IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-085-001094
[2021] NZHC 2393
THE QUEEN
v
JASON BRENDON PHILIP
Hearing:
13 September 2021
Counsel:
T G Bain for the Crown P Paino for Mr Philip
Judgment:
13 September 2021
SENTENCING NOTES OF GWYN J
Introduction
[1] Jason Brendon Philip, you appear for sentence having pleaded guilty to seven charges in total: five charges of possession of methamphetamine for supply;1 and two charges of possession of cannabis.2
[2] You came before me for a sentence indication in February 2021.3 I indicated a maximum end sentence of six years, two months’ imprisonment. At that time I did
1 Misuse of Drugs Act 1975, s 6(1)(f) and 6(2)(a) and Crimes Act 1961, s 66; maximum penalty life imprisonment.
2 Section 7(1)(a) and (2); maximum penalty three months’ imprisonment or fine of $500.
not have all relevant reports before me that might indicate a further discount is warranted. You accepted that sentence indication and pleaded guilty.
[3] I now have a Provision of Advice to Courts (PAC) Report dated 7 May 2021, a comprehensive alcohol and drug assessment report from John Duncan dated 19 March 2021, a s 27 cultural report from Harry Tam dated 24 March 2021, a psychological report from Dr Duncan Thomson dated 8 June 2021, and a report from your time at the Kahukura rehabilitation programme dated 7 September 2021. Those reports have given me more relevant information to decide on a final sentence. I emphasise at the outset that your sentence will not be higher than what I indicated in February, so please do not worry about that.
[4] Although you heard the comments I made in my sentence indication in February, I will repeat those comments which explain the way in which I reach the sentence. Because sentencing is a public function, I will also describe the background facts that are relevant to the sentencing process.
[5] In sentencing you today, I apply a law called the Sentencing Act, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold you accountable for the harm you have done to the community through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.4 What that means in practice is that I have to look at the whole situation and do what I can to take account of the seriousness of what you have done, but also to acknowledge who you are and your particular circumstances and background.
[6] I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting…
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.
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AGLC
R v Philip [2021] NZHC 2393
Case
[2021] NZHC 2393
Decision Date
CaseChat Overview and Summary
Jason Brendon Philip was convicted of seven charges, including five charges of possession of methamphetamine for supply and two charges of possession of cannabis. The Crown submitted a starting point of 14 years' imprisonment for the methamphetamine charges, while the defence submitted a starting point of six years' imprisonment. The court considered the evidence at the trial of Mr McMillan and found that Philip played a lesser role in the drug business, and accordingly adopted a starting point of six years' imprisonment. The court found no uplift for previous convictions was necessary, and granted a discount of one year, two months for the guilty plea. The court also granted a discount of one year, nine months for Philip's very difficult background, drug addiction issues, mental health issues, remorse, and prospects for rehabilitation. The court granted a further discount of seven months to mitigate the impact of Philip's sentencing on his young child. The court granted a discount of six months for the time Philip spent on electronically-monitored bail. The court sentenced Philip to one year's home detention for the methamphetamine charges and convicted and discharged him for the cannabis charges. The court ordered the destruction of all drug-related utensils and paraphernalia and items including cell phones used to facilitate the drug offending, and all controlled drugs seized.