Miller v The Queen - [2015] NZHC 1630

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000019 [2015] NZHC 1630

BETWEEN
WILLIAM ERIC RUA MILLER

Appellant

AND

THE QUEEN Respondent

Hearing: 29 June 2015

Appearances:

B Dawkins for the Appellant
M L Wong for the Respondent

Judgment:

13 July 2015

JUDGMENT OF NATION J

[1] The appellant appeals against his sentencing on 10 charges under the Misuse of Drugs Act 1975 and Psychoactive Substances Act 2013. On 26 March 2015, the appellant was sentenced to the following concurrent sentences:1

(a) two years and seven months’ imprisonment on:

(i) three charges of offering to supply LSD, two of those charges brought on a representative basis; and

(ii) one charge of offering to supply methamphetamine, a Class A drug, brought on a representative basis;

1 R v Miller [2015] NZDC 4920.

MILLER v R [2015] NZHC 1630 [13 July 2015]

(b) two years and four months’ imprisonment on two charges of possession of the Class A drug LSD for supply;

(c) six months’ imprisonment on two charges of offering to sell a psychoactive substance, each charge having been brought on a representative basis; and

(d) four months’ imprisonment on two charges of possession of a

psychoactive substance with intent to sell.

[2] All sentences of imprisonment were concurrent, so the effective sentence for all the offending was two years and seven months.

Introduction

[3] This appeal is brought under s 250 Criminal Procedure Act 2011 against the sentence of 31 months’ imprisonment imposed on the appellant in the District Court at Invercargill on 26 March 2015.

[4] Section 250 Criminal Procedure Act 2011 provides as follows:

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that –

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[5] The Court of Appeal has confirmed that the enactment of the Criminal Procedure Act has not changed the approach which Courts must take with regard to an appeal.2 Ultimately, an appellate Court has to be concerned with whether or not
the sentence imposed was manifestly excessive.

2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

First ground of appeal – was there a material error in the number of LSD tabs which the Judge referred to?

[6] The appeal was advanced on the basis that the sentencing Judge had made a material error of fact when, in his sentencing remarks, he referred to the appellant as having as many as “50 or more” LSD tabs and “over 50” LSD tabs.3

[7] The Crown says that no material error was made by the Judge. It says the Judge sentenced the appellant on the basis the offending involved “small quantities” of LSD, as was consistent with the facts.4 The Crown submits that the starting…

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 [2015] NZHC 1630
Case: [2015] NZHC 1630
Decision Date: 13 July 2015

CaseChat Overview and Summary

In Miller v The Queen, the appellant, William Eric Rua Miller, appealed against his sentence on ten charges under the Misuse of Drugs Act 1975 and Psychoactive Substances Act 2013. The District Court at Invercargill sentenced Miller to concurrent terms of imprisonment totaling two years and seven months for offering to supply LSD, methamphetamine, and psychoactive substances. The appellant contested the sentence, arguing that the District Court judge had made a material error in the number of LSD tabs referred to and that the starting point for sentencing was manifestly excessive. The Crown maintained that the sentence was appropriate given the totality of the offending. The High Court found that the District Court judge's reference to the possibility of 50 tabs of LSD did not constitute a material error and that the starting point and final sentence were appropriate given the gravity of the offending. The court held that the offending involved numerous offers to supply Class A drugs and psychoactive substances, and the sentence reflected the seriousness of the offending. The appeal was dismissed, and the original sentence was upheld.

Orders