R v Milligan - [2013] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-4910 [2013] NZHC 118

THE QUEEN

v

JAMES WILLIAM MILLIGAN

Hearing: 8 February 2013

Counsel: R G Douch for Crown
K Clews for Prisoner

Judgment: 8 February 2013

SENTENCE OF KATZ J

Solicitors: Crown Solicitor, Hamilton – rgd@almaodouch.co.nz

Copy to: K Clews, Hamilton – kit@kitclews.co.nz

R V MILLIGAN HC HAM CRI-2011-019-4910 [8 February 2013]

Introduction

[1] James Milligan, you appear for sentence today having pleaded guilty to sexual offending charges against two complainants spanning the period between the
1960s and 2008. On 8 November 2012, I gave you a sentencing indication in relation to those charges. You accepted that indication. Since then I have had the benefit of reading your pre-sentence report. However, there is nothing in that report which would either increase or decrease the sentence I have previously indicated.

Facts

[2] There are two sets of offending for which you are being sentenced for today. The first, against Complainant A, is historical in nature. You were a friend of Complainant A’s father. There are three representative counts of indecent assault on a boy under 16 years old stemming from your conduct with Complainant A, which relate to the period 1966-1971. That provision has subsequently been repealed from the Crimes Act, but at the time of the offending it carried a maximum penalty of 10 years’ imprisonment.1

[3] The conduct relating to those counts includes you forcing Complainant A to touch your penis, performing oral sex on Complainant A, and measuring Complainant A’s penis and pubic hair. At the time of the offending, Complainant A was aged between 11 and 15, and you were aged between 29 and 32. The offending took place on overnight boat trips with Complainant A.

[4] The second set of offending, covering Counts 4 through 11 of the indictment, all involve Complainant B, spanning February 2004 to February 2008. The charges include sexual violation by unlawful sexual connection (x2) and attempted unlawful sexual violation by unlawful sexual connection. Those offences carry a maximum penalty of 20 years’ imprisonment. In addition, there is one charge of indecent assault on a boy aged between 12 and 16, two charges of doing an indecent act on a young person and one charge of inducing a boy aged between 12 and 16 to do an

indecent act with you, carrying maximum penalties of 7 years’ imprisonment. The final charge is one of doing an indecent act with the intention to offend or insult, with a maximum penalty of 2 years’ imprisonment.

[5] Complainant B was aged between 9 and 14 during the period of offending against him. The acts you committed against him included taking naked photos of him, touching his penis, masturbating him and having him masturbate you, performing oral sex on him, having him perform oral sex on you, and attempted anal intercourse. You overcame Complainant B’s reluctance to participate in these acts by offering money in exchange for sexual activities, and also providing him with alcohol…

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 Milligan

Details

AGLC: R v Milligan [2013] NZHC 118
Case: [2013] NZHC 118
Decision Date: 8 February 2013

CaseChat Overview and Summary

James Milligan was sentenced by Katz J in the High Court of New Zealand for multiple counts of sexual offences against two victims. The offences spanned from the 1960s to 2008. Milligan had pleaded guilty and accepted the sentencing indication provided by the court previously. The legal issues involved determining an appropriate sentence, considering the retrospective nature of some of the charges and the changes in sentencing levels for sexual offences over time. The court had to balance the purposes and principles of sentencing, including holding Milligan accountable, providing for the victims' interests, and denouncing and deterring the conduct.

The court began by noting the seriousness of the offending and the vulnerability of the victims. It then addressed the issue of retroactivity, noting that sentencing levels for sexual offences had changed dramatically since the 1960s. The court decided to impose concurrent sentences rather than cumulative ones, adjusting the sentence upwards to reflect the totality of the offending. The starting point for the sentence was set based on the most serious offence against the second complainant, with an uplift for the historical offending against the first complainant. The court declined to give discounts for good character and remorse but did afford a discount for Milligan's ill health and a guilty plea. The final sentence was 5 years and 9 months' imprisonment, to be served concurrently.

The final orders were that Milligan be sentenced to 5 years and 9 months' imprisonment for the charges of sexual violation by unlawful sexual connection and attempted sexual violation by unlawful sexual connection, 3 years' imprisonment for the charges of indecent assault on a boy under 16 and between 12 and 16, 3 years' imprisonment for the charges of doing an indecent act on a young person and inducing a boy to do an indecent act, and 1 year imprisonment for the charge of doing an indecent act with the intention to offend. All sentences were to run concurrently.

Orders