R v Milner - [2014] NZHC 233

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…

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 Milner

Details

AGLC: R v Milner [2014] NZHC 233
Case: [2014] NZHC 233
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Helen Elizabeth Milner was convicted of murdering her husband, Philip James Nisbet, and of one count of attempted murder, but acquitted on another count of attempted murder. Milner was sentenced to life imprisonment for the murder and six years for the attempted murder, to be served concurrently. The court imposed a minimum non-parole period of 17 years for the murder, reflecting the premeditated and planned nature of the crime, as well as the callousness and breach of trust involved. The court found that the circumstances of the murder, including the calculated planning and the staging of the death to look like a suicide, warranted the imposition of the statutory minimum term of imprisonment. Despite the court acknowledging mitigating factors such as Milner's estrangement from her family and her history of mental health issues, these were not seen as sufficient to warrant a lesser term. The court also withdrew the three strikes warning given to Milner, acknowledging that the warning was not appropriate given that her offending took place before the introduction of the legislation.

The legal issues before the court were whether the circumstances of the murder warranted a minimum non-parole period of imprisonment of more than 10 years, and if so, whether the minimum term should be more than 17 years. The court considered the degree of culpability in relation to the standard range of murders, the policy behind the mandatory minimum term, and the totality of the offending. The court found that the murder involved calculated and lengthy planning, and that the statutory minimum 17-year term of imprisonment was appropriate. While the Crown argued for a higher minimum term, the court considered that any greater sentence would be unjust and disproportionate to the offending.

Orders