Miller v Police - [2012] NZHC 3237

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-55 [2012] NZHC 3237

DALE ALICK JOHN MILLER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 3 December 2012

Counsel: A Schulze for the Appellant
S T Simmers for the Respondent

Judgment: 3 December 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr A Schulze, Lance & Lawson, Solicitors, Rotorua
Mr S T Simmers, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

MILLER V POLICE HC ROT CRI-2012-463-55 [3 December 2012]

[1] Mr Miller appeals against a sentence of two years two months imprisonment for one offence of burglary and one of driving while suspended on the third or subsequent occasion. The maximum penalty for burglary is 10 years imprisonment and the maximum penalty for the driving offence is two years imprisonment together with disqualification.

[2] I will preface a brief summary of the facts of the burglary with a chronological background to the burglary because it is relevant. On 4 December
2011 Mr Miller was caught driving while suspended. He was summonsed to appear in Court on 20 January 2012 but failed to appear. On 19 March 2012 he was sentenced to community detention for shoplifting. The burglary was committed four days later on 23 March 2012.

The burglary

[3] The burglary was committed with a Mr Patterson. Mr Miller and Mr Patterson broke into commercial premises at about 1.00 o’clock in the morning. They jemmied a sheet of corrugated iron from a side wall and exposed a small gap in the internal wall. They crawled through the gap and on to the main floor of the shop. I interpolate at this point that the means by which they got into the shop suggests that they knew that they could get in this way. This is relevant to the extent of planning. What is also relevant to the extent of planning is that they were carrying bolt cutters. They appear to have gone immediately to a rack containing firearms which were secured. They cut the trigger guards from three firearms and immediately left with the firearms. These were a rifle, a pump action shotgun and a single shot rifle. They were caught by Police soon after.

[4] The rifles were recovered but the shop owner had to destroy them because they were dangerous without the trigger guards. The victim impact statement indicates a loss in this regard of $2,500. There was also a cost of around $800 to repair the damage from the entry point.

Personal factors

[5] Mr Miller is aged 25. I note that his accomplice, Mr Patterson, is aged 18. That has a bearing on the end sentence because there is a question of parity. In terms of assessing a starting point, however, I proceed on the basis that Mr Patterson had equal responsibility with Mr Miller for the offending.

[6] In respect of personal factors I have already noted that the burglary occurred within days of the imposition of the community detention sentence. And there is the preceding…

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: [2012] NZHC 3237
Decision Date: 3 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Dale Alick John Miller appealed against his sentence of two years and two months' imprisonment for burglary and driving while suspended. The court had to determine whether the sentence was manifestly excessive. The legal issues were whether the starting point for the burglary was appropriate, and whether the sentence was disparate with that of the co-offender. The court found that the starting point was manifestly excessive and the disparity between the sentences was unjust. The court adjusted the starting point to 15 months and added an increase of six months for the driving offence, resulting in a sentence of 17 months' imprisonment. However, considering the periods already spent in custody and the need for denunciation and deterrence, the court substituted a sentence of eight months' home detention.

The final orders of the court were that the sentence of imprisonment imposed in the District Court was quashed and replaced with a sentence of eight months' home detention to be served at 9 Korimako Place, Tokoroa, subject to the special conditions for home detention.

Orders