Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ
Counsel:
P V C Paino and E T Blincoe for Appellant G J Burston, J E Mildenhall and K L Kensington for Respondent
Judgment:
16 December 2022
JUDGMENT OF THE COURT
ATHE APPEAL AGAINST SENTENCE IS ALLOWED. THE SENTENCE OF TWO YEARS AND 11 MONTHS’ IMPRISONMENT IS QUASHED AND A SENTENCE OF ONE YEAR AND SEVEN MONTHS IS SUBSTITUTED.
BTHE STANDARD CONDITIONS UNDER S 14(1) OF THE PAROLE ACT 2002 APPLY BUT EXPIRE ON THE SENTENCE EXPIRY DATE.
Winkelmann CJ, Ellen France and Williams JJ (Given by Ellen France J)
Table of Contents
Para No
Introduction
[1]
Background
[4]
Facts
[5]
The sentencing process
[9]
The High Court sentencing
[13]
The approach in the Court of Appeal
[16]
Mr Philip’s role
[19]
Operational function and some awareness of scale
[24]
Motivation for offending
[28]
Actual or expected financial advantage
[30]
Conclusion on the appropriate place in the Zhang categories
[31]
The importance of role
[32]
Approach where rehabilitative purpose to the fore on a Solicitor‑General appeal
[42]
Discount to mitigate effect of sentencing on Mr Philip’s young child
[47]
Submissions
[48]
The relevant principles
[50]
Application to the present case
[53]
Postscript
[59]
Result
[60]
Introduction
Mr Philip was convicted having pleaded guilty to five charges of possession of methamphetamine for supply;[1] and two charges of possession of cannabis.[2] He was sentenced by Gwyn J to one year’s home detention.[3] On appeal by the Solicitor‑General, the Court of Appeal quashed the sentence of home detention and substituted a term of two years and 11 months’ imprisonment.[4] Mr Philip had by then served approximately seven months of his sentence of home detention.
[1]Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(a); and Crimes Act 1961, s 66.
[2]Misuse of Drugs Act, s 7(1)(a) and (2).
[3]R v Philip [2021] NZHC 2393 [HC sentencing notes]. Mr Philip was discharged in relation to the cannabis offending.
Mr Philip appealed with leave to this Court.[5] His appeal raises the question whether the Court of Appeal was right to find that the sentence of one year’s home detention was manifestly inadequate. The correctness of the Court of Appeal’s decision turns primarily on the assessment of Mr Philip’s role in terms of Zhang v R,[6] the guideline judgment for offending involving methamphetamine as amended by this Court in Berkland v R;[7] the importance of role in determining culpability; and the appellate approach where rehabilitation is to the fore on an appeal by the Solicitor‑General. Finally, there is a question about whether a discount should have been allowed to reflect…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Philip v R [2022] NZSC 149
Case
[2022] NZSC 149
Decision Date
CaseChat Overview and Summary
Jason Brendon Philip was convicted of five charges of possession of methamphetamine for supply and two charges of possession of cannabis. He was sentenced by Gwyn J to one year’s home detention. The Solicitor-General appealed the sentence, arguing it was manifestly inadequate. The Court of Appeal quashed the sentence of home detention and substituted a term of two years and 11 months’ imprisonment. Mr Philip appealed to the Supreme Court, raising the question of whether the Court of Appeal was right to find the sentence of one year’s home detention was manifestly inadequate. The Supreme Court allowed the appeal and substituted a sentence of one year and seven months’ imprisonment. The Court held that the starting point adopted by the sentencing judge was within the available range, albeit at the margin. The Court also held that the Court of Appeal had erred in not allowing a discount to recognise the effect of sentencing on Mr Philip’s young child.