Miriau v The King - [2024] NZCA 630

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA404/2024
[2024] NZCA 630

BETWEEN	CARLOS KAMEN MIRIAU Applicant
AND	THE KING Respondent

Court:	Ellis, Peters and Downs JJ
Counsel:	H G de Groot for Applicant K B Bell and T Zhang for Respondent
Judgment: (On the papers)	3 December 2024 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

The applicant, Mr Miriau, seeks leave to bring a second appeal against sentence.
The proposed appeal is against a decision of Johnstone J in the High Court,[1] delivered on 21 May 2024, upholding a sentence imposed by Judge Bonnar KC in the District Court in November 2023.[2]
[1]Miriau v R [2024] NZHC 1269 [High Court judgment].
[2]R v Miriau [2023] NZDC 24831 [District Court judgment].
On 12 July 2024, Cooke J directed that Mr Miriau’s application for leave should be determined on the papers, and separately from the proposed appeal.
We may only grant leave if satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.[3] Mr de Groot, counsel for Mr Miriau in the High Court and now in this Court, submits both grounds are made out on this application. The Crown submits neither is satisfied, and that the application must be dismissed.

Background

[3]Criminal Procedure Act 2011, s 253(3).

Mr Miriau pleaded guilty to a charge of importing methamphetamine.[4] The importation, which was of 44.4 kilograms of methamphetamine, was arranged by two co-offenders, one of whom was Mr Miriau’s cousin and it was he who enlisted Mr Miriau’s assistance.
[4]Misuse of Drugs Act 1975, s 6(1)(a) (maximum penalty of life imprisonment).
Mr Miriau’s role was relatively confined. Over the course of several weeks, he was in communication with a freight forwarding company regarding the consignment; completed documents required to progress the consignment’s importation; and deposited funds to a bank account to pay the fees of the freight forwarding company. Although Mr Miriau acknowledged that he knew the importation was of illegal drugs, he did not know which drug, the quantity to be imported, nor its value. Mr Miriau’s explanation was that he felt obliged to assist when his cousin asked him to do so, as his cousin had previously given him $5,000. Mr Miriau did acknowledge, however, that he had anticipated further financial reward.
Judge Bonnar sentenced Mr Miriau in accordance with the guideline judgments in Zhang v R and Berkland v R.[5] The quantity involved put the offending in band five of the Zhang sentencing bands, and the Judge assessed Mr Miriau’s role as falling between “lesser” and “significant”.[6] Band five offending will usually attract a starting point of at least 10 years’ imprisonment.[7]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Berkland v R [2022] NZSC 143,

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 Miriau v The King

Details

AGLC: Miriau v The King [2024] NZCA 630
Case: [2024] NZCA 630
Decision Date: 3 December 2024 at 11.00 am

CaseChat Overview and Summary

In the case of Miriau v The King, the applicant, Carlos Kamen Miriau, sought leave to bring a second appeal against his sentence. The application was heard by the Court of Appeal of New Zealand, comprising Ellis, Peters, and Downs JJ. The matter was decided on the papers, with H G de Groot representing the applicant and K B Bell and T Zhang representing the respondent.

The legal issues before the court were whether the proposed second appeal involved a matter of general or public importance, or whether a miscarriage of justice may have occurred or may occur unless the appeal was heard. Mr Miriau, represented by de Groot, argued both grounds were made out, while the Crown, represented by Bell, contended neither was satisfied and that the application should be dismissed.

The Court of Appeal declined leave for the second appeal, finding that the case did not raise a matter of general or public importance. The court noted that sentencing judges are well aware that the starting points identified in Zhang are guidelines, capable of being displaced in appropriate circumstances. The Supreme Court's decisions in Berkland, Martin, and Philip had already provided sufficient guidance on the circumstances in which movement within or between the bands may be warranted. Furthermore, the court found no risk of a miscarriage of justice, as the District Court judge and the High Court judge had carefully considered Mr Miriau's role and the mitigating factors, resulting in a sentence that was not manifestly excessive.

In conclusion, the Court of Appeal declined the application for leave to bring a second appeal, and no further orders were made.

Orders