Miriau v The King - [2024] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-625

[2024] NZHC 1269

BETWEEN
CARLOS KAMEN MIRIAU

Appellant

AND

THE KING

Respondent

Hearing: 9 April 2024

Appearances:

H de Groot for appellant

B T Vaili and N C Vaughan for respondent

Judgment:

21 May 2024

JUDGMENT OF JOHNSTONE J

Solicitors:
Kayes Fletcher Walker, Auckland

MIRIAU v R [2024] NZHC 1269 [21 May 2024]

[1] On 8 November 2023, Judge S Bonnar KC sitting in the Manukau District Court sentenced Carlos Miriau to serve four years and 11 months’ imprisonment.1 Mr Miriau had pleaded guilty to a charge alleging that, with others, he imported 44.41 kilograms of methamphetamine into New Zealand.2

[2] Mr Miriau appeals against that sentence, saying it is manifestly excessive. He says, in particular, that:

(a)The Judge’s 11-year starting point should have been no more than six years.

(b)The guilty plea discount of 20 per cent should have been 25 per cent.

(c)Overall, a sentence of two years and five months should be substituted.

[3] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.3 The focus is on the end sentence rather than the process by which the sentence is reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.4

Was the starting point too high?

Sentencing for methamphetamine-related offending

[4] In Zhang v R, the Court of Appeal recalibrated New Zealand’s approach to sentencing for methamphetamine-related offending.5 It did so by retaining the use of bands set out in R v Fatu, guiding the selection of starting points for sentences based on the objective criteria of quantum, subject to modifications.6

1      R v Miriau [2023] NZDC 24831.
2      Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a). Maximum penalty: life imprisonment.
3      Criminal Procedure Act 2011, s 250.
4      Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA279; [2014] 3 NZLR 482 at [36]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].
5      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
6      R v Fatu [2006] 2 NZLR 72 (CA).

[5] Of initial relevance, band four in Fatu was subdivided to create a fifth band for quantities exceeding two kilograms, for which a presumptive starting point in the range of 10 years to life imprisonment was indicated.

[6] Further, Zhang focused the sentencing court’s determination of culpability inherent in the offending upon the particular role of the offender, introducing new role categories labelled “leading”, “significant” and “lesser”, and entertaining the possibility of the offender’s role taking the appropriate starting point outside the band that would otherwise be dictated by quantum alone.

[7] In Berkland v R, on the issue of starting points for methamphetamine-related offending, the Supreme Court observed that the three Zhang role categories provide “a…

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] NZHC 1269
Case: [2024] NZHC 1269
Decision Date: 21 May 2024

CaseChat Overview and Summary

Carlos Kamen Miriau appeals against his sentence of four years and 11 months' imprisonment imposed by Judge Bonnar for importing 44.41 kilograms of methamphetamine into New Zealand. He argues the starting point of 11 years was too high, the guilty plea discount should have been 25 per cent instead of 20 per cent, and the sentence should be reduced to two years and five months. The High Court considered whether the starting point and guilty plea discount were appropriate. It found no substantive error in the starting point of 11 years, which appropriately reflected the quantity of drugs and Miriau’s role in the importation. The 20 per cent guilty plea discount was also justified, as Miriau’s delay in pleading guilty undermined his acceptance of responsibility. The appeal was dismissed, and the original sentence was upheld.

Orders