R v McMillan - [2007] NZCA 394

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA110/05 [2007] NZCA 394

THE QUEEN

v

IAN KENNETH MCMILLAN

Hearing: 20 June 2007
Court: William Young P, Glazebrook and Chambers JJ Counsel: A J Ellis and A W Rossiter for Appellant
B J Horsley and J M Davidson for Crown

Judgment: 7 September 2007 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Sexual offending against young children [1] Issues on the appeal [7] The systemic attack [14]

R V MCMILLAN CA CA110/05 7 September 2007

Was Mr McMillan lawfully committed to the High Court for sentence?   [16] Was Mr McMillan, as a matter of law, eligible for preventive detention? [28] Were Mr McMillan’s rights under the Bill of Rights breached?
Section 25(a)  [30]
Section 24(a)  [34] Section 19  [40] Section 22  [45]

Was a sentence of preventive detention justified? [49] Should Mr McMillan’s sentence be varied to a finite term? [58] Conclusion [63]

Sexual offending against young children

[1] In April 1995, Ian McMillan was charged with one count of indecently assaulting a boy aged 5, one count of indecently assaulting a girl aged 6, two charges of permitting a boy aged 5 to do an indecent act upon him, and two charges of permitting a girl aged 6 to do an indecent act upon him.

[2] Mr McMillan first appeared in the District Court on 5 April of that year. He pleaded guilty to the charges on 13 April, and was committed to the High Court for sentencing. A pre-sentence report was ordered. In light of Mr McMillan’s prior sexual offending against young children, the report writer recommended preventive detention.

[3] When Mr McMillan appeared in the High Court on 9 May, the judge ordered a psychiatric report. That report was prepared by Dr Gerald Ogg, a specialist in psychiatry with Waitemata Health. Having considered that report and the other material before the court, Tompkins J sentenced Mr McMillan to preventive detention.

[4] Mr McMillan appealed. This court dismissed that appeal on 29 July 1995.

[5] In 2005, Mr McMillan sought a rehearing of his appeal pursuant to this court’s decision in R v Smith [2003] 3 NZLR 617.

[6] Although Mr McMillan has passed the stage at which he became eligible for parole, he remains in prison, as it is the view of the New Zealand Parole Board that he still presents an undue risk to society.

Issues on the appeal

[7] Mr Ellis, on Mr McMillan’s behalf, advanced in some detail what he termed a “systemic attack on preventive detention”. He submitted that the legislation permitting preventive detention breached in a number of respects the New Zealand Bill of Rights Act 1990 and provisions of the International Covenant on Civil and Political Rights. He also attacked the way in which sentences of preventive detention were managed by…

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 R v McMillan

Details

AGLC: R v McMillan [2007] NZCA 394
Case: [2007] NZCA 394
Decision Date: 7 September 2007

CaseChat Overview and Summary

Ian Kenneth McMillan was convicted of sexually offending against two young children. He was sentenced to preventive detention. He appealed his sentence. The Court of Appeal dismissed his appeal. Ian Kenneth McMillan was charged with multiple counts of indecent assault against a boy aged 5 and a girl aged 6, as well as permitting the children to commit indecent acts upon him. He was committed to the High Court for sentencing and was sentenced to preventive detention. His first appeal was dismissed in 1995. In 2005, he sought a rehearing of his appeal. The Court of Appeal considered a number of issues, including whether he was lawfully committed to the High Court for sentence, whether he was eligible for preventive detention, and whether his sentence was justified. The Court of Appeal held that all grounds of appeal failed, and dismissed the appeal.

Orders