KARL ROSS PHILLIPS AND NEW ZEALAND POLICE
[2024] NZHC 288
•17 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000650
[2024] NZHC 288
BETWEEN KARL ROSS PHILLIPS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 December 2024 Appearances:
S Shanahan for Appellant
N Pearce-Bernie and R van Boheemen for Respondent
Judgment:
17 December 2024
Further submissions:
13 December 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 17 December 2024 at 3.00 pm.
……………………………… Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
PHILLIPS v POLICE [2024] NZHC 288 [17 December 2024]
[1] Mr Karl Phillips pleaded guilty to three charges of theft under $5001 and one charge of breach of intensive supervision.2 He was sentenced to six months’ home detention by Judge K J Glubb in the District Court at North Shore on 6 November 2024.3
[2] Mr Phillips appeals this sentence as being manifestly excessive for a range of reasons discussed below. The Police oppose the appeal. One ground of appeal was not pursued (that the Judge erred in declining an application to adjourn the sentencing without reasons). Counsel for the defendant accepted there was no jurisdiction to determine such an appeal.4
[3] The Court must allow an appeal against sentence if it is satisfied there is an error and a different sentence should be imposed.5 A Court will intervene where the sentence is manifestly excessive.6 The focus is on whether the sentence is within the appropriate range, rather than the process by which the sentence was reached.7
Offending
[4] The three charges of theft under $500 arise from offending on 17 November 2023, 19 December 2023 and 14 February 2024. On all three occasions Mr Phillips entered a store, concealed items in his clothing or a bag, and left without paying. On one occasion Mr Phillips used a magnet to remove the security tag off the items, before exiting the store. The total value of goods stolen totals approximately $630.
[5] On 17 November 2023 (later in the day after the first of the thefts above), Mr Phillips was sentenced to a period of four months’ community detention and to intensive supervision for earlier offending. The intensive supervision was due to expire in May 2025. The standard conditions were explained in full, including the requirement to attend an appropriate alcohol and drug programme. On 20 and
1 Crimes Act 1961, ss 219 and 223(d). Maximum penalty of three months’ imprisonment.
2 Sentencing Act 2002, s 70(A)(a). Maximum penalty of six months imprisonment or fine of
$1,500.
3 Police v Phillips [2024] NZDC 27461.
4 Taoho v R [2023] NZHC 2431.
5 Criminal Procedure Act 2011, s 250(2).
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
7 At [36].
27 August 2024, Mr Phillips failed to report to Community Alcohol and Drug services (CADS) in breach of that condition. As a result of the breach, Mr Phillips was discharged from the CADS programme.
District Court decision
[6]The Judge had three sentencing tasks:
(a)Sentencing Mr Phillips for the three theft charges.
(b)Sentencing Mr Phillips for breach of his intensive supervision.
(c)Addressing what order to make under s 20A of the Sentencing Act 2002 in respect of Mr Phillips’ first community-based sentence.
[7] The Judge adopted a starting point of nine months’ imprisonment “in the round”.8 This encompasses the theft and breach of intensive supervision charges but also that the offending occurred while Mr Phillips was subject to a sentence of intensive supervision/on bail. As the Police submitted, the nine months also included an uplift for previous convictions (including those for which Mr Phillips had received the sentence of intensive supervision), which the Judge had previously referred to as an aggravating circumstance.9
[8] He then allowed a discount of 35 per cent for Mr Phillips’ guilty plea and for his addiction issues.10 The Judge observed that this resulted in an end sentence of approximately six months’ imprisonment. The Judge held that a community-based sentence was justified.
[9] Section 20A of the Sentencing Act applied because Mr Phillips was serving a community-based sentence and was being sentenced to another community-based sentence or sentence of home detention in respect of other
8 Police v Phillips, above n 3, at [18].
9 At [7]. Offending while on bail and an offender having previous convictions are personal aggravating factors for which a specific uplift would normally be assessed after setting a starting point for the offending itself, but the Judge was no doubt simply short-circuiting that analysis.
10 At [18].
offences. The court must, when imposing the second sentence, choose one of four options: impose a sentence that would be permitted in combination with the first sentence; defer the commencement of the second sentence until the first sentence has been served; cancel the first sentence; or cancel the first sentence and substitute any other sentence. A sentence of home detention and intensive supervision are not a permitted combination.
[10]The Judge went on to say:
[20] ... I am satisfied that it is appropriate that I cancel the outstanding intensive supervision and what I propose to do is on the three charges of theft I impose the same sentence. I convict you and sentence you to three months’ home detention…
…
[22] On the charge of breach of your intensive supervision I cancel the outstanding intensive supervision and I substitute a sentence of three months’ home detention. I convict you and sentence you to three months’ home detention on that charge and that is cumulative on [the theft charges].
[11] The Judge also ordered reparation of the value of the stolen goods and imposed standard and special post release conditions. No issue arises relating to these aspects.
[12] Counsel proceeded in the appeal hearing on the basis that both the first and second sentences of paragraph [22] of the sentencing notes related to a sentencing on the breach of supervision charge, rather than dealing with both this and substituting a sentence on the cancelled intensive supervision. That is incorrect. In the first sentence the Judge cancelled the outstanding intensive supervision and substituted the sentence of three months’ home detention for the earlier charges. In addition, in the second sentence of the paragraph the Judge convicted and sentenced Mr Phillips to three months’ home detention for his breach of intensive supervision.
[13] The wording of paragraph [22] suggests the Judge ordered the sentence for breach of intensive supervision to be cumulative on the three months’ home detention on the theft charges. This appears to be a slip. The court record conveys that it is the
substituted sentence that is cumulative on the sentence for the theft charges. The record is conclusive evidence of the matters recorded in it.11
[14] Irrespective, the overall intention was a sentence of home detention for six months, as the Judge records in the final paragraph of the sentencing notes.
Appeal
[15] The appeal grounds advanced at the hearing were that Mr Phillips’ sentence was manifestly excessive because:
(a)the starting point adopted by the Judge was too high;
(b)the Judge did not impose the least restrictive outcome appropriate in the circumstances;
(c)the sentence of three months’ home detention for the breach of intensive supervision was manifestly excessive; and
(d)the Judge failed to consider totality and erred in determining that the sentence for breach of intensive supervision should be served cumulatively on the sentences for theft.
[16] Counsel made post-hearing submissions after I advised that in my view the Judge had substituted a three-month home detention sentence for the previous offending, cumulative on the three months home detention for the thefts. Mr Phillips asserts that the Judge was in error in three ways in respect to this:
(a)the Judge made an error of process because he did not have an application formally before him to substitute a sentence;
(b)the Judge imposed a substituted sentence without having the statement of facts from the previous offending and without having regard to the unexpired term of the sentence of intensive supervision; and
11 Criminal Procedure Act, s 184.
(c)the substituted sentence was overly punitive and the overall sentence manifestly excessive.
[17] I now address the various points of appeal including the post-hearing issues raised.
Starting point
[18] Mr Phillips submits the starting point of nine months was outside the available range and inconsistent with comparable cases. He refers to Martin v Police,12 Henry v Police13 and McMurtrie v Police.14
[19]Martin involved three charges of theft under $500, one charge of theft between
$500 and $1000 and various other drug and driving charges. The total value of goods stolen was just over $1,100. The sentencing Judge adopted a starting point of eight months’ imprisonment for the theft offending, which was reduced to five months on appeal.15 Similarly to this case, Mr Martin on occasion removed security tags and concealed items before leaving without payment. He had 18 previous convictions.
[20] In Henry, a starting point of eight months’ imprisonment was upheld on appeal for 13 theft charges concerning goods totalling $5,500. Mr Henry had only recently been released on parole at the time of the offending and had 92 previous convictions for dishonesty offending.
[21] In McMurtrie, the High Court reduced a starting point of 12 months’ imprisonment to six months in respect of six charges of shoplifting.16 Mr McMurtrie and his co-offender devised a scheme whereby they would tell checkout operators they had paid for a full trolley worth of goods apart from one or two items. They would then pay for the one or two items they admittedly had not paid for and leave the store with the entire trolley. Mr McMurtrie had eight previous convictions for shoplifting,
12 Martin v Police [2022] NZHC 856.
13 Henry v Police [2016] NZHC 800.
14 McMurtrie v Police [2015] NZHC 1031.
15 Martin v Police, above n 12, at [39].
16 McMurtrie v Police, above n 14, at [27].
one other dishonesty conviction, and some of the offending occurred while he was on bail.
[22] Taking into account Martin, Henry and McMurtrie, Mr Phillips submits a starting point of three to four months’ imprisonment would have been appropriate in this case. He submits his offending does not justify a higher starting point than Henry, which involved three times the number of charges and nearly nine times the value of goods stolen, or McMurtrie which involved twice the number of theft charges, a higher degree of premeditation and one charge of theft over $500. He also submits that a starting point lower than that in Martin is justified because that case involved goods worth approximately twice the value of the goods in this case and Mr Martin faced an additional charge of theft between $500 to $1000.
[23] Care needs to be taken in using these cases as points of comparison because of differing use of the concept of a “starting point”. As noted above, read in the context of earlier statements made by the Judge here, the nine months’ starting point he adopted for Mr Phillips took into account all aspects of the total offending plus personal aggravating features (prior convictions).
[24]In contrast:
(a)In Martin the “starting point” reduced on appeal from eight months to five months was for the theft aspect alone.
(b)In McMurtrie in a somewhat unusual combination of cumulative and concurrent sentences, the District Court Judge adopted a “starting point” of 12 months for theft offending as well as a charge of possession of cannabis. The Judge then applied a three-month uplift for prior convictions.17 On appeal the High Court set a starting point of six months imprisonment for the six charges of theft to which one month was added for the fact the offending was committed while Mr McMurtrie was on bail. The High Court Judge then imposed a cumulative one-month sentence for the cannabis offending.
17 McMurtrie v Police, above n 14, at [10]–[11].
(c)In Henry, the starting point of eight months was associated with the theft only. (Other additions and discounts were applied for previous convictions and guilty pleas).
[25] Acknowledging the differing use of “starting point”, I accept that based on the above cases the nine months adopted by the Judge here was stern. However, I agree with the Police that the starting point was within range in capturing the global offending and the full context in which it occurred (while Mr Phillips was subject to a sentence of intensive supervision, some of the offences were committed on bail and given Mr Phillips’ eight previous dishonesty convictions).
Least restrictive outcome in the circumstances
[26] Section 8(g) of the Sentencing Act requires that the court impose the least restrictive outcome appropriate in the circumstances. Both by this principle and s 15A of the Sentencing Act, a sentence of home detention may only be imposed if the purposes of sentencing cannot be achieved by a less restrictive sentence.
[27] Mr Phillips submits the Judge erred by failing to comply with this principle. He submits the relevant purposes of sentencing in this case are personal accountability, to promote a sense of responsibility, to denounce and deter the conduct and to assist in his rehabilitation and reintegration. He submits these principles could have been achieved by a less restrictive sentence, or a combination of such, for example intensive supervision and community work.
[28] At sentencing it was accepted that the fact the offending occurred while Mr Phillips was subject to a sentence of intensive supervision was an aggravating factor. It was also accepted that he had not yet completed any rehabilitation. However, Mr Phillips submits these factors do not justify a sentence of home detention. He says the Judge did not turn his mind to whether community detention, being a sentence one step higher than the sentence he was serving at the time (intensive supervision) was appropriate.
[29] As the Judge observed, Mr Phillips’ offending had escalated. Indeed one of the offences occurred on the morning he was sentenced for the other charges before
the Court.18 In my view, the Judge was correct to characterise this as of real concern and demonstrating that Mr Phillips was not showing an ability to slow down what he was doing. The Judge was entitled to take into account the comment in the PAC report that Mr Phillips was not motivated to address his rehabilitation, even though this was disputed. The PAC report also assessed Mr Phillips as at a medium risk of reoffending. There is no error in the Judge’s decision that home detention was the least restrictive outcome available.
Sentence for breach of intensive supervision
[30] Mr Phillips submits the sentence of three months’ home detention for one charge of breach of intensive supervision is manifestly excessive. He submits that when converting a sentence of imprisonment to one of home detention, general practice is to impose a term of home detention that is half the length of the prison sentence. Adopting that principle, the sentence imposed is equivalent to six months’ imprisonment, which is the maximum possible sentence for this charge.19
[31] The Police submit there is no rigid mathematical formula for determining the duration of a home detention sentence. However, Mr Phillips’ submission is correct as to the general practice, and the Judge himself had expressly taken that approach in coming to the first aspect of three months’ home detention for the theft charges. I accept Mr Phillips’ submission that the sentence implied by three months’ home detention is too harsh for the breach of intensive supervision, even accepting that an evaluative assessment should be taken to all the circumstances.20
[32] The breach relates to Mr Phillips failing to attend only two CADS sessions. The offending cannot be characterised as falling within the most serious of cases of breach of intensive supervision by any stretch. Given the low level of the offending, isolated nature of the charge and the fact that Mr Phillips has no previous convictions for breaching a sentence, I agree that the appropriate sentence for this charge would
18 Police v Phillips, above n 3, at [8]–[9].
19 A breach of intensive supervision is punishable by six months’ imprisonment or a fine not exceeding $1,500: Sentencing Act, s 70A.
20 R v Bisschop [2008] NZCA 229 at [18].
have been much less. Mr Phillips suggests a conviction and discharge. In my view one month home detention was appropriate.
[33] As discussed earlier, post-hearing it was identified from the record that this sentence was concurrent to the sentence for the thefts, so that reduction does not have any impact on the total sentence of home detention.
Substituted sentence on the earlier charges
[34] Mr Phillips emphasises that no formal application was made by Corrections to cancel and substitute his original sentence under s 54K of the Sentencing Act. He says ordinarily there would be a formal application with affidavit evidence, not simply an informal recommendation in the PAC report, as occurred here.
[35] I do not accept this as a basis for appeal. Section 54K precludes a Court making an order to cancel and substitute a sentence in this context without an application from the Department of Corrections or an offender subject to a sentence of intensive supervision. But s 20A(6) expressly provides that s 54K does not apply to cancellation of a sentence under s 20A. Therefore, it is clear that a Judge can act without an application.
[36] There is more substance in Mr Phillips’ other complaints about process. As Ms Shanahan for Mr Phillips submits, when coming to a substituted sentence, the Judge made no reference to the summary of facts of the previous offending; and neither that nor the previous sentencing decision appears to have been before him. References to the prior offending in the Judge’s sentencing notes were from limited comments in the PAC report. As well, as Mr Phillips submitted, there is no indication on the face of the sentencing notes that the Judge took into account the unserved portion of the sentence of original intensive supervision in coming to a substituted sentence as required under s 20A(3). The Judge is very experienced, but in the absence of context specific references, it is difficult for me to simply infer that he carried out the required process in light of the above.
[37] I do not have the summary of facts or sentencing notes for the earlier offending before me either. Strictly the matter should be referred back to the District Court.
However, it is not practical or fair to Mr Phillips to refer the matter back due to the delay that would cause, the time of year and the length of the sentence. I do the best I can based on the material before me.
Totality/decision
[38] Mr Phillips submits the substituted sentence was overly punitive and the overall sentence was manifestly excessive. I address both these submissions in this section of my judgment given their relationship to the result on appeal.
[39] The Judge inferred, no doubt correctly, that Mr Phillips was given intensive supervision for his earlier offending in the hope that it would address the drug use that was a factor in the current offending.21 The previous offending involved five thefts of under $500 and three failures to answer bail for which he received four months’ community detention and 18 months’ intensive supervision. The substituted sentence was three months’ home detention.
[40] The Police refer me to R v Morgan where the Court of Appeal held that there need not be strict correlation between the original sentence and the substituted one, much less a mathematical approach.22 They submit that the decision to impose a stricter sentence on substitution was supported by the fact that Mr Phillips had immediately reoffended and showed no willingness to rehabilitate.
[41] In response, Mr Phillips submits it was overly punitive to re-sentence him for his previous offending on the apparent basis that he was unable to comply with his sentence. He stresses that before the Judge he disputed comments in the PAC report. He rejected then and rejects now, conclusions formed by the Judge as to his attitude, compliance and dismissal of transport issues that he says caused him to fail to attend on two occasions. Mr Phillips disputes that he said he was unmotivated.
[42] Mr Phillips served his sentence of four months’ community detention without issue. He did attend his CADS assessment in August 2024 but failed twice to then report to the programme. As at the time he was charged for the intensive supervision
21 Police v Phillips, above n 3, at [16].
22 R v Morgan [2008] NZCA 232 at [15].
breach, he had eight months left of the intensive supervision and six months at the time of sentencing, although no real rehabilitation had been attended.
[43] On the issue of totality, s 84(1) of the Sentencing Act provides that cumulative sentences are “generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.” Section 85 requires the court to consider the totality of offending. If cumulative sentences are imposed the total period of imprisonment must not be wholly out of proportion to the gravity of the overall offending.23
[44] The Police submit that the Judge’s cumulative approach and imposition of a six-month end sentence is appropriate in the overall circumstances. They rely on Police v Parker24 and Martin,25 for the proposition that it is not unusual for a breach of intensive supervision to be treated cumulatively.26 Again, the Police highlight the fact that Mr Phillips failed to report to CADS on two occasions, was discharged from the programme as a result, and that this occurred while he was on bail for the theft offending. As well, they emphasise that intensive supervision has been cancelled so the end sentence needed to substitute for the unexpired period of that sentence. An assessment of totality should take that into account.
[45] Mr Phillips submits the individual sentences do not accurately or appropriately reflect the seriousness of each offence. In particular, he submits the theft offending was unsophisticated, driven by a methamphetamine addiction, and towards the lower end of the scale when compared with relevant case law. He also submits the breach of intensive supervision was “low-level on the scale of seriousness”. Overall, Mr Phillips submits the cumulative sentence of six months’ home detention (equivalent to 12 months’ imprisonment) is wholly out of proportion to the gravity of the offending.
23 Sentencing Act, s 85(2).
24 Police v Parker DC Hamilton CRI-2010-019-7410, 27 September 2011.
25 Martin v Police, above n 12.
26 I note that the former was a sentence for the breach of intensive supervision and the latter was a substituted sentence on former charges.
[46] In my view, the pragmatic outcome, and one that accords with my view of the appropriate sentence the best I can assess it, is to reduce the substituted sentence to one month home detention served cumulatively. This would mean Mr Phillips’ total sentence is four months’ home detention.
[47] I come to that conclusion in light of my view that the nine-month starting point for the theft charges was stern. In coming to the starting point of nine months for the theft charges, the Judge took into account Mr Phillips’ previous convictions, including the dishonesty and bail offences on which he received intensive supervision. Considering the totality of the sentence, there may be an element of duplication in the (unstated) uplift applied and the reasonably stern substituted sentence for that same offending.
[48] I conclude that the total sentence of six months’ home detention is manifestly excessive. I hesitate to interfere given that the reduction I intend to effect is to reduce the sentence by only two months, which could be considered only tinkering. However, proportionately it is a substantial change and I think it is the just outcome in light of apparent errors in the process followed on the substituted sentence and my views on the offending overall.
Result
[49] I vary the sentence imposed for breaching conditions of intensive supervision (s 70A(a)) to one month home detention, to be served concurrently with home detention on the theft charges.
[50] I vary the substituted sentence for the earlier offending to one month home detention to be served cumulatively with home detention on the theft charges.
[51]The sentence otherwise remains the same.
[52] The sentence of six months’ home detention is quashed. I impose a sentence of four months’ home detention.
Anderson J
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