Phillips v Police - [2024] NZHC 3059

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…

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.

Continue reading Phillips v Police

Details

AGLC: Phillips v Police [2024] NZHC 3059
Case: [2024] NZHC 3059
Decision Date: 18 October 2024

CaseChat Overview and Summary

Brendon Phillips appeals his sentence, imposed by Judge Greig in the District Court, on charges including burglary, theft, possession of an offensive weapon, escaping custody, possession of a methamphetamine pipe, driving while disqualified, and failing to stop for the Police. Phillips argues that his sentence of two years and four months' imprisonment is manifestly excessive. The Court must determine if the sentence was erroneous and, if so, whether a different sentence should be imposed. The Crown opposes the appeal.

The court identified several errors in the sentencing process. Firstly, the Judge miscalculated the global starting point for the Christchurch offending by one month. Secondly, the Judge failed to adequately account for Phillips' methamphetamine addiction, which contributed to his offending. Thirdly, the Judge did not explicitly address the principle of totality in imposing cumulative sentences. Given these errors, the court found the sentence to be manifestly excessive and allowed the appeal. The court reduced the sentence to 25 months' imprisonment, reflecting the corrected starting point and credit for Phillips' addiction. The sentence of 28 months' imprisonment was quashed and replaced with a sentence of 25 months' imprisonment.

Orders