R v Miller [2017] NZDC 28296 (8 December 2017)

Last Updated: 30 April 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-090-001562

[2017] NZDC 28296

THE QUEEN NEW ZEALAND POLICE

v

GARETH DAVID MILLER

Hearing:	8 December 2017
Appearances:	H Clarke for the Crown A Oh for the Prosecutor New Zealand Police M Pecotic for the Defendant
Judgment:	8 December 2017

NOTES OF JUDGE N R DAWSON ON SENTENCING

[1] Mr Miller, you appear in Court today for sentencing on a large number of charges. The first group of charges are possession of methamphetamine for supply, a representative charge, supply of methamphetamine, possession of cannabis for supply, and offering to supply methamphetamine. Three of those charges have life imprisonment as maximum sentences, which indicates their seriousness. You also appear for three charges of driving while disqualified. You then also appear on another group of charges relating to violence to a previous partner. The first is an assault with intent to injure and then four charges of male assaults female. Finally, there is a group of offending of five charges of receiving.

[2] I note you are 27 years of age. You have four driving convictions, one for violence and two others on your record.

THE QUEEN v GARETH MILLER [2017] NZDC 28296 [8 December 2017]

[3] On 1 July 2016, you were spoken to by the police on an unrelated matter and at that time an Apple iPhone was found in your possession and seized. The vehicle you were driving was also impounded. An examination of the phone identified a number of text messages had been sent by you to associates who were seeking methamphetamine.

[4] On 5 July 2016 your car was searched and located in the vehicle were 1008 empty plastic snaplock bags, one blackened glass pipe, 3.74 grams of methamphetamine inside six separate plastic snaplock bags, a large amount of ASB fast deposit cash bags, and a set of digital scales.

[5] On 7 July 2016 the police went to your home address and conducted a search inside a storage room where they found five empty plastic snaplock bags, .69 grams of methamphetamine inside two plastic snap lock bags, 142 grams of cannabis head material packaged in five plastic snaplock bags, each bag containing approximately 28 grams or one ounce of cannabis plant, 33 ASB fast deposit cash bags, and a set of digital scales. The police served multiple production orders on Spark New Zealand, Vodafone New Zealand and Skinny Mobile and an analysis of the results identified you had offered to supply methamphetamine on many occasions.

[6] Between 11 July 2016 and 12 July 2016 you were in text message communication with a Mr Cleaver. Throughout that conversation you agreed to supply methamphetamine to him. Some days later, Mr Cleaver transferred a total of $1250 to your bank account in payment for the methamphetamine supplied.

[7] Between 11 July 2016 and 22 August 2016, on 18 occasions you have offered to supply methamphetamine.

[8] On 5 August 2016 a production order was served on the ASB Bank requesting transaction details for all accounts belonging to you for the period covering 1 January 2016 to 4 August 2016. An analysis of the transaction data detailed cash deposits into your bank account during that period totalling approximately $257,000.

[9] I have read the pre-sentence report, the victim impact statement, the CADS report, your letter to the Court, and various certificates and letters of support. I have also had and read the submissions made by your counsel and by the Crown.

[10] When I sentence you today, Mr Miller, I need to hold you accountable for the harm caused to the victim of your violence and also for the victims of your receiving charges. The principal sentencing factors are denunciation and deterrence. What that means is the community does not approve of your offending. It is not acceptable in any shape or form. Deterrence is a sentencing factor because you need to have a sentence imposed that will get the message home to you and others that if you offend in this way, there are consequences you are not going to enjoy. The community need to be protected from the proliferation of drugs and you were obviously an active drug dealer. You have been addicted to methamphetamine yourself and your rehabilitation also needs to be taken into account.

[11] There are aggravating factors I need to take into account. The amount supplied was approximately 20.93 grams of methamphetamine and your violence to the victim of your violence charges was, on occasions, to the head of the victim. That is always particularly dangerous. You also offended while on bail and there was an abuse of trust in that your violence was against a partner of yours. The number of your previous convictions is also an aggravating factor.

[12] In mitigation, you have entered guilty pleas immediately after the charges were amended and it is submitted and accepted that a 25 percent discount would be appropriate. You have also expressed remorse for your offending in your letter to the Court. One thing you do need to understand, MrMiller, is that I cannot take into account your voluntary consumption of drugs by way of mitigation. If you choose to take drugs then you pay the consequences.

[13] I need to go to the facts also for the other charges. With respect to the violence charges, you have been in a relationship with [the assault victim, date of relationship deleted], . On 4 April 2016 you appeared in the Waitakere District Court and were convicted of driving while suspended and disqualified for six months from that date.

[14] At 4.00 pm on [date 1 deleted], you and [the victim] were at [your previous home address]. An argument occurred between the two of you inside the garage as you had become jealous after she had talked to another male. During the argument the victim threw your phone, damaging it. She then ran to the house fearing for her safety with you chasing after her. You caught up to her in the hallway and shouted at the victim and as you did so you pushed her, causing her to trip over and hit her head on a timber door jamb. The impact caused the top of her head to split open. It bled profusely and she was taken to the Waitakere Hospital where she was treated in the emergency department. She received a wound approximately 10 to 15 centimetres in length [to her head] which required four surgical staples and surgical glue in order for it to be closed. In the days following she suffered headaches, nausea and had trouble sleeping. She now has a permanent scar [details deleted].

[15] At about 8[date 2 deleted], you were both together in your vehicle driving on Mountain Road in Henderson. There was an argument and you began striking her about the upper body and tearing at her clothes as you were driving. You then drove to your home, got out of the vehicle and dragged the victim out. You dragged her across the gravel driveway and inside the house. The police were called by a concerned neighbour who heard the victim screaming and on their arrival you told the victim to remain silent inside the house and your presence there was not detected by the police officers. As a result of that assault, the victim received bruising and a gravel rash to the upper and outer region of her right arm and pain to her right shoulder.

[16] At 12.10 am on [date 3 deleted], you and [the victim] were at SkyCity in a hotel room. Also present were relatives of yours and other associates. A verbal argument occurred between you and the victim, at which point she attempted to leave. Before she could do so, you grabbed her by the hair and pulled her backwards causing her to fall to the floor. She curled into a foetal position in anticipation of an assault. You then kicked her hard in the right shoulder area causing intense pain to her and she screamed out in agony. You shouted verbal abuse at her and she got up and went in a room and telephoned to call reception for help. You approached her again and threw her backwards causing her to fall onto the floor again. The noise caused by this altercation was such that it alerted a member of the public in a neighbouring hotel room who informed hotel security. You fled the hotel a short time later. As a result of

that assault, she suffered pain in her right shoulder and her right arm and swelling and bruising to the other side of her right eye.

[17] At 10.00 pm on [date 4 deleted], you were driving your vehicle in the New Lynn area and the complainant was in the front passenger seat. You became angry as she had earlier walked off following a verbal argument between you. You drove north on Great North Road and shouted out at her, lashing out with you left fist which struck her in the nose. The strike caused her pain and she began to cry and threatened to jump out of the car while she held the passenger door slightly open. You continued driving at speed and she screamed to be let out of the car and attempted to jump out while it was moving. You grabbed the hood of her jumper in an attempt to prevent her from doing so. She slipped through her hoodie, scratching her neck on the zip and jumped from the car and pleaded with other persons to help her. You stopped the vehicle and attempted to persuade her to get back in the vehicle with you but she refused and was given help by a member of the public. As a result of that assault she received minor cuts to her left thumb, along with scratching and abrasions to the right side of her cheek.

[18] At 10.43 am on 23 September 2016, you were driving a vehicle on Great North Road in New Lynn. You were stopped and spoken to by the police and found to be driving while disqualified.

[19] In late March 2016 you moved to an address at Snells Beach in Auckland. Your sister was already living at that address. You established a bedroom in the downstairs garage and pitched a tent on the back lawn. On 4 May 2016 the police conducted a search at that address and during that search located a Makita water pump and brush cutter, a Ramset diamond drill, a Makita electric chainsaw and a Makita radio.

[20] The first charge of receiving, the first victim lives in Henderson Valley. At about 5.00 pm on 11 March 2016 he secured his wool shed on the property. At 8.30 am the following morning he discovered that the back window of the shed had been broken and his Makita water pump and brush cutter had been stolen. They had a value of $600 and $714 respectively.

[21] The second victim has a property in Pt Chevalier. At about 6.15 am on 14 April 2016 his wife left their property and went for a run, leaving a garage door open. Located in the garage were the second victim’s work tools. When she returned from her run about 45 minutes later, she discovered that some of her husband’s tools had been stolen and that included a Ramset diamond drill that had a value of $3500.

[22] The third victim resides in Henderson. Between 9 and 16 April 2016 his garage to the property was entered and two power tools were stolen, including a Makita electric chainsaw valued at $199.

[23] The fourth victim of receiving was in the process of building a house at Snells Beach. He had a building container on the site which contained a number of tools and equipment. At about 4.00 pm on 15 April 2016 he secured the building container and left the site. When he returned on 18 April he discovered the padlock on the container had been forced and that a large number of his tools and equipment had been stolen, including a Makita radio valued at $197.

[24] The fifth receiving victim resides at Snells Beach. At about 9.00 am on 18 April 2016 he discovered his corrugated iron sheep had been stolen from the front lawn of his property. It was last seen on the property at about 8.00 pm the previous evening. It has a value of $1032. On 29 April 2016 the sheep was listed for sale on your TradeMe site with a buy now price of $200. The items found at the properties at the search were identified by each of the owners as belonging to them.

[25] The pre-sentence report assesses your risk of re-offending as medium and that assessment is based on your methamphetamine addiction and lack of motivation to address your offending needs. The probation writer does not have a high opinion of your engagement in programmes during your time in custody and thinks you could have done more. Your risk of harm is assessed as high and while you acknowledge harm you caused to the victim, the report writer is of the view that your view was she had exaggerated the harm that was caused to her. Your offending related factors are identified as attitude and self-entitlements, propensity for violence, your relationship and drug use. You have now indicated through your counsel in your letter that you are ashamed of your violence towards your ex-partner, and so you should be. Whatever

issues you may have had with that woman, violence is not and never has been the solution. You are a fairly large young man and she had no way to protect herself from you. It is something you should be utterly ashamed of.

[26] I have had submissions from the Crown, the police and your counsel as to sentencing. I have considered those submissions, but in my view a different approach needs to be adopted from those presently submitted. There are different groups of offending and they are separate and discrete groups of offending and they need to be looked at separately.

[27] The first group of offending is the drug charges. For the charges of possession of methamphetamine for supply, supply of methamphetamine, possession of cannabis for supply, and offering to supply methamphetamine, in my view the starting point is a sentence of imprisonment of 42 months in prison for the methamphetamine charges, with an uplift of six months for the cannabis charge. You also offended while on bail which justifies an increase of a further three months to 51 months. Your remorse expressed would reduce that by three months and your guilty plea by 13 months to two years and 11 months’ imprisonment.

[28] For the violence charges, the charge of assault with intent to injure would be the lead offence and for that I adopt a starting point of 12 months’ imprisonment. For your remorse I deduct one month and your guilty plea I deduct four months, taking it to seven months’ imprisonment. That is seven months cumulative on the drug charges but concurrent on each other.

[29] For the charges of driving while disqualified, the first charge, you are sentenced to one month imprisonment to be served cumulatively. For the other charges, the driving while disqualified, you are also sentenced to one month imprisonment to be served concurrently. You are also disqualified from holding or obtaining a driver’s licence for six months on each occasion starting from today. So you are effectively disqualified for 18 months from today.

[30] For the charges of receiving, the starting point is a sentence of imprisonment of 10 months. Your remorse reduces that by one month, your guilty plea by

three months, taking it down to six months. The first charge of receiving is a six month cumulative sentence to be imposed. For the second and third charges of receiving, you are sentenced to six months’ imprisonment to be served concurrently. On the fourth and fifth charges of receiving, given they are of a lower order you are sentenced to one month imprisonment on both, also to be served concurrently.

[31] You are therefore sentenced to a total of four years and one month imprisonment.

[32] I am also making an order pursuant to s 123B Sentencing Act 2002 issuing a protection order in favour of [the assault victim]. I am required to explain to you the effect of a protection order. What it means is, you leave that woman alone. You do not contact her. You do not have other people contact her for you. If you see her, you avoid her. The effect of breaching a protection order is not just an offence against her. It is an offence against the Court. The Court has told that you are not to make contact with her and if you do then you are breaching a Court order and the Court does not look at that very favourably and consequences would follow.

N R Dawson District Court Judge