The appellant, Justin Miller, was convicted following a guilty plea to one charge of attempting to pervert the course of justice and was sentenced to three years, two months’ imprisonment and a minimum term of one year and seven months’ imprisonment.[1] The charge carried a maximum sentence of seven years’ imprisonment. He now appeals his sentence on the grounds that the starting point was too high and too great an uplift for aggravating features was applied.

Background

[1]Crimes Act 1961, s 117(e).

The background facts, which were not challenged, were set out by the sentencing Judge, Lang J, as follows:[2]
[4]       Your offending arose after you were sentenced to five months imprisonment on 19 July 2013. Whilst in prison, you came into contact with three men who were in custody on remand awaiting trial in the High Court at Rotorua on a variety of very serious charges including attempted murder. Central to the Crown case in respect of those charges was the evidence of several civilian witnesses. One of these was your former partner, and another was the former partner of one of the men awaiting trial.
[5]       For reasons known only to you, you wrote a letter to the former partner of the man awaiting trial. The letter began with you identifying yourself, and telling the witness that, as she knew, you were in jail with the witness's former partner. You then said:
He known what you have done, but he don't kear about that but just don't show up at court or everyone will be very very mad and go thru your whole family till they find you and get you the only things stopping people comming for you now is me and the bro if you don't turn up you will be allgood I can promess you that u have been told to text me when I get out... we will all be together soon enuff but that's up to you sis happy days ahead don't worry about John if [Mr Miller’s former partner] goes to Court shes fucked...she best stay away from courts in regards to everyone people are ready to move when they given the order...
[6]       Fortunately, the witness immediately contacted the police when she received the letter. She and the other witness were then taken into the witness protection programme. Since that time they have remained in that programme. They gave evidence at the trial in the High Court at Rotorua in February. The Crown has provided me with information to the effect that, no doubt as partly as a result of their evidence, the three men…

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 [2014] NZCA 382
Case: [2014] NZCA 382
Decision Date: 11 August 2014 at 11 am

CaseChat Overview and Summary

In Miller v R, the appellant, Justin Miller, appealed his sentence for attempting to pervert the course of justice. Miller was convicted following a guilty plea and was sentenced to three years and two months’ imprisonment, with a minimum term of one year and seven months. The appeal was based on the grounds that the starting point for the sentence was too high and that too great an uplift for aggravating features was applied. The Court of Appeal of New Zealand, consisting of Harrison, Goddard, and Andrews JJ, heard the appeal on 29 July 2014, and delivered judgment on 11 August 2014. Counsel for the appellant was C D Bean, and for the Crown, J M Jelas.

The legal issues before the Court were whether the starting point for the sentence was correctly determined and whether the uplift for aggravating factors was appropriate. The Court considered that the variety of factual scenarios in which an attempt to pervert the course of justice might occur precludes a tariff decision in this area of offending. The primary focus in sentencing for such an offence should be on the intention behind the attempt and its potential effect, with deterrence and denunciation as the overriding sentencing principles. The Court found that the offending in this case was correctly categorised as a mid-range offence, therefore commanding a mid-range starting point. The Court also concluded that the uplift applied by the sentencing Judge was entirely appropriate to reflect Miller’s criminal history.

The Court dismissed the appeal, finding that the sentence was not manifestly excessive and was in accordance with the principles of the Sentencing Act 2002.

Orders