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Miller v R

Miller v R

Case [2020] NZCA 131 30 April 2020

Sentencing

Personal Mitigating Factors

Guilty Plea

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Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA142/2019
[2020] NZCA 131

BETWEEN	BRENT PETER MILLER Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	E J Riddell for Appellant Z A Fuhr for Respondent
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…

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.

Continue reading Miller v R

Details

AGLC: Miller v R [2020] NZCA 131
Case: [2020] NZCA 131
Decision Date: 30 April 2020 at 11.00am

CaseChat Overview and Summary

Miller appeals against his sentence of nine years and four months’ imprisonment imposed in the District Court at Nelson, arguing it is manifestly excessive. Miller pleaded guilty to seven charges, including possession of methamphetamine for supply, and was sentenced in reliance on the methamphetamine charge as the lead offence. The appeal was filed before the Court’s decision in Zhang v R, which applies 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. The appeal focuses on an assessment of the appropriate outcome when considered against new guidelines.

Miller argues the starting point was too high and insufficient credit was given to his personal mitigating factors. The Court found that the quantity of 905 grams of methamphetamine placed Miller within the new band four of Zhang, being eight to 16 years’ imprisonment, but at its lower end. The Court found Miller was a significant player in a large commercial drug operation and the Judge’s starting point of 11 years and six months in reliance on Fatu remains appropriate and justifiable under Zhang. The Court also found insufficient recognition was given for Miller’s personal circumstances, particularly his potential to rehabilitate and willingness to engage in rehabilitative programmes.

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.

Orders