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.

(d)[redacted].

[18]      You are the first person in New Zealand to be charged with and convicted of sabotage. As such there were no New Zealand sentencing judgments in respect of the same offence for comparison. However, I was referred to the Canadian case of R v Dubé4 by both counsel. I also referred to the New Zealand District Court case of Police v Cooper5 when setting the starting point.

[19]      There is no reason today to depart from the starting point indicated and I adopt a starting point of four years and six months’ imprisonment. The next stage in the sentencing process is to consider personal aggravating and mitigating factors.

Personal aggravating and mitigating factors

[20]      At the sentencing indication, I indicated I would apply a 20 per cent discount for your guilty plea.

[21]      Your counsel submitted at the sentencing indication that you should also receive a 20 per cent discount for good character. I indicated that I would require further information as to your background and character before considering whether a further discount for prior good character or any other factor was appropriate. I have now received a pre-sentence, or PAC, report and nine letters of support from your

4      R v Dubé 2018 QCCQ 9059.

5      Police v Cooper [2017] NZDC 7491.

family and friends. I have also today received a letter of support from your fellow prisoners.

[22]      The PAC report states that you are 62 years old and you have no previous convictions.

[23]      The report notes that you chose the particular offending in order to “create a discussion.” You believed the Pfizer vaccine was detrimental to New Zealand. You say you would not take the same action again because it made no difference. Your risk of reoffending is assessed as low but the risk of harm if you did offend is assessed as high. Your counsel, Mr Nabney, says you are unlikely to reoffend given your offending was brought about because of your views on vaccine mandates, which no longer apply.

[24]      The report refers to your upbringing as being difficult and your father being, in your words, a “Marxist,” a “communist,” and having “serious mental issues.” Despite this, you have a very happy relationship with your wife. You also have three adult children.

[25]      A previous employer who spoke with the author of the PAC report, describes you as being a well-regarded employee who was known for holding fairly strong, fundamentalist Christian views. There is one concerning comment from the employer that you were handing out self-authored extreme pornography in the office and you were asked to stop. The employer described you as otherwise well-regarded and harmless, if not “maybe a bit odd.”

[26]      The report records that you do not show any remorse for your actions. You said, “I haven’t hurt anyone except myself and my wife.” You appear to disregard the potential risk to innocent people who could have been impacted [redacted].

[27]      You also do not express any concern for the significant financial harm you have caused to Transpower. While the financial harm is to a company, this company charges ordinary people for their services and ultimately it is ordinary people who will pay.

[28]In these circumstances, I do not consider a discount will be applied for remorse.

Prior good character

[29]      As I have mentioned, in addition to the PAC report, I have received a number of letters of support from your family and friends and also from your fellow prisoners. They talk of your strong religious faith, your kindness, generosity, warm heart, and your passion for people and your community.

[30]      Others say you believe things “passionately” and can be “obstinate” in your views, but are humble enough to acknowledge when you have things to learn.

[31]      Your wife talks of a long and happy marriage, selfless community service, and your normally peaceful nature. She says that you have made a “mammoth mistake” which she hopes you have learned from. Your counsel also refers to a news documentary that featured you and work that you were doing in a favela in Brazil for disadvantaged people.

[32]      I accept the positive references provided to the Court. Those who wrote in your support obviously hold you in high regard.

[33]      When considering discounts for good character, the courts have recognised that there are three factual matters, as counsel explained today, that can assist in assessing an appropriate discount:6

(a)the length of the time for which you have displayed good character;

(b)whether good character arises from an absence of convictions or also includes positive contributions to society; and I acknowledge that you have made a contribution to society; and

(c)the need for the discount to be proportionate to the overall sentence.

6      Parkin v R [2018] NZCA 404 at [16], citing Manawaiti v R [2013] NZCA 88 at [19].

[34]      In Britow v R,7 the Court of Appeal noted that there may be matters that operate to negate credit for good character, including showing an absence of remorse and insight and a failure to take responsibility for offending.

[35]      Given your age and the letters of support, you have shown good character for a significant period. You are a valued member of your church community. Against that, is a lack of remorse or sense of responsibility. In these circumstances, I consider that a discount of 10 per cent is appropriate to recognise your prior good character.

[36]      The 20 per cent discount for your guilty plea and the 10 per cent discount for prior good character, provides a total discount of 30 per cent from the starting point of four years and six months’ imprisonment (54 months’ imprisonment). A discount of 30 percent is approximately 16.2 months. That results in an end sentence of 37.8 months which I round down to 37 months or three years and one month imprisonment.

Reparation

[37]      In the sentence indication I stated that a sentence of reparation might be appropriate given the significant financial loss caused to Transpower. I ordered that a reparation report be prepared.

[38]      Under s 12 of the Sentencing Act, because your offending caused Transpower to suffer damage to its property, I must impose a sentence or order of reparation unless I am satisfied that it would result in undue hardship to you or your dependants, or that any other special circumstances make it inappropriate.8 Orders that cannot possibly be met should be avoided.9

[39]      I have now received a report which indicates that neither you nor your wife have funds that could cover a reparation order. The report writer did not have an opportunity to speak to you but did speak to your wife. She said that your home is a rental property, you do not own any property, nor do you have investments or savings.

7      Britow v R [2017] NZCA 229.

8      Sentencing Act 2002, s 12(1).

9      Guinness v Police [2015] NZHC 883 at [15], citing R v Brown CA267/92, 26 November 1992 at 5.

She says you have no employment prospects upon release because of the nature of your offending and your age upon release. She believes satisfying a reparation order is unrealistic and if you were required to do so you “will starve.”

[40]      I accept that making an order of reparation would cause you undue hardship given your age, lack of employment prospects, and the fact that you have no assets or savings. Accordingly, I make no order for reparation.

Result

[41]Mr Philip, please stand.

[42]      I sentence you to three years and one month imprisonment on the charges of sabotage, entry onto agricultural land with intent to commit an imprisonable offence and failing to carry out obligations in relation to a computer search.

[43]Please stand down.

Postscript

[44]      Mr Philip in the sentencing that I gave you, it inadvertently referred to a sentence of three years and one month imprisonment for all the charges, including the charge relating to failing to carry out obligations in relation to a computer search.

[45]      In relation to the charge for failing to carry out obligations in relation to a computer search, I enter a conviction and a discharge.

Tahana J