MILLER v R [2020] NZCA 79

MILLER v R [2020] NZCA 79 [24 March 2020]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA86/2019[2020] NZCA 79BETWEEN ALLAN BRIAN MILLERApplicantAND THE QUEENRespondentHearing: 3 March 2020Court: French, Dobson and Moore JJCounsel: D J Allan for ApplicantC A Brook for RespondentJudgment: 24 March 2020 at 11 amJUDGMENT OF THE COURTA The application for a re-hearing of the Court's previous decision decliningleave to appeal is granted.B The application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] In 1991 Mr Miller committed a particularly brutal rape against a femalehitchhiker. He pleaded guilty and was sentenced by Tipping J to preventive detention.1It was Mr Miller's third conviction for rape. The first conviction was in 1983 andthe second conviction was in 1986. The 1986 rape had been committed on the day hewas released on parole for the 1983 rape and the 1991 rape against the hitchhiker wascommitted while he was on parole for the 1986 rape.[2] Under the law in force in 1991, Mr Miller needed to obtain leave before beingable to appeal against the sentence of preventive detention. That was the effect ofs 383(1)(b) of the Crimes Act 1961. Mr Miller duly sought leave to appeal in 1991but his application was refused by way of a process subsequently found by thePrivy Council in 2003 to be "fundamentally flawed and unlawful".2[3] This Court has an inherent power to revisit its decisions in exceptionalcircumstances when required by the interests of justice.3 Exceptional circumstancesclearly exist in this case and Mr Miller is entitled to a re-consideration of his originalapplication for leave.[4] Mr Miller filed a new application for leave to appeal in March 2019. It wasaccepted for filing,4 and it is that application which is before us now.[5] It is 29 years since Mr Miller was first sentenced to preventive detention.He has remained in custody throughout that period, having been denied parole23 times on the grounds that he poses an undue risk to the safety of the community.During the intervening years he has brought a judicial review proceeding, severalhabeas corpus applications and a number of appeals against Parole Board decisionschallenging his continued detention. All of these various proceedings have beenunsuccessful. Mr Miller has also made an application to the United Nations Human1 R v Miller HC Christchurch S. No 10/91, 26 February 1991 (Sentencing Notes).2 R v Taito [2002] UKPC 15, [2003] 3 NZLR 577.3 R v Smith [2003] 3 NZLR 617 (CA).4 Waa v R [2019] NZCA 536.Rights Committee. His counsel Mr Allan explained that the focus on this otherlitigation is the reason for the delay in filing a fresh application for leave to appeal.[6] It was common ground that in deciding whether the application for leave toappeal should be granted, we should apply the relevant law that was in force in 1991.[7] The Crimes Act did not contain any criteria to guide the Court in decidingwhether to grant leave to appeal and it appears that leave was granted and refused inaccordance with the Court's views as to the merits of the proposed appeal. In thosecircumstances, we agree with the Crown submission that we should grant leave in thiscase if we consider the proposed grounds of appeal to be reasonably arguable.[8] We turn first to the sentencing itself.The 1991 sentencing[9] The relevant statutory provision governing the imposition of preventivedetention in 1991 was s 75 of the Criminal Justice Act 1985. Section 75 stated:75 Sentence of preventive detention(1) This section shall apply to any person who is not less than 21 years ofage, and who, having been previously convicted on at least oneoccasion since that person attained the age of 17 years of a specifiedoffence, is convicted of another specified offence, being an offencecommitted after that previous conviction.(2) Subject to the provisions of this section, the High Court, if it issatisfied that it is expedient for the protection of the public that anoffender to whom this section applies should be detained in custodyfor a substantial period, may pass a sentence of preventive detention.[10] As at 1991, Mr Miller was over 21 years of age. Rape was a specified offencefor the purpose of s 75 and Mr Miller had three convictions for rape since turning 17.5He also had a previous conviction for indecent assault on a girl aged between 12 and16 years. That offence was committed in March 1971 when Mr Miller was 18 years5 Criminal Justice Act 1985, s 75(4)(b)(i) and Crimes Act 1961, s 128.old and on probation for dishonesty offending. Indecent assault on a girl between12 and 16 years was also a specified offence for the purposes of s 75.6[11] It follows that the jurisdictional pre-requisites to the imposition of preventivedetention under s 75(1) were satisfied.[12] The Judge identified the factors militating against preventive detention asbeing that there was no very serious physical injury to the complainant, Mr Miller hadadmitted the crime at an early stage and pleaded guilty at an early stage, was said tobe remorseful and aware of the need for help, was receiving support from his partnerand had been making progress before the offending.7 Tipping J also acknowledgeda submission about the apparent lack of assistance Mr Miller had received while hehad served his various prison terms.8[13] Weighing against all those factors in the Judge's view was that Mr Miller haddemonstrated a predilection for this type of sexual offending and a substantial degreeof social deviancy over many years. The Judge went on to say that Mr Miller clearlyand unhappily for whatever reason appeared to have an inability to control himself inthe sort of situation that had led to the rape. There was, the Judge considered, a realrisk of re-offending in light of all the material before him including the aggravatingfeatures of the rape.9[14] The Judge concluded:10Having considered the criterion set out in the Act I find myself fully satisfiedthat it is expedient for the protection of the public that you should be detainedin custody for a substantial period. I must be satisfied of that before I pass thesentence of preventive detention. It does not automatically follow that theCourt being satisfied of that point must pass a sentence of preventivedetention. The question is whether I can and should responsibly stop short ofsuch a sentence and impose a long finite term.I have weighed up everything that has been put to me on both sides. In spiteof Mr McVeigh's [counsel for Mr Miller] cogent and persuasive submissions,it is my view that for the protection of the public I should sentence you to6 Criminal Justice Act, s 75(4)(a)(i) and Crimes Act, s 134.7 Sentencing Notes, above n 1, at 4.8 At 3.9 At 5.10 At 5–6.preventive detention. I urge again that you be given such assistance and helpas is possible while you serve your sentence; you obviously need it.The application for leave to appeal[15] Mr Allan accepted on behalf of Mr Miller that the jurisdictional requirementsof s 75(1) were satisfied. He also accepted that Tipping J had correctly directedhimself in terms of the relevant case law in that the Judge had recognised thatpreventive detention was a sentence of last resort and that where possible a long finitesentence was preferable.11[16] However what Mr Miller seeks to challenge in the proposed appeal isthe Judge's exercise of his residual discretion under s 75(2). In particular, he wishesto advance the argument that the Judge made a material error by proceeding to exercisethe residual discretion without calling for a cultural background report,12 as well aspsychiatric and psychological reports on Mr Miller's future sexual re-offending risk,the effectiveness of past treatment and the likelihood of successful treatment inthe future.13Our view[17] In our view the proposed appeal ground is not reasonably arguable. There aretwo difficulties.[18] The first is that in 1991 there was no requirement — as there is now — thatthe reports of two health assessors had to be obtained before a sentence of preventivedetention could be passed.14[19] The second is that Tipping J did in fact have two reasonably detailed reportsbefore him, one a pre-sentence report and the other a psychiatric report.11 Citing R v Glen-Campbell CA 330/87, 24 March 1988 at 6–7.12 Under the Criminal Justice Act, s 16.13 Under the Criminal Justice Act, s 121(1)(c) which empowered the Court to obtain a psychiatricreport that would assist it in determining the type and length of sentence.14 See now Sentencing Act 2002, s 88.[20] As Mr Allan properly emphasised, the latter seems to have been obtainedprimarily for the purpose of establishing fitness to plead and whether the offendingwas due to any major psychiatric disorder or disease which the specialist concluded itwas not, rather than specifically about the assessment of future risk. However,the psychiatric report did contain important background information about Mr Miller'spersonal and medical history which was relevant to the assessment of risk. So too didthe pre-sentence report written by the probation officer who had been the officersupervising Mr Miller's recent parole. Significantly, it would have been apparent fromboth reports that Mr Miller could not be seen as a treatment failure — somethingthe Judge took into account.15 For completeness, it should be noted there was alsosome information before the Judge that initially on release from prison in 1990,Mr Miller had regularly been seeing a psychologist from the prison service.[21] In our view, given all those circumstances, Tipping J was entitled to proceedto sentence Mr Miller to preventive detention without calling for any further reportsand it is not reasonably arguable to suggest otherwise.[22] Mr Miller is understandably aggrieved by the way his application for leave wasdealt with in 1991. However, we are satisfied that if his application for leave had beenproperly conducted in 1991, the result would still have been the same. It wouldinevitably have been refused for the reasons we have given.[23] We would add that in the intervening years, Mr Miller has participated intreatment programmes and been the subject of several psychological and psychiatricreports which consider him still to be at high risk of re-offending.Outcome[24] The application for a rehearing of the Court's decision declining the applicationfor leave to appeal is granted.15 Sentencing Notes, above n 1, at 3.[25] The application for leave to appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent