MILNE v NEW ZEALAND POLICE [2020] NZHC 358

MILNE v NEW ZEALAND POLICE [2020] NZHC 358 [3 March 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2020-419-000004[2020] NZHC 358BETWEEN MATTHEW ROSS MILNEAppellantAND NEW ZEALAND POLICERespondentHearing: 24 February 2020Counsel: M James for AppellantK Whyte and S Hames for RespondentJudgment: 3 March 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 3 March 2020 at 11.30 am pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:G Walsh, Barrister, HamiltonCrown Solicitor, Hamilton[1] Following a judge-alone trial in the District Court before Judge Down,Matthew Milne was convicted on one charge of strangulation1 and one charge ofassault with intent to injure;2 both of which arose out of a single domestic violenceincident. For the offence of strangulation, he was sentenced to two years' and eightmonths' imprisonment and for the assault with intent to injure he was sentenced to aconcurrent term of 18 months' imprisonment.3 Mr Milne now appeals against thosesentences.Facts[2] At the time of the current offending Mr Milne and the victim had been in adomestic relationship for five and a half years and the pair had 20 month old twins.[3] On 1 January 2020, Mr Milne, the victim, the young twins and Mr Milne'steenage son (from a previous relationship) went to Mr Milne's brother's address for aNew Year's day get together. While there Mr Milne and his son consumed anexcessive amount of alcohol, then they all left the address before lunch time. Duringthe return journey home Mr Milne became aggressive toward the victim, eventuallyshe stopped the vehicle they were in and told him to get out, which he did. His sonalso left the vehicle. Both men started to walk towards Cambridge. The victim droveoff.[4] Some time passed during which there were "numerous" phone calls betweenMr Milne and the victim.4 The victim decided that Mr Milne must have calmed down,so she returned to pick him up. When she pulled up in the vehicle, Mr Milne openedthe door and launched himself into the vehicle. He then ripped sunglasses off thevictim's head, grabbed her by the shoulders and head butted her to her left cheek,below her eye.[5] The victim attempted to leave the vehicle, but Mr Milne pinned her to the doorframe. He put both his hands around her throat and strangled her until she felt as if1 Crimes Act 1961, s 189A(b). Maximum penalty 7 years' imprisonment.2 Section 193. Maximum penalty 3 years' imprisonment.3 Police v Milne [2020] NZDC 1158.4 Above at [4].she would pass out. The victim then tried to waive down passing traffic for help, allthe while the young twins were screaming in the back of the vehicle. Mr Milne waslater apprehended by police and charged with the present offences.District Court decision[6] Judge Down found both charges proven. Mr Milne was convicted and on23 January 2020 he came before Judge Down for sentence.5[7] Mr Milne sought a sentence of home detention. For him to be eligible toreceive this sentence Judge Down had to reach the point where he had found Mr Milneshould receive a sentence of two years' imprisonment or less.[8] Judge Down recognised that the lead charge was the strangulation charge. TheJudge was mindful of the fact this offence was only recently created by Parliament toaddress the inadequacies of prior assault law.6 He considered the maximum penaltyand the limited recent case law. As a starting point to reflect both offences he adoptedthe term of two years' and nine months' imprisonment.7[9] Then the Judge uplifted the sentence by three months to take account ofMr Milne's prior convictions for similar offending, including offending against thesame victim.8 He correctly stated that no discount could be given for a guilty plea,given Mr Milne's election to go to trial. However, the Judge reduced the sentence byfour months to recognise what the Judge accepted was genuine remorse, as reflectedin a letter to the Court and a letter to the victim.9 This resulted in an end sentence oftwo years' and eight months' imprisonment. Because this was a long-term sentenceof imprisonment Mr Milne was not eligible for a sentence of home detention.[10] Judge Down observed that had the sentencing process resulted in Mr Milnereceiving a short-term sentence of imprisonment (a sentence of two years'5 Police v Milne [2020] NZDC 1158.6 At [9].7 At [10].8 At [10].9 At [14].imprisonment or less) it would still have been entirely inappropriate to impose homedetention, given the nature of the offending and the need to deter such conduct.10Submissions[11] Counsel for Mr Milne, Ms James, submits that the end sentence imposed byJudge Down was manifestly excessive, on account of the starting point being too high.[12] Ms James refers to Ackland v Police, the first strangulation case to be appealedto this Court.11 Ms James submits that the aggravating factors present in Mr Milne'soffending, as identified by this Court in Ackland, include strangulation in the contextof a domestic or intimate relationship and the presence of additional violence.12Ms James compares Mr Milne's offending with that of the offender in Houkamau vPolice (another recent strangulation case which was appealed to this Court) where atwo year starting point was adopted.13 Ms James argues that Mr Milne's offending isdistinguishable from that in T v Police (the third strangulation case appealed to thisCourt), on the ground Mr Milne's offending is less serious.14[13] Ms James also points to cases with similar facts, but where the offender wascharged with injuring with intent to injure, including Hunia v Police,15 Nahi v Police1610 At [13].11 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.12 At [26].13 Houkamau v Police [2019] NZHC 2743. In Houkamau, Mr Houkamau's offending involved himcalling the victim offensive names and then proceeding to grab the victim, who was lying on thecouch, and shoved her out the front door. He then punched her in the forehead and began chokingher. Mr Houkamau eventually let go of the victim's throat and pushed her to the ground.14 T v Police [2019] NZHC 3375. Mr T and the victim had been in an argument the day prior and thevictim had elected to leave the address. When she returned the next morning Mr T ran at thevictim shouting, "if I'm going to jail, I'm going for a good reason" and as he shouted this hedelivered a running kick to her forehead. The victim lost consciousness and awoke to Mr Tdragging her into the house. The victim tried to escape out a window and Mr T grabbed her aroundthe neck in a headlock and wrestled her to the bed. Eventually the victim lost consciousness. Forthe strangulation charge a starting point of three years was adopted.15 Hunia v Police [2013] NZHC 333. In Hunia, Mr Hunia was convicted of injuring with intent toinjure. The offending involved Mr Hunia grabbing the victim by her bag straps and causing herto hit her head on a nearby table. When the victim tried to leave Mr Hunia grabbed her and chokedher causing her to lose her breath and faint. There was a protection order in place and the victimwas 16 weeks pregnant at the time of the offending.16 Nahi v Police [2012] NZHC 2025. In Nahi, Mr Nahi was convicted of injuring with intent toinjure. Mr Nahi pushed the victim onto the bed and using both hands choked her, restricting herbreathing and causing her to lose consciousness for a brief period.and EWB v Police,17 where starting points of two years, 16 months and 20 monthswere adopted respectively. She argues that Mr Milne's offending was no more seriousthan that involved in those cases.[14] Ms James submits, therefore, that a starting point of no more than two years'imprisonment ought to be adopted.[15] Ms James does not take issue with the uplift for prior convictions imposed byJudge Down, nor the deduction for remorse, and advocates that the same adjustmentsbe applied to her suggested starting point of two years' imprisonment. This results inan end sentence of just below two years' imprisonment from which she contends theappropriate sentence is one of home detention.Approach on appeal[16] Section 250(2) of the Criminal Procedure Act 2011 states that the Court mustallow an appeal against sentence 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.[17] In any other case, the Court must dismiss the appeal.18[18] The Court of Appeal in Tutakangahau v R recently confirmed that s 250(2) wasnot intended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.19 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".20 The High Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencing17 EWB v Police [2012] NZHC 225. EWB was convicted of injuring with intent to injure. EWBthrew the victim to the floor, threatened to punch her and strangled her to the point her body turnedlimp. There was a protection order in place at the time of the offending.18 Section 250(3).19 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27].20 At [26]–[27].principles. Whether a sentence is manifestly excessive is to be examined in terms ofthe sentence given, rather than the process by which the sentence is reached.DiscussionApproach to strangulation sentences[19] Both parties acknowledge that strangulation is the lead offence, and being anew charge there are relatively few sentences available for comparison. However, thecases of Ackland, Houkamau and T v Police are relevant and they provide helpfulguidance on the appropriate approach to sentencing for this offence.[20] In Ackland, Cooke J was aware that the appeal before him was the first appealfor a sentence involving strangulation. The judgment provides general guidance onthe approach to be adopted. He traversed the background of the new offence noting itwas established to fill a gap in the law because the seriousness of strangulation wasfailing to be captured by other charges.21 He identified factors relevant to theassessment of the seriousness of the offending, including: strangulation in the contextof a domestic or intimate relationship/vulnerability of the victim; threats, particularlythreats to kill; loss of consciousness; multiple events; other violence/injury; significantimpact on others; and breach of a protection order.22 Then he identified three bandsof offending and an appropriate range of starting points for each: (a) offending at thelower end, not involving any of the above aggravating features, would fall betweensix months and two years' imprisonment; (b) offending within the mid-range wouldwarrant a starting point of two to five years; and (c) offending at the highest range,being offending involving a number of the above aggravating factors, would result ina starting point between five and seven years' imprisonment.23 In setting out thisapproach Cooke J stressed that it was not the number of factors that was important,but the overall nature and culpability of the offending, and emphasised that the factorssimply provide a framework for making an assessment.2421 At [19]. See also, Law Commission Strangulation: The Case for a New Offence (NZLC R138,2016) at [4.56].22 At [26](a) – (g).23 At [29] – [31].24 At [31].[21] The approach in Ackland was followed by Thomas J in Houkamau and byDoogue J in T, however both Judges expressed the view that it was important not tolet the approach to sentencing become overly mechanistic.25 Specifically, Doogue Jnoted[33] Family violence is an extremely complex area and care is needed notto focus unduly, or only, on what might be described as key factors, fallinginto the trap of a somewhat mathematical approach to the exercise rather thana proper consideration of the subtleties of the offending. Indeed, theCommission's report and rationale for the new offence highlights thesubtleties that are often involved in coercive and controlling behaviour, ofwhich strangulation often forms part.[22] I agree with the approaches of Doogue and Thomas JJ to the framework set outin Ackland. Whilst I find the sentencing tariff bands helpful, I consider that theultimate determination of a starting point will turn on the factual matrix of theparticular offending, which allows regard to be had to the subtleties of the offendingand the distinctive characteristics of strangulation.[23] The starting point of two years' and nine months' imprisonment thatJudge Down adopted reflected the offending of strangulation and assault with intentto injure. As noted by Ms Hames, for the Crown, this approach strays from the typicalapproach adopted at sentencing whereby the starting point is first set for the leadcharge only and is then uplifted to reflect any additional charges on which the offenderhas been convicted. The approach adopted by Judge Down is problematic, particularlywhere an offender faces an array of charges, because it risks inflating the assessmentof the seriousness of the offending. To assess whether the sentence that he imposed ismanifestly excessive or not, I shall adopt the traditional approach, by first establishinga starting point for the strangulation offending and then adding an uplift for the chargeof assault with intent to injure.Application[24] Mr Milne's offending involved him grabbing the victim's neck with both handsand choking her while pushing her up against her vehicle. This followed Mr Milneripping the victim's sunglasses from her head and then headbutting her to the cheek,25 Houkamau v Police [2019] NZHC 2743 at [33]; T v Police [2019] NZHC 3375 at [35].which accounts for the assault with intent to injure charge. During the offending thepair's 20-month-old twins were in the vehicle. Before the offending there were"numerous" telephone calls between Mr Milne and the victim, during which he musthave portrayed himself to be in a different frame of mind from when the offendingoccurred, because otherwise it is difficult to see why the victim would have thoughthe had calmed down enough for her to return to pick him up. This was not the firsttime he had been violent towards her, so his violence would not necessarily have comeas a surprise to her. These circumstances suggest to me he must have presented himselfto her during the telephone calls as calmer than he was to entice her to return, whichfurther suggests the offending did not simply result from an explosive outburst fromhim. Rather, it was an occasion of him purposely asserting his control over her.[25] Regarding the strangulation offending, which is the lead offence, the pair werein a domestic relationship, which is an aggravating factor of this offending (as perAckland). Judge Down also identified the assault charge as an aggravating factor ofthe strangulation offending, but as discussed above this is not the approach I take.When assessing the aggravating features of strangulation offending it is important notto double count the presence of violence where the offender is convicted of additionalviolence charges. The act of strangulation involves a degree of violence. Violencewhich extends beyond this, such as where the victim is held down with the offender'sbody weight, or as in this case, where the victim is pushed up against a solid object,will be additional violence that is an aggravating factor of the strangulation offending.However, such violence should only relate to the strangulation itself. Violence thatcan be separated from the act of strangulation, (like the earlier separate act here ofhead butting the victim below the eye), and which forms the basis of a separate chargeshould be assessed separately in the context of that charge. Regarding Mr Milne'sstrangulation offending, some additional violence is present, but only to a minordegree.[26] During Mr Milne's offending his young children were present and the Crownsubmits that this is a further aggravating factor. I accept the experience would havebeen distressing for the children. However, that needs to be balanced against the factthere was seemingly no risk to the safety of the children during the offending, and thechildren were of a young age, which minimises the detrimental effects of witnessingsuch behaviour.[27] There is the additional fact that Mr Milne's conduct must have caught thevictim unawares and with her guard down, because her return to pick him up followedthe numerous telephone calls between them.[28] I consider a starting point of two years' imprisonment is appropriate. Thisplaces the offending within the upper end of the first band identified by Cooke J andis consistent with his description that this band applies to offending with few to noaggravating factors.[29] This starting point is also consistent with the limited number of comparablecases. In this regard, I consider Mr Milne's strangulation offending to be less seriousthan that in Ackland and in T. In those cases, strangulation caused the victims to loseconsciousness, whereas, here the victim felt she would lose conscious but there is noevidence that she did.[30] I find the offending here to be closer to that in Houkamau, albeit more seriousthan in Houkamau. In Houkamau Thomas J found a starting point of two years'imprisonment, which encompassed the offences of strangulation and assault on afamily member, to be stern but available to the sentencing Judge and therefore not anerror.26 Nevertheless, the sentence was reduced on appeal for other reasons.[31] In Houkamau the offender and victim were arguing with each other, both hadbeen drinking alcohol and the offending occurred while Mr Houkamau was attemptingto remove the victim from his home. Here, the persons involved were initially in thefamily vehicle. There is no evidence the victim had been drinking. The behaviour ofMr Milne led to the victim asking him to leave the vehicle, which he did, but whenshe returned to pick him up believing he had calmed down he attacked her. Such anattack is less in the heat of the moment than the attack in Houkamau. Moreover, inHoukamau the additional offence was assault on a person in a family relationship,which is an offence that has no specific intent and it carries a lesser maximum sentence26 Houkamau v Police [2019] NZHC 2743 at [36].than assault with intent to injure.27 Thus, the overall gravity of the offending was lessthan is the case here.[32] I consider the starting point can be uplifted by six months to take account ofthe assault with intent to injure charge. Significantly, the violence inherent in thischarge occurred before the strangulation offending, and it involved the intentionalinfliction of force to the head. This results in a final starting point of 30 months'imprisonment, which is three months shy of the overall two year and nine months'starting point adopted by Judge Down.[33] I consider the three months' increase for prior convictions and the four-monthdeduction for remorse to be appropriate in the circumstances. And as these have notbeen challenged on appeal I shall not address them any further.[34] On my assessment the end sentence would come to two years and five months'imprisonment, which is three months shy of the end sentence adopted by Judge Down.[35] The question then is whether the sentence I have reached shows the sentenceimposed by Judge Down to be manifestly excessive or whether a reduction in sentenceof three months' imprisonment would be no more than tinkering. There isapproximately a 10 percent difference between the sentence imposed by Judge Downand the sentence that I have reached. I consider this to be enough to render thesentence manifestly excessive. To reduce a sentence of imprisonment by ten percentis more than tinkering.[36] It follows that the appeal is allowed. The sentence of two years and eightmonths' imprisonment on the strangulation offence is quashed and in substitutionthereof Mr Milne is sentenced to two years and five months' imprisonment.[37] The reduction of the sentence of imprisonment does not bring the sentencedown to a short term of imprisonment, which would qualify Mr Milne for a sentenceof home detention.2827 The maximum sentence for the offence of assault on a family member is two years' imprisonment.Crimes Act 1961, s 194A.28 Sentencing Act 2002, s 15A provides that a sentence of home detention may be imposed where ashort-term sentence would otherwise be imposed by the Court. A short-term sentence is a sentencethat is 24 months or less: see s 4(1) of the Parole Act 2002, at "short-term sentence".[38] The concurrent sentence of 18 months' imprisonment for the assault with intentto injure offence is within the available range and I do not propose to interfere with it.The only purpose for the appeal against that sentence was to enable it to be substitutedwith a sentence of home detention, had I decided to impose home detention for thestrangulation offence.Result[39] The appeal against the sentence for the strangulation offence is allowed andthe sentence of two years and eight months' imprisonment is quashed. In substitutionof the original sentence Mr Milne is sentenced to two years and five months'imprisonment.[40] The appeal against sentence for the assault with intent to injure offence isdismissed.Duffy J