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…

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: [2012] NZHC 320
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the appellant, Shodie Graham Milne, appealed against his sentence for burglary and indecent assault. Milne had pleaded guilty to entering the complainant's house through an insecure window, where he held her down, kissed her, rubbed his groin against her, attempted to remove her underwear, and touched her vagina and breast. The Crown argued that the starting point for sentencing was justified due to the severity of the offence, while Milne's counsel submitted that the starting point was too high and resulted in a manifestly excessive sentence. The court considered several authorities and concluded that while the starting point could be described as high, it was not outside the range available to the sentencing judge.

The legal issue before the court was whether the starting point for sentencing was appropriate, given the severity of the crime and the appellant's efforts to rehabilitate himself. The court examined the facts of the case, the authorities cited by both parties, and the mitigating factors presented. The court acknowledged that it was difficult to draw meaningful comparisons between cases with significantly different factual scenarios. However, the court found that the starting point in this case was not manifestly excessive and that the appellant's efforts to rehabilitate himself were already considered by the sentencing judge. The court dismissed the appeal, finding that the sentence imposed was appropriate given the circumstances.

The court emphasised that entry into dwellings at night and assaults, particularly indecent assaults, upon occupants must draw stern sentences to reflect society's attitude towards such conduct which affects the sense of security of the whole community. The court also acknowledged the appellant's efforts to address his alcohol and drug problems and his self-referral for rehabilitation. However, the court found that the severity of the offence and the harm done to the victim justified a lengthy term of imprisonment. The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders