R v Mills HC Palmerston North CRI 2009-054-3808

[2010] NZHC 1064

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-054-3808

THE QUEEN

v

JAMES ANDREW MILLS

Hearing:         16 June 2010

Counsel:         B D Vanderkolk for Crown

P S Coles for Accused

Sentence:       16 June 2010

SENTENCING OF RONALD YOUNG J

[1]      James  Andrew Mills  you  are  now  for  sentence  having  pleaded  guilty  to murder.  In the days before the killing your partner and the deceased exchanged text messages  regarding drugs  and  $140.    It  seems  that  your partner  had  given  the deceased $140 to purchase some drugs.  The claim was that the deceased had neither supplied the drugs nor returned the money to her.

[2]      During the afternoon of 4 September 2009 the deceased, Mr Faulkner said he was coming round to you and your partner’s address.  He was invited to do so.  You were inside the house armed with a sawn-off rifle.  The rifle was originally a “Lee Enfield” .303 rifle that had its barrel replaced with a 7.62 millimetre barrel.  You had

extensively modified the firearm, the barrel was cut down, the stock removed and the

R V JAMES ANDREW MILLS HC PMN CRI 2009-054-3808  16 June 2010

pistol grip added.  The firearm did not have a magazine but you had a live bullet in the firing chamber.

[3]      When  Mr Faulkner  entered  the  house  and  closed  the  front  door  he  was unarmed.  There was a brief angry exchange.

[4]      Your counsel’s submissions say that shortly after entry you were pushed by the deceased.   You then fired once.   The bullet ultimately entered Mr Faulkner’s upper chest.  It disrupted a main artery and vein and nerves and exited at the top of his chest.  It splintered the upper part of his arm bone.

[5]      The   forensic   examination   showed   that   Mr Faulkner   must   have   been crouching when he was shot.   Immediately afterwards his left arm was not functioning, but there was a struggle and he managed to get the firearm off you.  He was bleeding heavily.  He left the building taking the firearm with him but shortly afterwards he collapsed and then died.

[6]      That  afternoon  you  visited  the  Palmerston North  police.    You  gave  an interview describing how a drug deal had gone sour and you admitted shooting Mr Faulkner.   You claimed then that Mr Faulkner had brought the cut down rifle with him to the address but that was soon found to be untrue.   You then claimed there  was  a physical  struggle between  you  and  Mr Faulkner  and  suggested  self defence but save for the push now described that was also untrue.

[7]      As to your previous convictions you do have a history of previous criminal offending but it is not extensive.  You have been to prison from time to time but I intend to say more about your past later in these remarks.

[8]      The pre-sentence report records that you have been on an invalid’s benefit and you are a long term recipient of Accident Compensation since 1997.   Tests conducted by Corrections indicate you have a harmful pattern of drug use and it is clear at that time you are spending significant amounts of money on drugs.

[9]      The  question  that  I  have  to  decide  today  is  in  addition  to  the  life imprisonment sentence that I must impose what minimum period of imprisonment should be imposed.

[10]     As to the facts the Crown emphasise that you shot Mr Faulkner over a $140 drug deal.  It did not involve you and you had never met Mr Faulkner beforehand. The Crown say that the aggravating features include:

a)       pre-meditation – the fact that you had the firearm and the ammunition and knew that Mr Faulkner was coming to your property;

b)        secondly that the crime was senseless and irrational over a dispute of

$140 that was not even your money.  Mr Faulkner was unarmed and cowering when you shot him; and

c)       that  you  committed  the  offence  while  subject  to  a  sentence  of community work and intensive supervision and also while you were on bail.

[11]     The Crown also mention your conviction for possession of explosive devices which was as a result of a search warrant of your unit after the murder, possession of a knife in 2004 and possession of explosives in 1999.

[12]     The Crown acknowledge you pleaded guilty and accept you are entitled to a deduction for that.   They point out you pleaded guilty in May 2010.   You were charged in September 2009 and committed for trial in December 2009.

[13]     The Crown say that a starting point of a minimum sentence of 12 years’ imprisonment is appropriate.  An uplift for personal aggravating features is justified and accept a deduction for your guilty plea is also appropriate.

[14]     I take into account Mr Coles’ written and oral remarks.   He submits the appropriate minimum period is 10 years.  As to the facts the failure to repay the $140 which is said to have been rent money he submits caused significant stress for you and threats of violence from your landlord.   You claim that the firearm had been

made ready in case someone on behalf of the landlord offered you violence.  If it is true the use and possession of a firearm is of course an extreme reaction.  Frankly I doubt the credibility of that claim.

[15]     He says that you had taken all of your prescription drugs and you were agitated at the time.  You had possession of the firearm to get the $140 returned to you.  He says there was a brief argument, a push by the deceased and then you fired the gun.

[16]     I have made it clear to counsel I do not consider that your partner’s presence or otherwise is relevant to sentencing which was a fact in dispute and I accept because the Crown cannot establish otherwise that when you held the gun before you shot the deceased that he pushed you.

[17]     Your counsel submits that any pre-meditation was not a pre-meditation to kill but to threaten; that there was some interaction before the shooting; that you do not have a bad list of previous convictions; and that there is nothing in this case of murder as having special features justifying greater than the 10 year minimum.

[18]     The law says that I should order a minimum term of imprisonment of at least

10 years but a further term may be imposed to hold you accountable for the harm done to the victims and the community to denounce your conduct, to deter others and to protect the community.

[19]     This was a mindless piece of violence.  You shot an unarmed man who had been tricked into coming into your house.  You did not know him at all.  All you knew was that there was a dispute between your girlfriend and him over $140 of drug money.  And so you killed him for a disputed $140.  You shot him showing no mercy while he was cowering in the corner of the room.   You shot him with a powerful weapon and you killed him.

[20]     I take into account the severe impact on the victims.  They of course have lost a son, a brother, a father and a friend.  I acknowledge the deep loss the victims have suffered.

[21]     The relevant features in terms of a minimum period of imprisonment are:

a)       firstly there was pre-meditation.   You tricked him into coming into your house.  You were ready for him with a loaded firearm.  You may not have planned to shoot him but you planned to threaten him with a loaded gun.  Of course if you had no intention of using the gun then there would have been no reason to have had it loaded.  You shot him shortly after he arrived;

b)you used a gun you had developed explicitly for illegal use with a sawn off barrel and a new barrel and pistol grip;

c)       you committed the crime while you were subject to a rehabilitative sentence illustrating and underlining the need for public protection.

[22]     These factors convince me that the proper starting point as to a minimum period is 12 years.  I uplift that by one year to 13 years given you were on bail at the time  of  this  offending  for  other  serious  offending.    You  pleaded  guilty  after committal but before trial.  You are entitled to a deduction for that plea but it was not at the earliest opportunity.  I accept the probation officer’s report that you are now remorseful.  I deduct from that 13 years starting point therefore two years to reflect that guilty plea.  The minimum period of imprisonment will be 11 years but the real

sentence is one of life imprisonment which I now impose.

Ronald Young J

Solicitors:

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North

Email:  [email protected]
P S Coles, Barrister, Palmerston North