R v Phillips - [2012] NZHC 3255

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-027-1169 [2012] NZHC 3255

THE QUEEN

v

NEIL ARTHUR PHILLIPS

Hearing: 4 December 2012

Counsel: C A Anderson for Crown
D Blaikie for Prisoner

Judgment: 4 December 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Counsel:
D Blaikie, PO Box 382, Kaikohe

R V NEIL ARTHUR PHILLIPS HC WHA CRI 2012-027-1169 [4 December 2012]

Introduction

[1] Neil Arthur Phillips, you appear for sentence today having pleaded guilty to six counts of selling the Class C controlled drug cannabis and six of possessing cannabis for the purpose of sale.

[2] Those pleas were entered in the District Court at Kaikohe on 23 July 2012. Jurisdiction was declined.[1] You are now in the High Court for sentence.

Facts

[1] R v McLeod [1998] 2 NZLR 65 (CA).

[3] Your offending was detected during the course of a Police operation that took place between 17 November 2011 and 27 June 2012. Your specific offending, however, was limited to a period of some two months. The first visit by the special duty constable to your home was on 20 April 2012 and the last on 21 June 2012.

[4] During that time there were sales in respect of $50 bags and it was also made clear that ounce bags could be sold for between $300 and $350.

[5] When the search warrant was executed and your car was searched, four cannabis bags were located. While I understand you dispute some aspects of that, I must proceed on the agreed summary for the purpose of sentencing.

Analysis

[6] I take into account that the offending covers a relatively short period of time particularly in comparison with other offending that has been detected during the same operation with which I have been dealing over the last day or so.

[7] However, it does appear that you had the ability to secure product relatively easily. You were able to sell both in ounces and $50 bags. The amount, however,
that you received during this period was relatively small. The cash involved was

$580 and, if one were to fix a dollar value for the amount of cannabis in your possession for sale, one would arrive at a total figure of about $1630.

[8] My task is to assess where on the continuum of business your offending falls. There is a range of between two years and four years imprisonment as a starting point. I use a starting point of two years six months.[2]

[2] R v Terewi [1999] 3 NZLR 62 (CA) at para [4].

[9] The next step is to consider whether there are any aggravating factors personal to you. I discount for present purposes the earlier drug offending. That was some time ago and I consider that those convictions ought to be regarded as spent. There are however, other convictions which have continued on into 2010. I am concerned that your record suggests that you have difficulties with…

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 Phillips

Details

AGLC: R v Phillips [2012] NZHC 3255
Case: [2012] NZHC 3255
Decision Date: 4 December 2012

CaseChat Overview and Summary

The case of R v Phillips involved the sentencing of Neil Arthur Phillips, who had pleaded guilty to six counts of selling and six counts of possessing cannabis for the purpose of sale. The court had to decide on the appropriate sentence for Phillips, considering the nature of his offending, the amount of money and drugs involved, and his personal circumstances. The legal issues included determining the appropriate starting point for the sentence, whether there were any aggravating factors, and whether Phillips was a suitable candidate for home detention. The court considered that the offending covered a relatively short period of time but noted that Phillips had the ability to secure product relatively easily. It was also acknowledged that the amount of money involved was relatively small. The court considered aggravating factors such as Phillips's record of drug and anger management issues, which led to an additional one month allowance. The court also took into account Phillips's early guilty pleas, which resulted in a credit of 25%, rounded to seven months. After considering these factors, the court decided to give Phillips a chance to make good himself and imposed a sentence of 12 months home detention with special conditions, including mandatory counselling and programmes related to drug abuse and anger management. The final orders included the destruction of the seized drugs and specific conditions for Phillips's home detention.

Orders