Phillips v Police

[2012] NZHC 2934

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-44 [2012] NZHC 2934

BETWEEN  SASHA-MAREE PHILLIPS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 November 2012

Appearances: B Hesketh for the Appellant

J O'Sullivan for the Respondent

Judgment:      6 November 2012

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

B Hesketh, Barrister, Hamilton. Email: [email protected]

J O’Sullivan, Crown Solicitors, Hamilton. Email: [email protected]

PHILLIPS V NEW ZEALAND POLICE HC HAM CRI-2012-419-44 [6 November 2012]

[1]      This appeal challenges a sentence of three years imprisonment imposed by

Judge E M Thomas in the Hamilton District Court on 8 June 2012.

[2]      Mr Hesketh was briefed for the purposes of this appeal by the appellant.  She was represented by different counsel in the District Court.

[3]      As was apparent in my callover minute of 21 September 2012, the sole issue on appeal is whether or not medication the appellant was taking at the time of the offending could properly be called into aid as a mitigating factor.  Closely linked to that, of course, is whether the appellant at the time of her offending was labouring under some form of psychological or psychiatric state which contributed to what she did.

[4]      The  law’s  approach  in  this  area  is  not  only humane;  it  is  mandated  by relevant provisions in the Sentencing Act 2002.

[5]      I need say very little about the offending.  All relevant matters were carefully assessed and weighed by Judge Thomas.   The appellant had pleaded guilty at an early stage to a charge of wounding with intent to injure under s 188(2) of the Crimes Act 1961.  One evening, when intoxicated, an argument broke out between the appellant and her partner.  Both parties had been consuming alcohol on the night of the offending (in January 2012).  Whilst the appellant was attempting to get to the refrigerator her partner put his hand on her shoulder which caused her to stumble. Impulsively the appellant took a large knife (approximately 20 cm long) from an adjacent knife block and plunged it into the victim’s chest.  The victim was lucky to survive.  He had to be evacuated to Auckland Hospital.  He lost a large amount of blood which had to be drained from his chest cavity.  He was hospitalised for five days.

[6]      The Judge took as his start point five years imprisonment.   There was no challenge to that.   The end sentence was one of three years imprisonment which effectively amounts to a discount of 40%.

[7]      The Judge recognised the following mitigating factors.

(a)       The  difficulties  which  imprisonment  would  cause  to  both  the appellant and her family.

(b)The somewhat forgiving approach of the victim who did not want the appellant to be imprisoned.

(c)       Her remorse.

(d)      The maximum 25% discount for an early guilty plea mandated by

Hessell v R.[1]

[1] Hessell v R [2011] 1 NZLR 607 (SCNZ).

[8]      Responsibly Mr Hesketh sought an expert opinion from a Hamilton forensic psychologist, Dr Peter Dean.   Dr Dean’s 29 October 2012 report has been made available.

[9]      There are a number of pertinent comments in that report which can best be summarised as follows:

(a)       The  appellant  (who  is  now  aged  37)  has  a  history  of  excessive drinking or alcohol abuse.

(b)      At the time of her offending she was on anti-depressant medication

(fluoxetine).

(c)       The appellant had a history (nine years ago) of post-natal depression. (d)      There   was           no        history      of          uncontrolled          anger    or    personality

dysfunction.

(e)       To  some  extent  the  appellant  at  the  relevant  time  had  been  both reducing and increasing her prescribed anti-depressant medication.

(f)       Fluoxetine  can  precipitate  agitation  and  increased  anxiety.     The agitation can sometimes lead to aggression or self-harm.

(g)Dr  Dean  opines  that  the  recent  increase  by  the  appellant  of  her fluoxetine   medication   may  have   contributed   to   her   irritability, agitation, and impulsive behaviour.

(h)Dr Dean  expresses  the  clear view  that  because the  appellant  was intoxicated this too would have increased impulsive behaviour.

[10]     In essence, and critically, Dr Dean’s opinion is that the increase in fluoxetine may well have contributed to her behaviour.   However, he is equally clear that a further contributor would have been alcohol consumption.

[11]     I interpolate that the full and sympathetic presentence report which the Judge had before him assessed the appellant as having a low risk of re-offending.  Over the previous 10  years, however, she had  incurred  three convictions under  the  Land Transfer Act, including breath/alcohol convictions and a related dangerous driving conviction.

[12]     Ms O’Sullivan’s competent submissions, prepared at very short notice, point out that even had the Judge been able to consider the factors raised by Dr Dean, the discounts across the board (40%) were generous and that it was difficult to see how the sentence imposed could be described as manifestly excessive.

[13]     In oral submissions Ms O’Sullivan made the further cogent point that there was nothing in Dr Dean’s report to suggest that there was some underlying mental or psychiatric state which contributed to the offending in question.  At the very best the medication could have been a contributing factor, but any such contribution would have been aggravated by the appellant’s excessive and voluntary consumption of alcohol.

[14]     The appellant has reason to be grateful to Mr Hesketh for conscientiously and thoroughly exploring her predicament and obtaining by way of assistance Dr Dean’s report.  Mr Hesketh submitted that an additional discount to reflect the contributing medication factor might be appropriate.

[15]     I have given this matter close and anxious thought.  I have been assisted by both counsel.  It is possible had the Judge had the information before him that I now have he might have been even more generous in his discounting of the five year start point.

[16]     That, however, is speculative.  The criterion for an appeal against sentence remains whether the sentence can be said to be manifestly excessive.  I, like Judge Thomas, have some sympathy with the appellant’s predicament.  Undoubtedly from her point of view the sentence can be described as severe.   Nonetheless I do not consider it can be regarded as manifestly excessive.  The wounding was extremely serious and potentially fatal.

[17]     For this reason, therefore, the appeal must be dismissed.

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Priestley J