Millar v Police HC Rotorua CRI-2007-463-57

[2007] NZHC 1738

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2007-463-57

CRI-2007-463-58

GLENN ROBERT MILLAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 May 2007

Appearances: Mr P Birks for Appellant

Mr C H Macklin for Respondent

Judgment:      18 May 2007

(ORAL) JUDGMENT OF LANG J [on appeal against refusal to grant bail]

Solicitors:

Mr P Birks, Rotorua

Crown Solicitor, Rotorua

MILLAR V NZ POLICE HC ROT CRI-2007-463-57  18 May 2007

[1]      Mr Millar appeals against the refusal of Judge Weir in the District Court at

Tokoroa to grant him bail pending sentence on 12 June 2007.

[2]      Mr Millar has pleaded guilty to a charge of injuring with intent to injure his former partner.   The circumstances as disclosed by the summary of facts are that an incident occurred on 12 November 2006 in which Mr Millar bit his partner on the nose before placing his hands around her neck.   He appears to have retained his grip on his partner’s nose with  his teeth for  some considerable  period  and  has  also continued to hold his hands around her throat for some period.   He then punched his partner in the face with a closed fist on four or five occasions as well as punching her in the ribs and stomach.   Quite clearly this was a violent incident and, although not the most serious of its kind, is nevertheless serious enough.

[3]      In the District  Court  counsel for Mr  Millar  endeavoured to  persuade the Judge to remand Mr Millar on bail pending sentence so that he could attend the “Higher Ground” programme to address his alcoholism.    The Judge declined to do that on two grounds.

[4]      First, the Judge made the comment that he had seen the photographs of the victim in this case, that he considered that it was a serious assault and that a sentence of imprisonment was inevitable.

[5]      The Judge then commented that the only factor that was likely to save Mr Millar from a sentence of imprisonment would be if he was attending the Higher Ground programme.    The Judge clearly had doubts about that issue because of the fact that Mr Millar also faces a charge of driving with excess breath alcohol and driving whilst disqualified.   The Judge referred to the fact that Mr Millar appeared to be defending those charges on “technical grounds” and that this did not appear to him to  sit  well with the fact that those who  wish to  attend the Higher  Ground programme are required to admit their offending and accept responsibility for it. The Judge clearly took the view that the fact that Mr Millar was defending the driving charges means that he has yet to accept responsibility for them.

[6]      Mr Millar was, of course, entitled to the presumption of innocence and on that basis I accept that not a great deal of weight could really be given to the fact that he was defending the driving charges.   Of importance, however, in my view, is the fact that the Judge viewed a sentence of imprisonment as being inevitable in the present case.

[7]      I, too, have seen the photographs of the victim and they show quite clearly that she suffered significant bruising in the region of both eyes.     She also  has reasonably significant lacerations to her nose and cheek.     The circumstances as disclosed in the summary of facts are such that, whilst I accept that imprisonment may  not  be  a  foregone  conclusion,  nevertheless  Mr  Millar  is  at  real  risk  of  a custodial term.

[8]      My concern is that, if I were to release Mr Millar on bail now in order to enable him to attend the Higher Ground programme, that may well tie the hands of the sentencing  Judge  on 12  June  2007.     I do  not  consider  that that  would  be appropriate in the circumstances of the present case.   I consider that the sentencing Judge should be entitled to reach a conclusion as to whether or not imprisonment is appropriate unfettered by any decision of this Court.

[9]      In reaching this conclusion I do not ignore the fact that Mr Birks advises me that the complainant has apparently written a letter indicating that she does not wish Mr  Millar  to  go  to  prison.      That  is  obviously  a  matter  that  will  be  of  some significance to the sentencing Judge, although he or she will no doubt bear in mind the comments of the Court of Appeal in R v Taueki [2005] 3 NZLR (at [33]) where the Court said that the fact that violence occurs in a domestic situation should not be seen as reducing its seriousness.     Similarly, the fact that the victim of a serious assault, particularly in a domestic situation, may ask the Court to impose a lenient sentence is not determinative of the matter.   This is because there is a public interest at stake as well as the interests of the victim.   Nevertheless, the views of the victim will be a relevant factor to be taken into account on sentencing, as will the fact that Mr Millar has apparently been accepted into the Higher Ground programme.

[10]     For these reasons I do not consider that it would be appropriate at this stage for this Court to allow the appeal against the District Court Judge’s refusal to grant bail.

[11]     The appeal is accordingly dismissed.

Lang J