Rogers-Millar v Police - [2014] NZHC 2433

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 Respondent

Judgment:

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…

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.

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Details

Case: [2014] NZHC 2433
Decision Date: 6 October 2014

CaseChat Overview and Summary

Dylan Benjamin Rogers-Millar has appealed against a sentence of 21 months' imprisonment imposed on him by the Christchurch District Court on charges including breach of sentence of community work, male assaults female, intentional damage, driving with excess blood alcohol, driving while disqualified, and operating a vehicle carelessly. The appeal grounds include that the sentence was manifestly excessive due to errors in the sentencing process, such as the failure to follow the Clifford sentencing methodology, setting an excessively high starting point for the assault charge, not giving adequate credit for a guilty plea, and not adjusting the sentence for totality. The appellant also argued that the sentencing judge erred by not imposing home detention. The legal principles governing sentence appeals require the High Court to allow an appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed. The Court must consider whether the sentence imposed is within the appropriate range and whether the error is material.

In considering the appeal, the court found that the sentencing judge had correctly assessed the gravity of the offending, particularly the serious nature of the assault, and the appellant's history of similar offending. The court also found that the judge had appropriately reduced the sentence by three months to reflect the appellant's guilty pleas, which adequately reflected the benefits of a guilty plea. The court concluded that the sentence was not manifestly excessive or disproportionate to the gravity of the overall offending. The court also found no error in the sentencing judge's decision not to impose home detention, given the seriousness of the offending and the appellant's poor response to community-based sentences in the past.

In conclusion, the appeal was dismissed, and the sentence imposed by the District Court was upheld. The court found that the sentencing judge had correctly applied the principles of sentencing and had not erred in imposing the sentence of 21 months' imprisonment.

Orders