Miller v R
[2020] NZCA 131
•30 April 2020 at 11.00am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA142/2019 [2020] NZCA 131 |
| BETWEEN | BRENT PETER MILLER |
| AND | THE QUEEN |
| Hearing: | 27 February 2020 |
Court: | Miller, Dobson and Moore JJ |
Counsel: | E J Riddell for Appellant |
Judgment: | 30 April 2020 at 11.00am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of nine years and four months’ imprisonment on the charge of possession of methamphetamine for supply is quashed and substituted with a sentence of seven years and seven months’ imprisonment.
CAll other concurrent sentences remain.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
Mr Miller appeals his sentence of nine years and four months’ imprisonment imposed in the District Court at Nelson. He does so on the grounds it is manifestly excessive in light of this Court’s decision in Zhang v R.[1] Mr Miller pleaded guilty to seven charges, including one of possession of methamphetamine for supply.[2] The quantity involved was 905 grams.
[1]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[2](a) Possession of methamphetamine for supply
(b) Possession of GBL
(c) Possession of cannabis
(d) Driving while disqualified (third or subsequent)
(e) Providing false details
(f) Possession of an offensive weapon (knuckle dusters)
(g) Resisting Police
The appeal was filed on 2 April 2019 before this Court released its guideline judgment in Zhang. That judgment applies only to sentences imposed prior to Zhang where an appeal was filed before the judgment was delivered and where the application of the judgment would result in a more favourable outcome to the appellant.[3]
[3] Zhang v R, above n 1, at [188]. The judgment was delivered on 21 October 2019.
We proceed on the basis that Zhang applies.
Approach to appeal
Consistent with the approach adopted in other recently decided appeals,[4] the examination of the sentence under appeal does not focus on a search for error but rather involves an assessment of the appropriate outcome when considered against new guidelines.
The facts
[4]Su v R [2020] NZCA 128; and Royal v R [2020] NZCA 129.
On 22 June 2017 Mr Miller was driving between Motueka and Christchurch. Responding to a complaint about the way he was driving, the Police pulled his car over. Initially, Mr Miller gave the Police false details and presented a false driver’s licence. At the time he was subject to a one year driving disqualification.
His car was searched. The Police found 905 grams of methamphetamine stored in six separate vacuum-packed bags in the boot. They also found a set of digital scales, $1,361.20 in cash and a set of knuckle dusters. Inside a jacket they found a small amount of methamphetamine and, in a sunglasses case, a ziplock bag containing another small quantity of methamphetamine together with a glass pipe. Mr Miller was arrested. He ran off but was recaptured a short distance away.
When the house bus where he had been living was searched, the police found half a gram of cannabis plant and 150 mL of gamma-butyrolactone (GBL), a class B controlled drug.
Sentencing decision
On 14 December 2018 Judge D C Ruth gave Mr Miller a sentence indication.[5] Using the methamphetamine charge as the lead offence he set an 11 year starting point which he uplifted by six months for totality. He placed Mr Miller’s offending in band four of R v Fatu, which meant the starting point would be between 10 years to life imprisonment.[6] This he did on the basis of quantity, observing:[7]
I think I can take the view that you are certainly not at the top of the chain but … anyone who is trusted in this sort of an operation with what must be close, at least, to $1 million worth of product cannot be viewed as a bit player,[[8]] and I regard you as a senior in whatever chain it was that you were part of.
[5]R v Miller Nelson DC CRI-2017-042-1433, 14 December 2018.
[6]R v Fatu [2006] 2 NZLR 72 (CA).
[7]R v Miller, above n 5, at [18].
[8]“Bit player” was a descriptor adopted by Ms Riddell, counsel for Mr Miller, when describing Mr Miller’s role.
Mr Miller accepted the sentence indication and pleaded guilty to the charges. At sentencing the Judge applied a global 26-month (or 18.8 per cent) discount.[9] While not explicit as to what this represented, the discount appears to have incorporated the timing of the guilty pleas, Mr Miller’s expressed willingness to engage in rehabilitation, his difficult and abusive upbringing and his remorse. The Judge described the discount as “… some incentive for [Mr Miller] firstly to bring these matters to a close but also to get on with [his] rehabilitation”.[10]
[9]R v Miller [2019] NZDC 5531.
[10]At [3].
An end sentence of nine years and four months’ imprisonment was imposed with concurrent sentences on all other charges. Despite Crown submissions to the contrary, no minimum period of imprisonment (“MPI”) was ordered.
Was the starting point too high?
Before us Ms Riddell, for Mr Miller, submitted that the sentence was manifestly excessive because not only was the starting point too high, but the Judge also gave insufficient credit for personal circumstances and erred in concluding it would amount to double counting to allow a discount for personal mitigating factors while declining to impose an MPI.
Ms Riddell also took issue with the Judge’s observation as to role; that anyone entrusted with nearly $1 million worth of methamphetamine could not be viewed as a “bit player”. She noted that the summary of facts did not record the value of the drug and pointed out that the evidence placed before this Court in Zhang was that the average price per gram of methamphetamine is decreasing. She accepted that the quantity of methamphetamine placed Mr Miller well within the new band four of Zhang,[11] being eight to 16 years’ imprisonment, but at its lower end. This was because his was a “lesser” role in terms of the continuum set out in Zhang.[12] She said this classification is justified because Mr Miller was a courier, a chronic addict and someone who had little awareness of or influence over others in the hierarchy. To demonstrate that Mr Miller was an addict, Ms Riddell pointed to the two small quantities of methamphetamine and the glass pipe found in his possession. She said that Mr Miller’s offending was driven by a debt he owed to a gang. Consistent with her submissions in the District Court, she submitted that the appropriate starting point should have been around eight-and-a-half years’ imprisonment. She took no issue with the six-month uplift for the other charges.
[11]Zhang v R, above n 1, at [125].
[12]At [126].
In determining an offender’s position within a particular band, quantity remains the first determinant.[13] Possession of 905 grams of methamphetamine places this case squarely within Zhang’s modified band four, attracting sentences of between eight to 16 years’ imprisonment. That quantity sits at nearly twice the entry point for band four making an available starting point well above eight years. The quantity computations in the Zhang bands apply to purity levels in the order of 60 per cent or more.[14] The purity level of this methamphetamine was high; between 67 per cent and 70 per cent.
[13]At [103].
[14]At [129].
An offender’s role in a criminal enterprise is a further consideration in assessing culpability. An offender’s addiction is only relevant in setting the starting point to the extent that it is indicative of an offender’s limited participation in the offending. For example, it was noted in Zhang that a courier may have a very substantial quantity of methamphetamine in their possession but their reward might be a small quantity of methamphetamine to feed their own addiction.[15]
[15]At [111].
Thus the first question is whether Mr Miller is an addict. Two reports were before the Judge; a Nelson Hospital Addictions Service Report (“Nelson Hospital report”) and a psychological assessment report. Despite some lack of clarity and the fact that the conclusions in both reports were heavily reliant on Mr Miller’s self‑reporting, we are satisfied Mr Miller is a chronic methamphetamine addict. Apart from the reports themselves, this conclusion is supported by his long criminal history which includes convictions for possession of various drugs, possession of non‑presumptive quantities of methamphetamine, drug paraphernalia and also what was found in the roadside search; small quantities of methamphetamine and the glass pipe consistent with personal use.
The second question goes to Mr Miller’s role. There are a number of factors which suggest he was not a lesser functionary paid in drugs to feed his habit. The criminal enterprise that Mr Miller was involved in was evidently of a large commercial scale. This is demonstrated not only by the quantity and quality of the drug involved, but also the manner in which the drugs were packaged, the discovery of scales and the cash, albeit not a large sum.
Whatever his actual position within the operation, Mr Miller’s role involved an operational function. He plainly expected a financial return in exchange for his services. It thus follows he must have had some awareness and understanding of not only where he sat within the operational structure but also the scale of the enterprise. Given the quantities involved it follows he must have known he was delivering to wholesalers or high-level dealers on the instructions of those further up the chain of command.
We are satisfied the Judge’s rejection of Ms Riddell’s submission that Mr Miller was a “bit player” was correct. Whatever its exact value, the quantity of drugs found in Mr Miller’s possession was a substantial commercial quantity. But we also agree with the Judge’s assessment that while plainly he was a trusted accomplice, Mr Miller did not sit at the top of the chain.
We also reject Ms Riddell’s submission Mr Miller fits within the “lesser” role category of Zhang.[16] Even on the basis of Mr Miller’s self-reporting, it is apparent that he was substantially motivated by the promise of financial advantage and profit. For example, in the Nelson Hospital report the author records Mr Miller advising that after he lost his job in 2015 he and another owed money to “some serious people”. He said, “… collectors came to my home for money”. He said “they were stressing out and had to pay their bills …”. Later, in the same report, it is recorded that Mr Miller acknowledged that his drug dealing was to pay bills and to cover his own use. Comments to the same effect are found in the psychological assessment report which describes in more detail how it was that Mr Miller ended up in debt and thus resorted to drug dealing. It records:
Mr Miller reported that a combination of finding himself out of work at that time after having been made redundant, and a sense that he could never recover the debt through legitimate endeavours without incurring financial hardship (as he had done so for the past three years), he decided “to go back to dealing and settle the debt once and for all”. He also reported that he had been put under pressure at the time by “the Club” because he was not making his weekly repayments to them.
Mr Miller reported that as he commenced dealing, he also relapsed into methamphetamine abuse and the same pattern as previous began to occur — he was dealing to supply his own habit as much as he was to pay back his debt … Mr Miller reported that he still had debt to a gang to pay off and ultimately “agreed to do somethings (sic) for them to pay off the debt … picking things up and dropping things off”. He acknowledged that his drug use also resumed.
[16]At [126].
The author of the report concluded in the following way:
It may well have been that his index offence was also heavily motivated by considerable financial gain and personal profit for him that was over and above the settling of a debt, but this was denied by Mr Miller in the current assessment.
From this material it is apparent that his addiction was not causative of his offending. And while it may be that his involvement in this operation also provided a ready source of the drug for personal consumption, the primary purpose of dealing in methamphetamine, on Mr Miller’s own account, was financial gain to meet his debts.
It follows that we are satisfied Mr Miller was a significant player in a large commercial drug operation. The Judge’s starting point of 11 years and six months in reliance on Fatu remains appropriate and justifiable under Zhang.
Was sufficient credit given for personal mitigating factors?
On the stage two analysis Ms Riddell submitted that the Judge erred when he expressed a concern that he should not “double count”, either for or against Mr Miller by applying an extra discount for remorse and rehabilitation when declining to impose an MPI on account of the same considerations.[17]
[17]R v Miller, above n 9, at [10].
The question of whether to impose an MPI and the consideration of personal mitigating factors are both separate and relevant factors in the second stage analysis. We agree with Ms Riddell they should have been considered separately. Ms Fuhr, for the Crown, accepted as much.
The question for us is whether the Judge’s approach led to insufficient credit being given to Mr Miller’s personal mitigating factors.
As previously noted, the Judge applied a global 26‑month discount. This incorporated the guilty pleas, as well as Mr Miller’s willingness and potential to engage in rehabilitation, his social deprivation and his remorse.
Ms Riddell submitted that in addition to the discount for Mr Miller’s guilty pleas, which she takes no issue with, further discounts totalling around 25 per cent should have been given. These included Mr Miller’s chronic methamphetamine addiction, which has led to a life dominated by criminal offending, aggravated by the abandonment and abuse he suffered as a child.
What the Judge actually said at the sentence indication on the topic of personal mitigating factors is set out below:[18]
[25] What I propose to do is to give you a discount that I hope is some incentive to you to get on with matters, and I think its arithmetically comes to around about 18 or so per cent. That may be regarded as generous in the circumstances, but I do want to give you some incentive to bring these matters to a close, and get on with whatever befalls you, and eventually of course your rehabilitation which I do not discount as being important, I think it is important. If I then deduct, from the 138 months, the 24 months that leaves me with a total of nine years and six months. That will be what would be levied upon the methamphetamine supply charge. All other charges would receive lesser, and concurrent, prison sentences.
[18]R v Miller, above n 5.
Thus the 24-month discount offered at the sentence indication incorporated both the guilty plea allowance as well as the other personal mitigating factors. It represented a 17.4 per cent discount from the adjusted starting point.
In the Judge’s final sentencing remarks those comments were incorporated with some modifications:[19]
[11] The end point that I came to when I dealt with you was one of nine years and six months, that was after deduction of 18 months.[20] I think that, while my instinct tells me otherwise, what I am going to do, because I think this is appropriate, not impose a minimum term of imprisonment and I am going to out of an abundance of caution reduce the nine years six months to nine years and four months.
[19]R v Miller, above n 9.
[20]The “18 months” appears to be a transpositional error. The Judge must be assumed to be referring to the 18 per cent discount (which was actually 17.4 per cent).
One of the issues at sentencing was whether that discount should have been increased. It is apparent from the Judge’s sentencing notes that Ms Riddell addressed this point and succeeded to the extent that a further two months was added to the 24‑month discount. The reduction of 26 months represents an 18.8 per cent discount from the adjusted starting point of 11 years and six months.
The question for us is whether an 18.8 per cent discount is sufficient to take into account both the guilty plea and the personal mitigating circumstances. It is to that issue we now turn.
Although the Judge was not specific on the point, it seems likely, given the total discount, that he adopted the Crown’s lower figure of 15 per cent to acknowledge the guilty pleas. If that is correct, then the discount for other personal mitigating factors could only have totalled a little under four per cent. If the guilty plea discount was more, then the discount for other personal mitigating factors correspondingly reduces.
On that analysis we are satisfied that insufficient recognition was given for Mr Miller’s personal circumstances, particularly his potential to rehabilitate and willingness to engage in rehabilitative programmes. The modesty of the discount suggests that the Judge did, in fact, scale it down because he was concerned that in not imposing an MPI, a larger discount would involve double counting. For the reasons already given, this was wrong in principle. Any calculation of the discount for personal mitigating factors must be undertaken separately from the assessment of the MPI.
The question of addiction and rehabilitation was addressed by this Court in Zhang.[21] The reports, subject to the reservations discussed above, provide some room for optimism. The Nelson Hospital report reveals that Mr Miller has some insight into his drug dependency and the need for intensive treatment. He requested a referral to an intensive alcohol and other drug programme. A treatment plan was agreed which included referral to Moana House, a long term treatment facility based in Dunedin. On completion he would need further monitoring before any return to the general community. The psychological report deals, in considerable detail, with the likely drivers for Mr Miller’s offending, particularly his very difficult and abusive childhood.
[21]Zhang v R, above n 1, at [138]–[150].
According to the psychological report, after Mr Miller’s first stint in prison, which followed his conviction for drug dealing offending in Auckland, he was paroled to Motueka and for some time managed to refrain from criminal activity. However, his return to the North Island led him to further drug dealing and another period of incarceration. On being released he entered a relationship which lasted 17 years. His partner, a school teacher, provided a pro-social environment before Mr Miller was introduced to methamphetamine and the cycle was repeated. Despite this, his partner remained loyal to him and following his release in 2013 he lived with her and their son in Auckland, where Mr Miller worked as a builder. It was when he was made redundant that he relapsed into methamphetamine abuse. His relationship consequently broke down. He made the decision to move back to Motueka to restart his life and isolate himself from the drug scene. However, he reported that it was the debt he owed to the gang that led him to return to the trade he knew.
The psychological report records that given the very clear nexus between Mr Miller’s addiction and his index offending, it is imperative he attends intensive drug treatment. Ms Riddell advised us that Mr Miller is presently in the Drug Treatment Unit at Christchurch Men’s Prison. For him to have been admitted to that programme requires Corrections to be satisfied he has both an addiction and the capacity and potential to be rehabilitated. On his eventual release the author of the report strongly recommends that Mr Miller attend a residential drug programme such as that offered by Odyssey House.
Thus in summary we are satisfied that Mr Miller not only has insight into the drivers of his offending but also, apparently for the first time, a willingness to undergo the necessary programmes to reduce the risk of him returning to the cycle of offending his conviction history so clearly reveals. In the past and in stable and pro‑social circumstances, he has demonstrated an ability to keep himself free of offending for reasonably lengthy periods. That reduces the need for deterrence and justifies an allowance for rehabilitative potential.
In our view this, together with the challenges of his upbringing, justifies a further discount in the order of 15 per cent of the starting point plus uplifts. This will be added to the four per cent allowed for by the Judge, making a total 19 per cent discount for personal mitigating factors. That discount is added to the 15 per cent discount for Mr Miller’s guilty pleas, bringing the total discount to 34 per cent.[22] This leads to a final sentence of seven years and seven months.
Result
[22]As noted above at [9], the sentencing Judge bundled all discounts, including the guilty plea, together. This is consistent with the approach in Reweti v R [2018] NZHC 809 at [22]–[24]; and Royal v R, above n 4, at [29]. No challenge to this approach was made on appeal.
The appeal is allowed.
The sentence of nine years and four months imprisonment on the charge of possession of methamphetamine for supply is quashed and substituted with a sentence of seven years and seven months’ imprisonment.
All other concurrent sentences remain.
Solicitor:
Crown Law Office, Wellington for Respondent
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