MILNE v NEW ZEALAND POLICE [2022] NZHC 1227

MILNE v NEW ZEALAND POLICE [2022] NZHC 1227 [30 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-105[2022] NZHC 1227BETWEEN EDWARD MILNEAppellantAND NEW ZEALAND POLICERespondentHearing: 30 May 2022Appearances: S P Dickson for appellantJ G Fenton for respondentDate of judgment: 30 May 2022ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:S P Dickson, Barrister, HendersonKayes Fletcher Walker, Manukau[1] Edward Milne appeals his sentence imposed by Judge Jelaš on 30 March 2022at the Manukau District Court.1 Her Honour sentenced Mr Milne to eight and halfmonths' imprisonment and imposed special release conditions.2Background[2] Early in the morning of 10 October 2021, with an associate, Mr Milne hadforced the padlock on a roller door at a central Auckland hotel's garage. He made hisway into the hotel's restaurant and took property — primarily alcohol — with a valueof $944 from its kitchen's dry stock room. Mr Milne pleaded guilty to a single chargeof burglary.3Decision on appeal[3] Without citing any authority for her choice, Judge Jelaš took a starting point of10 months' imprisonment.4 Her Honour considered imprisonment was the leastrestrictive outcome in the circumstances given Mr Milne's continued threat to thepublic.5 She observed Mr Milne's high RoC*RoI score,6 and considered his "need forspecialist assistance" was unlikely available from community-based services.7The Judge applied the full 25 per cent discount for his guilty plea, uplifted by one andhalf months for his prior offending and reduced by two weeks for his time spent incustody and on EM bail.8 Noting Mr Milne to be "highly institutionalised",9 and with"complex needs meet[ing] the criteria for departmental psychological servicesintervention",10 she considered release conditions were warranted by: theirrecommendation in Corrections' pre-sentence report; Mr Milne's significant periods1 Police v Milne [2022] NZDC 5566.2 The conditions run for six months after the sentence end date, requiring Mr Milne attendpsychological assessment; complete any treatment recommended by the assessment and drugrehabilitation programme at the direction of his probation officer; and not to possess, consume oruse alcohol.3 Crimes Act 1961, s 231: maximum penalty 10 years' imprisonment.4 Police v Milne, above n 1, at [7].5 At [7].6 "Risk of (re)Conviction multiplied by Risk of Imprisonment": Leon Bakker, James O'Malley andDavid Riley Risk of Reconviction: Statistical Models which predict four types of re-offending(Department of Corrections, 1999).7 At [12].8 At [14].9 At [1]. Mr Milne's 13 prior sentences include ten of imprisonment, totalling 10 years and 10months' imprisonment.10 At [3]–[4].of incarceration; and his lack of mental health treatment. The Judge also remittedMr Milne's outstanding fines and reparations.11[4] For Mr Milne, Sarah Dickson argues the Judge's starting point was excessiveby reference to cited cases,12 and the Judge's rehabilitation and alcohol releaseconditions lack utility as setting up Mr Milne to fail.Approach to appeals against sentence[5] I must allow the appeal only if I am satisfied both there is error in the sentence,and a different sentence should be imposed.13 In any other case, I must dismiss theappeal.14 The approach previously taken by courts on sentencing appeals continues toapply;15 the measure of error is the sentence be "manifestly excessive" — the principleis "well-engrained" in this Court's approach to sentencing appeals.16 I will notintervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.17Discussion[6] I cannot identify any error in the Judge's selection of a 10-month starting point,or in her subsequent discounts and uplifts (which are not in any event disputed). Theyall were arrived at after Her Honour's thorough analysis of Mr Milne's backgroundand offending. There can be (and is) no suggestion imprisonment was not the leastrestrictive sentence available in Mr Milne's circumstances.18 While citation of11 At [16]–[18]. The Judge substituted a further week's imprisonment for the remission. Ms Dicksonexplained she apprehends, from a note provided to her by Corrections over the weekend, Mr Milnewishes also to challenge that additional week (but not the remission), but she has not been able toobtain Mr Milne's direct instruction on the point. Given the uncertainty, and the Crown's lack ofopportunity in any event to respond, I was not prepared to consider the issue. If it is to be pursued,which I do not encourage, it may be the circumstances would permit this appeal's rehearing onthat point.12 Secker-Alison v Police [2018] NZHC 3277; and Wratt v Police [2012] NZHC 3137.13 Criminal Procedure Act 2011, s 250(2).14 Section 250(3).15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].16 At [33] and [35].17 Ripia v R [2011] NZCA 101 at [15].18 Sentencing Act 2002, ss 8(g) and 16.authority would have been explanatory, the Judge's starting point was well within therange available to her.[7] No contest is taken with the factors for consideration on sentencing forburglary.19 While there is no tariff case for burglary, a range of 18–30 months'imprisonment is considered apposite for residential burglaries "at the relatively minorend of the scale", "due to the heightened risk of confrontation with the occupants".20[8] Of materiality here is: some degree of co-ordination with Mr Milne's associateforcibly to enter the hotel in the early hours of the morning; the property's semi-residential and otherwise occupied nature carrying risk of confrontation with itsoccupants (although, as unrealised, not to be overstated); and unrecovered stolenproperty valued near $1000. Particularly given Mr Milne's admitted alcohol issues,his offending might thus be thought both premeditated and targeted, rather than purelyopportunistic.[9] One-year starting points have been upheld or imposed on appeal for burglariesof property in the vicinity of occupants,21 or in the company of associates.22 Higherstarting points are available for burglaries of occupied premises, such as the instanthotel.23 Her Honour's lower starting point was applied by this Court on appeal forunaccompanied non-residential burglary of marginally higher value.24 Comparatively,the cases cited by Ms Dickson are of burglaries of unoccupied premises to lesser orunknown values. A nine-month starting point was adopted for an unaccompaniednon-residential burglary where the items were recovered.25[10] I also see no basis on which to cavil with the Judge's imposition of specialrelease conditions. Mr Milne's protest rehabilitation has not previously beensuccessful is no reason now to give up on its prospect. His acknowledgement of therole alcohol plays in his offending justifies its prohibition. The Judge's choice and19 R v Nguyen CA110/01, 2 July 2001.20 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].21 For example, R v Columbus [2008] NZCA 192; Cronin v Police [2012] NZHC 3498; and Hansenv Police [2017] NZHC 425.22 For example, Craigie v R [2012] NZCA 67; and Tuikolovatu v R [2012] NZCA 203.23 Kelly v Police [2017] NZHC 2689 at [33]–[34].24 Faith v Police [2018] NZHC 1576.25 Vale v Police [2020] NZHC 3520.application of the conditions shows her precise regard for the conditions' statutorypurpose, particularly to reduce the risk of Mr Milne's reoffending and to facilitate andpromote his rehabilitation.26 To that end, Mr Milne's commendable acceptance ofHer Honour's psychological assessment condition is a necessary but incompleteresponse. The balance of conditions is required to give Mr Milne's acceptance somesubstance.[11] The Judge's sentence is not at all excessive, let alone manifestly so.Result[12] The appeal is dismissed.—Jagose J26 Sentencing Act, s 93(3).