Phillips v Police

[2018] NZHC 2703

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000041

[2018] NZHC 2703

BETWEEN

DANIEL AARON JOHN PHILLIPS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 October 2018
Appearances:	M H McIvor for Appellant A A R Pell for Respondent
Judgment:	18 October 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

PHILLIPS v NEW ZEALAND POLICE [2018] NZHC 2703 [18 October 2018]

[1]Mr Phillips pleaded guilty in the District Court to the following charges:

·Breaching prison release conditions;

·Breaching a protection order;

·Being in possession of cannabis, cannabis pipes and methamphetamine pipes;

·Driving whilst disqualified (x 2) (third or subsequent); and

·Cultivating cannabis.

[2]        On 6 July 2018, Judge Connell sentenced Mr Phillips to an effective term of 25 months imprisonment on these charges.1 He appeals against sentence on the basis that the Judge erred in the way he constructed the sentence, and this has resulted in an end sentence that is manifestly excessive.

The charges

Breaching prison release conditions

[3]        Mr Phillips was released from prison on 2 August 2017 after serving a sentence of 14 months imprisonment imposed on several charges on 14 March 2017. He was subject to release conditions requiring him to report to a probation officer on a regular basis. On 26 October 2017, Mr Phillips called his probation officer to say he was sick and would be unable to report as required. He was excused on that occasion, but then failed to report as directed between the period from 2 November 2017 to 14 December 2017. Mr Phillips’ release conditions were due to expire on 5 September 2018.

Breaching protection order

[4]        On the evening of 6 December 2017, Mr Phillips went to his former partner’s address in Hamilton. She had earlier obtained a protection order against him. He was

1      New Zealand Police v Phillips [2018] NZDC 13744.

initially at his former partner’s address with her agreement, but a verbal argument occurred at about 9.30 pm and she asked him to leave the address. He refused to do so and, fearing violence, she was required to leave the address and phone the police from a neighbouring property. Mr Phillips went to the garage of the address where he was arrested when the police arrived.

Possession of cannabis, cannabis pipes and methamphetamine pipes

[5]        When the police arrived at the address, they discovered several items of paraphernalia associated with the packaging and consumption of drugs. These included point bags, spotting knives and a butane torch. The police also located a small black bag containing numerous glass methamphetamine pipes as well as other items used for the consumption of methamphetamine. Inside the bag the police found bail bond papers in Mr Phillips’ name as well as his community services card. In addition, the police found two bongs and four spotting knives, all of which can be used for the consumption of cannabis. Finally, they found an ice-cream carton containing approximately 144 grams of cannabis leaf and stalks.

Driving whilst disqualified

[6]        On 14 March 2017, Mr Phillips was disqualified from driving for a period of 12  months and one day.  He was  subsequently found driving a  motor  vehicle  on   3 February 2018 near Karapiro. On this occasion, he told the police he was going to his sister’s address because she was suffering some mental health issues following the loss of her child. Approximately four weeks later, the police found Mr Phillips driving a motor vehicle again in a rural area. This occurred on the evening of 7 March 2018. On this occasion he could offer no satisfactory excuse for being behind the wheel of the vehicle.

The sentence

[7]The Judge selected the following starting points:

·Breaching prison release conditions – two months

·Breach of protection order – six months

·Possession of cannabis and drug-related paraphernalia – one month

·On the second charge of driving whilst disqualified – six months

·Cultivating cannabis – three months

[8]        The Judge then applied uplifts of six months each on the charges of breaching the protection order and the second charge of driving whilst disqualified.2 These reflected the fact that Mr Phillips has previous convictions for similar offending.

[9]        By my calculations, this produced a total sentence of 30 months imprisonment before taking into account mitigating circumstances. There is, however, some confusion regarding this because of the following sentence in the Judge’s decision:3

[13] This is a total then of 33 months, if I add the 12 months to the 18 months. That is right. If I give you a reasonably generous discount for the plea of guilty in respect of all of these matters, it takes you down to a 25 month term. Now that falls short, as you know, of the two years that I can impose a sentence of home detention, but I also tell you I would not have imposed home detention. It is because your record is one of breaching sentences all the time. You are non-compliant, that is the trouble and you will not get on and complete sentences and do things.

[10]      It is clear, however,  that  the  Judge  intended  to  sentence  Mr  Phillips  to 25 months imprisonment. He imposed that sentence on the charge of cultivating cannabis. He then imposed concurrent lesser sentences on the remaining charges.

Decision

[11]      By necessity, the Judge was dealing with a large number of offences and he needed to select an end sentence that took into account totality principles. It is therefore somewhat artificial to now deconstruct the sentence by ignoring aspects of the sentence with which no exception is taken, and then concentrating on other aspects where the appellant contends the Judge adopted an approach unfavourable to him. For that reason I have considered Mr Phillips’ culpability in relation to each of the charges

2      The Judge selected a starting point in respect of only one of the driving whilst disqualified charges.

3      New Zealand Police v Phillips, above n 1.

in an effort to reach my own view regarding the appropriate starting point in relation to each charge.

Breaching prison release conditions

[12]      There is no dispute that a starting point of two months imprisonment was appropriate on the charge relating to breaching prison release conditions, and I need not discuss that issue further.

Breaching the protection order

[13]      Mr McIvor challenges the level of uplift on the charge relating to breach of the protection order. He accepts that a starting point of six months imprisonment may be appropriate on that charge, but contests any uplift to reflect previous offending. He points out that the present offence was committed in circumstances where Mr Phillips was lawfully at the address until his former partner asked him to leave. When she left the address, he was not prepared to leave the children alone. For that reason he went into the garage, where he awaited the inevitable arrival of the police. He submits that an end sentence of no more than six months imprisonment was appropriate on that charge.

[14]      Mr Pell, for the respondent, accepts that an uplift of 100 per cent was too great given the circumstances of the present offending. He points out, however, that  on  14 March 2017 Mr Philips received a sentence of 12 months imprisonment for similar offending against the same victim. He had only been released from serving that sentence in August 2018. He therefore submits a starting point of six months was easily justified, and that an uplift of around three months is appropriate to reflect the fact that Mr Phillips has been prepared to offend again so soon after being released from prison.

[15]      I accept that a starting point of six months imprisonment was appropriate for this offending. Mr Phillips needs to be aware that he may only remain at his former partner’s address whilst she permits him to do so. Once she asks him to leave, he must comply with her request. If he does not, he will breach the terms of the protection order. The fact that the children were left alone was a direct consequence of

Mr Phillips’ partner being required to leave the address in order to call the police. I do not consider that to be a particularly mitigating factor.

[16]       I also accept there should be some uplift to reflect the fact that Mr Phillips had recently been released from prison for similar offending, and was still subject to release conditions from that sentence when he committed the present offence. I consider, however, that an uplift of no more than two months is appropriate to reflect those factors. This means an appropriate sentence on the charge of breaching the protection order was one of eight months imprisonment.

Possession of cannabis and utensils

[17]      The Judge selected what can only be described as a nominal sentence in relation to the possession of cannabis and drug-related paraphernalia that were found at the address when the police arrived on 6 December 2017. Again, Mr Phillips had only just been released from prison and was subject to release conditions at the time. He must have known he should not be in possession of drugs in those circumstances. I consider a starting point of no less than three months imprisonment would be appropriate on those charges.

Driving whilst disqualified

[18]      The Judge imposed no penalty other than disqualification on the first offence of driving whilst disqualified because he was satisfied Mr Phillips had a reasonable explanation for driving on 3 February 2018. Mr McIvor submits a penalty of no more than four months imprisonment should have been imposed on the second charge having regard to the previous sentences imposed on Mr Phillips for driving whilst disqualified. Mr Pell submits a starting point of around six months imprisonment was appropriate, and that an uplift of around two months would be sufficient to reflect previous convictions.

[19]      The difficulty in this area of the law is that a starting point involving a sentence of imprisonment will usually reflect previous convictions because a sentence of imprisonment would not normally be imposed on a first offender. In the present case Mr Phillips must have known he should not be driving again on the second occasion.

It is therefore a matter of concern that just four weeks after being stopped and charged for driving whist disqualified he was prepared to get behind the wheel of a vehicle with no excuse for doing so.

[20]      I note, however, that Mr Phillips does not display the usual history of a recidivist offender who persists in driving whilst disqualified. He sustained three convictions for that offence between January and December 2007. On each of those occasions he was sentenced to community work. He then appears to have abstained from that type of offending until November 2016, when he drove on two occasions over a one week period whilst his licence was suspended or revoked. He received concurrent sentences of two months imprisonment on those charges on 14 March 2017. However, those charges were part of a raft of charges on which Mr Phillips was sentenced on that date. The sentencing Judge therefore had no option but to impose a sentence of imprisonment in relation to them.

[21]      Given that background, I do not consider a starting point of six months imprisonment was appropriate. Even taking into account earlier sentences, I consider a sentence of no more than four months imprisonment was warranted on the second charge of driving whilst disqualified. However, the second charge of driving whilst disqualified occurred when Mr Phillips had only recently been stopped while driving whilst disqualified. He would have known a charge in relation to that offending was in the pipeline even if he had yet to receive a summons to appear in Court. I consider that fact warrants an uplift of two months, thereby producing a sentence of six months imprisonment on the second charge of driving whilst disqualified.

Cultivating cannabis

[22]      Both counsel agree the sentence of three months imprisonment on the charge of cultivating cannabis on 27 March 2018 was extraordinarily lenient. The Judge proceeded on the basis that the prosecution accepted the three cannabis plants and the cannabis material on the drying rack were for Mr Phillips’ own use and I must proceed on the same basis.4 Nevertheless, I do not see how a sentence of three months imprisonment properly encapsulates the culpability on that charge. The offending

4      New Zealand Police v Phillips, above n 1.

occurred at a time when Mr Phillips was not only subject to prison release conditions, but was also on bail in relation to the alleged drug offending that had been discovered on 6 December 2017.

[23]      Taking those factors into account, I consider a starting point of at least six months imprisonment was appropriate and an uplift of two months was necessary to reflect the fact that Mr Phillips was on bail when the offending occurred. I do not accept, however, Mr Pell’s submission that this offending warranted a starting point of 12 to 15 months imprisonment. A starting point of that level would require an element of commerciality that is simply not present in this case. Had Mr Phillips been a first offender, it is highly unlikely that he would have received any custodial sentence as a result of this offending.

Discount for guilty pleas

[24]      This leads to the issue of the discount to be applied for guilty pleas. If the Judge intended an end starting point of 33 months imprisonment, the end sentence of 25 months imprisonment means he applied a discount of 25 per cent. If the Judge intended an end starting point of 30 months imprisonment, the end sentence of 25 months imprisonment represents a discount of approximately 16 per cent for guilty pleas.

[25]      I consider the Judge must have intended to apply a discount of around 16 per cent. Mr Phillips initially defended the charges of breaching the protection order and being in possession of the cannabis and utensils on 6 December 2017. He did not enter guilty pleas in relation to those charges until 13 April 2018. This would not ordinarily justify a discount of 25 per cent, or even 20 per cent. On the other hand, he entered guilty pleas reasonably promptly on the charges of driving whilst disqualified, cultivating cannabis and breaching prison release conditions. A discount of around 25 per cent would ordinarily be available for guilty pleas entered that quickly.

[26]      I propose to adopt the same approach as the Judge. I would apply a discount of four months, or around 15 per cent, to reflect guilty pleas. This would produce an end sentence of 23 months imprisonment.

Conclusion

[27]      This means that, by an independent process, I have reached an end sentence of 23 months imprisonment. This is two months less than that selected by the Judge, and I consider that difference to be sufficient for this Court to intervene on appeal. In particular, it is necessary to adjust the penalties imposed on the charges relating to breach of the protection order and driving whilst disqualified so that any future similar offending by Mr Phillips will not attract unduly harsh penalties. It will also mean Mr Phillips is subject to automatic release after serving half of his sentence.

Home detention

[28]      This would bring Mr Phillips within the range where a sentence of home detention is available. I am satisfied, however, that Mr Phillips does not meet the criteria for such a sentence and indeed Mr McIvor does not ask me to give consideration to that type of sentence. Mr Phillips’ issues with drugs, and his persistent refusal to abide by release conditions and Court orders, make it clear that he would present as a considerable risk if he was sentenced to home detention.

Result

[29]      The appeal is allowed. The sentence imposed on the breach of the protection order is reduced to one of seven months imprisonment. The sentence on the charge of breaching prison release conditions is not disturbed. The sentence imposed on the charge of being in possession of cannabis and utensils on 6 December 2017 is not disturbed because Mr Phillips’ culpability on those charges will be reflected in the sentence imposed on the charge of cultivating cannabis. On the second charge of driving whilst disqualified, Mr Phillips is sentenced to five months imprisonment. On the charge of cultivating cannabis, Mr Phillips is sentenced to 23 months imprisonment. All sentences are to be served concurrently with each other. This means Mr Phillips will be serving an effective sentence of 23 months imprisonment.

[30]      There has been no challenge to the periods of disqualification imposed by the Judge and those are not disturbed.

Lang J

Solicitors:

Crown Solicitor, Hamilton

M H McIvor, Barrister, Hamilton