Philpott v The Queen

[2021] NZHC 3219

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000144

[2021] NZHC 3219

BETWEEN

CHRISTOPHER PHILPOTT

Appellant

AND

THE QUEEN

Respondent

Hearing:	26 November 2021
Appearances:	M Jenkins for the Appellant A Maino for the Respondent
Judgment:	29 November 2021

JUDGMENT OF MUIR J

This judgment is delivered by me on 29 November 2021 at 11:30am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Gordon Pilditch, Crown Solicitors, Rotorua Jenkins Law, Rotorua

PHILPOTT v R [2021] NZHC 3219 [29 November 2021]

Introduction

[1] Mr Christopher Philpott appeals his sentence of 13 months’ imprisonment imposed by Judge Spear on 9 November 2021 in respect of one charge of supplying firearms to a person who was not the holder of a firearms licence.1 The principal ground of appeal is that the appropriate end sentence is one of home detention rather than imprisonment.

[1]I turn briefly to the facts of the offending.

The offending

[2]        The appellant holds a category A firearms licence which enables him to purchase rifles and ammunition from licenced firearms retailers.

[3]        In September 2020, a Mr McRae who had known the appellant from school days and who has never held a firearm’s licence, approached the appellant and asked him to purchase firearms on Mr McRae’s behalf. On 25 September 2020, Mr McRae sent a text message to the appellant asking him “So wats the go with the sticks shager”. Over the following several days the two men continued to communicate and the appellant explained his intention of travelling to a meeting between Cambridge and Hamilton on 29 September 2020. On the morning of 29 September 2020, Mr McRae contacted the appellant and arranged to transfer money to him. The appellant told him to wait until later that evening.

[4]        The appellant then travelled from Taupō to a firearms retailer in Hamilton and purchased five Alfa revolver rifles, namely one .357 magnum rifle and four .22 magnum rifles.2 He told the sales staff that they were gifts for family members. In addition to the rifles, he purchased 250 rounds of .22 magnum ammunition, 50 rounds of .357 magnum ammunition and 1100 rounds of .22 ammunition. He paid $8,700 in cash for the five firearms and a further $250 in cash for the 1400 rounds of

1      Arms Act 1983, s 43(1)(a): carrying a maximum penalty of two years’ imprisonment.

2      Although the appellant is unable to purchase pistols on his class of licence, the Alfa carbines are imminently suitable for cutting down into a pistol configuration and are available in a range of calibres.

ammunition. One hour after purchasing the firearms, the appellant rang Mr McRae and they arranged to meet that evening.

[5]        In March 2021, Mr McRae was convicted of on-selling the firearms and dealing in methamphetamine. On 10 June 2021, the Police executed a search warrant at the appellant’s home address. None of the five Alfa carbine rifles were located but Police did locate three unsecured rifles inside two vehicles at the address.

[6]        As at 11 June 2021, none of the five Alfa revolver firearms have been recovered by Police.

[7]        By way of explanation, the appellant stated that Mr McRae approached him and offered to pay a quantity of cash and a motorbike in return for him purchasing the firearms. Mr McRae gave instructions as to which firearms to buy and where to obtain them. Despite knowing that Mr McRae did not possess a firearms licence, the appellant suppled the firearms to him. The appellant admitted that he was later present when one of the firearms was cut down with a hacksaw, thereby converting it into a pistol. He stated that he had no direct involvement in this himself.

District Court decision

[8]        The Judge’s sentencing notes are unavailable due to a transcription error. However, Ms Maino, for the Crown, was present at the sentencing hearing and helpfully indicated the general tenor of the Judge’s remarks.

[9]        The Judge commented that, contrary to statements made by the appellant, he did not accept that Mr Philpott was ignorant of the fact that Mr McRae was connected to criminal gangs. The  Judge  found  that  the  appellant  must  have  known  that  Mr McRae wanted the firearms for criminal activity.

[10]      The Judge was also concerned that the appellant had blatantly disregarded the licencing system, the purpose of which was to prevent firearms falling into the wrong hands, and directly lied to the staff at the firearms retailer about why he was purchasing the firearms. His Honour noted the firearms that had not been located were now no

doubt in the hands of criminals and that the appellant was ultimately responsible for this.

[11]      His Honour adopted a starting point of 20 months’ imprisonment against a statutory maximum of 24 months, noting the offending as near to the most serious of cases and therefore engaging s 8(d) of the Sentencing Act.

[12]      From that starting point he made deductions of 10 per cent for personal factors (evidently including remorse, prospects of rehabilitation and the appellant’s particular family circumstances) and 25 per cent for early guilty plea resulting in a provisional sentence of 13 months’ imprisonment.

[13]      He then considered whether it was appropriate to commute the sentence to home detention, concluding that it was not on the basis that such a sentence would not adequately meet the principles and purposes of sentencing.

[14]      He said that this was serious offending involving purchasing and supplying firearms to a non-licensed holder and that it is likely to have a significant impact on the community given that the firearms were on-sold and have not been located. Deterrence therefore featured prominently in the approach which the Court must adopt.

Approach on appeal

[15]      To succeed on an appeal against sentence the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 In all other cases, the court must dismiss the appeal.4  In this respect, the court will not simply substitute its own view for that of the original sentencing judge.5 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.6 It will only intervene if the sentence is manifestly excessive or wrong in principle.7

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

4      Section 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

6 At [36].

7      At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].

The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.8

Submissions

[16]      Mr Jenkins, for the appellant, submits that a sentence of home detention more appropriately reflects the principles and purposes of sentencing and was the least restrictive sentence available in the circumstances. He notes that the appellant has a limited criminal history with his most recent conviction being 15 years ago. The most significant sentence he has received to date is community work. He displayed real insight and remorse and entered a guilty plea at the first available opportunity.

[17]      The appellant’s young son has also recently been diagnosed with Type 1 Diabetes which requires 24-hour monitoring. The present sentence of imprisonment has significantly exacerbated the financial and emotional toll that this diagnosis has had on the appellant and his family. In these circumstances, Mr Jenkins submits that a sentence of imprisonment is disproportionately severe.

[18]      Ms Maino, for the Crown, submits that the Judge was entitled to find that the principles of deterrence and denunciation required a custodial sentence. A starting point of 20 months’ imprisonment was adopted based on several seriously aggravating factors being present in the offending. The discount of two months’ given by the sentencing Judge adequately reflected the appellant’s personal circumstances, of which the Judge was fully aware. The Judge was correct to impose a sentence of imprisonment to mark the seriousness of the offending. That said, she acknowledges that the question of whether the sentence should be commuted to home detention was, and is, “finely balanced”.

Discussion

[19]      Mr Jenkins takes no issue with the Judge’s starting point of 20 months’ imprisonment acknowledging that the offending was serious. He says his client likewise acknowledges this point. Nor does he take issue with the Judge’s discounts.

8      Tutakangahau, above n 5, at [36].

He says that the sole issue on appeal is whether the provisional sentence of 13 months’ imprisonment should have been commuted to one of home detention.

[20]      When considering the imposition of a period of imprisonment for a particular offence the court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community’s safety.9 It follows that the court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.10

[21]      The Court of Appeal has identified that the “statutory hierarchy of sentencing options is a blunt affirmation that prison is a measure of last resort”.11 The court cannot impose a sentence of imprisonment unless it is satisfied that:

(a)        the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or protect the community; and

(b)       that those purposes cannot be achieved by a sentence other than imprisonment; and

(c)        that no other sentence would be consistent with the statutory principles as applied to the particular case.

[22]      In R v Iosefa, the Court of Appeal emphasised that a sentence of home detention provides a real alternative to imprisonment:12

It carries with it in considerable measure, the principles of deterrence and denunciation. It is clear parliamentary policy that for short-term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.

9      Sentencing Act 2002, s 16(1).

10     Section 8(g).

11     R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].

12     R v Iosefa [2008] NZCA 453 at [41].

[23]      Where the provisional sentence is one of short-term imprisonment the judge must decide whether to commute that sentence to one of home detention.13 But as the Court of Appeal has said:14

[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[24]      The choice between imprisonment and home detention must always be intelligible.15 It is incumbent on the sentencing judge to properly identify and weigh the factors that matter in a given case. Sentences of imprisonment have been quashed and home detention substituted where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentencing.

[25]      Mr Jenkins submits this is a case where the sentencing Judge placed excessive emphasis on deterrence and failed adequately to take into account the factors summarised previously. More particularly:

(a)Mr Philpott’s entry of a guilty plea at the earliest opportunity;

(b)his limited previous conviction history, the most recent of which was now 15 years old and the most serious of which attracted a sentence of community work only;

(c)the fact that Mr Philpott had displayed real insight and remorse;

(d)the Crown’s acknowledgement at sentencing that home detention may be an appropriate sentence;

(e)the Court of Appeal’s observation in Iosefa that home detention of itself carries a considerable measure of deterrence and denunciation;

13     Sentencing Act, s 15A(1)(b).

14     Fairbrother v R [2013] NZCA 340.

15 At [31].

(f)the very particular needs of Mr Philpott’s son; and

(g)the overriding requirement to impose the least restrictive outcome that is appropriate in accordance with the hierarchy of sentences.

[26]      As to the position of Mr Philpott’s son, I note that he is nine years old and was diagnosed in November 2020 with Type 1 diabetes. This followed an acute admission to hospital with diabetic ketoacidosis and severe shock.  The son’s  GP notes that   Mr Philpott and his wife are “managing a tremendously difficult situation” and that they have done a “superb job” in that respect, having to take on a “huge amount” of information “in a very short time”.

[27]      In a letter to the Court, Ms Philpott notes that her husband’s imprisonment has made it increasingly hard to manage their son’s condition and that the anxiety of the appellant’s absence has led to greater instability in her son’s glucose levels and a reduction in his immunity. She notes that Mr Philpott was responsible for administration of their son’s insulin and strictly monitoring his carbohydrate intake. She says that imprisonment has placed very significant stress on the family, that she is now unable to work and that if her husband cannot himself return to work shortly they will be unable to continue with drugs costing “thousands per year” which are not funded by Pharmac.

[28]      Mr Jenkins advances these family considerations as “particular circumstances of the offender” which the sentencing Judge “was obliged to take into account under s 8(h) of the Act”. The sentencing Judge appears to have adopted a similar approach by including these considerations in the 10 per cent discount he adopted.

[29]      It is inevitable that serious criminal offending by a child’s parent will result in hardship for a child and that this alone cannot override the purposes of deterrence, denunciation and accountability in the context of serious offending.16

[30]      However, in Skelton v R the Court of Appeal also acknowledged that where the impact is “particular” and beyond the usual range of circumstances that follow from

16     Skelton v R [2011] NZCA 35 at [40(iv)].

imprisonment, then it may be sufficient to override the purposes of deterrence, denunciation and accountability so as to render a sentence of imprisonment disproportionately severe in terms of s 8(h) of the Sentencing Act.17 In some ways this is simply a recognition of the fact that it must always be open to a court to adopt a merciful approach in circumstances of particular and extreme hardship to an offender’s family as a consequence of a custodial sentence.18

[31]      By the same token it would, as Mr Jenkins concedes, be inappropriate both to make a deduction from the “headline” sentence for such circumstances and then to count them again in an assessment of whether a custodial sentence was appropriately commuted to one of home detention. For that reason, he concedes that if persuaded to commute the sentence to one of home detention on the basis of Mr Philpott’s family circumstances, the only deductions I should make from the headline custodial sentence are for remorse, guilty plea and time served.

[32]      I agree with Mr Jenkins that this is a case where home detention is the appropriate sentence.

[33]      Like the District Court Judge I regard this as serious offending in respect of which the principles of denunciation, deterrence, offender accountability and promotion of a sense of offender responsibility feature strongly in the calculus. There is no other way of looking  at  the offending  other than  that,  for  financial  gain,  Mr Philpott enabled five additional weapons to enter the criminal underworld. The District Court Judge was, in my view, correct in concluding that Mr Philpott must have known this to be the inevitable consequence of his actions. The community has a strong interest in being protected from such offending.

[34]      By the same token however, there is, as the Court of Appeal observed in Iosefa, a clear Parliamentary policy that the restriction in liberty through home detention can often more appropriately be imposed by a sentence of home detention than by imprisonment. I must take into account the considerable measure of deterrence and denunciation implicit in a home detention sentence. Moreover, any additional level of

17     At [40(iv)] referring to R v Williams CA23/05, 15 March 2005 at [20].

18     R v Williams CA23/05, 15 March 2005 at [20].

deterrence inherent in a custodial sentence may be displaced by the very “particular” circumstances the Court of Appeal noted in Skelton.

[35]      In this case I consider such particular circumstances established. I accept the evidence of the appellant’s wife  and  of  their  general  practitioner,  that  Mr  and Ms Philpott face an extremely challenging task in management of their son’s recently diagnosed illness. I accept that the anxiety resulting from Mr Philpott’s absence has in turn exacerbated the illness. There is room within sentencing orthodoxy to recognise these very unusual circumstances.

[36]      I accept as also relevant the financial pressures on the family unit which are likely to have contributed to the offending in the first place and which are themselves significantly exacerbated by a custodial sentence (denying the household unit effectively two sources of income). I accept also that this has implications in terms of the level of care available to the appellant’s son.

[37]      I take into account the fact that in addition to any penalty the courts impose the appellant will almost inevitably face cancellation of his firearms licence as a result of the offending and that this will have significant implications in terms of supplementary income generated from pest elimination. It will also impact his farming activities.

[38]      As to the term of a home detention sentence I note the “rule of thumb” that the sentence will normally be one-half of the prison sentence that would otherwise have been appropriate. However, that approach is not inviolate. In Simpson v R, for example, a five month period of home detention was imposed on appeal in lieu of an eight month prison sentence because anything less “would have been insufficient to meet the requirements of denunciation and deterrence”.19 I intend to adopt a similar approach in this case by rounding up the sentence of home detention which would otherwise be imposed on the “rule of thumb” basis.

[39]The approach I intend to adopt therefore is as follows:

19     Simpson v R [2019] NZHC 3139 at [53].

(a)From a starting point of 20 months’ imprisonment I make a deduction of five per cent (one month) for remorse and rehabilitative prospects. This is supported by the provision of advice to the courts report which notes Mr Philpott as displaying “significant insight into his offending” and that he expressed what appears to be “genuine remorse for his actions” both in the context of the impact these had on his family and the community’s legitimate concern about the circulation of illegal firearms.

(b)I deduct a further five months (25 per cent) for prompt guilty plea.

(c)I deduct a further one month and two weeks on account of time served, noting that Mr Philpott has been in custody since 9 November 2021.

(d)In the result the provisional sentence is 12 months and two weeks’ imprisonment. I commute that sentence to one of seven months’ home detention, such term commencing from the date of Mr Philpott’s release from custody.

[40]      Although ultimately a matter for the appellant’s probation officer, I note the desirability of Mr Philpott’s return to work if that can appropriately occur within the context of his new sentence.

Result

[41]      I allow the appeal and commute the appellant’s sentence of 13 months’ imprisonment to one of seven months’ home detention, such period to be calculated from the date of his release from custody.

[42]      The sentence of home detention is to be served on the standard terms and conditions set out in s 80C of the Sentencing Act 2002 with the following amendment in respect of the condition specified in s 80C(3)(a) of the Act:

“The appellant may leave the home detention residence only—

(a)to seek urgent medical or dental treatment for himself or his Type 1 diabetic son.”

Muir J