Miller v Police - [2015] NZHC 2747

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-57 [2015] NZHC 2747

BETWEEN
DYLAN POTOCKI MILLER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 October 2015

Counsel:

N J Sainsbury for Appellant
M J Ferrier for Respondent

Judgment:

6 November 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] Mr Miller pleaded guilty to two charges of breaching a protection order in the District Court. On 31 July 2015, Judge Adeane declined Mr Miller’s application for a discharge without conviction, entered convictions and ordered Mr Miller to come up for sentence if called upon within 12 months.1 Mr Miller now appeals against Judge Adeane’s decision not to discharge him without conviction.2

Background

[2] Mr Miller separated from his wife on or about 18 November 2014.

[3] On 3 December 2014, Mr Miller was served with a temporary protection order. The applicant was his wife.

1 New Zealand Police v Miller [2015] NZDC 14935.
2 New Zealand Police v Miller [2015] NZDC 14536.

MILLER v NEW ZEALAND POLICE [2015] NZHC 2747 [6 November 2015]

[4] On 14 December 2014, Mr Miller and Mrs Miller attended the Wellington Christmas parade with their children. At approximately 3.30 pm, they were on Leeds Street when an argument developed between them. Mr Miller began yelling at Mrs Miller. She felt intimidated and scared, and she took the children to the car. Mr Miller left but then returned and yelled at Mrs Miller again. She left in her car. These events gave rise to the first breach.

[5] Shortly afterwards, Mrs Miller received multiple text messages from Mr Miller. They concerned his intention to hire a lawyer and remove the protection order. He stated that he hated Mrs Miller and that he thinks she is selfish. Those messages gave rise to the second breach.

[6] Mr Miller himself reported these incidents to the police. His wife said subsequently that she was not aware that Mr Miller’s actions were a breach of the temporary protection order until the police made contact with her.

[7] Mr Miller is 38 years old. He has three historic convictions for driving offences, two for driving with excess breath alcohol (in 1996 and 2001) and one for driving while disqualified (in 2002). Mr Miller has been convicted and discharged on five earlier charges of trespass, resisting the police, fighting in public, disorderly behaviour and assaulting the police. The incidents which gave rise to those charges occurred between July 2001 and January 2004.

The challenged decision

[8] The Judge described the offending as “indecorous in the extreme”, acknowledged that verbal rather than physical violence was involved, and that it must have been “embarrassing” and “troubling” for the children to witness the incident. However, he noted that it was “no worse than a moderate example of its kind”, being “towards the bottom end” of protection order breaches.

[9] The Judge noted counsel’s submissions that the consequences of a conviction were the general stigmatising effect, that it would affect his employment prospects generally, that it would…

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.

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Details

Case: [2015] NZHC 2747
Decision Date: 6 November 2015

CaseChat Overview and Summary

The appellant, Dylan Potocki Miller, appeals against a decision of Judge Adeane not to discharge him without conviction for two charges of breaching a protection order. Miller argues that the District Court Judge erred in his approach to sentencing and did not sufficiently consider mitigating factors and the adverse consequences of a conviction. The High Court dismisses the appeal, finding that the District Court Judge correctly assessed the gravity of the offending and the consequences of a conviction.

The primary legal issue before the High Court was whether the District Court Judge erred in his sentencing of Miller for the two breaches of the protection order. The Court considered four arguments advanced by Miller's counsel: (1) that the Judge overstated the public nature of the incident; (2) that the Judge improperly relied on Miller's previous discharges without conviction; (3) that the Judge failed to consider mitigating factors; and (4) that the Judge underestimated the adverse consequences of a conviction.

The High Court found that the District Court Judge's characterization of the incident as a public spectacle was not an overstatement. Regarding previous discharges, the Court held that although they were for different types of offences, they were relevant to the extent that they revealed Miller's tendency to react aggressively in public. The Court also found that the Judge did not sufficiently consider mitigating factors, such as Miller's self-reporting of the incident and his completion of a violence management programme. However, the Court concluded that these mitigating factors did not outweigh the seriousness of Miller's breach of the protection order in the presence of his children. Finally, the Court found that the adverse consequences of a conviction, primarily the general stigma and the reactivation of past offences, were not out of all proportion to the gravity of the offending.

In light of the above, the High Court dismissed the appeal and upheld the District Court Judge's decision not to discharge Miller without conviction. The Court emphasised the seriousness of Miller's breach of the protection order, which involved aggressive verbal abuse in front of his children and subsequent deliberate messages. The Court also noted the importance of taking breaches of protection orders seriously, given the potential for harm to the victim and the public.

Orders