Miller v Police
[2022] NZHC 2636
•12 October 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2022-454-013
[2022] NZHC 2636
BETWEEN JOHN RAYMOND MILLER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 October 2022 Appearances:
T E Hesketh for the Appellant
G L Duncan and K S Barber for the Respondent
Judgment:
12 October 2022
JUDGMENT OF PALMER J
Solicitors/Counsel
Tim Kesketh Law Limited, Palmerston North BVA The Practice, Palmerston North
MILLER v NEW ZEALAND POLICE [2022] NZHC 2636 [12 October 2022]
What happened?
[1] On 16 June 2021 Mr John Miller, now aged 42, was arguing with his then partner, the complainant, at their home address when she was 36 or 37 weeks pregnant. A protection order was in place at the time, but the two had continued to live together. When she went outside to Mr Miller’s car to retrieve her belongings, he entered the car from the other side and pulled her car door shut, striking her in the stomach. He then told her “get the fuck out of the car” and banged the door on her again. This caused her pain and fluid ran down her leg. Seven days later, she gave birth by caesarean section.
[2] Around 7 pm on 3 July 2021, 10 days after the complainant had given birth, Mr Miller again became verbally abusive with her, over their son’s birth certificate. He threw her on the floor and, as she tried to get up and walk away, he punched her in the right eye. She fell and lost consciousness. When she came to, Mr Miller lifted her off the ground by her top, saying he had warned her numerous times. He then slammed her head onto the floor several times. She lost consciousness for a second time. When she regained consciousness, Mr Miller was on top of her applying pressure to her neck with both hands, restricting her breathing. She could not breathe and believed Mr Miller was going to kill her. She begged him to let her go but he refused. She felt a burning pain across her caesarean section scar and a horrible taste in her mouth. Mr Miller then stepped back, hugged her and began apologising. She sustained bruising to her neck and throat. Her victim impact statement outlines the emotional harm, fear and stress she has suffered and the physical effects of frequent headaches and forgetting things.
[3] Mr Miller was charged with strangulation or suffocation, injuring with intent to injure, and assault with a weapon (the car door). They are punishable by terms of imprisonment of up to seven years for the first charge and five years for each of the other two charges.1 On 23 May 2022, he was found guilty by Judge B Northwood in a Judge-alone trial at the Palmerston North District Court. Mr Miller had no previous relevant convictions.
1 Crimes Act 1961, ss 189A(a), 189(2), 202C.
[4] On 4 August 2022, Judge Northwood sentenced Mr Miller.2 The Judge considered it is hard to imagine a more vulnerable new mother, recovering from the birth by major abdominal surgery. Her vulnerability was significantly enhanced given she was unconscious when Mr Miller climbed on top of her. A reasonable person would have interpreted Mr Miller’s behaviour as a threat to the complainant’s life, conveying the clear message that he had the ability to kill her.3 The strangulation offending was within the moderate range, warranting a starting point of two years and five months’ imprisonment. He uplifted that by 10 months’ imprisonment for the other two charges, having regard to the totality of the offending.4 He discounted the total by 20 per cent, or eight months, for Mr Miller’s personal circumstances and five per cent, or two months, for his steps towards rehabilitation. The end sentence was two years and five months’ imprisonment. Mr Miller appeals.
Submissions
[5] Mr Hesketh, for Mr Miller, submits that the sentence was too long. The starting point could have been two years. The uplift was too high because there was no extreme violence with the injuring offence and there could have been a concurrent sentence rather than an uplift for the assault with a weapon. Factoring in the discounts, which were appropriately made, Mr Miller could have received a sentence of home detention which would have been the least restrictive sentence appropriate in the circumstances.
[6] Ms Duncan, for the Police, submits that the sentence was within range and not manifestly excessive. The offending occurred in the complainant’s own home, when she was significantly vulnerable. It was not lower-level offending. A higher starting point than two years was warranted. The assault with a weapon needed to be viewed in the context of the other offending which represented a significant escalation in intensity and type of violence. Mr Miller’s continuing denial of the offending was a concern.
2 New Zealand Police v Miller [2022] NZDC 14896.
3 At [21].
4 At [30].
Should the sentence appeal be granted?
[7] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.5
[8] I do not consider there is any material error in the sentence, which was carefully constructed. The starting point for strangulation is consistent with other sentences for an offence which is a common mark of abusive, coercive behaviour and a risk factor for a future fatal attack.6 The complainant was particularly vulnerable due to recently giving birth and enduring a significant operation. The attack occurred in an environment that the complainant called home at the time and while there was an existing protection order in place. I agree the circumstances of the strangulation and what Mr Miller said to her could reasonably have been interpreted as a threat to kill her. I also accept there is enduring psychological harm to the complainant resulting in part from the strangulation.
[9] The uplift for a serious attack was also warranted. Assault with a weapon was appropriately considered as an uplift rather than a concurrent sentence. The discounts were appropriate, though the discount for rehabilitation was on the generous side. Home detention would not have been appropriate given the seriousness of the offending. I consider the end sentence is within the available range and is not manifestly excessive. I dismiss the appeal.
Palmer J
5 Ripia v R [2011] NZCA 101 at [15].
6 Shramka v R [2022] NZCA 299 at [17] and [20]. And see the discussion of aggravating factors at [42].
5