R v Philip - [2022] NZHC 3199

ORDER PROHIBITING PUBLICATION OF THESUMMARY OF FACTS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2021-069-001252

[2022] NZHC 3199

THE KING

v

GRAHAM JOHN PHILIP

Hearing: 1 December 2022 (at Hamilton)

Appearances:

A J Gordon for the Crown

W T Nabney for the Defendant

Judgment:

1 December 2022

SENTENCING NOTES OF TAHANA J

This judgment was delivered by me on 01 December 2022 at 9am

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
Gordon Pilditch (Office of the Crown Solicitor), Rotorua W T Nabney, Tauranga

R v PHILIP [Sentencing Notes] [2022] NZHC 3199 [1 December 2022]

Introduction

[1]Mr Philip, you appear today for sentencing on:

(a)seven charges of sabotage;1

(b)one charge of entry onto agricultural land with intent to commit an imprisonable offence;2 and

(c)one charge of failing to carry out obligations in relation to a computer search.3

[2] The offences of sabotage and entry onto agricultural land both carry a maximum penalty of 10 years’ imprisonment. The offence regarding the computer search carries a maximum penalty of three months’ imprisonment.

Background

[3] You have pleaded guilty to each of the charges and accepted the sentencing indication I gave to you. I gave the sentencing indication on the basis of an agreed summary of facts.

Suppression

[4] Can I remind those present today that the facts of the offending are suppressed. Publication of the facts of Mr Philip’s offending is limited to the following facts:

(a)That Mr Philip sabotaged infrastructure belonging to Transpower;

(b)One act of sabotage caused a fire; and

(c)The total cost to repair the damage and ensure the safety of the infrastructure is likely to exceed $1.25 million.

1      Crimes Act 1961, s 79. Maximum penalty of 10 years’ imprisonment.
2      Crimes Act 1961, s 231A. Maximum penalty of 10 years’ imprisonment.
3      Search and Surveillance Act 2012, s 178. Maximum penalty of three months’ imprisonment.

[5]Publication of all other facts of the offending is forbidden.

Facts

[6]I will briefly summarise the agreed facts.

[7][redacted]

[8][redacted]

Charge 1 – Sabotage

[9][redacted]

[10][redacted]

Charges 2 to 6 – Sabotage

[11][redacted]

Charges 7 and 8 – Entry onto agricultural land, and sabotage

[12][redacted]

[13][redacted]

Charge 9 – Failure to carry out obligations in relation to a computer search

[14][redacted]

[15][redacted]

Starting point

[16] I turn now to the starting point for your sentence. The starting point reflects the gravity of your offending. I indicated a starting point of four years and six months’ imprisonment. My reasoning is set out in full in the sentence indication [redacted].

[17]In summary, that starting point reflected the following aggravating factors:

(a)A high level of premeditation. [redacted]

(b)The extent of damage resulting from your offending was significant. The cost of repairing the damage and ensuring the safety of the infrastructure is estimated to exceed $1.25 million.

(c)The harm that potentially could have been caused was significant, including harm from [redacted] and fire damage.

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 R v Philip

Details

AGLC: R v Philip [2022] NZHC 3199
Case: [2022] NZHC 3199
Decision Date: 1 December 2022

CaseChat Overview and Summary

In the case of The King v Graham John Philip, the defendant faced sentencing for multiple charges, including seven counts of sabotage, one count of entry onto agricultural land with intent to commit an imprisonable offence, and one count of failing to carry out obligations in relation to a computer search. The offences against Transpower infrastructure resulted in significant damage, with repair costs estimated to exceed $1.25 million, and one incident caused a fire. The court needed to determine an appropriate sentence considering the gravity of the offences, the defendant's premeditation, and the extensive harm caused. The maximum penalties for the sabotage and entry charges were ten years' imprisonment each, while the computer search offence carried a maximum penalty of three months' imprisonment.

The court began by setting a starting point for the sentence, reflecting the seriousness of the offences. The starting point was set at four years and six months' imprisonment, which the judge justified based on the significant premeditation, extensive damage, and potential harm. Given the unprecedented nature of the sabotage charge in New Zealand, the judge referred to relevant Canadian and New Zealand case law to support the starting point. The court considered personal factors, including the defendant's guilty plea and good character evidenced by letters from family, friends, and fellow prisoners. Despite acknowledging the defendant's strong religious faith and community service, the court found no remorse or sense of responsibility for the significant financial harm caused, resulting in a 10% discount for prior good character.

After applying the discounts for the guilty plea and good character, the court arrived at a sentence of three years and one month imprisonment. The court also considered the possibility of a reparation order to compensate Transpower for the damage caused. However, the reparation report indicated that the defendant had no means to satisfy such an order due to his age, lack of employment prospects, and absence of assets. Consequently, the court decided against imposing a reparation order, considering it would cause undue hardship. The final sentence was three years and one month imprisonment for all charges, with a conviction and discharge for the computer search offence due to the minimal nature of the offence.

Orders