| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA404/2024 [2024] NZCA 630 |
| BETWEEN | CARLOS KAMEN MIRIAU |
| AND | THE KING |
| Court: | Ellis, Peters and Downs JJ |
Counsel: | H G de Groot for Applicant |
Judgment: | 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]
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- AGLC
- Miriau v The King [2024] NZCA 630
- Case
- [2024] NZCA 630
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
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