R v Phillips - [2021] NZHC 610

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-027-1253

[2021] NZHC 610

THE QUEEN

v

KIRIHI BOB PHILLIPS

Hearing: 18 December 2020 and 25 March 2021

Appearances:

M B Smith and T Needham for Crown W McKean for Defendant

Judgment:

25 March 2021

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Whangarei

R v KIRIHI BOB PHILLIPS [2021] NZHC 610 [25 March 2021]

[1] Mr Phillips, you appear for sentence on a charge of indecent assault. This follows a Judge-alone trial held in this Court on 2 and 3 November 2020. At the conclusion of the trial I delivered verdicts finding you not guilty on a charge of burglary, but guilty on a charge of indecent assault. I gave reasons for those verdicts on 4 November 2020.1

[2] The maximum penalty for the charge on which I found you guilty is seven years imprisonment.

The facts

[3] Much of the evidence given at trial was not in dispute. The charge of indecent assault was laid following an incident that occurred in the early hours of Monday 21 October 2019. You were released from prison on Wednesday 16 October 2019 after serving the whole of a sentence of four years nine months imprisonment imposed on 2 April 2015 on a charge of assault with intent to rob.

[4] Five days later, on the afternoon of Sunday 20 October 2019, you and your cousin travelled to Paihia, where you decided to stay the night at a backpacker’s hostel. The complainant, a 27 year old female tourist from Germany, was staying at the same address. She was sharing a bunk room at the address with two other female tourists who had met on the journey to New Zealand and decided to travel round New Zealand together. You and your cousin were staying in a separate building a short distance away.

[5] You met the complainant briefly when she returned to the hostel after going for a walk on the beach at about 9 pm. As she entered the address, she passed you walking in the opposite direction. You and she exchanged greetings and then went your separate ways. The complainant went to her bunk room, where she spent an hour or so browsing the internet before going to sleep. She had not consumed any alcohol during the evening.

1 R v Phillips [2020] NZHC 2884.

[6] You and your cousin went to the bar of the hostel and spent some hours there drinking and socialising with other residents before the bar closed. During this period you were playing a drinking game with the complainant’s roommates. One of the roommates took exception to the way you were filming them whilst they were dancing. Both the complainant’s roommates also considered you had been asking one of them inappropriate personal questions.

[7] When the bar closed one of the complainant’s roommates went to bed whilst the other went down to the beach with a group of…

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 [2021] NZHC 610
Case: [2021] NZHC 610
Decision Date: 25 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Phillips revolved around the defendant, Kirihi Bob Phillips, who was found guilty of indecent assault. Phillips, who had previous convictions under the three strikes legislation, was required to face sentencing following a trial where he was acquitted of burglary but convicted of indecent assault. The court was tasked with determining the appropriate sentence under the mandatory sentencing provisions of the Sentencing Act 2002, specifically considering whether it would be manifestly unjust to require Phillips to serve the entire sentence without parole.

The legal issues centered on the interpretation of the Sentencing Act 2002, particularly section 86D, which mandates a seven-year imprisonment term for Stage 3 offenders like Phillips. The court had to consider whether imposing the maximum penalty without the possibility of parole would be grossly disproportionate given the circumstances of the offence and the offender. The court also examined expert reports on Phillips' risk of reoffending and his need for treatment, particularly regarding his alcohol abuse and potential for sexual offending.

In delivering the judgment, Justice Lang concluded that it would be manifestly unjust to require Phillips to serve the entire sentence without parole. The court considered the relatively limited nature of the indecent assault, the absence of premeditation, and Phillips' extensive history of similar offending. The court also highlighted the lack of a positive support network and the significant risk Phillips posed if not adequately treated for his alcohol abuse and potential for sexual offending. Based on these factors, the court deemed it appropriate to allow Phillips eligibility for parole after serving two-thirds of the sentence. The final order was that Phillips be sentenced to seven years imprisonment for the indecent assault, with the possibility of parole after serving two years and four months.

Orders