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Phillips v R

Phillips v R

Case [2021] NZCA 651 24 November 2021

Sentencing

Breach of Contract

Judicial Review

Natural Justice & Procedural Fairness

Proportionality

Criminal Law

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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…

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 R

Details

AGLC: Phillips v R [2021] NZCA 651
Case: [2021] NZCA 651
Decision Date: 24 November 2021 at 9.30 am

CaseChat Overview and Summary

Kirihi Bob Phillips appealed against a sentence of seven years’ imprisonment imposed on him in the High Court. The Court of Appeal granted the extension of time to appeal and allowed the appeal, reducing the sentence to 15 months’ imprisonment. Mr Phillips was found guilty of indecent assault after he entered a room in a hostel where a complainant was sleeping with two friends and touched her arm and back. The sentence was imposed pursuant to s 86D(2) and (3) of the Sentencing Act 2002 (the three strikes regime). The Court of Appeal held that the sentence of seven years’ imprisonment imposed on Mr Phillips breached s 9 of the New Zealand Bill of Rights Act 1990, which provides that no one shall be subjected to a disproportionately severe punishment. The Court of Appeal considered the factors relevant to determining whether or not a sentence imposed pursuant to s 86D(2) breached s 9 of the New Zealand Bill of Rights Act 1990, including the nature of the offending and 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). The Court of Appeal held that Mr Phillips’ offending was at the low end of the spectrum of indecent assaults and that he must now be considered an inadvertent and unforeseen casualty of the three strikes regime. The Court of Appeal quashed the sentence of seven years’ imprisonment and substituted it with a sentence of 15 months’ imprisonment.

Orders