McMILLAN v NEW ZEALAND POLICE [2019] NZHC 3323

McMILLAN v NEW ZEALAND POLICE [2019] NZHC 3323 [16 December 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000163[2019] NZHC 3323BETWEEN CHRISTOPHER JOHN McMILLANAppellantAND NEW ZEALAND POLICERespondentHearing: 12 December 2019Appearances: E Huda for AppellantA M Harvey for RespondentJudgment: 16 December 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] On 10 October 2019, Christopher McMillan pleaded guilty to drugs andfirearms charges and was sentenced by Judge Gilbert to six months' home detention.[2] Four of the charges involved possession of controlled drugs and utensils andwere committed in Christchurch on 29 August 2018 (the Christchurch offending). Thebalance of the charges were for offences that were committed in Invercargill on6 May 2019 (the Invercargill offending). They comprised two charges for possessionof controlled drugs and utensils, and two charges for possession of a .22 calibre rifleand a sawn-off shotgun.[3] Mr McMillan now appeals his sentence on the grounds that:(a) the District Court Judge adopted too high a starting point for theInvercargill offending; and(b) the District Court was in error to uplift the starting point for his previousconvictions.Facts[4] On 22 August 2018 Mr McMillan was stopped in his car by police inChristchurch. A search was undertaken. Police located two meth pipes, a cannabispipe, a small "usable" amount of cannabis and four point bags containing "usablequantities" of methamphetamine. He was charged and released on bail.[5] On 5 May 2019 Mr McMillan travelled to Invercargill together with anassociate in a vehicle. They were reported to police as having been seen smoking froma glass pipe while in a McDonald's carpark. The police attended and a search of thevehicle was undertaken. It revealed a rifle bag which contained a stolen Ruger .22calibre rifle. Mr McMillan was arrested. When the vehicle was more thoroughlysearched, police found a loaded SKB 12-gauge semi-automatic shotgun which hadbeen cut down to 730 mm in length, and which is deemed a "pistol" under theArms Act 1983.1 The police also located 2.2 g of cannabis and 0.012g ofmethamphetamine in the vehicle along with three meth pipes.Mr McMillan's affidavit[6] Mr McMillan pleaded guilty to the charges. On 7 October 2019 Mr McMillanswore an affidavit for the purpose of providing evidence to the sentencing judgeregarding his level of involvement in the Invercargill offending. In it he explains thathis sister's partner, Pita Wilson, asked him to drive from Christchurch to Invercargillto talk to his sister, where she lived, about a rumour she was dating another male. Heexplains that Mr Wilson has gang connections and serious criminal convictions. He1 Arms Act 1983, s 2(1) definition of "pistol".says that Mr Wilson put his belongings, including the firearms, in his car on the frontpassenger side of the car.[7] When they arrived in Invercargill they stopped at the McDonald's carparkwhere he hoped to send a message via Facebook Messenger to his sister, warning herof their impending visit because he "did not want Pita to walk into my sister's homeand see another male in the house in circumstances where he had access to [a]sawn-off [sic] shotgun". However, because had no money he could not connect hismobile phone to the fast food store's WiFi. He then fell asleep and was woken bytwo female police officers who said they had seen someone in the car smoking drugsand who initiated the search which led to the charges. He states he does not acceptthat he was smoking methamphetamine while parked in the McDonald's carpark inInvercargill.District Court decision[8] Judge Gilbert took the Invercargill offending as the lead offending and adopteda starting point of 20 months' imprisonment. The features aggravating this offendingwere the presence of a sawn-off shotgun (which was immediately accessible andloaded ready for firing), the presence of drugs, and the fact that the offending occurredwhile Mr McMillan was on bail. The Judge applied an uplift of two months for theChristchurch-based offending.[9] Although the Judge acknowledged the previous convictions were not relevantto the current offending, he uplifted the sentence by two months saying it was to reflecthis previous convictions and the fact that he was on bail when he committed theInvercargill offending.[10] The Judge discounted the sentence by six months for Mr McMillan's guiltypleas. He then resolved to "factor in" the time spent on remand and the time on EMbail, seven weeks and three and a half months respectively, by making a final discountof six months. This brought the Judge to a nominal sentence of imprisonment of12 months.[11] The Judge considered that it was appropriate to impose a sentence of homedetention given Mr McMillan's positive pre-sentence report and the availability of asuitable home detention address. He thus imposed an end sentence of six months'home detention.2Principles on appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, "[an appellate] court 'will not intervene where the sentenceis within the range that can properly be justified by accepted sentencing principles'".4It is only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.5 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached".6SubmissionsAppellant's submissions[13] Mr Huda for Mr McMillan submits the Judge did not properly assessMr McMillan's level of involvement in respect of the Invercargill offending. He saysJudge Gilbert focused only on the gravity of the offending itself and not the degree ofculpability attaching to Mr McMillan.7 In assessing culpability Mr Huda says theJudge was required to "grapple with the affidavit evidence" which addressed theoffender's culpability under s 9(2)(d) of the Sentencing Act 2002. This subsection2 Being half of the nominal sentence of imprisonment and in accordance with the general approachof "halving" the nominal sentence, consistent with the automatic early-release provision forsentences of imprisonment of 24 months or less under s 86(1) Parole Act 2002.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Skipper v R [2011] NZCA 250 at [28].7 Sentencing Act 2002, ss 8(a) and 9(2)(d).provides that the sentencing court "must take into account", to the extent that isapplicable in the case, that "there was a limited involvement in the offence on theoffender's part".[14] He says the Judge's statement that he had: read some material which seeks to put some context around what occurredbut in my view whatever way it is cut you have pleaded guilty to possessionof these weapons and it is unquestionably serious and dangerous offending.was insufficient to meet this requirement.[15] While Mr Huda accepts Judge Gilbert was entitled to decide what weightshould be given to that evidence, there is no evidence that he made such anassessment.8 If the Judge rejected the evidence, he was required to expressly statethat. In failing to say what weight, if any, he put on the affidavit evidence, oralternatively, in failing to give reasons why he rejected that evidence, Mr Huda submitsthat the Judge has erred in not taking into account mandatory considerations underss 8(a) and 9(2)(d) of the Sentencing Act.[16] Moving to the starting point adopted, Mr Huda submits that, but for theaffidavit evidence, the starting point was, "while stern, within range", and he cites anumber of cases to illustrate this submission.9 However, he concludes:if this Court accepts [the affidavit evidence] as fact and decides to placeeven moderate weight on the facts found to exist, then the starting point forthe Invercargill-offending should be decreased by up to two months.[17] Mr Huda also submits that the Judge was wrong to make an uplift to accountfor Mr McMillan's previous convictions because they were not relevant to his presentoffending.10 In saying that, he cites Reedy v Police where I said:(a) the presence of previous convictions "in and of itself does not justifyan uplift";118 Citing s 24 Sentencing Act as to "proof of facts".9 Smith v Police [2014] NZHC 2196; Moore v Police [2015] NZHC 3113; and Gunning v Police[2019] NZHC 309.10 Sentencing Act, s 7(1).11 Reedy v Police [2015] NZHC 1069 at [18] and [19(a)]; at [18] and [19(b)]; and [18] and [19(c)].(b) an uplift for previous convictions must have "some relevance" to theprevious offending; and(c) any uplift must be proportionate to the starting point sentence.[18] Because the previous convictions were not relevant to this offending and sodid not warrant an uplift, Mr Huda says the nominal sentence, before the guilty pleadiscount, should be reduced by one month.[19] While these adjustments might only mean the end sentence is adjusted by onemonth he urges me to adjust it because the errors identified were errors in theapplication of the relevant sentencing principles.Respondent's submissions[20] Mr Harvey began by pointing out that in a busy District Court not every stepin the judge's thought process will be spelt out in the sentencing notes, and that thereal issue to consider is whether the end sentence is appropriate having regard to allthe relevant considerations.[21] He submitted that it is clear from the judgment that the judge did read theaffidavit evidence, but did not see it as warranting a reduction in sentence.Furthermore, Mr Harvey submits the affidavit evidence, in fact, makes Mr McMillan'soffending worse as:12(a) Mr McMillan was the driver of a vehicle, in which he knew firearmswere being stored, one of which was easily accessible (and loaded);(b) Mr McMillan agreed to be the driver despite his knowledge of hisco-offender's criminal background and the presence of weapons. Therewas no suggestion in the affidavit of duress, threats or actual violence;and12 Abridged.(c) Mr McMillan knew the purpose for visiting his sister was to force aconfrontation, where firearms might be needed.[22] Mr Harvey says the appellant appears to be shifting blame on to Mr Wilsonwithout acknowledging the pivotal role he played by driving Mr Wilson to Invercargillwith the firearms. There is nothing in the evidence which would warrant a reductionof two months from the starting point adopted.[23] Mr Harvey appears to accept that the Judge may have been better not to makeany uplift for Mr McMillan's criminal history (as part of his global two-month upliftfor criminal history and offending on bail). Notwithstanding that, he says it was opento the Judge to make an uplift of two months solely on the basis that the Invercargilloffending was committed while he was on bail for the Christchurch offending.[24] Mr Harvey submits that the six-month discount to reflect the three and a halfmonths spent on EM bail and the seven weeks spent in custody was generous. Henotes that in Longman v Police Simon France J said that it was far from inevitable thatan offender will receive any discount for a short period on EM bail.13 Mr Harveysubmits that Mr McMillan receiving a global discount of 50 per cent was generous.Thus, the end sentence of six months' home detention cannot properly be said to bemanifestly excessive.AnalysisApproach to appeals against sentence[25] The Court of Appeal has emphasised that a court should focus on the endsentence, not the path by which the end sentence was reached and, as I have recentlynoted, an appeal court should not engage in mere "tinkering".14 I do accept, though,that the Court of Appeal in Tutakangahau v R said:1513 Longman v Police [2017] NZHC 2928 at [13].14 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler vCommissioner of Inland Revenue [2017] NZHC 2888, (2017) 28 NZTC 23-044 at [16]; and Larkinv Ministry of Social Development [2015] NZHC 680 at [26].15 Tutakangahau, above n 4, at [36].[W]e need to acknowledge that there may be cases, although not common,where what has gone wrong as such as to require correction albeit the sentenceimposed is within range.[26] However, I note the Court there also indicated that the type of case where thatmight occur is where there is an arithmetical error on the face of the judgment whichwould have been corrected if it had been drawn to the attention of the sentencing Judgeat the time.16 In other words, the correction is intended to give effect to the sentencingjudge's intentions. The issue here is, first, whether there were errors in applying thesentencing principles and, second, whether they warrant adjusting the end sentence.Starting point[27] The cases cited by Mr Huda as to the appropriate starting point do not satisfyme that a 20-month starting point was out of range in the circumstances.17 A featureabsent in those cases but present in this case is what the Judge described as a "badcombination" of methamphetamine and firearms. I also consider the fact the weaponswere in a vehicle with them, rather than simply stored on a property, was anaggravating feature as it suggests a more immediate risk of their use.[28] The real issue raised by Mr Huda is whether the Judge erred by ignoring theaffidavit evidence as to the offender's involvement and therefore his culpability in theoffending and whether, on appeal, that warrants a lesser starting point.[29] The gist of Mr Huda's submission is that the Judge was entitled to considerand reject the evidence, but he could not simply ignore it which is what Mr Huda sayshe has done. However, I consider it is implicit that the Judge has considered theevidence but determined it does not warrant an adjustment to the starting point.[30] More importantly, though, I do not consider it limits the appellant's culpabilityor involvement in a way that would warrant a reduction of the starting point. AsMr Harvey for the Police notes, Mr McMillan knew what the purpose of driving hisco-offender to his sister's address was. It was not to be a friendly meeting andMr McMillan assisted him to get to the city where the confrontation would occur.16 Tutakangahau, above n 4, at [36].17 Smith v Police, above n 9; Moore v Police, above n 9; and Gunning v Police, above n 9.[31] While Mr Huda points to the Court of Appeal's decision in Zhang, which saysthat sentencing discounts may apply where an offender has acted under duress, shortof a full defence, or the undue influence of a person upon whom the defendant isdependent, such duress or undue influence is not evident from the affidavit filed.18Mr McMillan's affidavit simply states:9. On the evening of 9 May 2019, Pita asked me to drive him fromChristchurch to Invercargill. The purpose of the travel was for him tovisit my sister Ashleigh in relation to a rumour that she was datinganother male while remaining in a relationship with Pita. 10. Pita put his belongings, including the firearms, in my car. Thesawn-off [sic] shotgun was placed in and remained on thefront-passenger's side of the car where, as the Police Summary ofFacts records, the police found it. Then, I drove Pita, who was seatedon the front passenger seat, from Christchurch to Invercargillovernight.[32] In relation to Pita's gang connections Mr McMillan said he became a subjectto assaults, threats and demands for money which were as a result of Mr Wilsonreading a statement he made to the police where he confirmed that the items in the carbelong to Mr Wilson. However, this set of difficulties arose after the alleged incidentand as a result of making a statement about it. There is nothing in the affidavit tosuggest that Mr McMillan was an unwilling participant in the drive to Invercargill.[33] While there is also an addendum to the PAC report which suggests he was"ordered" to drive Pita to drive around Christchurch prior to this incident, none of thisis in the sworn affidavit which presumably was intended to present a full and accuratepicture to the Judge.[34] In my view, there is nothing in the affidavit evidence which would allow theCourt to characterise his culpability or involvement as limited. For these reasons, Iconsidered the 20-month starting point to be well within range and appropriate in thecircumstances.18 Zhang v R [2019] NZCA 507 at [154].Uplifts for personal circumstances[35] In relation to the claimed uplift for previous convictions, I accept that it isunclear why the Judge, having said they were not relevant, applied a specific uplift forthem. Furthermore, it is a relatively brief criminal history with all bar one convictionhaving occurred between seven to 13 years ago.[36] One possible analysis is that the Judge saw Mr McMillan's previousconvictions for breaching Court orders as being connected to, and informing, theaggravating factor of offending while on bail, rather than as a standalone uplift forprevious convictions, but I cannot be certain of that. That said, the uplift was acombined uplift of only two months for previous convictions and the fact of offendingwhile on bail. Given a two month uplift for the second tranche of offending occurringwhile on bail was itself appropriate, I am not prepared to nominally reduce this part ofthe sentence by, say, one month as Mr Huda urged me to do.Discounts for personal circumstances[37] The Judge gave a joint discount of six months for both time spent remanded incustody, and time spent on EM bail. That was to the appellant's benefit. Whiles 9(2)(h) provides that time spent on EM bail is mitigating factor personal to theoffender that must be taken into account, no allowance may be made for time spent incustody pre-sentence at this stage of the sentencing process.19 Thus, only the timespent on EM bail should have been factored in and such a discount should have beenmade to the starting point before reducing the end sentence to account for the guiltypleas.[38] The Judge's decision to adjust the starting point for the guilty pleas first, andto give a credit for time in custody was substantially in the defendant's favour.[39] Furthermore, the six month discount afforded for the seven weeks spent onremand and the three and a half months on electronically monitored bail, exceeded thecombined length of time spent in custody and on bail.19 Sentencing Act, s 82.[40] In Longman v Police, Simon France J considered a one-month discount fortwo and a half months spent on EM bail ("not a particularly long period of EM bail")was sufficient in terms of s 9(2)(h) Sentencing Act.20 Both the Court of Appeal andthis Court have in various cases determined that where restrictive EM bail conditionshave been imposed, a discount equating to less than half the time spent on EM bail isappropriate.21 In the present case, the time spent by Mr McMillan on EM bail wasthree and a half months. A maximum of a two-month discount would likely have beenappropriate. The time spent in custody was only relevant to the conversion of thesentence to one of home detention which I discuss further on.Guilty plea[41] Mr McMillan was afforded a full 25 per cent discount for the guilty plea.However, that was applied to the two year starting point, before the discount ofsix months for time spent in remand and on EM bail. Had it been applied to the endsentence of 22 months, which is the accepted approach, he would only have receivedfive months, not six months.Home detention[42] Home detention was appropriately determined as the sentence to be imposed.Discount for time spent remanded in custody[43] In Longman v Police, Simon France J considered the approach to making areduction to a sentence of home detention to account for time spent remanded incustody was to give full credit.22 He said, "full equivalence should be the norm".23This deduction is to be made from the nominal end sentence of imprisonment beforethe length of home detention sentence is set.2420 Longman, above n 13, at [13].21 Parata v R [2017] NZCA 48 at [12] and [15]; R (CA 528/16) v R [2017] NZCA 210 at [14];Wharrie v R [2019] NZHC 633 at [28]; and R v Rose [2017] NZHC 1488 at [46].22 Longman, above n 13, at [9].23 At [9], citing Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.24 See Longman, above n 13; and Parkinson v Police [2019] NZHC 1710 at [24].[44] Mr McMillan spent seven weeks and one day (50 days total) in custody beforebeing granted EM bail. Therefore, an appropriate deduction from his nominal endsentence of imprisonment would have been an equivalent period, but, for ease ofcalculation it can be treated as two months. However, as I have already noted, thisdeduction was applied much earlier in the sentencing process and was more generousthan the reduction he would have received at this stage.Sentence recalculation in light of adjustments[45] According to my above analysis, the sentence ought to have been arrived at isas follows:Starting point 22 monthsUplift for offending on bail 2 monthsDiscount for time on EM bail (2 months)Total before guilty pleas 22 monthsDiscount for guilty plea (5 months)Nominal sentence of imprisonment 17 monthsDiscount, time in custody (due to home detention) (2 months)Total before converted to home detention 15 monthsEnd sentence of home detention 7 and a half months[46] As will be apparent, the Judge's discounts were generous and as a result Iwould have imposed a longer end sentence of home detention. It is clear the Judge'send sentence was well within range and neither manifestly excessive nor inadequate.25Conclusion[47] Although I have identified discrepancies in the sentencing process, on balance,these have been in the defendant's favour and I am satisfied there was no error in theend sentence imposed by Judge Gilbert.25 Tutakangahau, above n 4, at [32]–[35].[48] The appeal is therefore dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchE Huda, Barrister, Christchurch