Phillips v Police

[2015] NZHC 2706

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-266 [2015] NZHC 2706

BETWEEN

JONELLE PHILLIPS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 November 2015
Counsel:	C S Fredric for Appellant A L McConachy for Respondent
Judgment:	3 November 2015

JUDGMENT OF BREWER J

Solicitors/Counsel:           Belinda Sellars (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

PHILLIPS v POLICE [2015] NZHC 2706 [3 November 2015]

Introduction

[1]      Ms  Phillips  pleaded  guilty  at  her  case  review  hearing  to  one  charge  of possessing 2.5 grams of cannabis.  The statutory penalty regime ranges from three months’ imprisonment to a fine.1    Judge Duncan G Harvey in the District Court at North Shore on 6 August 2015 sentenced Ms Phillips to 50 hours’ community work.2

Ms Phillips  now  appeals  that  sentence.    Her  submission  is  that  the  sentence  is manifestly excessive and that a modest fine was appropriate.

Appeal

[2]      The Judge’s sentencing notes are brief and no doubt reflect the pressure of a

busy list and the mundanity of the offence. The Judge’s notes read:3

On the charge of possession of cannabis noting your plea of guilty, but also noting that you are now building up a list of previous drug offending you are convicted, you are sentenced to 50 hours’ community work.

[3]      As Ms McConachy for the Crown points out, an appeal against sentence is not a “second shot at sentencing”.   Generally, an appellate Judge proceeds on an error principle.  That is to say, the appellate Judge looks at the case before the lower Court  Judge  and  reaches  his  or  her  own  conclusion  as  to  whether  some  error rendered the end sentence manifestly excessive.  Often the appellate Judge is assisted by the reasoning of the lower Court Judge, but the inquiry must be aimed at whether the end sentence is manifestly excessive.

[4]      Counsel for Ms Phillips, in careful submissions, refers me to s 13 of the Sentencing Act 2002 which raises a presumption that where a Court is lawfully entitled to impose a fine, then the Court must  regard a fine as  the appropriate sentence for the particular offence.  Mr Fredric has elaborated on those submissions before me this morning by submitting that there is nothing in the circumstances of

this case to rebut that presumption.

1      Misuse of Drugs Act 1975, ss 7(1)(a), (2).

2      Police v Phillips [2015] NZDC 17528.

3 At [1].

[5]      Ms McConachy for the Crown responds by submitting that the presumption of the imposition of a fine can be displaced by reference to the statutory qualifying criteria.  These include where the Court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine, or where the Court is satisfied that a fine on its own or in addition to a sentence of reparation would otherwise be clearly inadequate in the circumstances.

[6]      I note that s 15 of the Sentencing Act, in relation to the imposition of a community-based sentence, provides that such a sentence may be imposed only if the Court does not regard a fine as the appropriate sentence.

[7]      Mr Fredric refers me to a number of cases where the possession of much larger quantities of cannabis in much more commercial circumstances have resulted in fines as opposed to community work.

Discussion

[8]      In my view, this appeal turns on the issue of whether, given Ms Phillips’s criminal history, the imposition of a penalty other than a fine is necessary to give effect to the purpose of deterrence and also to promote responsibility for offending in Ms Phillips.  I turn now to that history.

[9]      Ms Phillips is 33 years old.  In August 2008, she was charged with possessing cannabis.  A month later she was charged again with possessing cannabis.  She was sentenced for both offences on 2 March 2009.   In each case a fine of $50 was imposed.

[10]     Two days after that sentencing, Ms Phillips embarked on a lengthy course of conspiring  to  deal  in  methamphetamine.    That  course  of  13  offences  began  on

4 March  2009  and  concluded  on  24 August  2009.     On  21 December  2009, Ms Phillips was found to be in the possession of LSD.  Ms Phillips was sentenced on all 14 charges on 18 March 2011.   The sentence was 10 months’ home detention, which means that she would have completed that sentence in early 2012.

[11]     The current charge was brought on 9 May 2015.

[12]     It seems to me that against that history, the imposition of a modest fine would have been manifestly inadequate.  Ms Phillips now has a significant history of low level drug offending.   The imposition of fines for her first two convictions for possessing cannabis did not deter her from conspiring on 13 occasions to supply methamphetamine, nor did it deter her from possessing LSD. The District Court was entitled to look at that history and say that something more condign was necessary than the imposition of a modest fine.

[13]     Mr Fredric submits that his client has now completed five hours community work and that this is sufficient to mark her resumed offending.   He invites me to quash Judge Harvey’s sentence and convict and discharge because of the five hours community work.

[14]     I do not accept that submission.   The statute mandates, as a minimum, a period of community work of 40 hours. That equates to a standard working week.  It is not a lot.

Decision

[15]     In my view, the Crown is right to characterise Judge Harvey’s sentence of

50 hours’ community work as being stern; but this very experienced Judge looked at Ms Phillips and her record and found 50 hours’ community work to be appropriate.  I think that it is at the top end of the range, but not within the realms of being

manifestly excessive. Accordingly, the appeal against sentence is dismissed.

Brewer J