R v Miller [2016] NZDC 12303 (5 July 2016)

Last Updated: 15 February 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT BLENHEIM

CRI-2015-006-000855 [2016] NZDC 12303

THE QUEEN

v

_{CLINTON GRANT MILLER}

Hearing:	5 July 2016
Appearances:	J M Webber for the Crown P W Watson for the Defendant
Judgment:	5 July 2016

_{NOTES OF JUDGE D C RUTH ON SENTENCING}

[1] Mr Miller, you are for sentence today following a trial at which you were found guilty of a number of charges. You were found guilty by a unanimous decision of the jury on charges that you had with you, on 16 March last year, a knife in a public place. You also were found guilty unanimously on a charge that you wilfully attempted to pervert the course of justice by going to the address of a named Crown witness armed with that knife. By a majority verdict of 11 to one you were found guilty of unlawful sexual connection with the named victim by penetrating his anus with a broomstick.

[2] The jury clearly accepted the evidence principally given by the victim in this matter, and it seems to me that the facts are reasonably clear.

[3] You were at that time, along with the various people you were associating with, in the grip of a drinking culture which to call it “frightening” would be very

R v CLINTON GRANT MILLER [2016] NZDC 12303 [5 July 2016]

much to understate the position. It seems to me that you and the young men you were hanging around with were perpetually drinking to intoxication as many times as your budget would allow, and indeed on the evening when this incident happened such was the case. There was a lot of drinking going on. There was drinking of high alcohol spirits, and there is evidence that people were passing out. Indeed it seems to me to be beyond question that the victim in this case was in precisely that situation and there was then, for reasons which I suspect none of us will ever know about, a decision that some humiliation of this young man should take place. That was started not by you, I accept, but by another who the summary of facts, which I accept for this purpose, thought that it would be “funny” to prod the complainant in his buttocks to try and wake him, but that did not work.

[4] It was then that you became involved and I am satisfied you used the handle of a broom, which was already on the premises, and inserted that into the anus of the victim. He, unsurprisingly, woke with excruciating pain. He subsequently had difficulty passing bowel motions. He noticed blood was present. He went to a doctor for examination but the reality was that there could be no internal assessment of the damage done simply because of the pain this young man was suffering as a result of what you did. He of course, again unsurprisingly, was very embarrassed and felt humiliated even in terms of being examined by medical professionals.

[5] Not content with that, at a point where you and others were facing charges in relation to this incident, you received, in respect of this matter, some disclosure and as a result of a group discussion it was decided that a visit would be paid to a named witness. It transpired that in the course of the morning, having been released from the Court, once again you and your mates drank to excess. You had a knife, and you went around to the address where you thought this named witness would be. By mere happenstance he was away at work, and so there was no confrontation of him personally. It is apparent to me, from what did happen at this address, that there was a determined intent on your part to warn this named witness away from giving evidence in what would be the forthcoming trial. That is the scenario in which you were in possession of the knife, and attempted to pervert the course of justice by effectively attempting to suborn a witness.

[6] As to penalty then, I have a number of documents now which have assisted me in determining how this matter might be resolved. The first point I make is that I think I must accept that in the circumstances, particularly as they are set out in the victim impact statement, that restorative justice which might normally have been looked at here would be quite inappropriate, although I do note your readiness to become part of such a process.

[7] In advance of today I have read submissions both from the Crown and from Mr Watson on your behalf. The Crown talks about this as being a drunken prank that got out of hand, or at least that is one view that might be taken of the facts upon which the jury deliberated. Indeed it is the case, however, that in a decided case that came before yours, a case of R v Castles CA105/02, 23 May 2002, the Court of Appeal was minded to paint a rather different picture and in that case, on appeal, the Court was minded to observe that this in fact was not a mere prank that had gone wrong, and at para [25] of that decision His Honour Blanchard J, delivering the judgment of the Court of Appeal, said that this was no mere prank, “But a group attack involving degradation and deliberate humiliation of the victim.”

[8] I accept, without question, that there is no sexual motivation in this, but it does seem to me to be beyond any real question that it must have been abundantly clear that this act would be seriously humiliating, if not very painful, for this young man, and that is the basis upon which I approach this sentencing exercise.

[9] I also have to factor in that the charges which were subsequent to the sexual violation were, of course, committed while you were on bail. In fact, you had only just been granted bail when that incident occurred. The Crown puts it this way, you brazenly breached those bail conditions which included, of course, non-association with each other and the non-consumption of alcohol, and non-association with any prosecution witness. You, I agree, brazenly breached all of those to meet your own needs and ends.

[10] The victim impact statement in this case makes interesting reading. None of what I read in the victim impact statement, most recently dated 8 June this year, is very surprising because he tells me that he received internal injuries. He was

bleeding and very sore. He had been virtually unconscious when this event happened to him. He noticed the blood and he saw a number of medical practitioners which cost him in terms of out-of-pocket expenses.

[11] He has been in a difficult situation since this event. He has been unable to hold down full-time employment, and things have been a struggle. He lasted only one week in one of the jobs that he had because he simply could not bear it. He has lost his confidence and self-esteem, was depressed and was on anti-depressant medication. He has been embarrassed by all of this, in particular having to divulge what had happened to him to those closest to him. He has been involved in counselling. He has trust issues now, and has lost his confidence. He is paranoid about what people around him might do or say. He wants nothing to do with you ever again, or with the other people who he would have then no doubt called friends, and I am afraid you have to bear the responsibility of that outcome.

[12] One of the matters raised in the Castles case which has been the subject of some debate today was the very young age of the defendant in the Castles case. He was only 18 at the time, and Mr Watson has provided me with some thought-provoking material about the impact of some of the more violent movies which include some reference to anal penetration and the like in some of the material that young men seem to want to look at.

[13] While I bear what Mr Watson has told me in mind, and I am grateful for his industry in providing this material, I have to be aware of the fact that you were

25 when this happened, you were not 18, and while there may be some debate about the age at which young men actually fully form their brain capacity, I am not sure that I can factor in anything for your age, given that you were 25 at the time.

[14] You come to Court with some previous convictions so you are not a first offender, but on the other hand I accept that there is nothing in your background which indicates that you have any propensity to this sort of behaviour, and I think that while it is no excuse at all, and no matter of mitigation, I think that alcohol was at the bottom of all of this behaviour on your part. It was the sort of drunken bravado that it seems your group was probably well versed in, and I think I agree

with the Crown that your culture was very worrying, and gross intoxication seemed to be the order of the day.

[15] The Crown points to the recognised tariff cases for sexual violation and while, as I have indicated, there was no sexual motivation to this matter, the Higher Courts have made it quite clear that there is to be no distinction to be drawn between the introduction into an anus of items other than a penis in a rape situation. That is not a distinction to be drawn in setting sentence levels.

[16] The Crown have spoken of the aggravating features here, and they are pretty obvious: the vulnerability of the victim, as I say he was if not unconscious certainly heavily asleep; there was some group aspect to this, the co-offender was right there on the spot and indeed perhaps initiated what happened; the extent of the harm done, are all clearly aggravating features of this offending.

[17] The Crown makes reference to the well-known tariff case for this sort of behaviour, R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750, which sets out a number of bands into which this sort of offending might fall depending on the absence or presence of various aggravating features. The Crown submits to the Court here that there are aggravating features, and I have mentioned them already, which are present here at least to a moderate degree.

[18] The Castles decision, which I accept was a worse case scenario than what I have to deal with for you, indicated to other Courts such as this one that a starting point of seven years or thereabouts is to be adopted unless there is some reason not to.

[19] In this case the Crown has taken what I think is a merciful approach and has suggested that when one factors in the perverting the course of justice, that an overall sentence of between six and six and a half years could be justified in your case.

[20] In terms of the perverting the course of justice, there are again a number of reasonably well-known cases to the Court including R v Hillman [2005] 2 NZLR 681 (CA), often referred to as the benchmark in terms of serious cases in this area. In

your case this was determined, and again no doubt the result of the state that you were in at the time.

[21] I have been referred to other decisions which I will not go through in depth here, but it is apparent that sentencings in the range of 18 months to two years can be justified in serious cases, and I accept this is serious although, unlike some of the cases I have been referred to, there is no outlaw gang affiliation suggested for you. That is often regarded as a very serious aggravating feature, and I accept without question that it is not present here.

[22] The Crown then says that, for totality purposes, it would be wrong to simply take a starting point of seven years and add to that 18 months or two years because the overall result of eight and a half or nine years might be seen as being crushing, and indeed out of kilter. The Crown does, as I have indicated, suggest though that this offending will certainly justify a term of six to six and a half years’ imprisonment.

[23] On your behalf Mr Watson, apart from the matters I have already referred to, has provided me with some medical information about your own circumstances, and it is apparent that you had some difficulties of your own, that you indeed had some grief issues which it appears perhaps were unresolved around this time, and it may well be that from your perspective alcohol was being used as some form of self-medication for such difficulties.

[24] I have already indicated to you that I accept that you were prepared to go to a restorative justice meeting, and I also accept at face value at Mr Watson tells me about your letter of apology, and the fact of it not being here is not an indication that you have not in fact written it. There is an indication that it has gone missing in the system somewhere. I trust you will do what you can to retrieve it or write a different one, or a new one, to ensure that this victim does at least have the benefit of your apology.

[25] Mr Watson agrees by and large with the sentencing approach taken by the

Crown. He raises two separate matters. He talks about your mental health issues.

He talks about the fact that you were on EM bail with your father, and there is a letter of support from him which I have read as well, and overall suggests that I again should bear in mind the need for totality in this situation. I record that I have taken all of those matters into consideration.

[26] Having reviewed all of the submissions that have been made, the sentence that I come to overall is one of six years’ imprisonment. I come to that sentence as a result of a careful consideration of the totality issues here, and the make-up of the sentence will be that there will be five years imposed for the sexual violation, and one year cumulative for the perverting the course of justice. That makes up the six years.

[27] In relation to the matter of suppression of name, Mr Watson has also addressed me about that, and I record that there has been some discussion about that. It seems to me, however, when I look at the principal reason for any suppression here, that must relate to the protection of the victim, the victim makes it quite clear that he does not want to have any suppression of name, and that has been mentioned in a number of emails, not that I have seen but which I accept have taken place. There is no basis upon which suppression can now be continued. Suppression is therefore lifted.

[28] On the charge of sexual violation, you are sentenced to five years’ imprisonment. On the charge of perverting the course of justice, you are sentenced to 12 months’ imprisonment cumulative upon that five years. As to the matter for the knife, that is six months, that is concurrent.

[29] I make an order for the destruction of the knife.

D C Ruth

District Court Judge