Rogers-Millar v Police
[2014] NZHC 2433
•6 October 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000087 [2014] NZHC 2433
BETWEEN DYLAN BENJAMIN ROGERS-MILLAR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 2 October 2014 Appearances:
PNM Brown for Appellant
M A Elliott for RespondentJudgment:
6 October 2014
JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Mr Rogers-Millar appeals against a sentence of 21 months’
imprisonment imposed by Judge Strettell in the Christchurch District Court on 12
August 2014 on the following charges:
(a) breach of sentence of community work;1
(b) male assaults female;2
(c) intentional damage;3
(d) driving with excess blood alcohol (third or subsequent);4
1 Sentencing Act 2002, s 71(1)(d). Maximum sentence of three months’ imprisonment or $1,000
fine.
2 Crimes Act 1961, s 194(b). Maximum penalty of two years’ imprisonment.
3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months’ imprisonment and
fine of $2,000.
4 Land Transport Act 1998, s 56(4). Maximum penalty of two years’ imprisonment, $6,000 fine and 12 months’ disqualification.
ROGERS-MILLAR v NEW ZEALAND POLICE [2014] NZHC 2433 [6 October 2014]
(e) driving whilst disqualified (third or subsequent);5
(f) operated a vehicle carelessly;6
[2] Mr Rogers-Millar appeals on grounds that the sentence imposed by Judge
Strettell was manifestly excessive due to the following errors:
(a) failing to follow the Clifford7 sentencing methodology;
(b) the starting point adopted for the male assaults female was too high; (c) failing to give appropriate credit for a guilty plea; and
(d) failing to adjust the sentence for totality.
[3] Mr Rogers-Millar also appeals on the ground that Judge Strettell erred in the exercise of his discretion when he decided not to impose home detention.
Background
Breach of sentence of community work
[4] On 21 October 2013 Mr Rogers-Millar was sentenced to 180 hours community work on a charge of driving with excess breath alcohol (third or subsequent).
[5] On 26 May 2014 Mr Rogers-Millar failed without reasonable excuse to complete the required number of hours of work within the period prescribed under s
58 of the Sentencing Act 2002.
[6] Mr Rogers-Millar had reported five times in total for his community work sentence since the commencement of that sentence. By 27 June 2014, Mr Rogers-
Millar had 152.5 hours outstanding.
5 Section 32(1)(a). Maximum sentence is two years’ imprisonment.
6 Section 37. Maximum penalty $3000 fine and may be disqualified.
7 R v Clifford, [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
Male assaults female; intentional damage
[7] On 22 October 2013 Mr Rogers-Millar was at his home, which was also the address of his partner, who is the victim here. Mr Rogers-Millar was dropped off at a friend’s house earlier in the night by the victim and had returned in an agitated and aggressive state.
[8] Prior to returning home, Mr Rogers-Millar rang the victim on numerous occasions throughout the evening and verbally abused her over the phone.
[9] After arriving home, Mr Rogers-Millar continued to verbally abuse the victim and followed her into their bedroom where a physical altercation ensued. Mr Rogers-Millar approached the victim and slapped her twice on both sides of her face with an open hand.
[10] Mr Rogers-Millar continued to assault the victim further by grabbing her around the throat and pushing her onto the bed before climbing on top of her, pinning her to the bed and punching her about the head with a closed fist twice. Mr Rogers-Millar remained on top of the victim verbally abusing her.
[11] The victim managed to free herself and went looking throughout the house for the phone so that she could call police. While doing this, Mr Rogers-Millar continued to follow her about the house yelling abuse.
[12] While the victim was outside on the phone talking to police, Mr Rogers-
Millar smashed the victim’s laptop and video game.
[13] As a result of the assault, the victim received swelling and bruising to her face, also bruising and grazes to her arms.
Driving with excess breath alcohol (third or subsequent); driving whilst disqualified
(third or subsequent); and operated a motor vehicle carelessly
[14] On 21 October 2013 Mr Rogers-Millar was convicted and disqualified from driving for a period of one year and one day starting that day.
[15] At about 8.00 pm on 25 January 2014 Mr Rogers-Millar was driving a motor bike in Christchurch. He drove the motor bike at approximately 80 kph, went up and onto a footpath where he lost control of the bike. He continued on to Keighleys Road where he skidded over the street and onto the verge, coming off of the bike and landing on the road.
[16] Keighleys Road is a 50 kph speed limit area, a two-way street and a residential area.
[17] Mr Rogers-Millar was subsequently involved in a vehicle crash and a blood sample was from him. It returned a positive blood result of 239 milligrams of alcohol per 100 milligrams of blood.
[18] When spoken to by the police, Mr Rogers-Millar admitted to drinking alcohol and driving the bike at a high speed. He gave no explanation.
Judge Strettell’s decision
[19] Mr Rogers-Millar pleaded guilty to all these charges and came before Judge
Strettell on 12 August 2014.
[20] Judge Strettell identified the assault charge as the most serious one faced. That offence took place on 22 October 2013, and Mr Rogers-Millar entered a guilty plea on 27 February 2014. At the same time, he pleaded guilty to a charge of intentional damage against the same complainant.
[21] Judge Strettell took into account the following aggravating factors for the assault offence:
(a) the assault was a serious one with repeated and sustained violence over a period of time where Mr Rogers-Millar was in complete control of the victim;
(b) the victim was not capable of defending herself; and
[22] Judge Strettell took into account the following aggravating factors for the excess breath alcohol offence:
(a) Mr Rogers-Millar has four previous convictions for this type of offending; and
(b) his level on this occasion was four times the permitted level; (c) his last appearance was only in September 2013; and
(d) on the last occasion he also drove whilst disqualified.
[23] Judge Strettell took into account for the breach of community work that Mr
Rogers-Millar has six previous breaches of community work.
[24] When approaching an appropriate starting point, Judge Strettell took into account the purposes and principles of sentencing:
(a) the capacity for rehabilitation; (b) denunciation;
(c) deterrence; and
(d) accountability.
[25] He also approached the issue of whether Mr Rogers-Millar could comply with a community-based sentence. He had regard to:
(a) Mr Rogers-Millar’s poor history of compliance with sentences of
community work;
(b) the totality of offending;
(d)the need for Courts to provide in appropriate cases indications to the general public that offending of this type is not acceptable and that deterrent sentences will be imposed.
[26] For the charge of assault, Judge Strettell adopted a starting point of nine months’ imprisonment. He imposed an uplift of three months’ imprisonment for the four previous like offences, all relatively recent. He imposed a concurrent sentence of three months with respect to the intentional damage charge.
[27] In relation to the second series of offences relating to the driving offences and the breach of community work offence, Judge Strettell imposed:
(a) a cumulative sentence of three months’ imprisonment for the driving
with excess breath alcohol offence;
(b) a cumulative sentence of three months’ imprisonment for the driving
whilst disqualified; and
(c) a cumulative sentence of three months’ imprisonment for the breach of community work.
[28] This brought the adjusted starting point to one of 24 months’ imprisonment. Judge Strettell allowed a discount of three months for guilty pleas. This brought the end sentence to one of 21 months’ imprisonment imposed the following way:
(a) twelve months’ imprisonment for the male assaults female charge;
(b)three months’ imprisonment concurrent for the intentional damage charge, and reparation of $410, doctor’s fees of $343 and ESR fees of
$93;
(c) three months’ imprisonment cumulative for the excess breath alcohol and indefinite disqualification under s 65 of the Land Transport Act
1998;
(d) three months’ imprisonment cumulative for the driving whilst
disqualified and disqualification period of 12 months;
(e) convicted and disqualified for 15 months for careless use, but to remain indefinitely disqualified under s 65; and
(f) three months’ imprisonment cumulative for the breach of community
work.
Legal principles governing an appeal
[29] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act
2011 provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[30] The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957. Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011
include:8
8 Tutakangahau v R [2014] NZCA 279 at [26]-[36].
(a) Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.
(b)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.
(c) The practical effect of preserving the previous approach is that the appeal court does not start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.9 If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.
(d)In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.
(e) Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).
(f) The focus in sentence appeals remains on whether the sentence imposed is within range rather than the process by which the sentence was reached. In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).
Analysis
[31] As I have noted above, Mr Rogers-Millar brings this appeal on the grounds that the end sentence imposed here resulted in a sentence that was manifestly
excessive because:
9 R v Shipton [2007] 2 NZLR 218 (CA) at [139].
(a) of failure to follow the Clifford10 sentencing methodology;
(b)the starting point adopted for the male assaults female charge was too high;
(c) a greater discount should have been applied for the early guilty pleas;
and
(d) the end sentence should have been adjusted for totality.
Sentencing methodology
[32] Mr Rogers-Millar says that Judge Strettell erred in the way he undertook the sentencing approach. He cites Clifford as the proper approach Judge Strettell should have taken.
[33] The Court of Appeal in Clifford reiterated the Supreme Court’s three-stage approach to sentencing as:11
(a) Step one: starting point involving the assessment of the gravity of the offending, including any mitigating or aggravating factors relating to the offence.
(b)Step two: making allowance for personal aggravating and mitigating factors, including what the Supreme Court called “extraordinary remorse”.
(c) Step three: a discount for a guilty plea if the offender has pleaded guilty. This should take into account the factors mentioned in Hessell (SC) but should not exceed the maximum level of 25 per cent
prescribed.
10 R v Clifford, [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
11 R v Clifford, [2011] NZCA 360, [2012] 1 NZLR 23 at [60].
[34] This ground of appeal must ultimately fail. It is well-established that an appellate Court should not interfere with a sentence imposed by a District Court Judge unless the sentence is manifestly excessive or wrong in principle.12 In particular, the Court should not substitute its own opinion for that of the sentencing Judge.13 Whether a sentence is manifestly excessive is to be considered by reference to the sentence imposed rather than the process by which the sentence was reached.14
Starting point
[35] Mr Rogers-Millar says that the starting point adopted by Judge Strettell for the male assaults female charge was too high. Judge Strettell adopted a starting point of nine months’ imprisonment and then imposed a three month uplift for previous convictions. Mr Rogers-Millar says that a starting point of six months’ imprisonment with an uplift of three months for previous convictions would have been more appropriate.
[36] This ground of appeal must also fail. This was a serious assault and, although a starting point of nine months was stern, in my view it was not inappropriate here. On these aspects Judge Strettell was entirely correct when he took into account:
(a) the assault was a serious one with repeat and sustained violence over a period of time;
(b) the victim was not capable of defending herself; and
(c) Mr Rogers-Millar has a history of similar offending.
[37] The authorities have noted that it is difficult to compare the different circumstances that arise in cases involving charges of male assaults female. In the present case, counsel referred me to the decision of the Court of Appeal in R v Reihana.15 There a sentence of 10 months imprisonment was halved on appeal to
one of five months’ imprisonment. The defendant had punched his victim only once
12 R v Brooks [1950] NZLR 658 (CA) at 659; R v Radich [1954] NZLR 86 (CA) at 87.
13 Wells v Police [1987] 2 NZLR 560 (HC) at 565.
14 R v MacCulloch [2005] 2 NZLR 665 (CA) at [50].
15 R v Reihana [2003] NZLJ 286; 26 TCL 27/3.
causing a significant injury. In the present case however more serious and prolonged violence was involved. Mr Rogers-Millar struck the victim four times and grabbed her throat (itself a potentially life-threatening act) whilst pinning her down at the time.
[38] In my assessment, a starting point of nine months’ imprisonment on the assault charge was within the appropriate range available to Judge Strettell in all the circumstances of this case.
Early guilty plea
[39] I am also satisfied here that it was open to Judge Strettell to reduce Mr Rogers-Millar’s overall prison sentence by only three months to reflect his guilty pleas. This equated to about a 12.5 per cent discount. The guilty plea for the assault charge was not entered until February 2014 following earlier appearances on 22
October 2013, 10 and 16 December 2013, 27 January and 10 February 2014. A 12.5 per cent discount adequately reflects the benefit in saving costs associated with a defended hearing and the social utility benefits for witnesses, especially the victim in this matter, who is not required to give evidence.16 Judge Strettell was not required to allow any greater discount for the late guilty plea.
[40] Accordingly, I believe that the final sentence on the male assaults female charge for Mr Rogers-Millar was the 12 months’ imprisonment appropriately imposed by Judge Strettell here.
Totality
[41] Section 85 of the Sentencing Act states:
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
16 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
[42] The essence of the totality principle is that, in arriving at the appropriate sentence for several offences, the sentencing judge must not only consider each offence individually, but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct.17 As a general rule, cumulative or consecutive sentences should not be such “as to result in an aggregate term wholly out of proportion to the gravity of the offences, viewed as a whole”.18
[43] Where cumulative sentences are imposed, some may need to be shorter than would otherwise be appropriate for the offence, so as to make the overall sentence length fairly reflect the totality of the offending. However, the courts have avoided adjusting accumulated sentences to give effect to the totality principle where the reduction would mean the individual sentences no longer reflected the seriousness of the offending.
[44] In the circumstances of this case, I have not been brought to the position where I can conclude that the sentence was outside the range available to Judge Strettell. In my assessment, in giving his decision he correctly had regard to:
(a) Mr Rogers-Millar’s poor history of compliance with sentences of
community work;
17 R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47; R v Dodd [2013] NZCA 270 at [32]-[33].
18 R v Bradley [1979] 2 NZLR 262 (CA) at 263.
(b) the totality of the offending;
(c) the frequency of the offending; and
(d)the need for Courts to provide in appropriate cases indications to the general public that offending of this type is not acceptable and that deterrent sentences will be imposed.
[45] It has not been contended for on appeal that the imposition of cumulative sentences for each of the offences was not a legitimate approach for the sentencing Court to take. The maximum total sentence on all the offences involved that was available to the sentencing Judge was one of six years and six months’ imprisonment. The ultimate sentence imposed was about one-third of that.
[46] In my assessment, the end sentence did not result in an aggregate term wholly out of proportion to the gravity of the offending when viewed as a whole. Any reduction for the sequence of driving offences would mean the individual sentences no longer reflected the seriousness of that overall offending.
Home Detention
[47] I have carefully considered whether or not a sentence of home detention should be imposed on Mr Rogers-Millar. Ultimately I have concluded that because of the seriousness of his previous offending, his poor response in the past to community-based sentences and the overall seriousness of his current offending, home detention is not an appropriate sentence in this case. I see no error in the conclusion Judge Strettell reached when declining to impose a sentence of home detention on Mr Rogers-Millar.
Conclusion
[48] For all the reasons outlined above, this appeal is dismissed.
...................................................
Gendall J
Solicitors:
Public Defence Service
Raymond Donnelly & Co, Christchurch
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