Millar v The Queen - [2019] NZHC 2700

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000020

[2019] NZHC 2700

BETWEEN
DARRYL JOHN MILLAR

Appellant

AND

THE QUEEN

Respondent

Hearing: 23 September 2019

Appearances:

N M Laws for the Appellant R D Smith for the Respondent

Judgment:

22 October 2019

JUDGMENT OF NATION J

Introduction

[1] On 27 July 2017, the appellant Mr Millar and the victim, a woman with whom he was then in a relationship, were in a car together. They argued. It resulted in Mr Millar punching the victim more than once. She suffered severe bruising, a laceration and swelling to her face.

[2] On 29 July 2017, Mr Millar sent the victim a message saying he was going to put naked photos of her on her Facebook page. She told him not to, saying that would be an offence. Mr Millar nevertheless posted seven photos on her Facebook page, using the victim’s account. The photos showed the victim with no clothes on, her face clearly visible.

MILLAR v R [2019] NZHC 2700 [22 October 2019]

[3] Mr Millar first appeared in Court for this offending on 29 August 2017. He was granted EM bail on 2 November 2017. He failed to appear at Court for a scheduled back-up jury trial. Warrants for his arrest were issued on 18 May 2018. He was subsequently arrested on 29 May 2018 and remanded in custody. He pleaded guilty on 12 June 2018 to charges of male assaults female and causing harm by posting a digital communication, after the Crown agreed the charge of injuring with intent to injure would be reduced to male assaults female and to not pursue a charge of threatening to kill.

[4] He was sentenced on 8 August 2018 to a total of two years and five months’ imprisonment.1 He appealed that sentence on the basis it was manifestly excessive.

District Court decision

[5] The Judge adopted a starting point of 18 months for the charge of posting a harmful digital communication. He did so with reference to Brittin v Police, in which a starting point of 12 months was taken.2 The Judge considered the present offending to be more serious than that in Brittin because the victim had asked Mr Millar not to post the photos, and because of the demeaning comments accompanying those photos about her sexual availability.

[6] As to the charge of male assaults female, the Judge considered the aggravating factors to be the use of actual violence, the harm caused, the vulnerability of the victim and Mr Millar’s premeditation. He adopted a 12 month starting point for this charge.

[7] Judge Ingram uplifted the starting point by six months to account for Mr Millar’s prior convictions, bringing the sentence to three years. He considered the totality principle and decided there was no need to interfere with the starting points taken, because the charges were of separate kinds. His Honour then allowed a credit of three months for Mr…

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.

Continue reading Millar v The Queen

Details

AGLC: Millar v The Queen [2019] NZHC 2700
Case: [2019] NZHC 2700
Decision Date: 22 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Millar v The Queen involved the appellant, Darryl John Millar, appealing against his sentence imposed by the District Court. Millar was convicted of assaulting his female partner and posting harmful digital communications. The appeal centred on the severity of the sentence and whether it was manifestly excessive. The District Court had imposed a sentence of two years and five months, which the appellant argued was too harsh. The Court of Appeal considered the principles of sentencing, the nature of the offences, and the starting points adopted by the District Court. The Court concluded that the starting points and the overall sentence were appropriate, taking into account the seriousness of the offences, the aggravating factors, and the need for deterrence. The appeal was dismissed, affirming the District Court's sentence.

Orders