Miller v R [2014] NZCA 382 (11 August 2014)

Last Updated: 22 August 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA180/2014 [2014] NZCA 382
BETWEEN	JUSTIN CHRISTOPHER MILLER Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	C D Bean for Appellant J M Jelas for Crown
Judgment:	11 August 2014 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by Goddard J)

[1] The appellant, Justin Miller, was convicted following a guilty plea to one charge of attempting to pervert the course of justice and was sentenced to three years, two months’ imprisonment and a minimum term of one year and seven months’ imprisonment.^[1] The charge carried a maximum sentence of seven years’ imprisonment. He now appeals his sentence on the grounds that the starting point was too high and too great an uplift for aggravating features was applied.

Background

[2] The background facts, which were not challenged, were set out by the sentencing Judge, Lang J, as follows:^[2]

[4] Your offending arose after you were sentenced to five months imprisonment on 19 July 2013. Whilst in prison, you came into contact with three men who were in custody on remand awaiting trial in the High Court at Rotorua on a variety of very serious charges including attempted murder. Central to the Crown case in respect of those charges was the evidence of several civilian witnesses. One of these was your former partner, and another was the former partner of one of the men awaiting trial.

[5] For reasons known only to you, you wrote a letter to the former partner of the man awaiting trial. The letter began with you identifying yourself, and telling the witness that, as she knew, you were in jail with the witness's former partner. You then said:

He known what you have done, but he don't kear about that but just don't show up at court or everyone will be very very mad and go thru your whole family till they find you and get you the only things stopping people comming for you now is me and the bro if you don't turn up you will be allgood I can promess you that u have been told to text me when I get out... we will all be together soon enuff but that's up to you sis happy days ahead don't worry about John if [Mr Miller’s former partner] goes to Court shes fucked...she best stay away from courts in regards to everyone people are ready to move when they given the order...

[6] Fortunately, the witness immediately contacted the police when she received the letter. She and the other witness were then taken into the witness protection programme. Since that time they have remained in that programme. They gave evidence at the trial in the High Court at Rotorua in February. The Crown has provided me with information to the effect that, no doubt as partly as a result of their evidence, the three men were convicted on a variety of charges. Notwithstanding that fact, the two witnesses have been forced to leave their towns, their friends, their communities and their families and are now forced to begin new lives elsewhere under assumed identities.

Sentencing decision

[3] Lang J found that Mr Miller’s offending fell in the mid-range for offending of its type and a mid-range starting point of three and a half years’ imprisonment was therefore adopted. While the Judge did not characterise Mr Miller’s offending as the “most serious of its type” he found it “far from being at the bottom end of the scale”.^[3]
[4] In determining this as the appropriate starting point, the Judge referred to the recent decision of this Court in M (CA469/2013) v R,^[4] in which the Court indicated that an earlier approach in R v Hillman^[5] establishing a benchmark of three years’ imprisonment for offending of this kind may need to be reviewed in light of the principles contained in the Sentencing Act 2002. In particular, this Court noted that the decision in R v Hillman would seem to be inconsistent with the effect of ss 8(c) and (d) of the Act, which require that the maximum penalty (in this case seven years’ imprisonment) and penalties near to the maximum be imposed for offending that is within the most serious of cases or near to the most serious of cases for which the penalty is prescribed.
[5] Taking into account the aggravating factors personal to Mr Miller, the most obvious being his relevant prior criminal convictions, the Judge imposed an uplift of six months’ imprisonment to reflect that factor.
[6] A letter of apology written for the Court by Mr Miller was discounted by the Judge as not reflecting true remorse and thus no credit was allowed for it. In his letter of apology, Mr Miller claimed that the letter he wrote to the complainant had been taken the wrong way and he had not known she was to be a witness in the forthcoming trial.
[7] The Judge did, however, allow a discount of 20 per cent to reflect Mr Miller’s guilty plea, which he accepted was entered at the first opportunity that Mr Miller had to plead to the charge.

Argument on appeal

[8] Mr Bean submitted that the starting point was too high in the circumstances of this case, relying on R v Hillman. Mr Bean argued that the guidance in M v R does not apply because this offending is not within the most serious of cases of its type. The benchmark of three years set by R v Hillman should therefore have been followed. Mr Bean’s assertion in this regard was based on the threat having been in written form, not repeated, having contained no express threat of violence, no evidence of personal gain for Mr Miller, and an ineffectual outcome, as the recipient gave evidence at the trial.
[9] In terms of the uplift of six months’ imprisonment imposed by the Judge for previous convictions, Mr Bean submitted that nothing in Mr Miller’s criminal past justified such an uplift.

Decision

[10] As Mr Bean pointed out, there is no tariff decision in this area of offending, for obvious reasons. The variety of factual scenarios in which an attempt to pervert the course of justice might occur precludes such an approach. The present case is in point, the facts being very different to the situation in either M v R or R v Hillman.
[11] The real focus in each case of an attempt to pervert the course of justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.
[12] The present offending is not in the most serious category of cases of attempting to pervert the course of justice. Accordingly, Lang J did not impose a starting point in the upper range of seven years. The offending was correctly categorised as a mid-range offence, therefore commanding a mid-range starting point. None of the factors relied on by Mr Bean justify a lower starting point.
[13] While Mr Miller’s letter did not have the ultimate effect of derailing the trial, no credit attaches to him for that, as the outcome was entirely due to the courageous and responsible action of the recipient in immediately reporting his letter and in the consequential action taken to ensure witnesses were protected and the integrity of the trial preserved.
[14] Mr Miller’s protestations that his actions in writing the letter were misunderstood are unconvincing, as Lang J found. The content and tenor of the letter speak for themselves and its intention is unmistakable. That this was its intention is borne out in the significant and long-lasting effect on the recipient of the letter and on the other witnesses concerned, including Mr Miller’s estranged partner. As Lang J rightly observed: “the gravity of your offending struck at the heart of the criminal justice system. Civilian witnesses such as the witnesses in this case can expect to be protected from people like you”.^[6]
[15] We are satisfied that the end sentence is not manifestly excessive and is in accordance with the principles in s 8(e) of the Sentencing Act.
[16] Mr Miller’s criminal history was also a matter properly to be taken into account in determining an uplift. Of particular relevance are ten previous convictions between 2006 and 2013 for breaches of protection orders, plus a charge of male assaults female in connection with one of those convictions. Mr Miller served prison sentences on at least five occasions for this offending. At the time he wrote the subject letter, he was in prison for contravening a protection order in favour of his former partner. That was in July 2013. The former partner was a witness in the forthcoming trial just as the recipient of the letter was. Mr Miller specifically included in the letter a warning for his partner to “stay away from the courts”. The uplift applied by Lang J was entirely appropriate to reflect this history.

Conclusion

[17] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 117(e).

^[2] R v Miller [2014] NZHC 534.

^[3] At [11].

^[4] M (CA469/2013) v R [2013] NZCA 385 at [11]. In this judgment we refer to this case as M v R.

^[5] R v Hillman [2005] 2 NZLR 681 (CA).

^[6] At [7].