Milner v Police - [2014] NZHC 3277

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000115

CRI 2014-409-000116 [2014] NZHC 3277

ETHAN WIKAIRA MILNER

v

POLICE

Hearing: 11 December 2014

Counsel:

N Hansen and P J Doody for Appellant
B Hawes for Respondent

Judgment:

18 December 2014

JUDGMENT OF WHATA J

[1] Mr Milner was convicted on charges of burglary, driving while forbidden, driving with excess breath alcohol and assault on a prison officer. He was sentenced to two years and four months’ imprisonment.

[2] He now appeals against sentence on the ground that it was manifestly excessive.

[3] I allowed the appeal and delivered my assessment orally, but noted, without objection, that I would issue the full written judgment in due course. This is the full judgment.

MILNER v POLICE [2014] NZHC 3277 [18 December 2014]

Background

[4] The facts of the offending are set out in the sentencing notes of Judge G S MacAskill. They are not disputed. The Judge described the offending in this way:1
[2] As to the facts relating to your offending, there are four summaries: (a) On 26 March 2013 you were forbidden from driving any
motor vehicle until you had obtained a driver’s licence. On 24 May you drove a motorcycle on Dunarnan Street, Christchurch. You were affected by alcohol. An evidential breath test produced a result of
714 micrograms of alcohol per litre of breath.

(b) On 13 May 2014 you were at Super Liquor in Pages Road. You stole a 15 pack of Steinlager beer, taking it from the shelf. I understand the property was recovered.

(c) On Thursday 3 July 2014 at 3.45 pm, you and your associate were on Marine Parade, Christchurch. You approached a residential address. You entered it through a ranchslider window, which you smashed. You took a quantity of alcohol, jewellery, electronics and two guitars, and left the address. You were located by the occupant who returned home on the property. That, of course, is always of concern because of the potential for violence, particularly in your case. I understand the property was recovered. I have not been given a reparation figure for the broken ranchslider. Perhaps the prosecutor could mention that at the end of sentencing.

(d) Then, on 14 July you were a prisoner remanded in custody at Christchurch Men’s Prison. The victim was a prison officer. He went to pass a visitor form to you. You punched him on the right side of his face. You went to the guardroom and punched him three more times on the right side of his face. You were pushed out of the guardroom and taken to the ground by a number of other officers and had to be restrained. The victim received a broken tooth to the bottom-right side of his mouth. In explanation you said, “I am sick of yous locking up my bros.” There is a victim impact statement for the prison officer and I have read that. I note that he says that he received the broken tooth.…

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: [2014] NZHC 3277
Decision Date: 18 December 2014

CaseChat Overview and Summary

The case of Milner v Police involved an appeal by Ethan Wikaira Milner against his sentence. Milner had been convicted of burglary, driving while forbidden, driving with excess breath alcohol, and assaulting a prison officer. He was sentenced to two years and four months' imprisonment. Milner's appeal was based on the contention that the sentence was manifestly excessive. The Court of Appeal, Whata J, allowed the appeal and reduced the sentence to 18 months' imprisonment.

The central legal issue in this case was whether the sentence imposed by the High Court was manifestly excessive. The Court of Appeal reviewed the facts of the case, the sentencing principles, and the relevant case law to determine whether the starting point and the overall sentence were appropriate. The appeal hinged on the assessment of the starting point for the burglary charge, the consideration of the totality of the offending, and the appropriate uplift for the assault on a prison officer and other aggravating factors. The Crown argued that the starting point and overall sentence were within the acceptable range, while Milner's counsel contended that the starting point was too high and that the overall sentence was manifestly excessive.

The Court of Appeal found that the starting point for the burglary charge was too high, as it did not adequately separate the starting point for the lead charge from the totality of the offending. The Court concluded that a starting point of 18 months for the burglary was appropriate, considering the nature of the offending. The Court also considered the assault on a prison officer and determined that a four-month sentence for this charge was proportionate. The Court then assessed the cumulative starting point for the burglary and the assault, which was 22 months, and added an uplift of six months for the extensive prior offending, resulting in a combined starting point of 28 months. Given Milner's age and the discount for guilty pleas, the Court imposed a final sentence of 18 months' imprisonment.

The Court of Appeal allowed the appeal and reduced Milner's sentence to 18 months' imprisonment, noting that the original sentence was manifestly excessive. The reparation order for the assault and the disqualification conditions for the drink driving charge remained in place.

Orders