R v Mill HC Wanganui Cri-2010-083-2071

[2011] NZHC 2060

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-083-2071

THE QUEEN

v

BULL TAUREAN JORDAN MILL

Hearing:         20-29 June 2011

Counsel:         Mr H Mallalieu for the Crown

Ms D Goodlet and Ms A Brosnahan for the Accused Mill

Judgment:      19 August 2011

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr  Mill  you  appear  for  sentence  having  pleaded  guilty  to  a  charge  of demanding with menaces[1] and a charge of possession of cannabis for sale.[2]

[1] Sections 239(2) and 66 of the Crimes Act 1961.

[2] Section 6(1)(f) and (2)(c) of the Misuse of Drugs Act s 66 of the Crimes Act.

[2]      You faced other charges arising out of the same circumstances that gave rise to these two charges.  Your guilty pleas on these two charges were entered on the morning of the first day of the jury trial on all the charges.  You were acquitted on

the other charges to which you had not entered a guilty plea.

Circumstances of offending

[3]      The circumstances of your offending arise out of a plan to take cannabis from a residential house in Whanganui.  The occupant of the house (Mr Ross) had agreed to let an acquaintance (Mr McCallum) dry his recent large harvest of cannabis at the house.    Mr  Ross’  cousin  lived  nearby.    A  boarder  at  the  cousin’s  house  (Mr Williams) became aware of the cannabis at Mr Ross’ house and told his step-brother (Mr Jago) about it.

[4]      Mr Jago was serving a sentence of home detention at this time.  He enlisted you and a Mr Timmins to assist with his plan to take the cannabis.  The three of you met at Mr Jago’s address on 27 March 2010.  Mr Jago gave you and Mr Timmins’ instructions.  At trial you and Mr Timmins maintained that, based on what you were told by Mr Jago,  you understood that Mr Ross was in on the plan to take the cannabis from his house, and that you were to make it look like a robbery.  The jury verdicts on the burglary and assault with intent to rob charges which relate to the evening of 27 March 2010 mean that the jury accepted that this was reasonably possible and I proceed on this basis.

[5]      You and Mr Timmins arrived at Mr Ross’ address at around 7.30pm.  Based on what you had been told by Mr Jago, who in turn was in telephone contact with Mr Williams, it seems that  you  were expecting only Mr Ross to be present.   You knocked on the door and Mr Ross opened it.  Mr Timmins punched Mr Ross in the face, which you and Mr Timmins maintained was part of the plan to make it look like Mr Ross had been robbed.

[6]      Contrary to your instructions, Mr McCallum was, however, present in the house.  He heard your intrusion into the house.  He had with him a .22 rifle and he fired it.  Mr Timmins was shot in his side.  The two of you hastily departed and Mr Timmins was taken to hospital.  He required surgery to remove the bullet.

[7]      Mr McCallum also hastily left Mr Ross’ house.   The cannabis had been drying in various parts of the property: in a shed, in a garage and in an attic room in the house.  Before leaving the house, with his firearm, he gathered up as much of the

cannabis as he could and took that with him.  It seems that the cannabis that he took with him was the cannabis that had been drying in the garage and the shed.

[8]      Mr Ross then telephoned his cousin who arrived a short time later with Mr Williams.  While the cousin was tending to Mr Ross, Mr Williams was making a telephone call to Mr Jago to let him know what had happened.  The cousin gathered up what was left of the cannabis from the attic room.  The total amount of cannabis she gathered up is not entirely clear.  Mr Ross’ evidence was that Mr McCallum’s harvest was about 20 pounds worth.   What is in evidence is that Ms Barry [the cousin] put the cannabis from the room into a black rubbish bag which was about three quarters full.  The cousin took that rubbish bag with her to her home and hid it under the floor boards in her lounge.   Whatever was thought about Mr Ross’ involvement in the plan, there is no suggestion that the cousin was involved.   It seems that she was concerned about what had just happened to Mr Ross and about him having cannabis in the house given the events that had just occurred.

[9]      The next morning (28 March 2010) you went to the cousin’s house.  You had been told by Mr Jago that some of the cannabis had been moved to there.  There was no-one at home.  You entered the house and found the cannabis.  You took it with you.  You were charged with burglary and possession of cannabis for sale in relation to this.   Your acquittal on the burglary charge means that the jury accepted as a reasonable possibility that Mr Williams had given you permission to enter the house. The possession of cannabis for sale charge is one of the two charges for which you are being sentenced.

[10]     You  and  an  associate  (Ms  Maaka)  then  went  to  Mr  Ross’  house.    You knocked at the door and introduced yourself by your first name and Ms Maaka as your daughter or niece.  You told Mr Ross that you had got the cannabis from the house down the road and that you were there to talk about the events of the previous evening.  You said you were not there to make trouble or to hurt anyone.  You said that you were concerned that a weapon had been used.  Mr Ross’ evidence was that you said that he would have to pay the sum of $50,000 for what had happened and you wrote this on a piece of paper. Mr Ross’ evidence was that you made veiled threats to him about what would happen if he did not comply with what he was

asked to do.   That is, that he would be physically harmed.   Ms Barry’s evidence corroborated Mr Ross’ evidence about this to some extent.  You do not accept that this occurred.  No such note was found by the police and Mr Ross’ evidence about this was confusing.  I will come back to this issue shortly.  Your evidence was that you told Mr Ross that you and Mr Timmins had been led to believe that Mr Ross had been in on the plan to take the cannabis.  At this time you were concerned that what you had been told about Mr Ross’ involvement may not have been correct.

[11]     You telephoned Mr Jago from Mr Ross’ address so that Mr Jago could speak to Mr Ross.  The evidence from Mr Jago about what he was demanding from Mr Ross is also not clear except that, in the course of that telephone conversation, Mr Jago told Mr Ross, who had cannabis growing equipment, that as punishment for his friend being shot, Mr Ross would have to grow 500 cannabis clones for him. After this conversation, and at Mr Jago’s direction, you and Ms Maaka took the cannabis growing equipment and some cannabis plants which were present in Mr Ross’ house.  By the time you left you had been at Mr Ross’ house for an hour or more and Mr Ross had given you CDs from his music collection which he thought you might like.

[12]     The next day (29 March 2010) you returned to Mr Ross’ house and gave him back the growing equipment.  You also gave Mr Ross a piece of paper with a cell phone number and the word “help”.  That note was produced in evidence at the trial. An arrangement was made for Mr Ross to go to Mr Jago’s house for a meeting.  The meeting took place.   After this the police became involved and various charges against a number of people arising out of these events were brought.

[13]     For your involvement in the events at Mr Ross’ house on the 28th  of March

2010, you were charged with burglary, demanding with menaces and theft.  A charge of  blackmail  was  also  brought  but  not  pursued  upon  your  guilty  plea  to  the demanding with menaces charge.  You were acquitted on the burglary charge, which again means that the jury accepted that it was a reasonable possibility that you had Mr Ross’ permission to enter his house, and you are to be sentenced on this basis.  I discharged  you on the theft charge because the evidence was not clear that the growing equipment had the value alleged by the charge and because the Crown had

not proven that you had an intent to permanently deprive Mr Ross of the equipment (given that you had returned it the next day and that must have always been intended since the equipment was presumably needed by Mr Ross if he was to grow the clones  that  Mr  Jago  was  wanting.)    A  camera  was  also  taken  from  Mr Ross’ possession but the evidence did not show that it was taken by you.

Personal circumstances

[14]     Turning to your personal circumstances, you are 36 years old.  At the time of the offending you were living with you partner.  You have 5 children from previous relationships.  Another child died from drowning when he was four years old.

[15]     You have been a ranked member of the Mongrel Mob.  You have a number of  convictions.    Most  significantly,  in  1997  you  were  convicted  of  aggravated robbery and murder for which you were sentenced to life imprisonment.  You have undertaken a number of programmes to assist you with rehabilitation.   You were released on parole on 27 July 2009.

[16]     Although you struggled to find employment on your release, you did attend training on crane driving, concrete work and cooking.  You say that during your time on [parole] you worked hard to live a normal everyday life with your family and away from the influence of gang members and your previous lifestyle.   Your son died when you were in prison and you were not able to attend his funeral and that had a significant impact on you.

[17]     It seems that it was through the training that you met Mr Jago.  On one or more occasions  he had  lent  you  a car to  visit  your  twins,  who had  been  born prematurely in February 2010, and who were in intensive care in Wellington hospital as a result of complications.   Your explanation for becoming involved with Mr Jago’s plan was that Mr Jago was calling in the favour he had done by lending the car and that it would provide you with some much needed cash.  You say that you were under stress because of your twin babies’ health difficulties and particularly needed petrol money so that you could continue to visit them in hospital.   You accept, however, that you could have said “no” to Mr Jago’s plan.

[18]     You were recalled to prison on 30 April 2010 when you were arrested in relation to your role in this offending.  You regret that you became involved and are now back in prison.  I have read what you have said to me in your letter about this which is confirmed by what your partner has said in her letter to me.  I also note that the  pre-sentence  report  writer  has  obtained  confirmation  that  you  are  trying  to distance yourself from active gang members.  You are not assessed as having any current alcohol or drug problems.

Victim impact statement

[19]     Mr Ross has prepared a victim impact statement.  He says that he no longer feels safe in Whanganui and is in the process  of trying to sell his house.   He describes the first couple of weeks after these events as “diabolical”.  He also says that it has affected his relationship with his cousin and that they no longer talk.

[20]     You have said that you did not mean for Mr Ross to feel threatened in any way and that it was a big misunderstanding.  In light of the jury’s verdicts I accept that your intrusion into Mr Ross’ house on the evening of the 27th was a misunderstanding.  You have written to Mr Ross and his cousin, in a letter written in May of last year, to apologise for what occurred and again to convey that you did not mean to harm him and that you thought that Mr Ross had been involved in the plan, and you offered to do some kind of restorative justice with them.

Co-offenders

[21]     Various participants involved in what occurred on 27 March and thereabouts faced various charges and have been dealt with.  The two that are most relevant for present purposes are Mr Jago and Mr Williams.

[22]     Mr Jago pleaded guilty to charges of being a party to assault with intent to rob, burglary and demanding with menaces.   He was sentenced to seven years’ imprisonment on the assault with intent to rob and concurrent sentences of three and two years’ imprisonment on the burglary and demanding with menaces charge.

[23]     Mr Williams pleaded guilty to a charge of possession of cannabis for sale.

He was sentenced to 10 months’ home detention.

[24]     Mr Timmins was charged for his role in the events on 27 March 2010 but was acquitted on all the charges by the jury.

Starting point

[25]     In sentencing you I am required to take into account sentencing purposes and principles which are referred to in the Crown’s written submissions.  Given that you are already subject to a life sentence such that, if released, you can be recalled, as has happened here, perhaps the one that I would most emphasise in sentencing you today is denunciation for what you did.

[26]     I need to [set] a starting point in light of your culpability for the offending.  I am sentencing you on the basis that there was a misunderstanding by you and Mr Timmins on the 27th  about Mr Ross’ involvement, but that on the 28th  you were prepared to assist Mr Jago in taking cannabis for the purpose of sale and extracting some form of payment of some kind from Mr Ross because Mr Timmins had been shot in the failed plan of the previous evening.

[27]     I am not satisfied beyond reasonable doubt that you personally demanded

$50,000 or that you wrote a note with that demand on it and gave it to Mr Ross when you were present in his house, or that there was any intention by you to extract from Mr Ross that sort of money.   Mr Ross’ evidence about the note in particular was confusing.  As I have already said the note has never been produced: either to the police and it wasn’t in evidence and produced as an exhibit in the trial.  Ms Barry did corroborate Mr Ross’ evidence to some degree but her evidence was not particularly clear and may have been in part a recollection of what she had been told by Mr Ross rather than a reliable recounting of what occurred.  Mr Ross may have been confused as a result of whatever Mr Jago was demanding from him on the telephone.  So in all the evidence is not quite sufficient for me to be satisfied, as I need to be, as to this - as to what would be an aggravating feature.  I take the same view about whether you made any direct threats of violence.   Mr Ross again may have confused what Mr

Jago was demanding from him and what he thought himself might happen given the traumatic events for him of the previous night.

[28]     You must however have known that Mr Jago wanted Mr Ross to grow the cannabis clones for him and you assisted Mr Jago by arranging the telephone call between Mr Jago and Mr Ross, by taking Mr Ross’ growing equipment from him and returning to arrange the meeting with Mr Jago.   While you went to Mr Ross’ house on the 28th  unclear about Mr Ross’ role, your evidence at trial was that as a result of your discussions with him that day you no longer believed he had been involved in the plan.  You were in his home in circumstances which Mr Ross must have found intimidating and threatening.  He had been punched the night before in

the presence of two strangers who had entered his house in circumstances which you now believe he had not consented to and which had led to one of the intruders being shot.  Although the evidence was that you were polite and not aggressive with Mr Ross, by this stage it must have been  apparent to  you that Mr Ross would be frightened about what had occurred and what was expected of him.  It left Mr Ross feeling unsafe and insecure in his own home and he remains affected by what occurred as he has set out in his victim impact statement.

[29]     Counsel are agreed that I should take the demanding with menaces as the lead offence, uplift this for the cannabis offence to reflect the totality of the offending and impose  what  would  be  concurrent  sentences.     The  Crown  submits  that  the appropriate starting point on the demanding with menaces charge is between two and three years which should be uplifted by 9 months to a year for the cannabis offence, to give an overall starting point of at least three years’ imprisonment.  Your counsel submits that the appropriate starting point on the demanding with menaces charge is one year, and that this should be uplifted by six months to give a starting point of 18 months.

[30]     For the demanding with menaces charge I have decided that the appropriate starting point is two years.  I have looked at a number of cases.[3]    It is difficult to draw comparisons because there are a variety of circumstances where this sort of offending arises and the charges are often associated with other serious offending. The analogy counsel draws with a Court of Appeal decision (R v Mako[4]) but with appropriate adjustments is a fair one.   I consider the one year proposed by your counsel  is  too  light  and  I think  the  bottom  of  the  Crown’s  suggested  range  is appropriate.   I do not view the sentence Mr Jago received on the same charge as particularly relevant given that he was sentenced in relation to the events of the previous night as well, the sentencing Judge did not have the benefit of hearing the evidence at your trial and the sentence imposed on that charge was a concurrent one. As it happens, though, the concurrent sentence imposed in relation to that charge for

Mr Jago was two years’ imprisonment.

[3] R v Duckworth [1992] 3 NZLR 322; R v Lee HC Auckland T002769, 18 January 2002; R v Forrest CA 90/06, 12 October 2006; R v Witute CA 06/11, 21 March 2011; R v Winn HC Auckland CRI 2009-090-012003, 11 February 2011; Kerr v Police HC Timaru CRI 2010-476-3, 29 March 2010; R v Peacock CA451/05, 4 September 2006;  Knight v Police HC Rotorua AP 17-03, 23 May 2003; R v Charan CA 437-00, 30 July 2001; R v Chow CA 134-98, 11 August 1998; Ormsby v Police HC Wellington AP 148/01, 17 July 2001.

[4] R v Mako [2000] 2 NZLR 170.

[31]     I consider the uplift of 9 months to one year is appropriate for the cannabis charge.  The cannabis was still wet and had stalks (in the bag, the rubbish bag).  This was a one-off opportunity for you to make some money but it is unclear how much money you anticipated you would make from taking the cannabis and delivering it to Mr Jago.  Viewed in isolation from the other charge, a start point of two years could potentially be taken.[5]   That was the starting point taken in relation to Mr Williams in relation to the same charge.  However because the offending is connected with the demanding with menaces offending and will uplift the sentence on that charge,

having regard to the totality of the offending, I consider the appropriate uplift is 9 months.

[5] R v Terewi [1999] 3 NZLR 62.

[32]     So that means a total starting point for the two charges of two years and 9

months’ imprisonment.

Personal aggravating factors

[33]     Counsel are agreed that the starting point needs to be uplifted because you were on parole at the time of the offending and because of your previous offending. The Crown submits an uplift of up to twelve months is warranted.   Your counsel submits that an uplift of 6 months is appropriate on the basis that you were recalled to prison when you were arrested and this period (from 30 April 2010 through to today) will not be taken off the sentence as time served as it ordinarily would.[6]

[6] See ss 90 and 91 of the Parole Act 2002.

[34]     The  Court  must  denounce  your  preparedness  to  offend  when  you  have persuaded the Parole Board that you were suitable for release.   It indicates that despite your punishment for other offending and the benefit of programmes that you have received, you have not been deterred from further offending.   Normally offending on parole warrants a substantial uplift on the sentence however I must also take into account that where there has been a recall before sentencing the time back in prison, under the recall is not counted as time served in relation to the sentence I impose.  If the sentence I impose does not take this into account there is an element

of double punishment.[7]    I also acknowledge that at the time of this offending you

were under stress with your twins and you were adjusting to life out of prison, which is not necessarily the easiest of adjustments to make particularly if finding employment is difficult as you say it was.

[7] See R v Paul CA 409/05, 26 April 2006 at [33]-[40] and R v Harvey CA89/01, 19 June 2001 at [13].

[35]     Balancing  your,  what  would  normally  be  aggravating,   your  previous offending and the fact that this offending was on parole, with the effect of the recall on you, I have decided that the fairest thing is not to uplift the sentence from the starting point that I have imposed.

Mitigating factors

[36]     The mitigating factors to be considered are your guilty plea, your remorse and your offer to participate in a restorative justice process of some kind.

[37]     Your guilty plea came late.   The timing of the entry of those pleas was however presumably complicated by the other  charges  brought  against  you  and possibly also because of your position through being subject to a life sentence.  Had the Crown not pursued the other charges on which you were acquitted, your guilty pleas  would have  spared  the witnesses  from  giving evidence  and  the  resources expended in the trial, at least so far as you are concerned, would have not been necessary.

[38]     I also accept that you have shown a degree of remorse.  This may be mainly due to being back in prison rather than with your family, but I accept that you also regret causing emotional harm to the victims.  I refer in particular to your letter to them which I have read and also the other material before me such as your letters to me and the pre-sentence report writer’s comments.  I do not regard the letters you wrote  to  Ms  Maaka  as  having  any  bearing  on  that  and  reject  the  Crown’s submissions as to that.

[39]     I consider that the sentence should be discounted by 3 months for these mitigating factors.

[40]     I note that you and your partner have asked me to consider home detention. That is not something that is an available option to me.  Your release has to remain a matter for the Parole Board.

End sentence

[41]     What all this means is an end total sentence of 2 years and six months which I need to allocate.   And I am going to ask you to stand now as I formally pass sentence.  On the demanding with menaces charge I sentence you to two years six months’  imprisonment.    I  impose  a  concurrent  sentence  on  the  possession  of cannabis for sale charge of one year’s imprisonment.

[42]     Stand down.

POSTSCRIPT

THE SUPPRESSION ORDERS MADE IN RELATION TO CO-OFFENDERS ARE NOW AT AN END.

Mallon J