Phillips v Police

[2020] NZHC 917

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 appeal.10

[6]                 The approach previously taken by courts on sentencing appeals continues to apply,11 so the measure of error is the sentence be “manifestly excessive” — the principle is “well-engrained” in this Court’s approach to sentence appeals.12 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.13

Discussion

[7]It is well-understood, on sentencing, it becomes:14

… necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the [end-]sentence to be imposed should be higher or lower ….

But they must be taken into account only “to the extent that they are applicable in the case”.15 That is to say, they must have some causative link to the offending or to punishment for the offender’s culpability for it,16 and therefore evidence of such must be adduced for the sentencing judge’s assessment.17

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

12     At [33] and [35].

13     Ripia v R [2011] NZCA 101 at [15].

14     R v Mako [2000] 2 NZLR 170 (CA) at 179.

15     Sentencing Act 2002, s 9(2).

16     R v Goodlet [2011] NZCA 357.

17     Nelson v R [2014] NZCA 121.

[8]                 Although the pre-sentence report records Ms Phillips’ advice she suffers from depression due to her failing health, such that she has relinquished her previous dog- grooming business to rely on a sickness benefit,  there is no other foundation for    Ms Packer’s submission such “contributed significantly to the offending”. Neither is it self-evident. Nor is there any basis to consider these factors may disproportionately affect her service of the sentence. The Judge did not err in refusing to draw any connection.

[9]                 The breadth of circumstances in which theft arises makes comparison between cases difficult. Certainly there is no tariff case. Even the case on which Ms Packer relies records the Judge considered the appellant there:18

… can perhaps consider herself fortunate that she received a sentence of just three months community detention on this occasion, particularly given the fact that her victim was a vulnerable person and the offending extended over some time.

The two and a half years’ imprisonment starting point, and 11 months’ home detention end-sentence, pointed to by the respondent illustrates the scope of the available range.19 A survey of other relevant sentences – imposed in respect of dishonesty offending relating to property valued between $1,000 and $80,000, involving an element of breach of trust – illustrates sentences ranging from three months’ community detention to short-term imprisonment.20 The fact of Ms Phillips’ offending occurring while she was entrusted with safekeeping of the victim’s home and pets during the victim’s absence overseas lifts her offending above the lowest end of that range.

[10]              I accept the Judge did not advert to any discount for Ms Phillips’ guilty plea, but she expressly noted the plea itself as having mitigatory impact. That plea was made if not at the first opportunity then relatively early in the piece, at least after disclosure

18 Heremaia v Police [2017] NZHC 535 at [6]. The other case relied on by Ms Packer (although not for this point), Peineman v R [2019] NZCA 613, held her sentence of six months’ supervision and 80 hours’ community work “unremarkable” at [24].

19 R v Jones [2016] NZHC 1660.

20 See McGurk v R [2015] NZCA 148; Norris v R [2013] NZCA 526, [2014] 2 NZLR 391; R v Iosefa [2008] NZCA 453; R v Baylis CA45/01, 23 July 2001; Murdoch v New Zealand Police [2017] NZHC 801; Luoni v New Zealand Police [2016] NZHC 695; R v Lum [2015] NZHC 629; Bowles v Police [2014] NZHC 184; Terrell v Police [2013] NZHC 734; Wratt v Police [2012] NZHC 3137; Leighton v Police [2012] NZHC 1925.

although not of the reparation schedule, on her third appearance on 20 November 2019, in vacating Ms Phillips’ initial not guilty plea at her second appearance on    25 September 2019. Extrapolating a 20 percent discount to arrive at the Judge’s four- month sentence suggests a starting point of five months’ community detention. While severe in the circumstances, it is within the range available to the Judge, and to meet the objectives she sought.21 It is the least restrictive appropriate sentence.

[11]              So far as restorative justice opportunities  are  concerned,  I  acknowledge  Ms Phillips’ non-attendance was not her refusal to do so but one made difficult by her continuing illness. Nonetheless, it seems clear from the victim impact report restorative justice is not a given, notwithstanding the parties’ long prior relationship. I therefore do not see the Judge erred by not making provision for a restorative justice meeting; neither do I see that to be a reason to return matters to the District Court for sentencing.

[12]              It follows the sentence imposed was not manifestly excessive, having regard to  the purposes and principles of sentencing:  particularly here, the need to  hold   Ms Phillips accountable for her offending, to promote in her a sense of responsibility for the harm she has done, and to denounce her conduct and deter its repetition.    The Judge did not err.

Result

[13]The appeal is dismissed.

—Jagose J

21     Saia v R [2012] NZHC 1066 at [33].