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R v Milne

R v Milne

Case [2019] NZHC 1703 19 July 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-2495

[2019] NZHC 1703

THE QUEEN

v

FRASER MILNE

Hearing: 19 July 2019

Counsel:

JJ Rhodes and FE Gourlay for the Crown MW Ryan for defendant

Sentenced:

19 July 2019

SENTENCING NOTES OF FITZGERALD J

Solicitors: Kayes Fletcher Walker, Auckland To: M Ryan, Auckland

R v Milne [2019] NZHC 1703 [19 July 2019]

[1] Mr Milne, as you know you are being sentenced by me today having pleaded guilty to one charge of injuring with intent to cause grievous bodily harm,1 four charges of injuring with reckless disregard,2 and one representative charge of dangerous driving.3

[2] I am first going to outline the facts of your offending. These facts will be well known to you and to many of those here in Court today. But it is important the broader public are aware of the basis upon which I am going to sentence you today.

Facts

[3] On 4 March 2018, you were driving in the Awhitu Peninsula. You knew the roads well. The victims were also driving in the area that day, on a family outing. They comprised a family of four (the two children who were then aged 12 and 10) and a family friend. The parents had emigrated to this country from China, but at that time, they had been living in New Zealand for 17 years.

[4] The speed limit in the area is 80 kilometres per hour. You were driving at around 100 kilometres per hour.

[5] Your and the victims’ vehicles approached each other on a hill and as they did so, you believed the victims’ vehicle had crossed the centre line into your side of the road. You swerved to avoid a collision, and as a result ended up driving into a drain and striking a fence. This caused some minor damage to your car.

[6] You became very angry at this point, as you believed the victims were at fault in causing the crash. You got your car out of the drain and drove after them. You overtook their car at speed, did a U-turn in front of their car, forcing them to stop. The father of the family, who was driving, and the family friend, got out of the car to talk to you. The family friend did so to translate between English and Mandarin. You demanded they pay for the damage to your car; and the father responded that it was

1      Crimes Act 1961, s 189(1). Maximum penalty of 10 years’ imprisonment.
2      Crimes Act 1961, s 189(2). Maximum penalty of 5 years’ imprisonment.
3      Land Transport Act 1998, s 35. Maximum penalty of either 3 months’ imprisonment or a $4,500 fine, and disqualification from driving for at least 6 months.

not their fault. You were shouting and swearing at them. You told them that you belonged to a gang. Worried, the two got back into the car and they drove…

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 Milne

Details

AGLC: R v Milne [2019] NZHC 1703
Case: [2019] NZHC 1703
Decision Date: 19 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, the case of R v Milne involved the defendant, Fraser Milne, who pleaded guilty to one charge of injuring with intent to cause grievous bodily harm, four charges of injuring with reckless disregard, and one charge of dangerous driving. The incident occurred on 4 March 2018, when Milne drove at excessive speed and believed the victims' vehicle had crossed the centre line into his side of the road. After a series of confrontations and aggressive behaviour, Milne chased the victims for around seven kilometres at speeds of over 140 km/h, deliberately hitting the back end of the victims' car, causing it to spin out of control and flip into the air. All five victims were hospitalised with various injuries. The court considered the aggravating factors of the offending, such as its prolonged nature, the use of a car as a weapon, and the impact on the victims. The court disagreed with the Crown's submissions that the offending was premeditated and racially motivated, instead characterising it as a serious road rage incident driven by extreme anger. The starting point for sentencing was determined to be four years and six months' imprisonment, which was then reduced by discounts for youth, remorse and offer of reparations, and the defendant's guilty plea. The final sentence imposed was two years and six months' imprisonment on the lead charge, with concurrent sentences on the remaining charges, and a total sentence of two years and six months' imprisonment. Additionally, Milne was disqualified from driving for a period of 12 months, to commence upon his release from custody.

Orders