Philip v The Queen

[2017] NZCA 129

IN THE COURT OF APPEAL OF NEW ZEALAND

CA238/2016
[2017] NZCA 129

BETWEEN	JOHN DOUGLAS PHILIP Appellant
AND	THE QUEEN Respondent

Hearing:	6 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	P J Kaye for Appellant A J Ewing for Respondent
Judgment:	13 April 2017 at 11:00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. Mr Philip was found guilty by a jury in the High Court at Auckland on two charges of supplying methamphetamine and one charge of possessing methamphetamine for supply.  He was sentenced by the trial judge, Woolford J, to nine years and six months’ imprisonment.[1]  Mr Philip now appeals that sentence as being manifestly excessive.

Facts

[1]R v Norton [2016] NZHC 1035 at [32].

1. Between November 2013 and June 2014 the police investigated the supply of methamphetamine in a number of South Auckland communities.  The charges Mr Philip was convicted on reflected his role as a key player, occupying a high position in the supply chain.  On one occasion Mr Philip supplied 112 grams of methamphetamine to an associate.  On a number of other occasions Mr Philip supplied his co-defendant, Ms Norton, with 28-gram quantities.  Woolford J formed the view that Mr Philip had supplied at least 336 grams of methamphetamine overall.[2]  That assessment is not challenged on this appeal.  When Mr Philip was arrested, he was in possession of a further 40 grams of methamphetamine and some $215,000 in cash.

   [2]At [7].

2. On that basis, Woolford J fixed a nine-year starting point,[3] in the lower to middle range of R v Fatu band three.[4]  The Judge uplifted that starting point by six months, with particular reference to Mr Philip’s convictions for methamphetamine offending in 2000, 2012 and 2014.[5]  The Judge declined to give Mr Philip any discount for his indicated willingness to engage with rehabilitative programmes as Mr Philip had not, in his view, expressed remorse.[6] 

Grounds of appeal

[3]At [28]

[4]R v Fatu [2006] 2 NZLR 72 (CA) at [34]. Band three provides that a sentence of eight to 11 years’ imprisonment will be appropriate for the supply of large quantities of methamphetamine (250 to 500 grams).

[5]R v Norton, above n 1, at [29].

[6]At [30].

1. Mr Philip appeals on three grounds, namely that:

   (a)the starting point was too high;

   (b)the uplift for previous convictions was also too high; and

   (c)Woolford J erred in failing to properly assess Mr Philip’s personal circumstances, namely his willingness to undertake rehabilitative programmes.

2. At the hearing of Mr Philip’s appeal, counsel for Mr Philip (Mr Kaye) responsibly abandoned that third ground.  He did so because, whilst Mr Philip was on bail prior to his trial, he committed further methamphetamine offending in another part of New Zealand including manufacturing methamphetamine, possessing methamphetamine for supply, and supplying methamphetamine.  Having regard to totality, a cumulative sentence of three years and six months’ imprisonment was subsequently imposed for that offending.[7]  In those circumstances, there can be no credit for Mr Philip’s claimed willingness at sentencing to pursue rehabilitation.

Analysis

[7]R v Philip [2016] NZDC 15504 at [11].

1. There can be no criticism of the Judge’s sentencing approach.  The starting point of nine years’ imprisonment was orthodox.  As the Judge concluded, the nature of Mr Philip’s offending, and the quantity of methamphetamine involved, fall squarely within the lower to middle range of Fatu band three. 

2. Similarly, given the extent of Mr Philip’s previous offending of a similar nature, there can be no challenge to a six-month uplift. Mr Philip, who was 57 at the time of his sentencing, has what Mr Kaye somewhat understatedly described as a “colourful past”. Mr Philip’s lengthy criminal record includes numerous less serious instances of drug and dishonesty offending, dating back to the mid‑1970s. As the Judge recorded,[8] and of more relevance, Mr Philip has previous methamphetamine convictions — in 2000 he was sentenced to four years’ imprisonment for manufacturing methamphetamine; and in 2012 and 2014 he was convicted, on each occasion in conjunction with other related offending, for possessing methamphetamine. The sentences he received on those two occasions indicate that commercial quantities were not involved. Reflecting, however, Mr Philip’s history of serious drug offending, as long ago as 1981 he was sentenced to two years and six months’ imprisonment for supplying cocaine, LSD and DMA. In terms of the uplift imposed by the Judge, that record speaks for itself.

Result

[8]R v Norton, above n 1, at [29].

1. Mr Philip’s appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent