R v Milner
[2014] NZHC 233
•20 February 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2011-009-012580 [2014] NZHC 233
THE QUEEN
v
HELEN ELIZABETH MILNER
Hearing: 20 February 2014
Appearances: B M Stanaway and K J Basire for Crown
R G Glover, M I Sewell and A Kelland for Prisoner
Judgment: 20 February 2014
SENTENCING REMARKS OF GENDALL J
[1] Helen Elizabeth Milner, at trial a jury found you guilty of murdering your husband, Philip James Nisbet and also found you guilty of one count of attempted murder. You were acquitted on one count of attempted murder. Pleas of not guilty were entered to all charges you faced. You now appear for sentence.
[2] Ms Milner, it falls to me today to pass the only sentence that I can and that is one of life imprisonment. The only real issue I need to determine here is the length of the minimum term that you must serve before you are eligible to apply for parole.
[3] Before getting into the detail of my remarks can I please begin by acknowledging the presence of everybody here today. To the family and friends of the victim in this case Philip Nisbet, who was tragically taken from you at the age of
47 years, nothing I can say or do can ever replace your loss. You have lost a dearly loved father, son, brother, friend and relative. Nothing I say or do can change that
but the sympathy of this Court is with you all.
R v MILNER [2014] NZHC 233 [20 February 2014]
[4] Equal, or certainly shared, participants in the tragedy that this case amounts to Ms Milner are your own family and friends. All of you too in a way are victims because in part you share the shame of what Ms Milner has done. You understand the grief that she has caused. You have had your family member and friend, Ms Milner, taken away for a period too, but not forever as she has taken her husband Mr Nisbet away. I acknowledge on behalf of the Court your grief as well. In some way you are also victims in this whole affair.
Facts
[5] I turn to the facts of this case. It is unfortunately necessary during a sentencing process such as this for me to go into the facts again. I realise that this means that you members of the wider family will be re-living, not only the horror of the murder itself, but also the trial. Unfortunately, this is unavoidable.
[6] Ms Milner, the verdicts showed that you planned to kill your husband by poisoning him with Phenergan, attempted on one occasion to do so, then did so and after that, staged his death as a suicide. The attempted murder of which you have been found guilty occurred on 15 April 2009. The actual murder occurred on the evening of 3 May 2009. On both occasions you purchased Phenergan, once on
15 April 2009 and secondly on 2 May 2009. You used false names on each occasion to avoid detection. You then covertly administered the drug to your husband on
15 April 2009 and again on or about 3 May 2009.
[7] Previously, Ms Milner you had told many people of your desire to kill your husband to be rid of him. It is rare for this to occur. Whether your statements were seriously intended or merely figments of your imagination, or simply musings as the Crown says is unclear. On the Crown theory of this case, however, you may have “talked yourself into killing your husband” over a period of time simply for financial gain and to end your relationship, and that you undertook this after the expiry of the insurance suicide clause.
[8] Death by poisoning has always been seen as amongst the most despicable of crimes,1 often involving motive, premeditation, planning, subterfuge and an unsuspecting innocent victim. All are present in this case. Mr Nisbet was particularly innocent with no clear indication other than a monetary motive, why he was killed. There is no real suggestion of domestic violence on his part against you Ms Milner or any other customary explanation for his death in these circumstances.
[9] As to planning to conceal the murder Ms Milner, after you administered your husband with the Phenergan overdose, you staged his death to look like a suicide. In doing so you created a false text message sent from your husband’s phone to your own phone. You typed at least two suicide notes, one of which had your husband’s signature and when that signature was questioned another one which did not have his signature. There was no real reason for your husband to commit suicide so you invented a reason why he might do so, this being that he found out that Ben was not his biological son. To advance this fabrication you sent emails to family members claiming that DNA testing had shown that Ben was not Mr Nisbet’s biological son, in callous disregard of the implications of this and how it would be received.
[10] The crown has said the audacity and level of your post-murder planning and activity here is commensurate with your pre-murder planning and activity. Clearly it shows a carefully thought through and activated plan to murder your husband Ms Milner and to escape culpability by staging a suicide. I agree.
Impact on Mr Nisbet’s friends and family
[11] This is always a distressing component of a trial. A life was taken, needlessly. Parents, children, siblings, other relatives and friends have been left without a loved one.
[12] Numerous victim impact statements are before the Court. I have carefully read them all. Almost all of them have been read today. They have all been prepared
with enormous thought and care.
1 R v Bouwer CA 431/01 at [37].
[13] The statements speak of the loss that has been suffered as a result of your actions, Ms Milner. They explain not only the emotional impact of the loss of a father, son, brother, uncle and friend, but also of the huge toll this has taken on the family over an extended period, including the financial consequences.
Your circumstances
[14] I turn now to consider your circumstances Ms Milner. You are 50 years old. You are a diabetic. Sadly, you have been estranged from your family for a number of years, even prior to the murder. You have a previous conviction for theft as a servant from your employer at the same time as this offending. Subsequent to this offending, you have a conviction for perverting the course of justice, which resulted in one of your sons spending a period of time in prison.
[15] The pre-sentence report has indicated that you have issues or problems to deal with including depression, anxiety and occasional panic attacks, a propensity towards violence, relationship difficulties and an unhelpful lifestyle balance. It was noted that you showed no remorse at the loss of your husband and that you continue to deny involvement in the offending. It also suggested that premeditation and planning had gone hand in hand with every offence committed by you in the past.
Psychiatric Report
[16] A psychiatric report dated 17 February 2014 is before the Court. Ms Milner, this report indicates that you have a long history of difficulties with interpersonal relationships. Again it notes you are estranged from your family. You have a history of depression and anxiety symptoms for which you have received treatment on an ongoing basis. You have stated that you experienced difficulties with your early upbringing. The report notes however that essentially Ms Milner you present as settled in your mental state with no evidence of ongoing symptoms of a mood disorder or psychosis. The report states that there is no indication that your actions here were directly or substantially driven by active symptoms of major mental illness.
Sentence
[17] I turn now to the sentence I am required to impose. For murder I must impose a life sentence unless that sentence would be manifestly unjust. Of course there is no issue here about such a sentence being manifestly unjust and your counsel Ms Milner has accepted that there is nothing in this case to displace the presumption of life imprisonment on the count of murder.
Minimum period of imprisonment
[18] Under s 103(2) Sentencing Act 2002 you must serve at least 10 years as a minimum period of imprisonment before becoming eligible for parole. And, where the circumstances of the offending are sufficiently serious a minimum of more than
10 years can be imposed.
[19] However, if in a case such as the present, the circumstances of the murder fall within those specified in s 104 Sentencing Act 2002 the Court must impose a minimum period of imprisonment of at least 17 years. This is a mandatory requirement although there is a discretion to impose a lesser term limited to cases where it would be manifestly unjust to impose a sentence of 17 years. The purpose of this requirement introduced by Parliament into our law in 2002 is to ensure a very
substantial minimum term of imprisonment for the most serious murders.2
[20] People sometimes confuse the minimum term of imprisonment that the Court is required to impose with a sentence of life imprisonment. The minimum term of imprisonment is not the sentence that a person must serve. It is the time that he or she must wait before he or she is entitled to apply for parole. A person who is sentenced to life imprisonment is subject to recall to prison for the rest of their life if they offend again after being released on parole. It is a matter entirely for the Parole Board to determine when a person should be released on parole from a sentence of life imprisonment.
[21] Turning now to the relevant part of s 104 Sentencing Act, this provides that unless it would be manifestly unjust to do so, a minimum non-parole period of 17
years must be imposed “if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another.”
[22] In considering the possibility of a minimum term of imprisonment here I adopt the approach outlined in 2005 by the Court of Appeal.3 This approach requires me to consider first your degree of culpability in this case Ms Milner in relation to that found in the “standard” range of murders having regard to aggravating and mitigating factors. This is to bear in mind the policy behind s 104 that in general the presence of any of the specified circumstances will justify a minimum non-parole period of at least 17 years.
[23] The Crown submits here that the circumstances of this case clearly fall within s 104(b) of the Sentencing Act being a murder that involved calculated and lengthy planning and thus it justifies a minimum period of imprisonment of 17 years.
[24] Particular aspects that the Crown relies upon are:
(a) What it says is the substantial premeditation and planning of this murder with the repeated purchase of Phenergan under false names and the covert administration of this drug to Mr Nisbet on at least two occasions;
(b)The callousness of the killing and the breach of trust involved, the monetary gain motive, together with the planning, subterfuge and administration of the substance to your unsuspecting and innocent husband;
(c) The earlier attempt to murder Mr Nisbet and later the premeditation and planning to conceal the actual murder involving the various suicide notes and the fabricated reason for the alleged suicide that Ben was not Mr Nisbet’s biological son;
(d)The audacity and level of both pre-murder and post-murder planning and activity here which shows a carefully thought through and activated murder planned over a reasonably lengthy period of time.
[25] In response, your counsel Ms Milner contends that this is a case where a lesser minimum non-parole period than 17 years should apply. It is suggested that there was nothing in the present murder to distinguish it from most domestic murders and your relative culpability Ms Milner is not high.
[26] I disagree. In my view there could hardly be a clearer case of calculated pre- planning and premeditation than the case, which is before me. And, in my view there are no mitigating features of your offending here, nor have you indicated any insight into that offending or remorse Ms Milner. I consider that without question, s 104 must apply in this case, and the minimum term I am to impose therefore must be 17 years.
[27] As to the second enquiry to be made under s 104, I do not consider that there are any special or mitigating circumstances here to show that the statutory minimum
17 year sentence would be manifestly unjust in this case. The features of this murder which I have outlined already are sufficiently serious to justify the minimum 17 year term of imprisonment. This was a carefully planned and calmly executed murder it seems for financial gain, following an unsuccessful attempt less than some three weeks earlier.
[28] That brings me to the final question as to whether the minimum period of imprisonment should be higher than 17 years. The Crown says it should be at least
18 years taking into account the pernicious nature of this offending, your planning Ms Milner to conceal the murder including the claim that your husband committed suicide because his son was not his biological son (later confirmed by DNA testing that Mr Nisbet’s son was his biological son) and the nature of the post-murder planning and activities. In addition, your previous convictions were referred to, these being for theft as a servant and for perverting the course of justice. Although these were not seen as personal aggravating features here but rather the Crown says they should negative any suggestion of a discount for prior good conduct.
[29] A number of cases have been referred to by counsel including R v Bouwer where under the previous law (where the s 104 minimum 17 year period of imprisonment did not apply) a sentence of imprisonment of 13 years imprisonment was uplifted to 15 years by the Court of Appeal on appeal by the Solicitor-General.4
In that case Mrs Bouwer was poisoned by her husband who was a medical practitioner practising and teaching as a psychiatrist at the Dunedin School of Medicine. Over a period of some months Dr Bouwer falsified prescriptions, and administered the medicine to his wife. She was admitted to hospital on several occasions. He allowed her to undergo a completely unnecessary operation and she died from his actions after a period of some weeks being ill. Although the offending in the present case is in some respects comparable to the offending in Bouwer there are points of distinction and in my view Dr Bouwer’s level of culpability for his offending in the circumstances of that case could be seen as somewhat higher than yours here, Ms Milner. Although Dr Bouwer’s final sentence was 15 years he was sentenced under a previous regime, and I have little doubt that, had s 104 applied at the time of his sentencing, the outcome would have been a minimum period of imprisonment well in excess of the 15 years imposed.
[30] Counsel for the Crown here also referred to a recent English case of R v Singh.5 In that case, an ex lover poisoned her former partner and his fiancé using a poison she purchased in India. She placed the poison in a curry without their knowledge. Her former partner died from the poisoning while his fiancé recovered. In that case, a minimum period of 23 years imprisonment was imposed and on appeal this was upheld by the English Court of Appeal. The relevance to the case before me, of this decision given in England under the sentencing regime prevailing there, must be questionable however. For present purposes therefore, I leave this
case to one side, but I do note that it does illustrate the seriousness with which murder by poisoning is generally regarded both in New Zealand and elsewhere.
[31] Taking into account all these matters and weighing up all relevant factors here in my view the appropriate minimum period of imprisonment in this case
4 R v Bouwer HC Dunedin T70/01, 7 December 2001; overturned on appeal in R v Bouwer
CA418/01-CA431/01, 24 June 2002.
5 R v Singh [2010] EWCA Crim 2951.
should be 17 years. I have considered whether I should uplift this to take into account any particularly aggravating features or to reflect the totality of the offending but I consider that any greater sentence of a non-parole period would be unjust and disproportionate to the offending here.
[32] Now Ms Milner would you please stand and I will impose sentence.
Sentences imposed
[33] For the murder of Philip Nisbet, Ms Milner you are sentenced to life imprisonment. You are to serve a minimum of 17 years imprisonment.
[34] For the attempted murder of Philip Nisbet, Ms Milner you are sentenced to six (6) years imprisonment to be served concurrently with your life sentence.
[35] You are subject to the three strikes legislation and I am now going to give you a first warning.
[36] Given your conviction for murder and attempted murder you are now subject to the three strikes law. I now give you a warning of the consequences of another serious violent conviction. You will also be given a written notice which contains a list of these serious violent offences. If you are convicted of any one or more serious violent offences, other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
[37] Stand down please.
...................................................
Gendall J
Addendum
[38] At the conclusion of this sentencing and once court was adjourned it was drawn to my attention that the three strikes legislation warning given to Ms Milner in this case was not appropriate given that her offending took place in 2009 before the introduction of this legislation.
[39] I regret the mistake made in that regard.
[40] Accordingly I now confirm that it was inappropriate for any three strikes warning to be given. That warning is now withdrawn.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
M Sewell and R Glover, Christchurch
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