Philip v R

Case [2022] NZSC 149


IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 32/2022
 [2022] NZSC 149
BETWEEN

JASON BRENDON PHILIP
Appellant

AND

THE KING
Respondent

Hearing:

8 September 2022

Court:

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. 

________________________________________________________________

REASONS

Para No
Winkelmann CJ, Ellen France and Williams JJ [1]
Glazebrook and O’Regan JJ [62]

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 

  1. 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.

    [4]McMillan v R [2022] NZCA 128 (Dobson, Brewer and Edwards JJ) [CA judgment].

  2. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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