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Phillips v Police

Phillips v Police

Case [2020] NZHC 917 5 May 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-41

[2020] NZHC 917

BETWEEN
LISA JANE PHILLIPS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Virtual hearing: 5 May 2020

Appearances:

G D Packer for the appellant

A G Wiltshire for the respondent

Date of judgment:

5 May 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
Georgina Packer Barrister, Auckland Meredith Connell, Auckland

PHILLIPS v NEW ZEALAND POLICE [2020] NZHC 917 [5 May 2020]

[1] Lisa Phillips appeals the decision of Judge C H Bennett in the District Court at North Shore on 7 February 2020, to sentence her to 18 months’ intensive supervision and four months’ community detention, with reparation payments of $750 and court costs of $130.1 Ms Phillips was convicted of a single charge of theft over $1,000.2

Background

[2] While house- and pet-sitting for the victim, a long-standing client of Ms Phillips’ former dog-grooming business, Ms Phillips took a large number of the victim’s personal items valued at about $3,500, some of which later were located in Ms Phillips’ possession and at a Cash Convertors store. The balance, of “important emotional value” to the victim and her family, has not been recovered. The victim is very unsettled by Ms Phillips’ breach of trust, extending beyond the thefts to significant abuse of the house and pets, which is a source of continuing distress to the victim.

[3] Judge Bennett noted Ms Phillips’ explanation of the offending in terms of her financial hardship, and her recognition that “it was stupid” and that she “should not have done it”.3 The Judge considered the offending was “gravely aggravated” by the Ms Phillips’ serious breach of trust, and the “large amount of property” taken.4 She recognised Ms Phillips’ early guilty plea, accepted she was genuinely remorseful,5 and acknowledged Ms Phillips’ relatively blameless prior record.6 But she was not prepared to accept Ms Phillips’ illness, depression, or straitened financial circumstances as mitigating factors, saying “There is no excuse for stealing from people[, p]articularly people who have trusted you”.7 In those circumstances, the Judge considered the offending “deserve[d] to be marked by a deprivation of some liberty”, meaning community work alone would be inappropriately lenient.8

1      New Zealand Police v Phillips [2020] NZDC 1933.
2      Crimes Act 1961, ss 219 and 223(b): maximum penalty 7 years’ imprisonment.
3 Above n 1 at [3].
4 At [7].
5 At [6].
6 At [4].
7 At [6].
8      At [7] and [9].

[4] Ms Phillips’ counsel, Georgina Packer, argues the Judge erred in disregarding those mitigating factors, and the sentence is besides disproportionately severe, and may not fully have given the guilty plea discount. She seeks resentencing in the District Court, so as to include renewed opportunity to participate in restorative justice.

Approach to appeals against sentence

[5] I must allow the appeal only if satisfied both there is an error in the sentence and a different sentence should be imposed.9 In any other case, I must dismiss the…

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 [2020] NZHC 917
Case: [2020] NZHC 917
Decision Date: 5 May 2020

CaseChat Overview and Summary

Lisa Jane Phillips appealed against the decision of Judge C H Bennett in the District Court at North Shore, which sentenced her to 18 months’ intensive supervision and four months’ community detention, along with reparation payments of $750 and court costs of $130, following her conviction of theft over $1,000. The appeal was based on the argument that the sentence was disproportionately severe, and the mitigating factors were not adequately considered. Ms Phillips' counsel sought resentencing in the District Court, with an opportunity to participate in restorative justice.

The court considered whether the sentence was "manifestly excessive" and if the mitigating factors were properly assessed. The court found that the mitigating factors, such as illness and financial hardship, were not sufficiently linked to the offending or punishment for the offender’s culpability. The court also noted that the sentence was within the range properly justified by accepted sentencing principles.

The court found that the sentence was not manifestly excessive, considering the purposes and principles of sentencing, particularly holding Ms Phillips accountable for her offending, promoting a sense of responsibility, and denouncing her conduct and deterring its repetition. The appeal was dismissed, and the original sentence was upheld.

The final order was that the appeal was dismissed.

Orders