Brent Peter Miller v R

• Jurisdiction: New Zealand
• Judge: Moore J
• Judgment Date: 30 April 2020
• Neutral Citation: [2020] NZCA 131
• Court: Court of Appeal
• Docket Number: CA142/2019
• Date: 30 April 2020

Between

Brent Peter Miller

Appellant

and

The Queen

Respondent

[2020] NZCA 131

Court:

Miller, Dobson and Moore JJ

CA142/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of nine years and four months imprisonment for methamphetamine offending on the grounds it was manifestly excessive in light of the new sentencing guideline judgment Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 — large scale commercial offending — appropriate starting point — credit for personal mitigating factors — smaller credit given for personal mitigating factors to avoid double counting by not imposing a Minimum Period of Imprisonment

Counsel:

E J Riddell for Appellant

Z A Fuhr for Respondent

• A The appeal is allowed.

• B The sentence of nine years and four months' imprisonment on the charge of possession of methamphetamine for supply is quashed and substituted with a sentence of seven years and seven months' imprisonment.

• C All other concurrent sentences remain.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Moore J)

Introduction

1 Mr Miller appeals his sentence of nine years and four months' imprisonment imposed in the District Court at Nelson. He does so on the grounds it is manifestly excessive in light of this Court's decision in Zhang v R. 1 Mr Miller pleaded guilty to seven charges, including one of possession of methamphetamine for supply. 2 The quantity involved was 905 grams.

2 The appeal was filed on 2 April 2019 before this Court released its guideline judgment in Zhang. That judgment applies only to sentences imposed prior to Zhang where an appeal was filed before the judgment was delivered and where the application of the judgment would result in a more favourable outcome to the appellant. 3

3 We proceed on the basis that Zhang applies.

Approach to appeal

4 Consistent with the approach adopted in other recently decided appeals, 4 the examination of the sentence under appeal does not focus on a search for error but rather involves an assessment of the appropriate outcome when considered against new guidelines.

The facts

5 On 22 June 2017 Mr Miller was driving between Motueka and Christchurch. Responding to a complaint about the way he was driving, the Police pulled his car over. Initially, Mr Miller gave the Police false details and presented a false driver's licence. At the time he was subject to a one year driving disqualification.

6 His car was searched. The Police found 905 grams of methamphetamine stored in six separate vacuum-packed bags in the boot. They also found a set of digital scales, $1,361.20 in cash and a set of knuckle dusters. Inside a jacket they found a small amount of methamphetamine and, in a sunglasses case, a ziplock bag containing another small quantity of methamphetamine together with a glass pipe. Mr Miller was arrested. He ran off but was recaptured a short distance away.

7 When the house bus where he had been living was searched, the police found half a gram of cannabis plant and 150 mL of gamma-butyrolactone (GBL), a class B controlled drug.

Sentencing decision

8 On 14 December 2018 Judge D C Ruth gave Mr Miller a sentence indication. 5 Using the methamphetamine charge as the lead offence he set an 11 year starting point which he uplifted by six months for totality. He placed Mr Miller's offending in band four of R v Fatu, which meant the starting point would be between 10 years to life imprisonment. 6 This he did on the basis of quantity, observing: 7

I think I can take the view that you are certainly not at the top of the chain but … anyone who is trusted in this sort of an operation with what must be close, at least, to $1 million worth of product cannot be viewed as a bit player,[ 8] and I regard you as a senior in whatever chain it was that you were part of.

9 Mr Miller accepted the sentence indication and pleaded guilty to the charges. At sentencing the Judge applied a global 26-month (or 18.8 per cent) discount. 9 While not explicit as to what this represented, the discount appears to have incorporated the timing of the guilty pleas, Mr Miller's expressed willingness to engage in rehabilitation, his difficult and abusive upbringing and his remorse. The Judge described the discount as “… some incentive for [Mr Miller] firstly to bring these matters to a close but also to get on with [his] rehabilitation”. 10

10 An end sentence of nine years and four months' imprisonment was imposed with concurrent sentences on all other charges. Despite Crown submissions to the contrary, no minimum period of imprisonment (“MPI”) was ordered.

Was the starting point too high?

11 Before us Ms Riddell, for Mr Miller, submitted that the sentence was manifestly excessive because not only was the starting point too high, but the Judge also gave insufficient credit for personal circumstances and erred in concluding it would amount to double counting to allow a discount for personal mitigating factors while declining to impose an MPI.

12 Ms Riddell also took issue with the Judge's observation as to role; that anyone entrusted with nearly $1 million worth of methamphetamine could not be viewed as a “bit player”. She noted that the summary of facts did not record the value of the drug and pointed out that the evidence placed before this Court in Zhang was that the average price per gram of methamphetamine is decreasing. She accepted that the quantity of methamphetamine placed Mr Miller well within the new band four of Zhang, 11 being eight to 16 years' imprisonment, but at its lower end. This was because his was a “lesser” role in terms of the continuum set out in Zhang. 12 She said this classification is justified because Mr Miller was a courier, a chronic addict and someone who had little awareness of or influence over others in the hierarchy. To demonstrate that Mr Miller was an addict, Ms Riddell pointed to the two small quantities of methamphetamine and the glass pipe found in his possession. She said that Mr Miller's offending was driven by a debt he owed to a gang. Consistent with her submissions in the District Court, she submitted that the appropriate starting point should have been around eight-and-a-half years' imprisonment. She took no issue with the six-month uplift for the other charges.

13 In determining an offender's position within a particular band, quantity remains the first determinant. 13 Possession of 905 grams of methamphetamine places this case squarely within Zhang's modified band four, attracting sentences of between

eight to 16 years' imprisonment. That quantity sits at nearly twice the entry point for band four making an available starting point well above eight years. The quantity computations in the Zhang bands apply to purity levels in the order of 60 per cent or more. 14 The purity level of this methamphetamine was high; between 67 per cent and 70 per cent

14 An offender's role in a criminal enterprise is a further consideration in assessing culpability. An offender's addiction is only relevant in setting the starting point to the extent that it is indicative of an offender's limited participation in the offending. For example, it was noted in Zhang that a courier may have a very substantial quantity of methamphetamine in their possession but their reward might be a small quantity of methamphetamine to feed their own addiction. 15

15 Thus the first question is whether Mr Miller is an addict. Two reports were before the Judge; a Nelson Hospital Addictions Service Report (“Nelson Hospital report”) and a psychological assessment report. Despite some lack of clarity and the fact that the conclusions in both reports were heavily reliant on Mr Miller's self-reporting, we are satisfied Mr Miller is a chronic methamphetamine addict. Apart from the reports themselves, this conclusion is supported by his long criminal history which includes convictions for possession of various drugs, possession of non-presumptive quantities of methamphetamine, drug paraphernalia and also what was found in the roadside search; small quantities of methamphetamine and the glass pipe consistent with personal use.

16 The second question goes to Mr Miller's role. There are a number of factors which suggest he was not a lesser functionary paid in drugs to feed his habit. The criminal enterprise that Mr Miller was involved in was evidently of a large commercial scale. This is demonstrated not only by the quantity and quality of the drug involved, but also the manner in which the drugs were packaged, the discovery of scales and the cash, albeit not a large sum.

17 Whatever his actual position within the operation, Mr Miller's role involved an operational function. He plainly expected a financial return in exchange for his services. It thus follows he must have had some awareness and understanding of not only where he sat within the operational structure but also the scale of the enterprise. Given the quantities involved it follows he must have known he was delivering to wholesalers or high-level dealers on the instructions of those further up the chain of command.

18 We are satisfied the Judge's rejection of Ms Riddell's submission that Mr Miller was a “bit player” was correct. Whatever its exact value, the quantity of drugs found in Mr Miller's possession was a substantial commercial quantity. But we also agree with the Judge's assessment that while plainly he was a trusted accomplice, Mr Miller did not sit at the top of the chain.

19 We also reject Ms Riddell's submission Mr Miller fits within the “lesser” role category of Zhang. 16 Even on the basis of Mr Miller's self-reporting, it is apparent that he was substantially motivated by the promise of financial advantage and profit. For example, in the Nelson Hospital report the author records Mr Miller advising that after he lost his job in 2015 he and another owed money to “some serious...