Phillips v Police
[2024] NZHC 3059
•18 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-196 [2024] NZHC 3059
BETWEEN BRENDON JOHN PHILLIPS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 October 2024 Appearances:
J Ross for the Appellant (via VMR)
G J Barrett and P J Brand for the Respondent
Judgment:
18 October 2024
JUDGMENT OF HARLAND J
Introduction
[1] On 19 July 2024, Brendon Phillips was sentenced by Judge Greig to a term of two years and four months’ imprisonment on charges of burglary,1 two charges of theft,2 possession of an offensive weapon,3 escaping custody,4 possession of a methamphetamine pipe,5 four charges of driving while disqualified6 and failing to stop for the Police, 7 to which he had pleaded guilty. He now appeals his sentence on the basis it was manifestly excessive.
1 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
2 Crimes Act, s 219 and 223(b). Maximum penalty: seven years’ imprisonment.
3 Crimes Act, s 202A(4)(a). Maximum penalty: three years’ imprisonment.
4 Crimes Act, s 120(c). Maximum penalty: five years’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(c) and 13(3). Maximum penalty: one year’s imprisonment or a fine not exceeding $500.
6 Land Transport Act 1998, s 32(1)(a) and 32(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000.
7 Land Transport Act, s 52A(1)(a)(ii), 52A(5), 52A(6) and 114(2). Maximum penalty: three months’ imprisonment or a fine not exceeding $10,000.
PHILLIPS v POLICE [2024] NZHC 3059 [18 October 2024]
[2]The Crown opposes the appeal.
[3] I have decided to allow the appeal. This judgment sets out my reasons for doing so.
The offending
[4] The first five charges (but only one of the theft charges) listed in [1] above arose from offending on 10 January 2024 in Christchurch. Mr Phillips was offered a sentence indication (two years’ imprisonment or less) on 16 May 2024 in respect of those charges, which he accepted. The Judge was, at the time, unaware of Mr Phillips’ other charges (the last five charges and one of the theft charges listed in [1] above) which arose from offending in 2023 while Mr Phillips was in Dunedin.
[5] Mr Phillips subsequently pleaded guilty to the charges which arose in 2023 and he was sentenced on all charges in the District Court on 19 July 2024.
10 January 2024 (Christchurch) offending
[6] Regarding the burglary, Mr Phillips entered the victim’s garage in Christchurch, took a bike valued at $6,000 and rode away from the address on it. He then approached a van that was in the driveway of another address and took two cell phones from the centre console. These were cumulatively valued at $1,100. After leaving this address, Mr Phillips was seen by a Police officer who informed him that he was under arrest. Mr Phillips left on the bike before being located by the Police hiding up a tree. When Mr Phillips eventually came down from the tree, he informed the Police that he had a knife, which he then dropped onto the ground. The knife was about 20 centimetres long, with a stainless steel blade and a wooden handle, located inside a pewter sheath.
[7] Mr Phillips was arrested and later searched. The methamphetamine pipe was located inside his backpack.
[8] Mr Phillips admitted his offending when he was arrested. Mr Phillips claimed ownership of the pipe, stating to the Police “it is my addiction”.
Driving while disqualified (Dunedin) offending
[9] Mr Phillips has four previous convictions for driving while disqualified. He was most recently disqualified from holding or obtaining a driver’s licence on 22 June 2023 for a period of two years. Contrary to his disqualification, Mr Phillips drove a vehicle on 28 October, 23 November, 3 December and 24 December 2023.
Other (Dunedin) offending
[10] Mr Phillips was seen to be driving at high speed (136 kph in a 100 kph zone) on 28 October 2023. The Police activated their red and blue flashing lights and siren, signalling for Mr Phillips to stop. He failed to do so. When he was apprehended, he was found to be a disqualified driver.
[11] On 3 December, Mr Phillips filled his vehicle up with $75 worth of petrol at a petrol station and drove off without paying for it.
Decision under appeal
[12] For the Christchurch offending, the Judge adopted the following cumulative starting points: burglary (12 months), theft of cell phones (four months), possession of a knife (three months), and escaping custody and possessing the methamphetamine pipe (two months). The Judge indicated (in error) that these starting points totalled 22 months. The Judge allowed a discount of four months for Mr Phillips’ guilty pleas, leaving an end sentence on these charges of 18 months’ imprisonment.
[13] For the 2023 offending in Dunedin, the Judge imposed a sentence of six months on the charges of driving while disqualified on 28 October and 23 November which were aggravated, respectively, by Mr Phillips driving dangerously and offending while on bail. The Judge uplifted the starting point by a further nine months to account for the other two charges of driving while disqualified. This resulted in an end starting point of 15 months’ imprisonment, which was reduced by three months to reflect Mr Phillips’ guilty pleas. An additional two months was deducted from the starting point to take in account the time Mr Phillips spent subject to EM bail. The end sentence was therefore one of 10 months’ imprisonment, cumulative on the sentence of 18 months’ imprisonment imposed for the Christchurch offending.
[14] The end sentence the Judge imposed was a term of 28 months, or two years and four months’ imprisonment.
Principles on appeal
[15] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 Otherwise, the Court must dismiss the appeal.9
[16] The sentence must be manifestly excessive before an appeal Court will substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within a range that can properly be justified by accepted sentencing principles.10
[17] Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.11
Discussion
[18] Mr Ross for Mr Phillips submitted the Judge erred in calculating the global starting point for the 10 January 2024 offending, failed to give credit for Mr Phillips’ addiction issues and failed to apply the sentencing principle of totality. He submitted the end result was a manifestly excessive sentence, which should be reduced on appeal to a term of imprisonment of around 20 months.
[19] Ms Barrett for the Crown acknowledged there was a mathematical error of one month in the Judge’s starting point calculation for the 2024 offending but, given the end sentence, she submitted no adjustment is necessary. She submitted Mr Phillips’ methamphetamine addiction is not relevant to the Dunedin offending and potentially some of the Christchurch offending. But, in any case, Ms Barrett submitted any available credit is offset by the fact that the starting points adopted by the Judge could
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
11 Ripia v R [2011] NZCA 101 at [15].
have been higher. She submitted no adjustment for totality was required and that the end sentence imposed was within the available range.
Miscalculation of starting point for Christchurch offending
[20] Mr Ross correctly identified an error the Judge made in calculating the global starting point for the offending arising from 10 January 2024. The global starting point for this offending, as assessed by the Judge, should have been 21 months, less four months for Mr Phillips’ guilty pleas, making a total of 17 months’ imprisonment.
[21] This calculation error should have been drawn to the Judge’s attention at sentencing. However, having been raised now, the impact of the error on the end sentence and whether it can be said to be manifestly excessive depends on the outcome of the next two grounds of appeal.
Credit for addiction
[22] The Sentencing Act requires a court to consider the particular circumstances of an offender when sentencing. As the Supreme Court explained in Berkland,12 understanding an offender’s background allows a court to tailor the sentence to the offender. There may be factors in a person’s background which reduce an offender’s culpability or blameworthiness for what that offender has done.13 But, to be recognised in the end sentence, there must be a link between an offender’s background and the offending.14
[23] Mr Ross submitted that, despite the Judge acknowledging that Mr Phillips is the “victim of a powerful [methamphetamine] addiction”, the Judge did not make any allowance for that addiction, which was an error.
[24] Mr Ross referred to two cases to support his submission. I note from the outset a distinction between the offenders in those cases and Mr Phillips’ because the offending there largely comprised drug offending, including the manufacturing and
12 Berkland v R [2022] NZSC 143.
13 At [91].
14 At [109].
supplying of methamphetamine. In such cases, it is relatively easy to see a clear connection between an offender’s addiction and their offending, although that is not always the case.
[25] In Dunn v Police,15 the appellant had pleaded guilty to 22 charges of possession of methamphetamine for supply. It was accepted by the sentencing Judge and the Police that Ms Dunn had supplied methamphetamine to fund her own drug use and that there was a high likelihood she would offend again to feed her habit. In other words, Ms Dunn’s addiction was causative of her offending. Gordon J considered that a separate 20 per cent deduction for this matter was appropriate on appeal.
[26] In Byrne v R,16 Ms Byrne was sentenced on charges of conspiring to supply methamphetamine, supplying methamphetamine, offering to supply methamphetamine, and supplying psilocybin. The Judge on appeal accepted that Ms Byrne had a severe methamphetamine use disorder such that her otherwise strong pro- social tendencies had been compromised by her addiction.17 A deduction of 20 per cent was applied, although I note this accounted for all of Ms Byrne’s background factors, not just her addiction.
[27] The link between Mr Phillips’ addiction and his offending is not so clear cut. I do not consider there is strong evidence that Mr Phillips was motivated to offend by the need to support his dependence on methamphetamine, particularly in relation to the driving offences and his possession of an offensive weapon (the knife), even though the Provision of Advice to Courts (PAC) report writer refers to Mr Phillips’ admission to him that he was under the influence of methamphetamine in November and December 2023 and not thinking clearly. The theft and burglary charges are more likely to show an operative connection, however there is nothing to suggest Mr Phillips intended to sell the stolen goods to fund his addiction. He told the PAC report writer he did not remember why he was where he was or did what he did.
15 Dunn v Police [2020] NZHC 316.
16 Byrne v R [2022] NZHC 897.
17 At [34].
[28] Notwithstanding this, I accept Mr Phillips has a severe methamphetamine addiction which has dominated his life since 2019 and has reduced his capacity to make rational decisions. Mr Phillips said that, at the time of the Christchurch offending, he had been awake for nine days and was suffering from paranoia and confusion.
[29] While the voluntary consumption of drugs cannot be considered a mitigating matter, it adds to the overall very clear impression that Mr Phillips’ addiction is dominating his life and has contributed to his antisocial lifestyle. I also note that Mr Phillips told the PAC report writer that he had previously been a successful sharemilker and manager of several dairy farms in the past but had spent over
$600,000 on methamphetamine since 2019. This confirms how problematic and severe his addiction is.
[30] While much of the evidence in relation to Mr Phillips’ methamphetamine use is self-reported,18 the sentencing Judge accepted that Mr Phillips has an addiction to methamphetamine. The fact Mr Phillips was found with a methamphetamine pipe when arrested is confirmation of this addiction. Additionally, the Alcohol, Smoking and Substance Involvement Screening Test (ASSIST) results showed he was at a high risk of harm to his health, finances, and relationships if he continues to use methamphetamine at the level he was before his remand in custody.
[31] Overall, I accept that Mr Phillips’ methamphetamine addiction contributed to most but not all of his offending. Mr Ross has submitted a discount of between 15– 20 per cent is warranted, but the evidence regarding the extent of Mr Phillips’ addiction does not justify a discount in that order. In my view, Mr Phillips’ addiction warrants a discount of 10 per cent, which I attach to the Christchurch offending.
Totality
[32] In arriving at the appropriate sentence for several offences, a sentencing Judge must not only consider each offence individually, but also assess an offender’s overall culpability for their offending and determine what sentence is appropriate to reflect
18 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].
the totality of their conduct.19 Mr Ross in his submissions noted that the Judge did not mention the totality principle. The failure of the Judge to mention the totality principle is of no moment if the sentence imposed is not out of proportion to the gravity of the offending.20 Having said that, it is always preferable for totality to be addressed, even if briefly, when cumulative sentences are imposed. The key issue is whether the cumulative sentences resulted in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.21
[33] An adjustment to individual sentences imposed cumulatively is not automatic. Where the end sentence by aggregating the individually appropriate sentences is not “wholly out of proportion to the gravity of the overall offending”, no reduction is required.22
Totality for cumulative driving offences
[34] Mr Ross has submitted Mr Phillips’ driving offences can be considered a “connected series of events” with concurrent, rather than cumulative, sentences. I disagree. Although they were similar offences, they were discrete offences involving separate vehicles, for separate purposes on separate days. I therefore do not consider the Judge erred in imposing cumulative sentences for this offending.
[35] I agree with Ms Barrett that it was open to the Judge to set a higher starting point for the driving offending given Mr Phillips’ previous driving convictions and the aggravating features of failing to stop and driving in such a manner that police were unable to pursue him. Moreover, Mr Phillips was on bail at the time of the November and December offending, which is a further aggravating factor. As Dunningham J said in Williams v Police:23
[27] Although these four offences are of “a similar kind” in terms of s 84 of the Sentencing Act, this section does not remove the jurisdiction to impose cumulative sentences where appropriate. Cumulative sentences are
19 R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA); R v Dodd [2013] NZCA 270 at [32]–[33].
20 Kite v R [2018] NZCA 485 at [21].
21 Sentencing Act 2002, s 85(2).
22 Ashcroft v R [2014] NZCA 551 at [32].
23 Williams v Police [2015] NZHC 1118 (footnotes omitted).
particularly appropriate for offences committed while subject to an order to come up for sentence if called upon, or while on bail.
[36] In Williams, Dunningham J concluded that the District Court Judge acted appropriately in imposing cumulative sentences of imprisonment on the four charges of driving while disqualified because they were discrete, albeit similar, offences. She noted that the available starting point of around 16 to 20 months for each individual offence could apply but accepted that the District Court Judge’s decision in considering totality and adjusting the starting point from 40 months to 30 months was appropriate and did not offend against the totality principle. In that case however, the appellant had 11 previous convictions for driving while disqualified, whereas Mr Phillips has four arising from offending in September 2023. But, prior to that, his four remaining convictions for driving while disqualified all involve offending that occurred in 2001.
[37] In Muhinda v Police,24 the Judge adopted a cumulative starting point of 26 months’ imprisonment for two counts of driving while disqualified. Dunningham J, on appeal, accepted that the District Court Judge was entitled to impose cumulative sentences on three separate sets of offending, including driving while disqualified. The District Court Judge had adopted starting points of eight months and 18 months’ imprisonment for two counts of disqualified driving in circumstances where these convictions were the appellant’s fourth and fifth for similar offending. The offending was aggravated by the fact that the convictions for disqualified driving had occurred within a period of five years and, on the second instance, the appellant was drunk and had crashed his vehicle, and was on bail as a result of the first charge of disqualified driving.
[38] The Court on appeal was asked to consider if an adjustment was needed to give effect to the totality principle. End sentences for similar offending were canvassed and the sentence of 18 months’ imprisonment was reduced to 13 months’ imprisonment, leading to an end sentence of 20 months’ imprisonment for two charges.
24 Muhinda v Police [2015] NZHC 2024.
[39] I agree that this offending is more serious than the offending in Muhinda v Police because it involved four instances of disqualified driving. I also agree that, arguably, the offending in this case is more serious than Williams v Police due to the aggravating feature of the failure to stop.
[40] I therefore do not consider the end starting point of 15 months’ imprisonment for the disqualified driving offending was outside the available range.
Totality for end sentence
[41] Taking into account the corrected starting point for the Christchurch offending (21 months) and the 10 per cent discount for Mr Phillips’ addiction, I reach an end sentence of 25 months’ imprisonment after adding the two sentences together cumulatively.
[42] I also observe that the Judge could have set a higher starting point for the burglary offending. As the Court of Appeal outlined in Arahanga v R25, the burglary of a domestic residence is a significant aggravating feature at sentencing due to the heightened risk of confrontation with the occupants.
[43] Mr Ross highlighted that, in Arahanga, the defendant was armed and therefore there was a greater risk of harm to the occupants. By comparison, the burglary in this case was of a garage. Mr Ross submitted that R v Columbus was more analogous.26 In that case, the defendant had stolen a mountain bike from a garage, caused damage to the garage and stole a lawn mower from a nearby residential property, as well as petrol from a service station. The starting point adopted by the Judge was one of three years six months’ imprisonment, which the Court of Appeal subsequently held was excessive, even allowing for the defendant’s three previous burglary convictions and
34 property-related convictions. The Court of Appeal considered that the circumstances of the burglary themselves would not justify a starting point of more than one year’ imprisonment. But this was adjusted, applying the totality principle, to reflect the multiple offences the defendant had committed shortly after the burglary (the theft of petrol and a lawn mower, possession of a cannabis pipe and leaf, which
25 Arahanga v R [2012] NZCA 480.
26 R v Columbus [2008] NZCA 192.
were committed on bail). The Court of Appeal considered those charges would justify adding another six months’ imprisonment to the starting point. The starting point was further increased to reflect the defendant’s previous dishonesty offending. An increase of one year was considered appropriate for this. This led to an appropriate end starting point for the defendant’s sentence for burglary of two and half years’ imprisonment.
[44] In this case, the Judge adopted a starting point of twelve months for the burglary with the uplifts outlined in para [12] of this judgment. Considering the Judge’s approach here with the approach of the Court of Appeal in Columbus and accepting that Mr Phillips’ offending was at the lower end of the scale, I conclude that it was open to the Judge to set a starting point of around 18 months on this charge.
Was the end sentence manifestly excessive?
[45] The end sentence imposed by the Judge was a term of 28 months’ imprisonment. I have concluded that a term of 25 months’ imprisonment was appropriate, taking into account the miscalculation of the starting point for the Christchurch offending and the credit I have allowed to reflect Mr Phillips’ addiction issues and the link to his offending. Rather like Dunningham J in Muhinda v Police, I consider that the difference between the sentence of 28 months’ imprisonment and
25 months’ imprisonment is material and justifies a different sentence being imposed.27
Result
[46]The appeal is allowed.
[47] The sentence of 28 months’ imprisonment is therefore quashed and replaced with a sentence of 25 months’ imprisonment.
Harland J
Solicitors:
J Ross, Barrister, Invercargill
Raymond Donnelly & Co., Christchurch.
27 Muhinda v Police, above n 24, at [42].
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