Miller v The Queen - [2013] NZCA 197

IN THE COURT OF APPEAL OF NEW ZEALAND

CA670/2012
[2013] NZCA 197

BETWEEN	JANIE MILLER Appellant
AND	THE QUEEN Respondent

Hearing:	1 May 2013
Court:	Arnold, Chisholm and Keane JJ
Counsel:	P H H Tomlinson and A J Beach for Appellant B D Tantrum for Respondent
Judgment:	31 May 2013 at 10 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe order for forfeiture to the Crown of 15 per cent of the sale proceeds of the property at 361 Aka Aka Road, Puni, is quashed and replaced with an order for forfeiture of five per cent of such proceeds.

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REASONS OF THE COURT

(Given by Chisholm J)

Introduction

After Ms Miller pleaded guilty in the District Court to cultivating cannabis and two firearms charges her case was remitted to the High Court for sentencing. This reflected that the Crown had already made application to the High Court for restraining orders in relation to Ms Miller’s property and intended to seek an instrument forfeiture order at sentencing.
On 25 September 2012 Lang J sentenced Ms Miller to nine months’ supervision.[1] He also directed that 15 per cent of the sale proceeds of her property (approximately $75,000) was to be forfeited to the Crown. Ms Miller appeals against the forfeiture order on two primary grounds: the starting point adopted by the Judge was too high; and that in all the circumstances no forfeiture was warranted.

The offending

[1]R v Miller [2012] NZHC 2499.

The police executed a search warrant at 361 Aka Aka Road, Puni, which is the appellant’s property. This is a rural property comprising approximately two acres. It contains a dwelling, two out-sheds, and a large half round barn. At the time of the search the appellant was living at the property with her partner. It has since been sold.
At the far end of the barn there was a purpose built growing room with eight mature cannabis plants, about four feet high, in individual plastic pots. The room was lined with aluminium foil and included high wattage bulbs, power boxes, thermometers, timers and fans.
Behind a false wall in one of the out-sheds was another cannabis growing room with seven cannabis plants standing about two feet high. Again these plants were in individual pots. There were also 16 cloned cannabis plants growing in a container. This room also had a high wattage bulb, power boxes, thermometers, timers and fans.
In the house the police found 14 grams of good quality cannabis head plant material. They also found a double barrel shotgun and two rifles, together with ammunition.
When spoken to by the police Ms Miller said that she had been growing the cannabis for pain relief because she suffered from fibromyalgia (chronic fatigue). She said that she had inherited the firearms and ammunition from her father.

The appellant

At the time of sentencing Ms Miller was 61 years of age (she is now 62) and in receipt of a benefit. She…

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 The Queen

Details

AGLC: Miller v The Queen [2013] NZCA 197
Case: [2013] NZCA 197
Decision Date: 31 May 2013 at 10 am

CaseChat Overview and Summary

In this case, the appellant, Ms. Miller, appealed against the sentence and forfeiture order imposed by Lang J in the High Court. Ms. Miller had pleaded guilty to cultivating cannabis and two firearms charges. The appeal was heard by Arnold, Chisholm, and Keane JJ in the Court of Appeal of New Zealand. The primary issues in the appeal were whether the starting point adopted by the Judge was too high and whether, in all the circumstances, no forfeiture was warranted.

The Court found that the starting point of 16 months' imprisonment was too severe, as the cultivation of cannabis in this case came within category 1 of Terewi, and offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. The Court also found that the order for forfeiture to the Crown of 15% of the sale proceeds of Ms. Miller's property was excessive and disproportionate to the seriousness of the offending and the circumstances of the offender. The Court considered that a more modest level of forfeiture would be consistent with the instrument forfeiture regime and the wider provisions of the Sentencing Act. As a result, the appeal against sentence was allowed, and the order for forfeiture to the Crown of 15% of the sale proceeds of the property was quashed and replaced with an order for forfeiture of five per cent of such proceeds, which equates to approximately $25,000. The supervision sentence of nine months stands.

The final orders of the Court are as follows: The appeal against sentence is allowed. The order for forfeiture to the Crown of 15% of the sale proceeds of the property at 361 Aka Aka Road, Puni, is quashed and replaced with an order for forfeiture of five per cent of such proceeds. The supervision sentence of nine months stands.

Orders