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 the  Department  of  Corrections.    That  department’s failures, he submitted, exacerbated the unfair nature of the preventive detention regime.

[8]      The remedy sought was a declaration of inconsistency with the Bill of Rights and the Covenant.  The first issue we need to determine is whether such declarations are available on an appeal against sentence.  We conclude they are not.

[9]      Quite apart from the systemic attack, Mr Ellis submitted Mr McMillan should not have been sentenced to preventive detention for a number of reasons.  The first of these reasons was that Mr McMillan had not been lawfully committed to the High Court for sentence.  Is that right?

[10]     The second issue Mr Ellis raised was whether Mr McMillan was, as a matter of law, eligible for preventive detention.

[11]     The third issue involves a number of alleged breaches of the Bill of Rights. These were breaches of:

(a)     Section 25(a) (“the right to a fair and public hearing by an independent and impartial court”);

(b)Section 24(a) (“the right to be informed promptly and in detail of the nature and cause of the charge”);

(c)     Section 19 (“the right to freedom from discrimination”); and

(d)     Section 22 (“the right not to be arbitrarily arrested or detained”).

[12]     The final issue Mr Ellis raised was whether this court had caused undue delay in respect of Mr McMillan’s appeal.  If we were, should Mr McMillan be given a remedy?  If so, should that remedy be a reduction in sentence?

[13]     We shall consider those issues in that order.

The systemic attack

[14]     We heard this appeal, at Mr Ellis’s request, at the same time as the appeal by Damon  Exley  (CA279/06).    Mr  Ellis  was  counsel  for  both  Mr  McMillan  and Mr Exley.

[15] In our judgment in Mr Exley’s case, we have held that a sentence appeal was an inappropriate vehicle for Mr Ellis’s systemic attack on the sentence of preventive detention: [2007] NZCA 393 at [21]. We have held that a declaration of inconsistency is not available. We do not repeat our reasons here.

Was Mr McMillan lawfully committed to the High Court for sentence?

[16]     Mr Ellis submitted Mr McMillan’s committal to the High Court for sentence was unlawful.  We do not accept that submission is correct.  We shall set out first how it was that Mr McMillan came to be sentenced in the High Court.  We shall then explain why we have not accepted Mr Ellis’s submission on this issue.

[17]     On  5  April  1995,  a  police  constable  swore  six  informations  against

Mr McMillan.  All of the charges were laid indictably.  Mr McMillan first appeared

in the District Court on that day.  He did not seek bail that day; Judge Barry Morris remanded him in custody to appear again the following day.

[18]     On 6 April, an application for bail was made, but refused.  Mr McMillan was again remanded in custody, and ordered to appear again on 13 April.

[19]     On 13 April, Mr McMillan pleaded guilty to all charges under s 153A of the Summary Proceedings Act 1957.  Subsection (6) of that section read as follows at that time:

(6)     If the defendant pleads guilty, then, subject to section 66(6) of this

Act, the Court shall-

(a)     Where the offence is an indictable one triable summarily or where the defendant elected under section 66 of this Act to be tried by a jury or where the offence is an indictable offence referred to in Part I of Schedule IA to the District Courts Act

1947,  record  the  plea  and  adjourn  the  proceedings  for  the sentencing of the defendant in accordance with section 28F of

the District Courts Act 1947, and section 47 of this Act shall

apply on every such adjournment; or

(b)     In any other case, commit the defendant to the High Court for sentence.

[20]     The offences with which Mr McMillan was charged were indictable offences triable summarily: see Summary Proceedings Act, s 6, and the First Schedule. Accordingly, it was the obligation of the District Court judge taking the pleas to record them and then to adjourn the proceedings for sentencing in accordance with s 28F of the District Courts Act 1947.  It is clear from the informations that the judge presiding on 13 April (Judge Shaw) did record the pleas.   She did not, however, adjourn the proceedings for sentencing in accordance with s 28F of the District Courts Act.  That is because she elected to decline to sentence under that section and instead to commit Mr McMillan to the High Court for sentence.  This was a power she had under s 28G of the District Courts Act, which read as follows:

Notwithstanding section 28F, in any case to which that section would otherwise apply, the Judge may decline to sentence the offender under that section and instead commit him to the High Court for sentence; and sections

169  to 171  of  the  Summary Proceedings  Act  1957,  with  any necessary modifications, shall apply.

[21]     Section 28F would have otherwise applied to Mr McMillan by virtue of s 153A(6) of the Summary Proceedings Act.  The judge’s exercise of her power to decline jurisdiction and to commit to the High Court was lawful and entirely orthodox: R v Webber [1999] 1 NZLR 656 at 660-661 (CA). She also on 13 April ordered, pursuant to statutory powers she had, a reparation report, a community care report, a pre-sentence report, and an emotional harm report.

[22]     Mr McMillan then appeared in the High Court, as ordered by Judge Shaw, on

9 May.  By that time, there was on the High Court file a pre-sentence report.  The probation officer who prepared that report recommended preventive detention.  The judge ordered a psychiatric report.  That came to hand on 16 May.  Mr McMillan was then sentenced on 22 May.

[23]     We now turn to Mr Ellis’s argument that Mr McMillan was not lawfully committed to the High Court.  Mr Ellis said the committal was not lawful because Judge  Shaw  did  not  comply  with  s  75(3)  of  the  Criminal  Justice  Act.    That subsection read as follows at that time:

Where any person is convicted by a District Court of any specified offence, and the court has reason to believe, from a report of a probation officer or otherwise, that the offender is liable to preventive detention, section 44 of the Summary Proceedings Act 1957 or (as the case may require) section 28G of the District Courts Act 1947 shall apply as if there were added to subsection (1) of that section the words “and a statement that the court has declined jurisdiction upon the ground that the court has reason to believe that the offender is liable to preventive detention”.

[24]     Mr Ellis submitted that Mr McMillan’s committal purported to be pursuant to s  28G  of  the  District  Courts  Act,  but  Judge  Shaw  had  not  endorsed  on  the information a statement to the effect she was declining jurisdiction upon the ground she had reason to believe Mr McMillan was liable to preventive detention.

[25]     It is quite correct that there are no such endorsements on Mr McMillan’s informations.  But that was because the judge was not committing him to the High Court under s 75(3) of the Criminal Justice Act but simply pursuant to the general discretion to commit to the High Court under s 28G of the District Courts Act. Preventive  detention  appears  to  have  loomed  as  a  possibility  only  after  the proceeding  had  been  transferred  to  the  High  Court.    It  was  the  writer  of  the

pre-sentence report who appears to have considered preventive detention might be the appropriate sentence.

[26]     The short answer to this first  issue is,  therefore,  that  Mr  McMillan  was lawfully committed to the High Court for sentence, pursuant to s 28G of the District Courts Act.  It would appear he was so committed not because Judge Shaw believed preventive detention should be considered but simply because this was serious offending of a nature warranting High Court attention.

[27]    For the sake of completeness, we mention that, at another point in his submissions, Mr Ellis speculated as to whether Mr McMillan had been committed pursuant to s 44 of the Summary Proceedings Act.  He then went on to argue that that section had not been complied with.  There is a short answer to this submission. The  committal  was  not  pursuant  to  s  44,  which  applies  only  to  summary prosecutions of indictable offences, which this was not.  The committal was pursuant to s 28G of the District Courts Act, which was complied with.

Was Mr McMillan, as a matter of law, eligible for preventive detention?

[28]     Mr  Ellis  submitted  that  Mr  McMillan  pleaded  guilty  in  the  summary jurisdiction  to  indictably  laid  charges.    Accordingly,  he  submitted,  he  was  not eligible upon conviction to a sentence in excess of three years’ imprisonment: Summary Proceedings Act, s 7 (as it then stood).

[29]     This submission is, with respect, wrong.  Mr McMillan was not “summarily convicted” in terms of ss 6 and 7 of the Summary Proceedings Act.  Rather, he was proceeded against indictably.  The case correctly found its way to the High Court via s 153A of the Summary Proceedings Act and s 28G of the District Courts Act. Section 7 of the Summary Proceedings Act has nothing to do with this case.  The maximum  penalty  it  prescribes  is  irrelevant  to  an  offender  in  Mr  McMillan’s situation.

Section 25(a)

[30]     Section 25(a) of the Bill of Rights guarantees to everyone charged with an offence “the right to a fair and public hearing by an independent and impartial court”.  Mr Ellis submitted this right had been breached by the probation officer who prepared the pre-sentence report.  He submitted that probation officers were persons whose acts were caught by the Bill of Rights: s 3.  He submitted it was the probation officer who, in his pre-sentence report, first recommended that preventive detention be considered.

[31]     Mr  Ellis  submitted  that  the  effect  of  that  recommendation  meant  that Mr McMillan faced not one prosecutor, but two.   “If he faced two prosecutors, it could not be equality of arms, nor a fair trial.”   Mr Ellis submitted Mr McMillan “was effectively facing two prosecuting agencies”.  This was a serious violation, he said, of Mr McMillan’s “right to a fair trial protected by s 25(a)”.

[32]     We reject that submission.   The whole point of pre-sentence reports is to ensure the sentencing judge is properly informed about all matters relevant to the offender and his or her history.   The fact the probation officer makes a recommendation does not turn the probation officer into a prosecutor.  The probation officer’s role is quite different from the prosecutor’s.

[33]     The fact the probation officer in this case recommended consideration be given to preventive detention did not infringe Mr McMillan’s rights under s 25(a) of the Bill of Rights.

Section 24(a)

[34]     Mr Ellis’s next argument was that “it is a fundamental principle that an offender knows the true extent of his jeopardy before pleading guilty”.  He submitted that  in  this  case  Mr  McMillan  did  not  appreciate  he  was  liable  to  preventive

detention at the time he entered his pleas of guilty.  Mr Ellis submitted that, before the High Court imposed preventive detention on him, he should have been given the opportunity to reconsider his guilty plea.  The failure to afford him that opportunity amounted to a breach of s 24(a) of the Bill of Rights.   That provision guarantees everyone charged with an offence a right to be informed promptly and in detail of the nature and cause of the charge.   It mirrors a similar protection accorded by art 14(3)(a) of the Covenant, upon which Mr Ellis also relied.

[35]     Mr   Ellis   advanced   the   identical   argument   in   R   v   Dean   CA172/03

17 December 2004. This court then rejected the argument that, once the District Court judge declined jurisdiction, he or she was bound to give the offender the opportunity to withdraw his plea of guilty. This court held there was no such requirement under the Summary Proceedings Act: at [31].

[36]     Mr Ellis did not attempt to show how the reasoning in Dean was wrong.  He simply submitted, without citing authority, that Judge Shaw was “under a positive duty to advise [Mr McMillan] that he had now pleaded guilty to an offence that carried a maximum sentence of preventive detention and that if he wished to reconsider his plea he would have to make an application to the High Court”.  We reject the submission that District Court judges are under any such duty.

[37]     Mr Ellis further submitted Tompkins J was “also under a duty [to] advise [Mr McMillan]  that  he  could  reconsider  his  plea  and  make  an  application  to withdraw his guilty plea”.  Again, we reject the submission that High Court judges are under any such duty.  The scheme of the legislation makes it clear that it is for the offender to apply to vacate a guilty plea: see Summary Proceedings Act, s 169. How the High Court exercises its discretion under that section is set out in R v Ripia [1985] 1 NZLR 122 (CA).

[38]     There is no suggestion in the present case that Mr McMillan ever sought to vacate his guilty pleas or indeed even wanted to.

[39]     Mr McMillan’s rights under s 24(a) of the Bill of Rights were not infringed.

[40]     Mr   Ellis   submitted   that   Mr   McMillan   was   discriminated   against   at sentencing, “as he received a harsher penalty because his offending was partly of a homosexual nature (one of his victims was male, the other female), than he would have had his offending been entirely against females”.  This was, Mr Ellis submitted, a breach of s 19 of the Bill of Rights, which  guarantees  everyone the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.  Under s 21 of the Human Rights Act, sexual orientation is one of “the prohibited grounds of discrimination”.

[41]     There is nothing in this point.  There is no evidence to support the contention that Mr McMillan’s sentence was heavier because one of his victims was male.  He would have received the same sentence had both victims been female or both male. As Mr Horsley, for the Crown, submitted, Mr McMillan was not treated differently by reason of his “sex” or “sexual orientation”.  His sexual activity was criminalised, not because it was homosexual or heterosexual, but rather because it was committed against children.  We agree.

[42]     There is nothing in Dr Ogg’s report or Tompkins J’s sentencing notes to indicate homophobia at work.   Dr Ogg diagnosed Mr McMillan’s problem as paraphilia; that is to say, Dr Ogg said, Mr McMillan’s “sexual interest is directed quite inappropriately toward obtaining sexual arousal from contact with young children”.

[43]     Indeed, Mr McMillan’s prior offending did not involve young boys at all. Tompkins J noted that Mr McMillan had seven previous convictions between 1973 and 1983.  The judge had been supplied with the summary of facts in respect of most of those and had noted “they display a common characteristic of a strong attraction to young girls”.   (The emphasis is ours.)   Mr Ellis’s submission is quite divorced from the factual background to Mr McMillan’s offending.

[44]   We unhesitatingly reject the proposition that Tompkins J was guilty of homophobia when sentencing Mr McMillan and thereby breached his rights under s 19 of the Bill of Rights.

Section 22

[45]     Mr Ellis’s next argument was that Mr McMillan’s rights under s 22 of the Bill of Rights were breached.   Section 22 guarantees everyone the right not to be arbitrarily arrested or detained.

[46]     The specific complaint was that Mr McMillan was sentenced to preventive detention on the basis of what Mr Ellis claimed was “a single uncontested report”, namely Dr Ogg’s.

[47]     There is nothing in this point.   Mr McMillan was eligible for preventive detention pursuant to s 75(1)(b) of the Criminal Justice Act (as it then was).  Under that provision, there was no statutory requirement even to obtain a psychiatric report.

[48]     Mr McMillan was not arbitrarily arrested or detained.

Was a sentence of preventive detention justified?

[49]     Somewhat  surprisingly,  Mr  Ellis  advanced  no  argument  on  the  issue  of whether Tompkins J’s sentence was justified.   In fairness to Mr McMillan we consider that question.  It should have been the focus of the appeal given the sole statutory ground of appeal provided for by s 385(3) of the Crimes Act 1961.

[50]     The offending in question occurred in March and April 1995.  Mr McMillan befriended two little children, a boy aged 5 and a girl aged 6.  On the first occasion, he lured them into this car, where he encouraged them to touch his penis, which they did.   On a later occasion, he lured them into his car again.   The same conduct occurred.   In addition, on this occasion, he touched their genital areas.   On both occasions, he gave them money.  On the latter occasion, his conduct was noted by a passer-by, who reported the matter to the police.

[51]     Mr  McMillan,  when  confronted  by  the  police,  made  a  full  and  frank admission.  He conceded he had “a problem” and needed psychiatric help.

[52]     The  probation  officer,  in  his  pre-sentence  report,  noted  that  this  was Mr McMillan’s thirteenth appearance for attempted and/or sexual acts with children, male and female.  In particular, Mr McMillan appeared to have a strong attraction to young girls.  The probation officer noted that Mr McMillan had been the subject of no fewer than twelve referrals – to psychiatrists, psychologists, and other therapists. Despite all that therapy, his offending continued.

[53]     Dr Ogg in his report referred to Mr McMillan’s view that, despite therapy, “he [Mr McMillan] felt that there was no real change in his psychological problem”. Dr Ogg noted that Mr McMillan had been involved in “adult to adult sexual relationships” on several occasions for quite long periods of time.  But Mr McMillan confided to Dr Ogg that, when in such relationships, he had always been “sexually reluctant”  and  had  had  to  “use  memories  of  previous  contact  with  children  or fantasies of a similar nature to assist him to become sexually aroused”.

[54]     As already indicated, Dr Ogg diagnosed Mr McMillan as suffering from paraphilia.  He was of the view he was a suitable candidate for treatment at the sex offenders’ unit at Paremoremo Prison.  No other treatment, in Dr Ogg’s view, was likely to assist him.

[55]     Tompkins J concluded, with some reluctance, he said, that a sentence of preventive detention was inevitable.  He accepted that an indefinite sentence should be regarded “as a last resort”.   But he felt he could not overlook the “consistent pattern of offending involving young children”.  He thought there was a substantial risk that, if released, the pattern of offending would continue.  He was satisfied that it was expedient for the protection of the public that Mr McMillan should be detained in custody for a substantial period.  Tompkins J clearly turned his mind to both the relevant criteria in s 75 and Dr Ogg’s report.

[56]     While Dr Ogg’s report is less detailed than one would expect today, it was quite unexceptional by standards pertaining in 1995.  The actuarial instruments now used, such as RoC*RoI and Static-AS, had not been devised at that time.

[57]     We are satisfied Tompkins J made no error of principle and was justified in imposing preventive detention.

Should Mr McMillan’s sentence be varied to a finite term?

[58]     Mr Ellis’s final submission was exactly the same as he had argued in Dean. The argument can be summarised in the following steps:

1      Mr McMillan did not have a “proper” hearing of his appeal in 1995.

2The delay of 12 years in according to Mr McMillan a “proper” appeal hearing is all the fault of the Court of Appeal.

3The Court of Appeal breached Mr McMillan’s rights under s 25(h) of the Bill of Rights and art 14(3) of the Covenant.   Section 25(h) guarantees everyone the right, if convicted of an offence, to appeal according to law to a higher court against the conviction or against the sentence or against both.  Article 14(3) guarantees everyone the right to be tried without undue delay.

4The appropriate remedy is a reduction in sentence: in this case, a finite sentence should be substituted for preventive detention.

[59]     In Dean, this court determined that this remedy, even if in theory available, was not the appropriate one.  This was for the following three reasons:

[90]   First, we have reached the same conclusion as the sentencing judge and as this court reached on the 1996 appeal.  It could therefore be argued that,  even  if  there  has  been  a  breach,  no  “harm”  has  arisen  from  it. Mr Dean's position is exactly the same as it would have been had this appeal been heard “properly” in 1996.

[91]   Secondly, whether a defendant’s rights have been breached is not a criterion, still less a trumping criterion, in the assessment which the court had to make under s 75 of the Criminal Justice Act and which courts must today make under s 87 of the Sentencing Act.  The factors which the court today must take into account are set out in s 87(4) of the Sentencing Act.  If by application of those criteria the court considers the defendant does pose a significant and ongoing risk to the safety of the community, it would not be open to the court to deny that risk and to impose a lesser sentence because of some prior breach of the defendant’s rights.   That breach, if it is to be remedied, should be remedied in some other way.

[92]   Thirdly, even if there has been a breach (as alleged), interfering with the sentence of preventive detention would not be the appropriate response in this particular case.  Mr Dean is now eligible to apply for parole.  If he applies and parole is granted, then he will be free.   Our freeing him now would not provide “compensation” for the breach he alleges he suffered.  If, on the other hand, parole is denied because Mr Dean still poses significant and  ongoing  risk,  then  that  will  simply  confirm  the  correctness  of  the original sentencing decision.  It would demonstrate how foolhardy it would now be to cancel preventive detention for an extraneous reason.

[60]     All three reasons apply equally to Mr McMillan.   Accordingly, we do not need to deal with the rightness or otherwise of steps 1 to 3 in [58], each of which is in  fact  contentious.    Even  assuming  those  steps  to  be  right,  which  we  are  not deciding, a reduction in sentence is not the appropriate remedy in this case.

[61]     This court also dealt with a similar argument (again advanced by Mr Ellis) in R v Manawatu CA111/05 10 November 2006. This court concluded a reduction in sentence was not the appropriate remedy for any appellate delay: at [20]-[54]. Mr Manawatu sought leave to appeal that decision. The Supreme Court declined leave: [2007] NZSC 13. The Supreme Court noted that this court had found “no evidence of any prejudice to [Mr Manawatu] arising from the delay in the hearing of the appeal”: at [10]. The Supreme Court held there was nothing in Mr Ellis’s submissions to persuade them it was arguable that the Court of Appeal's finding of lack of prejudice was incorrect: at [12]. That applies also in the present case. We have reviewed the sentencing judge’s reasoning and have concluded it was correct. Mr McMillan is now well past his parole date. If he is still in prison, that must be because, in the opinion of the Parole Board, he still poses an unacceptable risk to the young members of our society. He has suffered no prejudice from the way in which his appeal has been dealt with.

[62]     For the sake of clarity, we should emphasise that, in saying Mr McMillan still poses an unacceptable risk to the young members of our society, we are not to be taken as making any comment one way or another on Mr Ellis’s suggestion that, if he still poses a risk, that is the fault of the Department of Corrections and the way in which they have administered his sentence.   Any challenge to that department’s handling of Mr McMillan’s incarceration could be considered only in the context of properly constituted proceedings, such as we referred to in Mr Exley’s case.

Conclusion

[63]     All grounds of appeal fail.  Accordingly, we dismiss the appeal.

Solicitors:

Crown Law Office, Wellington