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Milne v The King

Milne v The King

Case [2025] NZCA 574 30 October 2025

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA701/2024
[2025] NZCA 574

BETWEEN	MICHAEL KEVIN MILNE Appellant
AND	THE KING Respondent

CA714/2024
BETWEEN	ANTHONY WAYNE HARRIS Appellant
AND	THE KING Respondent

Hearing:	4 September 2025
Court:	Thomas, Brewer and Isac JJ
Counsel:	S J Shamy for Appellant in CA701/2024 J D Lucas for Appellant in CA714/2024 N J Wynne for Respondent
Judgment:	30 October 2025 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeals are allowed.
BMr Milne’s sentence of six years’ imprisonment is set aside and a sentence of five years and four months’ imprisonment is substituted.
CMr Harris’ sentence of five years’ imprisonment is set aside and a sentence of four years and four months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Isac J)

Introduction

Michael Milne and Anthony Harris were convicted after trial of cannabis supply offences following the discovery of a hydroponic growing operation on Mr Milne’s property. They were sentenced by Judge Kellar to six and five years’ imprisonment respectively and now appeal their sentences.[1]
[1]R v Milne [2024] NZDC 25995 [sentencing decision] at [28] and [32].

The appellants raise three principal grounds of appeal.[2] First, they contend their sentencing was affected by a factual error concerning the total number of cannabis plants discovered and their potential yield. Second, the starting point adopted by the Judge was too high when compared to similar cases. Finally, they argue additional credit ought to have been provided for personal mitigating factors, and in particular a delay of five years between charge and trial.
[2]The appellants requested a full court be convened to revisit this Court’s guideline judgment in R v Terewi [1999] 3 NZLR 62 (CA). That request was not acceded to, so the issue of the correctness of R v Terewi was not pursued before us.
For the reasons that follow we find the three principal grounds of appeal have not been made out. However, we have concluded that insufficient credit was provided for personal mitigating factors, particularly the appellants’ ages, and have allowed the appeals accordingly.

The offending

Mr Milne owned a secluded 700-hectare property in Westland. The property is largely covered in native bush and a cycle trail passes through on its route between Kumara and Hokitika.
Between 2012 and 2013 Mr Milne built a Western-styled accommodation and entertainment facility — known as “Cowboy Paradise”. It includes a restaurant and bar and caters to users of the cycle trail.
He also constructed a large underground bunker situated in a clearing on the property. The bunker was three metres deep and had a total floor area of 240 square metres. The walls were made of reinforced concrete and the roof was held up by large steel beams. Access was through a trap door concealed in the floor of a 40 foot shipping container that sat above the bunker at ground level.
Contained within this concealed facility were twelve growing bays constructed with plywood walls, heat grow…

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.

Continue reading Milne v The King

Details

AGLC: Milne v The King [2025] NZCA 574
Case: [2025] NZCA 574
Decision Date: 30 October 2025 at 2.30 pm

CaseChat Overview and Summary

Michael Milne and Anthony Harris appealed against their sentences for their involvement in a cannabis supply operation discovered on Mr Milne's property. The primary grounds of appeal were that the sentencing was affected by a factual error regarding the total number of cannabis plants and their potential yield, the starting point adopted by the sentencing judge was too high, and additional credit should have been provided for personal mitigating factors, including a five-year delay between charge and trial. The appeals were heard by Thomas, Brewer, and Isac JJ. The Court found that the factual error regarding the number of plants was not material to the sentencing process. The Court also found that the starting points adopted by the sentencing judge were appropriate given the nature of the offending. However, the Court concluded that insufficient credit was provided for personal mitigating factors, particularly the ages of the appellants, and allowed the appeals accordingly.

The Court reduced Mr Milne's sentence from six years to five years and four months and Mr Harris' sentence from five years to four years and four months. The Court considered the ages of the appellants, their good character, and the impact of lengthy sentences on their health and families when determining the appropriate level of discount. The Court noted that older offenders are more likely to experience a decline in their mental health while imprisoned and that age and ill-health are mandatory considerations under the Sentencing Act 2002. The Court also considered the good character discount, which reflects the purposes of leniency and rehabilitation. However, the Court noted that the extent to which good character operates as a mitigating factor is constrained by the long period of offending and the focus on deterrence in cases involving serious offending. The Court found that a further discrete reduction of 10 per cent was appropriate for both appellants to adequately reflect the combination of personal mitigating factors.

Orders