R v Phillimore
[2023] NZHC 2225
•17 August 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2022-020-001216
[2023] NZHC 2225
THE KING v
RAYMOND CHARLES PHILLIMORE
Appearances: M B Smith and A J Goodwin for Crown L P F Lafferty for Prisoner Sentencing:
17 August 2023
SENTENCING NOTES OF ANDREW J
R v RAYMOND CHARLES PHILLIMORE [2023] NZHC 2225 [17 August 2023]
Introduction
[1] Mr Phillimore you may remain seated until I ask you to stand at the conclusion of my remarks.
[2] Mr Phillimore, you appear this morning for sentence having pleaded guilty to a charge of murder, the murder of Ms Gaelene Bright. You are also to be sentenced on a charge of unlawful possession of a firearm.
[3]Despite your guilty plea, this was a heartless and wholly inexcusable crime.
[4]The charge of murder carries a maximum penalty of life imprisonment.1
[5] Section 102(1) of the Sentencing Act 2002 requires me to sentence you on the murder charge to imprisonment for life unless such a sentence would be manifestly unjust. In this case, both counsel agree that life imprisonment is required; no submission is made on your behalf that such a sentence would be manifestly unjust. And I, too, am satisfied that I must impose a sentence of life imprisonment, so accordingly that will be your sentence.
[6] The critical issue I must determine today is the minimum period of imprisonment, what we lawyers and Judges call the MPI, that you should serve before becoming eligible for parole.
[7] I am going to begin my comments by addressing first of all the facts of your offending, as set out in the Police summary of facts, because of course I must sentence you on this basis.
Relevant facts
[8] You and Ms Bright were in an intimate relationship for three years and resided together at a rural property in Waimamaku that backs onto the Waipoua Forest. It is understood that the relationship had deteriorated in the time leading up to the murder and there was some tension between you and Ms Bright, and particularly following your attendance at the Wellington Covid-19 protests in early 2022.
1 Crimes Act 1961, s 172.
[9] It is common ground that Ms Bright spoke to an ex-partner via a social media platform on the afternoon of 1 May 2022. Later that day, you and Ms Bright were alone at your address. At some point in the early hours of the morning you shot Ms Bright three times, once in the chest and twice in the head. As the Crown has submitted, it was an execution-style murder. You used a Toz brand .22 bolt-action rifle loaded with a ten-shot magazine. You did not hold a New Zealand firearms licence. The Police summary of facts and submissions from your lawyer suggest that your actions were prompted by a claim by you that Ms Bright was seeing or talking to other men.
[10] After fatally shooting Ms Bright, you placed her body into a tarpaulin and loaded it into one of the vehicles available to you at your property. After this vehicle failed to start you placed her body into another vehicle, a Holden Rodeo, and drove to the area of the Waipoua Forest several kilometres away from your home. From there, you manoeuvred her body over an embankment before covering her body with sticks and leaves. You took note of the closest road marker, number 85, so you could remember where you left her body. At no point did you attempt to call emergency services.
[11] Later that day you returned to the area and moved Ms Bright’s body further away from the roadside before again covering her body with sticks and leaves. You were seen walking in the area by a road maintenance team. Upon return to your address, you lit a fire to dispose of the items that you used in the dumping of Ms Bright’s body. You also cut the barrel and stock of the rifle you used to shoot her, leaving the barrel at your address.
[12] You then packed the rest of your belongings, including the rifle used in the murder, and travelled south, leaving on 3 May 2022. Prior to leaving the area you attempted to cover your tracks by telling witnesses that Ms Bright had travelled to Auckland with an unknown male in the early hours of 1 May. You abandoned your car in Te Kuiti and boarded a bus, eventually arriving in Napier.
[13] On 9 May 2022, you went for a swim at Marine Parade in Napier and while doing so you left your belongings, including the cut down rifle, in a driftwood hut on the beach. The firearm was loaded with a live .22 bullet in the chamber. You floated
several hundred metres down the beach. Members of the public reported you to local Police because of concerns with your behaviour and you were then taken to a local hospital. Your belongings, including the rifle, were located several days later in the driftwood hut.
[14] Ms Bright’s body was located by Police on 17 May 2022 in the Waipoua Forest. The post-mortem report concluded that the cause of death was the three gunshot injuries to Ms Bright’s head and chest, with each deemed to be a “potentially fatal injury”.
[15] The same day that Ms Bright’s body was found you admitted to Police that you had shot Ms Bright and abandoned her body in the forest. You gave a full interview that was recorded on DVD. You told Police that she did not die straight away, namely after the first shot, and that she was “groaning and gurgling”. You then said “I just shot her ‘til she stopped”. In the interview you also made a reference comparing the murder to killing a dog. Since this interview, it has become clear that killing Ms Bright was no accident; you have pleaded guilty to murder based on the Police summary of facts and admitted to taking the loaded rifle and firing it at her, and I of course must sentence you on that basis.
Victim Impact Statements
[16] I have received a number of victim impact statements from Ms Bright’s whānau and friends and I have read all of them, and of course today you have heard many of those statements read out in court.
[17] The victim impact statements are heartfelt expressions of grief, anger and real anguish at the loss of a wonderful mother and friend. She was obviously a bright light, a woman described as having special energy. She obviously lived a full and meaningful life which you so unfairly took from her. The victims have spoken of how hard it was for them to have to wait for her body to be discovered after they had received word that she had disappeared. I acknowledge the real anguish and heartache that they have experienced and continue to experience. I also thank them for the measured way they have presented their statements this morning.
Personal circumstances
[18] In considering what sentence is appropriate, I have had reference to various court documents, including the provision of advice to courts report (PAC report) dated 21 July 2023.
[19] This report outlines your personal circumstances. You are 66 years old and were raised in Rotorua. You have described your childhood as “very good”. You have previously been married and have two adult children from that relationship, but you do not have contact with them nor your ex-partner. You say you have constantly been employed throughout your adult life and were making knives and associated jewellery up until the murder of Ms Bright. You have two previous convictions: one for driving with excess breath alcohol in 2007 and one for unlawful possession of a pistol in 1995. You described to the report writer that you were happy living at the rural address where the murder took place, and that you enjoyed being close to nature.
[20] You told the PAC report writer that you and Ms Bright had been together for “over four years” and that you generally shared ideas and were able to reach compromises. The report describes that you and Ms Bright shared a love of freedom, leading you to attend the 2022 protests that I have referred to. You told the report writer that after visiting Wellington, you and Ms Bright had differing opinions on what you had experienced, but you claimed that you had sorted things out.
[21] You got emotional talking to the report writer about the position you now put yourself in, saying that you thought your life with Ms Bright was going to continue well into the future. You made a point to tell the report writer that you accept full responsibility for Ms Bright’s death. The report writer stated that there did not appear to be any pre-planning or premeditation involved in your offending, but rather a loss of control and a failure to cope with changes to your relationship. I record that I have also received from you this morning a handwritten note which expresses remorse and regret for this horrendous crime. I must say it has come rather late in the piece.
Minimum Period of Imprisonment (MPI)
[22] I turn now to the appropriate minimum period of imprisonment that I need to impose. Where life imprisonment for murder is imposed, the minimum period of
imprisonment must be not less than ten years.2 The minimum period of imprisonment must be the minimum term required to satisfy any or all of the following sentencing purposes for murder.
[23] First, holding you accountable for the harm you have caused to the victim and the community. Second, to denounce the conduct in which you were involved. Third, to deter you against any future offending and others from similar offending. Finally, there is the purpose of protecting the public.
Section 104
[24] In addition, if one or more specified aggravating factors are present in your offending, as set out in s 104 of the Sentencing Act, then a minimum period of imprisonment of at least 17 years must be imposed unless it would be manifestly unjust to do so.
[25] The Crown submits there are two circumstances of your offending which engage s 104. The first circumstance the Crown refers to is that your offending was committed with a high degree of brutality, cruelty, depravity or callousness.3 The second circumstance, the Crown says, is that Ms Bright was particularly vulnerable.4
[26] I deal first with the Crown’s submission that the murder was carried out with a particularly high degree of callousness. There is, of course, no murder that is not in some sense brutal, cruel, depraved, or callous,5 but the threshold for engaging s 104(1)(e) is that the brutality, cruelty, depravity or callousness must be present at a high level. It is no doubt that this is a high standard. The Court of Appeal has identified callousness as “insensitive and cruel disregard for others”.6 It involves a lack of feeling, empathy and sensibility, or a “numbness of the soul”.7
[27] The Crown’s submission is that your actions both during the murder and after meet this high standard. I want to consider first your actions during the murder. It is not denied that you shot Ms Bright three times. However, I am of the view that this
2 Sentencing Act 2002, s 103(2).
3 Section 104(1)(e).
4 Section 104(1)(g).
5 R v Slade [2005] 2 NZLR 526 (CA) at [40].
6 R v Gottermeyer [2014] NZCA 205 at [79(a)].
7 R v K [2020] NZHC 233 at [47]; citing R v Beazley [2019] NZHC 672 at [36].
was not a sustained or prolonged attack or that you left the victim to suffer deliberately for a substantial period of time. The medical evidence is that all three gunshots were potentially fatal, and the likelihood is that they were fired in relatively quick succession.
[28] I acknowledge that some parts of the statement you made to the Police suggest some callous indifference and indeed caused significant distress to Ms Bright’s whānau. However, those were rambling comments, some of which made little sense, and in the context of an interview which lasted over three hours, and you were clearly in a distressed mental state when you made them. It would be wrong, in my view, to place too much weight on those comments as unfortunate as they were.
[29] Ultimately, I find that your actions do not meet the test in s 104(1)(e) (i.e. the brutal and callousness threshold). In reaching that conclusion, I have had regard to other cases in which this test was applied and including those that the Crown has referred me to. I find that your actions here are not to the same degree of callousness.8 These cases will be referenced in the written record of my remarks. This s 104(1)(e) standard is often established by the nature and degree of violence used.9 I find that your actions are not at the same high level as seen in other comparable cases.
[30] I have also taken into account your conduct subsequent to the murder in determining whether the s 104(1)(e) applies.10 However, the statutory threshold, in my view, is again not made out. After the murder you concealed Ms Bright’s body in a nearby forest beneath foliage, moving it further away from the road later that day, before ditching the vehicle involved and fleeing the area. While those are aggravating factors of your offending, I do not consider that these actions were carried out with any particular sophistication, nor did you commit any further indignity towards
8 See R v Pou [2021] NZHC 2370 at [50] where Gordon J described the murder as “prolonged and sustained”: the victim was beat up over a period of an hour and a half before her death and the defendant broke the bones in her ankles and feet so that she could not escape.
See also R v Gottermeyer, above n 6, at [90] where the Court of Appeal considered the s 104(1)(e) standard to be met by the use of a knife, the number and nature of the wounds inflicted (12 stab wounds), the fact that the victim took some time to bleed to death, and the fact that the couple’s child was in the house at the time of the murder.
In comparison, see R v Kinghorn [2014] NZCA 168 at [47], where the Court of Appeal described how the defendant “ran the victim down and she died almost instantly” and considered that this did not meet the test in s 104(1)(e).
9 R v Kinghorn, above n 8, at [46]; citing R v Slade, above n 5.
10 R v Frost [2008] NZCA 406; R v Gosnell [2013] NZHC 1313.
Ms Bright, and that distinguishes your actions from comparable cases.11 And I note that you revealed the fact and circumstances of her death to the Police when they interviewed you.
[31] I also find that s 104(1)(g) does not apply here (i.e. the vulnerability threshold). I recognise that the murder occurred in a rural, isolated location, as submitted by Mr Smith, and it is likely that there was an element of controlling behaviour by you towards Ms Bright. However, the statutory test is one of particular vulnerability and I find that that standard is not made out here. There may be elements of vulnerability, but not to the high statutory threshold.
[32] I find accordingly that none of the aggravating factors set out in s 104(1) have been made out. That means that there is no requirement to impose a minimum period of imprisonment of at least 17 years. In reaching that conclusion, I do not underestimate the enormity of the crime and the devastating effects it has had on Ms Bright’s family, as evidenced by their very moving victim impact statements. However, it is important that the sentencing exercise is carried out in accordance with the Sentencing Act and in line with other cases.
Appropriate MPI
[33] My finding that s 104 is not engaged simply means that the minimum period of imprisonment should not presumptively be fixed at 17 years or higher. In determining what is to be the actual MPI in this case, I am still required to assess your culpability in terms of s 103 of the Sentencing Act.
[34] As I have already noted and wish to emphasise, your sentence will be one of life imprisonment and not the minimum term that I am about to impose. It will be a matter for the parole authorities alone to determine when you will be released back into the community, or if you are released, after the expiry of any minimum term.
11 See for example, K (CA106/2020) v R [2020] NZCA 656 at [165] where the offender’s post murder conduct involved: “searching on the internet for methods of body disposal, then looking at pornography online, then taking intimate photographic images of [the victim’s] naked body, then looking again at pornography online, taking steps preparatory to disposing of the body, going on another date while [the victim’s] body remained in his room”.
[35] The minimum term that I impose should be consistent with other comparable cases for persons who have committed similar offences and must take into account any aggravating and mitigating aspects of your offending. I must also take into account, in arriving at a final minimum term, any personal circumstances particular to you that might have a bearing on the ultimate sentence.
[36] It is not in dispute that your offending involved actual violence and the use of a weapon.12 You used a firearm to kill Ms Bright, an unlicensed one at that, which made it virtually impossible for her to protect herself. The domestic nature of the murder is also an aggravating factor; Ms Bright was killed in her own home where she was entitled to feel safe.13 The property belonged to an ex-partner of Ms Bright, and she allowed you to live there with her. The loss, damage and harm resulting from the murder was the most final and grave damage possible and the sanctity of life cannot of course be overstated.
[37] Furthermore, while I have found that your offending does not reach the high level for s 104(1)(e) to be engaged, there is an obvious element of callousness in your offending. As I have already outlined, you shot Ms Bright three times then declined to seek medical assistance, abandoned her body in the forest, disposed of evidence and then fled the region to evade detection. There are no mitigating features of your offending.
[38] In determining the appropriate starting point for the minimum period of imprisonment, I have had regard to a number of similar cases, and in particular where the partner or ex-partner of the offender has been murdered.14
[39] In the case of R v Singh,15 Mr Singh killed his wife, whom he suspected of infidelity, having lain in wait for her at a training institute where she studied. He stabbed her fatally in the chest, then twice in the face, and less seriously, he also stabbed the man he suspected she was cheating with. Woolford J accepted as aggravating the significant degree of premeditation, the use of a knife and actual
12 Sentencing Act, s 9(1)(a).
13 R v Ryan HC Hamilton CRI-2005-019-9389, 26 July 2007 at [10].
14 R v Singh [2015] NZHC 2369; R v Marsters [2021] NZHC 2117; R v Pou, above n 8; K (CA106/2020) v R, above n 11.
15 R v Singh, above n 14.
violence resulting in death and the risk to bystanders involved and the brazen method of attack. He adopted as a starting point in respect of the murder alone, 12 and a half years’ imprisonment.16
[40] As in the case of R v Marsters, I find that here, you perpetrated a short, vicious, and lethal assault on a defenceless woman, with a weapon but without proof of premeditation or ulterior motive.17 In the Marsters case, there was similarly an attempt to conceal the crime by burning the victim’s body, although the offender turned himself in shortly after the murder. I consider the starting point here should be slightly lower than that in Marsters, where a 14-year starting point MPI was imposed. I note that the murder in that case was committed while the offender was on bail for related offending. It was also in the context of a continuing domestic violence situation.
[41] I find here that the starting point for determining the MPI should be 13-and-a- half years’ imprisonment.
[42] There is only one relevant personal mitigating factor here which is the guilty pleas you have entered. The Court of Appeal has very recently discussed the availability of discounts for guilty pleas in murder cases in the case of Frost v R.18 It upheld the existing discretionary approach where a discount of one to two years is typically allowed for a guilty plea in relation to a charge of murder.19
[43] Here, you pleaded guilty two or three weeks before your trial was set to begin. That is late in the piece. Apparently that followed the receipt of a pre-trial judicial ruling. I accept that pleading guilty spared a trial and consequent hardship for Ms Bright’s family. However, due to the late stage at which the pleas were entered, I do not apply the maximum discount. I consider that reducing the starting point by six months is appropriate.
[44] In my view, there are no further reductions to the MPI that might be warranted here.
16 At [43].
17 R v Marsters, above n 14, at [32].
18 Frost v R [2023] NZCA 294.
19 At [78]–[89].
[45] Counsel have accepted that no uplift is appropriate for your prior offending, and I am in agreement with that given the historic age of those convictions.
[46] That all means that the end sentence, namely the MPI that I impose, is one of 13 years’ imprisonment.
Unlawful possession of a firearm
[47] In relation to your charge of unlawful possession of a firearm, I impose a concurrent sentence of one year imprisonment,20 and I concur with the agreed submissions of the parties on that issue.
Conclusion and sentence
[48] Mr Phillimore, would you please stand. If you need the assistance of security that is fine.
[49] Mr Phillimore, for the murder of Ms Bright, I sentence you to life imprisonment with a minimum period of imprisonment of 13 years.
[50] On the charge of unlawful possession of a firearm, you are sentenced to a year of imprisonment and that is to be served concurrently.
[51]Please stand down.
Andrew J
20 Sentencing Act, s 23.
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