Phillips v R

[2021] NZCA 651

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA652/2021

[2021] NZCA 651

BETWEEN

KIRIHI BOB PHILLIPS

Appellant

AND

THE QUEEN

Respondent

Court:

French, Miller and Collins JJ

Counsel:

W D McKean and T W Luders for Appellant P D Marshall and M F Laracy for Respondent

Judgment:

(On the papers)

24 November 2021 at 9.30 am

Reasons:

3 December 2021

JUDGMENT OF THE COURT

A        The application for an extension of time to appeal is granted. B   The appeal is allowed.

CThe sentence of seven years’ imprisonment is quashed and substituted with a sentence of 15 months’ imprisonment.

PHILLIPS v R [2021] NZCA 651 [24 November 2021]

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1]    On 24 November 2021, we extended time for Mr Phillips to file his appeal against a sentence imposed pursuant to s 86D(2) and (3) of the Sentencing Act 2002 (the three strikes regime). We also allowed Mr Phillips’ appeal and said that our reasons would follow. We now set out our reasons.

[2]    Mr Phillips’ appeal was from a sentence of seven years’ imprisonment imposed in the High Court on 25 March 2021, after he was found guilty of indecent assault.1 The seven-year sentence is the maximum for indecent assault and was only imposed because it was Mr Phillips’ third qualifying conviction under the three strikes regime.

[3]    On 7 October 2021, the Supreme Court  delivered  its  judgment  in Fitzgerald v R,2 in which the Court allowed an appeal against sentence for indecent assault in circumstances that were similar to those of Mr Phillips’ case. Mr Phillips applied for an extension of time to appeal his sentence soon after the Supreme Court delivered its judgment in Fitzgerald.

[4]    The Crown accepted that, following Fitzgerald, an extension of time should be granted and the appeal allowed.

Background

[5]    On 20 October 2019, four days after he had been released from prison following his “second strike” offence, Mr Phillips travelled to Paihia with his cousin. There they checked into a backpackers’ hostel. That evening Mr Phillips went to the bar at the hostel where he drank with other guests until the bar closed.

1      R v Phillips [2021] NZHC 610 [Sentencing notes].

2      Fitzgerald v R [2021] NZSC 131 [Supreme Court judgment].

[6]    The complainant was also staying in the hostel. She was, at the time, 27 years old and was a tourist travelling around New Zealand with two friends. She went to bed early and did not participate in the socialising that took place in the hostel bar.

[7]    Soon after 2.30 am, Mr Phillips entered the room where the complainant and her two friends were sleeping. Mr Phillips approached the complainant and began to rub her hand. She pushed Mr Phillips’ hand away, but a few minutes later Mr Phillips started to rub her hand again. On this occasion the complainant told Mr Phillips to stop. A short time later she felt his hand on her arm and her back. The complainant called out to her roommates, one of whom activated the torch on her cellphone, which enabled the three women to see Mr Phillips standing near the complainant’s bed. He then left the room.

[8]    When questioned by the police, Mr Phillips said he touched the complainant in order to find out if she wanted to engage in sexual activities with him.

[9]    Following a Judge-alone trial conducted before Lang J on 2 and 3 November 2020, Mr Phillips was found guilty of having indecently assaulted the complainant when he touched her arm and back. The Judge was satisfied “that there was virtually no premeditation in the offending” and that the touching “did not extend to more sensitive areas of the complainant’s body”.3

[10]   When sentencing Mr Phillips, Lang J explained that were it not for the three strikes regime, he would have sentenced Mr Phillips to “around 15 months imprisonment”.4 As he  had  been  in  custody  since  the  night  of  the  offending, Mr Phillips would have been eligible for immediate release if he had been sentenced to 15 months’ imprisonment.

3      Sentencing notes, above n 1, at [22] and [24].

4 At [26].

[11]   As we have noted at [1], Mr Phillips’ case engaged s 86D(2) and (3) of the Sentencing Act, which state:

86DStage-3 offences other than murder: offender sentenced to maximum term of imprisonment

…

(2)Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than  murder,  the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

(3)When the court sentences the offender under subsection (2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.

[12]   Mr Phillips had 18 previous convictions for offences that included burglary, various assaults and disobeying court orders. His “first strike” offence occurred in April 2011 when he squeezed the buttocks of a woman who was walking along a footpath ahead of him. Mr Phillips followed the complainant to a carpark at her workplace, where he unsuccessfully attempted to snatch a handbag she was carrying. Mr Phillips was convicted of indecent assault and assault with intent to rob the complainant. He was sentenced to six months and three weeks’ home detention for that offending.

[13]   The “second strike” offence occurred in December 2014 when Mr Phillips participated in a group attack on two men who were walking along a footpath and then engaged in theft of property belonging to the men. Mr Phillips was convicted of assault with intent to rob and was sentenced to four years and nine months’ imprisonment. He served the full term of that sentence and was released just four days before he committed his third strike offence.

[14]   Psychological reports prepared for the High Court revealed that Mr Phillips lacked social support and that he abused alcohol. Lang J was in no doubt Mr Phillips’ consumption of alcohol was a major factor in his offending.

[15]   When considering the requirements of s 86D(3) of the Sentencing Act, Lang J explained that it would be manifestly unjust to require Mr Phillips to serve the whole

of the sentence with no prospect  of parole.  Therefore,  while the Judge sentenced Mr Phillips to the maximum sentence proscribed for the offence of indecent assault, he declined to make an order requiring Mr Phillips to serve the entire sentence without parole.5

Fitzgerald v R

[16]   Mr Fitzgerald’s third strike offence was also for committing an indecent assault when he kissed a woman on her cheek when she and a friend were walking along a Wellington street.

[17]   Mr Fitzgerald had a long history of significant mental illness, including schizophrenia. Like Mr Phillips, Mr Fitzgerald’s third strike offence could be properly viewed as less serious than his two earlier qualifying offences.

[18]   In the High Court, Mr Fitzgerald sought a discharge without conviction.6 However, Simon France J held that there was no jurisdiction to grant a discharge in the context of the three strikes regime.7 The Judge therefore sentenced Mr Fitzgerald to seven years’ imprisonment in accordance with s 86D(2) of the Sentencing Act, though the Judge observed that but for the three strikes regime, Mr Fitzgerald would likely have been given a non-custodial sentence.8

[19]   On  appeal,  all  members  of  this  Court  said  the  sentence  imposed  on   Mr Fitzgerald breached the right affirmed in s 9 of the New Zealand Bill of Rights Act 1990 (the NZBORA) not to be subjected to a disproportionately severe punishment.9 However, a majority of this Court agreed with the High Court that there was no jurisdiction to discharge Mr Fitzgerald without conviction.10

[20]   The Supreme Court granted leave for Mr Fitzgerald to appeal his sentence. A majority of the Court explained that where a sentence imposed pursuant to s 86D(2)

5 At [41].

6      Sentencing Act 2002, s 106.

7      R v Fitzgerald [2018] NZHC 1015 at [16].

8      At [21]–[25].

9      Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350 at [43] per Clifford and Goddard JJ and

[105] per Collins J.

10     At [74]–[75].

of the Sentencing Act results in a breach of s 9 of the NZBORA, then the defendant should be sentenced in accordance with ordinary sentencing principles.11 The Court therefore quashed Mr Fitzgerald’s sentence and remitted the matter to the High Court where a sentence of six months’ imprisonment was imposed.12

[21]   All four members of the majority in Fitzgerald confirmed that there is a  “high threshold” to establishing that a sentence breaches s 9 of the NZBORA.13 Rarely will a sentence be found to have breached s 9. Winkelmann CJ referred to phrases in Taunoa v Attorney-General,14 which state that, in order to breach s 9, the sentence would need to be “so out of proportion to the particular circumstances as to cause shock and revulsion”, “so excessive as to outrage standards of decency”, or be a sentence that was “so severe as to shock the national conscience”.15 O’Regan and Arnold JJ adopted a similar approach, when they said that “a sentence which is simply severe, disproportionate or manifestly excessive would not meet the test”.16 Glazebrook J agreed with the reasons given by Winkelmann CJ and O’Regan and Arnold JJ. She said that a “sentence that breaches s 9 would be one that is so out of proportion in the circumstances of the case that it would shock the conscience of New Zealanders”.17

Legal principles

[22]   Distinguishing in practice between a sentence that is so disproportionate as to shock the conscience and a sentence that is merely disproportionate is a difficult exercise that has been considered by courts in a number of cognate jurisdictions.

[23]   In R v Smith,18 the Supreme Court of Canada set out a number of principles for determining whether or not a sentence is “grossly disproportionate” and therefore

11     Supreme Court judgment, above n 2, at [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.

12     R v Fitzgerald [2021] NZHC 2940 at [14].

13     Supreme Court judgment, above n 2, at [79] per Winkelmann CJ, [230] per O’Regan and Arnold JJ and [240] per Glazebrook J.

14     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

15 Supreme Court judgment, above n 2, at [79].

16 At [161].

17 At [239].

18     R v Smith [1987] 1 SCR 1045. See also R v Nur 2015 SCC 15, [2015] 1 SCR 775; and R v Lloyd

2016 SCC 13, [2016] 1 SCR 130.

reviewable under s 12 of the Canadian Charter of Rights and Freedoms, which guarantees that no one shall be “subjected to any cruel and unusual … punishment”. The Supreme Court of Canada explained:19

In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender …

… The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality …

And that the assessment may require consideration of:20

… whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed …

[24]   R v Smith concerned a sentencing provision that required courts to impose a minimum sentence of seven years for the importation of drugs.21 The Court held that the provision led to grossly disproportionate sentences because it applied to less serious drugs, regardless of the quantity of the drug imported, and regardless of whether the importer was a drug trafficker or a personal user.22

[25]   Article 3 of the European Convention on Human Rights similarly prohibits “inhuman or degrading … punishment” and has been interpreted as including a prohibition on “grossly disproportionate” sentences.23 The European Court of Human Rights has said that one of the criteria for assessing whether or not a sentence breaches art 3 of the European Convention on Human Rights is whether:24

19     At 1073 (at [56]–[57] of online version).

20     At 1074 (at [58] of online version).

21     Narcotic Control Act RSC 1970 c N-1, s 5(2).

22     R v Smith, above n 18, at 1053, 1078 and 1080 (at [2], [66] and [73] of online version).

23     Harkins and Edwards v United Kingdom (2012) 55 EHRR 19. See also Trabelsi v Belgium (2015) 60 EHRR 21.

24 At [137]. This was in the context of life imprisonment. However, we consider this principle to be generally applicable.

… the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation);

[26]   In contrast, the United States Supreme Court, when considering the constitutionality of California’s now modified three strikes regime, concluded that a sentence of life imprisonment with a non-parole period of 25 years imposed on an appellant for stealing three golf clubs was not grossly disproportionate and therefore did not breach the prohibition in the Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishments”.25

[27]   In Taunoa v Attorney-General, Elias CJ and Blanchard J considered the tests in other jurisdictions provide useful guidance as to what constitutes a breach of s 9 of the NZBORA,26 though Tipping J added that this did not stop New Zealand from adopting its own values and standards.27

[28]   In our view, factors that are likely to play a significant role in determining whether or not a sentence imposed pursuant to s 86D(2) breaches s 9 of the NZBORA include:

(a)Any difference in the nature of the sentence that would otherwise have been imposed and the fact that a prison sentence must be imposed under s 86D(2). This consideration is illustrated by Fitzgerald where, in all likelihood, a non-custodial sentence would have been imposed, compared to the prison sentence that was imposed pursuant to s 86D(2).

(b)The difference between any prison sentence that would have been imposed but for the three strikes regime and the prison sentence imposed pursuant to s 86D(2). This may involve more than the multiplicative difference between the two sentences. It may also be necessary to take into account the actual difference in years between the sentence imposed and that which would otherwise have been adopted but for the three strikes regime.

25     Ewing v California 538 US 11 (2003).

26     Taunoa v Attorney-General, above n 14, at [92] per Elias CJ and [172] per Blanchard J.

27 At [279].

(c)The nature of the offending. This requires an assessment of whether or not the defendant is plainly an inadvertent and unforeseen casualty of the three strikes regime.

[29]   Any comparison drawn between the sentence that would have been imposed and the sentence actually imposed as a consequence of s 86D(2) should accommodate the factors identified by the Supreme Court of Canada in R v Smith.28

[30]   A third-strike sentence need not be so disproportionately severe as to breach  s 9. The sentence that would have been imposed but for the three strikes regime may have been stern. That is especially so where the offending involved serious violence and the offender’s history of serious violent offending indicates that they present a danger to the community. There are cases in which, as s 8(c) of the Sentencing Act recognises, a sentencing judge should consider imposing the maximum sentence set by Parliament.

Analysis

[31]   We begin with Mr Phillips’ index offending. It was more serious than that of Mr Fitzgerald because:

(a)Mr Phillips’ offending involved an intrusion into the bedroom where the complainant was sleeping, whereas Mr Fitzgerald’s offending took place on a public street.

(b)While the complainant in Mr Fitzgerald’s case was vulnerable, her degree of vulnerability was less than that of the complainant in this case.

(c)Mr Phillips’ offending was barely premeditated. Mr Fitzgerald’s offending was even less premeditated.

28     R v Smith, above n 18.

(d)While Mr Phillips has a number of personality issues, they are not as profound as Mr Fitzgerald’s history of significant mental illness, which reduced Mr Fitzgerald’s culpability.

[32]   The difference between the  two  cases  is  illustrated  by  the  fact  that  in  Mr Fitzgerald’s case, he was unlikely to have been sentenced to a custodial sentence but for the three strikes regime, whereas Mr Phillips’ likely sentence would have been in the vicinity of 15 months’ imprisonment. Although Mr Fitzgerald was ultimately sentenced to six months’ imprisonment, that sentence was imposed after he had spent more than four years in prison. The six months sentence of imprisonment did not reflect how Mr Fitzgerald would have been dealt with by the courts absent the three strikes regime.

[33]   The fact Mr Phillips would, in all likelihood, have received a sentence of imprisonment in the absence of the three strikes regime weighs against the argument that the sentence of imprisonment he received breaches s 9 of the NZBORA.

[34]   Nevertheless, the Crown “has no objection to this Court quashing [Mr Phillips’] sentence and imposing the 15-month sentence Lang J considered otherwise appropriate”.

[35]   In Mr Fitzgerald’s case, the period that he would have spent without parole was approximately five times that which William Young J considered would be an otherwise appropriate sentence. Although William Young J dissented in Fitzgerald, he agreed that there was a severely disproportionate disparity between the period that Mr Fitzgerald spent without parole compared with what William Young J considered would otherwise be an appropriate sentence.29

[36]   In Mr Phillips’ case, his determinate sentence of 84 months is 5.6 times the 15 months’ imprisonment that would otherwise have been imposed. In addition, had a sentence of 15 months’ imprisonment been imposed then, Mr Phillips would have been granted parole after serving seven and a half months in prison. These stark statistics explain why the Crown submitted that Mr Phillips’ appeal should be allowed.

29     Supreme Court judgment, above n 2, at [271] and [286].

[37]   Like Mr Fitzgerald, Mr Phillips’ circumstances were not contemplated by those who promoted the three strikes legislation. When explaining the purpose of the three strikes regime, the then Minister of Corrections, the Hon Judith Collins said:30

[A] stage three sentence is meant to be a very serious penalty in all cases because the offender is continuing to commit very serious offences that victimise people. [The proposed amendment] would reduce any deterrent force of the bill. If it is going to deter people from this sort of offending, it needs to be very certain.

[38]   Thus, when it enacted s 86D(2), Parliament intended to impose the maximum penalty on third strike offenders who committed “very serious offences” and it wished to achieve certainty in sentencing outcomes for those who committed “very serious offences”.

[39]   Mr Phillips’ offending was at the low end of the spectrum of indecent assaults. Following Fitzgerald, he must now be considered an inadvertent and unforeseen casualty of the three strikes regime.

[40]   For these reasons, we allowed Mr Phillips’ appeal against sentence, quashed his sentence of seven years’ imprisonment and substituted that sentence with one of 15 months’ imprisonment.

Result

[41]The application for an extension of time to appeal is granted.

[42]The appeal is allowed.

[43]   The sentence of seven years’ imprisonment is quashed and substituted with a sentence of 15 months’ imprisonment.

Solicitors:

WRMK Lawyers, Whangārei for Appellant Crown Law Office, Wellington for Respondent

30     (18 May 2010) 663 NZPD 10922.