Miller v Police - [2012] NZHC 1413

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000015 [2012] NZHC 1413

BETWEEN ASHLEY ERIC MILLER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 19 June 2012

Counsel: M Bott for Appellant
I R Murray for Respondent

Judgment: 21 June 2012

JUDGMENT OF GENDALL J

[1] This is an appeal against an effective sentence of two years three months’ imprisonment imposed upon the appellant in the District Court at Wellington by Judge S E Thomas on 27 January 2012. That was the sentence on the lead charges involving class A drug offending, namely supply of the class A controlled drug LSD and supply of the class A drug methamphetamine.

[2] The appellant was also sentenced to concurrent terms of 12 months’ imprisonment on two charges of offering to supply the class B controlled drug Ecstasy and 12 months’ imprisonment on selling the class C controlled drug cannabis, offering to sell cannabis, two charges of possession of cannabis for sale and cultivation of cannabis. On the charge of possession of a firearm without a licence, he was sentenced to a concurrent term of three months’ imprisonment.

[3] In summary, therefore, the sentence of two years three months’ imprisonment was to be served on 10 charges of drug offending and one of possession of a firearm
without a licence.

MILLER v NEW ZEALAND POLICE HC WN CRI-2012-485-000015 [21 June 2012]

[4] The background facts are as follows. As a result of a Police undercover operation, evidence was obtained that the appellant, over a period between 1 June
2010 and 20 April 2010, was involved in drug dealing on a significant basis. He was offering to supply a wide range of drugs including methamphetamine, MDMA (Ecstasy), cannabis, the class C controlled drug IV-MEC, and LSD.

[5] When the Police executed a search warrant at the appellant’s home, they found in a shed a cannabis cultivation operation had been set up and clearly used, as cannabis product to the value between $3,000 and $5,000 was found. It is beyond doubt the appellant had been actively involved in cultivating cannabis and acquiring and supplying a wide range of class A, B and C drugs which could not be obtained, for on-sale, without outlaying significant amounts of money. It was dealing at a commercial level. Simply by way of example, the appellant offered to supply the undercover officer with LSD at $20 per tab, provided that 100 of those items were purchased.

[6] In undertaking sentencing, the Judge had a report from an alcohol and drug counsellor, Mr Brooking, to whom the appellant had been referred by his counsel. He expressed the opinion that the appellant was addicted to alcohol and gambling, had not had treatment for those addictions, and recommended that he not be given a custodial sentence, as he needed to attend a residential treatment programme for alcohol dependence.

[7] The appellant was described as being well-motivated to undertake intervention measures. Judge Thomas referred to counsel’s submission that the appellant ought to have the opportunity…

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 1413
Decision Date: 21 June 2012

CaseChat Overview and Summary

Miller appeals against his sentence of two years and three months’ imprisonment imposed in the District Court for various drug-related offences and possession of a firearm without a licence. The appeal focuses on the appellant's argument that a custodial sentence is incompatible with the rehabilitative purposes of sentencing as he would be unable to access prison-based rehabilitation programmes aimed at addressing his offending, in particular his alcohol addiction. The appellant submits that he would be unsuccessful in a parole application through not being able to attend a rehabilitative programme in prison, which would only be available to him after his parole eligibility date. The appeal court rejects the appellant's argument, finding that the sentence was neither inappropriate nor manifestly excessive. The court notes that it is a matter of policy for the Department of Corrections to make available to all offenders who require treatment and rehabilitation the ability or opportunity to participate in such programmes that may be provided by the Department. However, it is not the role of the courts to manipulate the sentencing process to avoid imprisonment simply because of the non-availability of rehabilitative programmes within prison.

The appeal is dismissed.

Orders