in this case was manifestly excessive.

[17]     R v Mua[3] also received particular attention.  Again there are complications in attempting to draw a direct comparison.  Mr Mua had pleaded guilty to the charge of burglary but was found guilty by a jury on the indecent assault charge.   He was sentenced to two and a half years imprisonment.  The appeal was dismissed.  When imposing sentence in this case Judge Garland inferred that the starting point in that case must have been around three years.  He may well be right. The significant point is, however, that the offending in that case involved the fondling of a breast, not the

[3] R v Mua CA/190/94, 3 November 1994

prolonged assault that occurred in this case.   Indeed, all the cases that have been cited involved indecent assaults that are less significantly serious than the indecent assault in this case.

[18]     I conclude that while the starting point in this case could be described as high, it was not outside the range available to the Judge.  It also needs to be kept in mind that the Judge rounded up the discount for the guilty plea and allowed a further six months for other mitigating factors that have already been mentioned.

[19]     It is sad to see a person who is trying to rehabilitate himself serving a lengthy term of imprisonment.  But as the Court of Appeal said in Mua:[4]

[4] At [4]

Entry into dwellings at night and assaults, particularly indecent assaults, upon occupants must draw stern sentences to reflect society’s attitude to such conduct which affects the sense of security of the whole community.

Despite Mr Dyhrberg’s efforts to achieve a different outcome, the appeal fails and is

dismissed.

Solicitors:

Peter Dyhrberg, Christchurch,  [email protected]

Raymond Donnelly, P O Box 533, Christchurch 8140,  [email protected]