R v Miller HC Ham CRI 2007-419-138

[2008] NZHC 2211

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI 2007-419-138

THE QUEEN

v

CRAIG DAVID MILLER

Charge:Unlawful possession of a firearm; Unlawful possession of explosives

Plea:               Not Guilty

Appearances:  Louella Dunn for Crown

Louis Wilkins for Prisoner

Sentenced:     28 February 2008

Home Detention for 12 months on each count

SENTENCING NOTES OF HARRISON J

SOLICITORS

Almao Douch (Hamilton) for Crown

Sean Ellis (Auckland) & Louis Wilkins (Hamilton) for Prisoner

R V MILLER HC HAM CRI 2007-419-138  28 February 2008

Introduction

[1]      Mr  Miller,  a  jury  in  this  Court  found  you  guilty  on  21 February  2008  on charges of unlawful possession of a firearm – that was a semi automatic weapon – and of ammunition.  The maximum term of imprisonment for which you are eligible on each is four years.

Facts

[2]      The  facts  fall  within  a  small  compass.   In  August  2005  you  and  your  then partner but now wife, Melanie Holt, lived in a rented property at Gordonton.   The police searched the house.   Their attention was drawn to you because of Ms Holt’s intercepted communications with Mr Kim Smith.   You may or may not know him. There  is  no  question,  though,  that  you  were  in  any  way  directly  related  to  his offending.

[3]      The  police,  as  you  know,  found  large  quantities  of  methamphetamine  and heroin,  morphine  sulphate  tablets,  digital  scales  and  over  60  unused  plastic  bags. Also  in  three  different  places  in  the  house  was  a  total  of  $5,500  in  cash. In  the bedroom the police found a box of ammunition.  In the rear room they found a semi automatic weapon.  It had been wrapped up and concealed in clothing.

[4]      You and Ms Holt were charged jointly with unlawful possession of firearms and explosives.  She alone was charged with all the drug related offending.  Both of you gave evidence at trial.   Each of you denied that you were in possession of the drugs or, in your case, the firearms.  The jury did not believe you.  You were found guilty  and  convicted.   Ms Holt  has  just  been  sentenced  to  a  total  of  five  years imprisonment on the drugs and other charges.

[5]      Following conviction I remanded you until today for sentence. With Mr Wilkins’ consent, I dispensed with the normal requirement to obtain a probation report. My real objective was to explore the availability of an alternative sentence of home detention to imprisonment.  Mr Wilkins has provided me with full details of

your personal circumstances.  Additionally I have what is known as an Annex Report from the probation service.

Starting Point

[6]      Here, Mr Miller, as I have said, the maximum sentence on each charge is four years           imprisonment.      The    appropriate    starting   point, just    looking   at the circumstances of the offences alone before taking the good or bad features of your life   into   account,   lies   somewhere   in   the   range   of   18   months   to   two   years imprisonment.

[7]      Mr Wilkins has kindly provided me with a copy of Randerson J’s decision in Police v Taingahue HC GIS AP3-4010-2004 24 February 2004.   Having reviewed the Judge’s reasoning where he upheld a starting point in the range of two to two and a half years, I am satisfied that your case is not as serious.   An appropriate starting point is 18 months imprisonment.

[8]      That must be increased, or adjusted upwards, for your criminal history.  You have convictions for unlawful possession of a pistol in 1998, unlawful possession of

an offensive weapon in 2001, and about the same time for possession of firearms and explosives.  It is a sad indictment of the way that you have lived your life.  Nobody should have that sort of equipment in their house or in their possession.   You know that.  You had no cause to keep weapons or ammunition.

[9]      In  my  judgment  those  features  justify  an  uplift  or  increase  in  the  starting point to two years on each offence.   However, having said that, I am looking at the totality of your offending and I treat the starting point as being the same for each. You will not be subject to separate and additional sentences but rather they will run concurrently.  You understand what I mean.

[10]     The only question then is whether or not I sentence you to two years imprisonment or impose the alternative urged by Mr Wilkins, with some skill and effect, of home detention. It is a tight call, Mr Miller.   You know that you sit right

on the cusp.  The assessor’s report of the premises available to you, which are under the control of Mark Lupton, is favourable.

[11]     Also I take into account a number of other positive circumstances.   You are

37 years of  age.   You have  a history of  minor  offending but  you  have  never  been sentenced to a finite term of imprisonment.  Most importantly you are qualified as a gas  fitter  and  welder. That  obviously  requires  a  degree  of  skill  and  ability. Additionally, as Mr Wilkins points out, you have been complying with terms of bail since August 2005.   I agree with other Judges who say that that in itself, given its length, is a term of punishment.  Your liberty has been restricted for two and a half years.

[12]     Also in your favour is that you have previously been sentenced to community work.  You again have a history of compliance.  You are willing to seek counselling

for  your problems. You have heard my observation earlier to Mr Wilkins that  you have an anger management problem.   Also you may have difficulties with alcohol. Whatever is the case, Mr Miller, services are available to assist you to improve your life to become a worthwhile and contributing member of society.   If you have gang affiliations, I hope, as I said before, you have grown out of that sort of behaviour.

[13]     After  careful  thought,  I  am  going  to  sentence  you  to  a  term  of  12  months home detention.  That is the maximum period available.  Other Judges in this Court have said, and I agree, that the sentence of home detention, which was introduced in September 2007, is equivalent to a sentence of two  years  imprisonment:  R v Piper HC AK CRI 2007-004-00798 22 November 2007.  The reason is this.  If you were in prison you would be eligible to apply for parole after one year.   Somebody like you would  doubtless  be  granted  parole  at  that  time.   A  sentence  of  home  detention  is fixed.  There are no possible reductions or discounts.

[14]     Your  liberty  will  be  severely  curtailed  for  12 months. You  have  to  live within the four corners of the section of the house occupied by Mr Lupton  for the next 12 months, except when you attend work or otherwise with the approval of the probation officer.   Anecdotal evidence suggests that some people find the sentence of home detention more restrictive and onerous than imprisonment.

[15]     I do accept also, Mr Miller, that home detention, as other Judges have said, satisfies  the  purposes  and  needs  of  deterrence,  denunciation  and  holding  you accountable for your crimes.   It is in substance and reality a severe punishment.   Its value here, though, is that it enables you to remain in the community and take some positive  steps,  as  I  said  before,  to  improve  your  life. You  have  an  offer  of employment.   Hopefully  the  probation  service  will  confirm  that  and  allow  you  to take up the offer, initially for one month but hopefully for the next year.

[16]     You  are  granted  home  detention  but  with  the  following  special  conditions proposed by the assessor:

(1)You  are,  when  released,  to  travel  directly  to  24  Higgins  Road, Hamilton.   There  you  are  to  await  the  arrival  of  a  probation  officer and a Chubb security officer;

(2)You  are  to  reside  at  24  Higgins  Road,  Hamilton  and  not  to  move address   while   on   the   sentence   of   home   detention   without   the probation officer’s written approval;

(3)You  are  to  undertake  and  complete  any  other  counselling  and/or treatment  as  directed  by  your  probation  officer.              (I  interpolate  to repeat  my  confidence  that  you  will  co-operate  with  the  probation service   in   participating   in   such   courses   as   are   suggested   or recommended for you);

(4)You are to abstain from the consumption of alcohol and illegal drugs for the duration of home detention.

[17]     In itself, Mr Miller, those conditions will be a heavy burden.   If you breach them you will be re-sentenced and certainly go to prison.

[18]     There you are.  You owe this sentence largely to the dedicated assistance and eloquence of Mr Wilkins and to the support and friendship offered by Mr Lupton and

his family.   I hope, Mr Miller, I never see  you in a Court again.   This is your last

chance.  Good luck.  Please stand down.

Rhys Harrison J