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 people who had been in the bar. You and your cousin were in this group. You and the others in the group subsequently returned to the hostel at about 2.30 am.

[8]    At some stage after your return from the beach you opened an unlocked ranch slider door and entered the bunk room where the complainant and her roommates were sleeping. You stood motionless inside the room for some time after you entered. During this period one of the complainant’s roommates noticed the door was open and got up to close it. You did not reveal your presence in the room as she did so.

[9]    You then approached the complainant as she lay sleeping in her bunk. There was a dispute at trial as to what then occurred. For the reasons given in my verdicts I am satisfied beyond reasonable doubt the version of events the complainant gave to the police in a written statement when they interviewed her the next morning to be the most reliable evidence as to what occurred.2 The complainant said she woke up after she heard the door opening and somebody entering the room. Approximately ten minutes later, she felt somebody rubbing her hand. She immediately pushed the hand away but did not think too much of it because she thought it was a drunk person from a neighbouring room whom she had heard vomiting a short time earlier. She said she did not open her eyes during this incident.

[10]   The complainant then said she felt a person’s hand rubbing her hand again. On this occasion she opened her eyes but could not see anything because it was so dark. She could, however, make out the silhouette of a person sitting on the floor by her bed. She could not tell whether this person was male or female. She firmly said “No” and

2      At [30]-[36].

pushed the hand away. Approximately a minute later she felt a hand rubbing her hand again. On this occasion she said she felt the hand move up her arm and then down her back. She said “No” again and called out to her roommates that there was somebody in the room. One of her roommates then activated the torch on her cellphone and this showed that you were in the room near the complainant’s bed. I found the final touching of the complainant’s arm and back to be indecent given the overall circumstances in which it occurred.

The mandatory sentence

[11]   Your counsel, Mr McKean, submits I should grant you a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act). He bases this submission on the proposition that a sentence of seven years imprisonment, as I am required to otherwise impose on you, is a grossly disproportionate response. He says it is out of all proportion to the overall gravity of your offending. That particular issue is currently before the Supreme Court, which has reserved its decision on appeal from a decision of the Court of Appeal in a case called Fitzgerald v R.3

[12]   I decline to take that step because I consider some sanction needs to be imposed on you given the overall seriousness of the offence and your previous convictions. I do not consider it would be appropriate to grant you a discharge without conviction.

[13]   The problem, however, is that I am required to impose the maximum available sentence on you because this is a Stage 3 offence, or one that is colloquially known as a “third strike” offence. As a result, you are subject to the provisions of s 86D of the Act. This requires me to impose the maximum sentence on the charge of indecent assault, namely a sentence of seven years imprisonment.4

[14]   In Fitzgerald v R the Court of Appeal noted the absence in s 86D of any safety valve enabling the Court to decline to impose the maximum sentence for a Stage 3 offence where that would be manifestly unjust.5 I therefore have no option but to impose the maximum sentence of seven years imprisonment.

3      Fitzgerald v R [2019] NZCA 292, (2020) 29 CRNZ 350.

4      Sentencing Act 2002, s 86D(2).

5      Fitzgerald v R, above n 3 at [34].

Would it be manifestly unjust to require the sentence to be served without parole?

[15]   An offender is ordinarily eligible to apply for parole after serving one-third of any sentence of more than two years imprisonment. This means that, but for the fact that this is a Stage 3 offence, you would have been eligible for parole after serving two years four months of the sentence.

[16]   The only safety valve contained in s 86D is that in s 86D(3), which permits the Court to decline to order that the offender is required to serve the whole of the sentence without parole. The Court may only take that step where it is satisfied, having regard to the circumstances of the offender and the offending, that it would be manifestly unjust to require the offender to serve the whole of the sentence without parole.

[17]   In R v Harrison the Court of Appeal considered the approach to be taken when determining whether it would be manifestly unjust to require an offender to serve a life sentence for murder without parole when the offending in question constituted a Stage 2, or “second strike”, offence.6 The facts in Harrison are therefore different but the principles enunciated in that case are nevertheless of considerable assistance in determining whether it would be manifestly unjust to require you to serve the whole of the mandatory seven year sentence without being able to apply for parole.

[18]   In Harrison the Court recognised that gross disproportionality may arise where sentences stipulated by the three strikes legislation are imposed.7 The Court held that the assessment of whether a requirement that an offender serve the whole of a sentence was manifestly unjust must be reached through “a conjunctive examination of the circumstances of the offence and those of the offender”.8

[19]   However, the Court of Appeal disagreed with the Crown’s submission that the threshold of manifest injustice is likely to be reached only in exceptional circumstances.9 It said such an approach would often give rise to grossly disproportionate sentences. The Court said it was “driven to the conclusion that the

6      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.

7 At [94].

8 At [102].

9 At [106].

test for circumstances that are manifestly unjust must be of sufficient breadth to ensure that any sentence imposed under s 86E is not grossly disproportionate”.10

[20]It is now necessary to apply these principles to the circumstances of your case.

The circumstances of the present offending

[21]   Whilst the circumstances of your present offending have some aggravating features, the Crown accepts it is nevertheless at the lower end of the scale for offending of this type. One aggravating feature is that you entered the complainant’s bunkroom in the early hours of the morning without the authority and consent of the occupants. Given that the complainant was asleep when you entered the room and began touching her she was obviously in a vulnerable state at the time of the offending.

[22]   In evidence and when interviewed by the police you said you did so to find out whether the complainant wished to engage in sexual activity with you. I accepted your evidence on this issue, but you had no reasonable justification for having any belief that she may wish to engage in such activity with you given your extremely limited interaction with her earlier in the evening. I accept, however, that there was virtually no premeditation in the offending. The reason I dismissed the burglary charge was that I was unsure whether you had formed any intent to indecently assault the complainant when you entered the room.11

[23]   However, you remained in the room for several minutes. You did not leave the room when the complainant made it clear when you first touched her that she did not welcome your advances. Instead, you went on to touch her hand again and then her hand and back. The victim impact statement also makes it clear that the offending has had a significant effect on the victim and her roommates. It also destroyed the vision they shared of New Zealand being a safe place to travel.

[24]   On the other hand, the touching did not extend to more sensitive areas of the complainant’s body. You also left the room as soon as the complainant’s roommate

10 At [106].

11     R v Phillips, above n 1, at [23].

activated the torch on her cellphone. In all the touching lasted for a matter of seconds. It was therefore of very limited duration.

[25]   Counsel for the Crown has referred to two cases involving offending somewhat similar to yours.12 Limited weight can be given to these because the facts of both cases are different to those in your case. They nevertheless demonstrate that starting points of seven to 21 months imprisonment have been adopted for lower level forms of indecent assault. I consider your offending to be considerably less serious than that in Eriha v Police, one of the cases cited by the Crown, in which a starting point of     21 months imprisonment was adopted.

[26]   If this had not been a Stage 3 offence I would have adopted a starting point of 14 months imprisonment and increased this by four months to reflect the fact that, as I will outline shortly, your Stage 1 conviction in 2012 was of a similar nature to that in the present case. This would have resulted in a sentence of 18 months imprisonment. I may also have given you a discount for factors identified in a cultural report your counsel has provided under s 27 of the Act. This means the end sentence likely to be imposed if this had not been a Stage 3 offence would have been around 15 months imprisonment. Given that you have now been in custody since October 2019 you would have been eligible for immediate release.

The circumstances of the offender

[27]   You appear for sentence today at 28 years of age. The offences for which you already have been sentenced under the three strikes legislation are not the only occasions on which you have been before the courts. You have 18 previous convictions and have served nine sentences of imprisonment. You have offended on six occasions whilst on bail. Your previous convictions cover a wide range of offending including breach of court sentences, assaults of various types and burglary.

12     Eriha v Police [2019] NZHC 2416; R v Popeea [2015] NZHC 1882;

The Stage 1 offending

[28]   The Stage 1 offending for which you were sentenced on 11 October 2012 related to an incident that occurred when you were riding a bicycle along a footpath in a residential street in Whangarei at about 7.30 am on 4 April 2011. You saw the female complainant walking along the footpath ahead of you. You approached her from behind whilst riding slowly on your bike. As you passed the complainant you reached out with your hand and squeezed her buttocks for several seconds.

[29]   You then rode past the complainant and stopped your bicycle a short distance in front of her. The complainant walked past you, and you continued to follow her and made several sexually suggestive comments to her. She told you in no uncertain terms to get away and began walking quickly toward her workplace. You then parked your bicycle and continued to follow her on foot. As the complainant walked through the carpark of her workplace, you approached her from behind and grabbed a handbag she was carrying around her right shoulder. You attempted to pull the handbag away, but she was able to retain control of it. You then ran away from the scene.

[30]   You were charged with indecent assault and assault with intent to rob as a result of this incident. On 4 April 2012 you were sentenced to six months three weeks home detention.

The Stage 2 offending

[31]   The charge that led to the Stage 2 offending was laid as a result of an incident that occurred late on the evening of 1 December 2014. At approximately 10.30 pm that night you were a member of a group of four males who carried out street attacks on two separate males who were walking along the footpath. The assaults comprised kicking and punching and were accompanied by the theft of property belonging to the complainants. You were charged with assault with intent to rob as a result of these incidents and served the whole of the sentence of four years nine months imprisonment that was imposed on 2 April 2015.

[32]   Your qualifying convictions under the three strikes legislation, coupled with your other convictions, raise issues of obvious concern. The Stage 1 offending has

very real similarities with the present offending, because it involved inappropriate physical touching with obvious sexual overtones and also involved a complainant who was a complete stranger. As in the present case, you sought to have sexual intercourse with her even though you had no justification for believing she might have any interest in doing so.

[33]   The Stage 2 offending is also concerning, although not in a sexual context, because you were part of a group that carried out random attacks involving the infliction of physical violence on two separate male complainants. The seriousness of the offending is reflected in the level of the sentence imposed.

Expert reports

[34]   The Stage 1 offending and the present offending led me to be concerned that you may have some underlying disorder or personality trait that manifests itself in a tendency to sexually assault female strangers. I therefore asked the Crown to obtain copies of the reports provided to the Court from two psychiatrists regarding your fitness to plead after you were charged with the Stage 1 offending in 2011. These indicated that you had a very serious problem at that time with alcohol. It also appeared that you had some problems with anger management. There was no suggestion in either report, however, that you were suffering from any form of mental or personality disorder at that time.

[35]   I have now received a further report prepared by a clinical psychologist in advance of sentencing today. This contains a detailed description of your background. It also refers to the fact that a forensic nurse advised the Court in 2015 that you did not present with any signs or symptoms of a major mental illness or disorder, but you had significant issues with alcohol.

[36]   The psychologist used three instruments to assess the likely risk of future sexual or violent offending. These were the Static 99, the Stable 2007 and SAPROF- SO instruments. The psychologist concludes:

Consequently, after considering static, dynamic risk variables and protective factors Mr Phillips’ overall risk falls in the category of offenders whose risk of sexual re-offending is assessed as high. The writer notes that the degree of

gravity of Mr Phillips sexual offences; both first strike and third strike is not taken into account in determining this risk rating. Both these sexual offences, while serious, could be viewed as not at the highest end of the sexual offending seriousness scale when considering future sentencing consequences. It is apparent that developing and addressing the various factors suggested under Protective factors would assist Mr Phillips in his goal of not sexually reoffending and beginning to live a pro-social life. Undertaking sexual offence-specific treatment is considered crucial. At interview Mr Phillips said he would agree to undertake both sexual offending treatment and alcohol and drug treatment. His preference was for one on one treatment; however, the writer explained that most treatment was group based.

[37]   Two matters stand out from both sets of reports. The first is that you do not currently appear to have any strong pro-social relationships, either in terms of whanau or friends. By pro-social I mean persons who can be a positive influence on the way you approach the issues you will confront on your release from prison. Your mother died in tragic circumstances in 2016 and this affected you significantly. You were in prison at the time and could not attend her funeral. Until recently you do not appear to have had any meaningful contact with your father and six brothers and sisters, of whom you are the eldest.

[38]   The lack of any positive support network obviously increases the risk of further offending when you are released from prison after serving the present sentence. It was encouraging to see your father present in Court when you were last here in December 2020. Sadly, he is not here today. I had hoped he may be able to assist you in a positive way when you return to the community.

[39]   The second issue relates to your use, or more accurately abuse, of alcohol. This has been a long-standing issue for you and I have no doubt it was a major factor in your current offending. Until you learn how to consume alcohol responsibly you remain at risk of further similar offending in the future. I note that the psychologist says that, if you do not develop self-control and sexual self-regulation, there is a risk you will react impulsively to feeling sexually aroused in the future and endeavour to touch females in a physical or sexual way without their consent. The consumption of alcohol is likely to further lower your self-regulatory ability.

[40]   The psychologist considers, however, that it may be manifestly unjust to require you to serve the full sentence under the three strikes legislation. She suggests

a prison sentence of moderate length should be imposed to enable you to undertake sexual offending treatment as well as alcohol and drug treatment.

Conclusion

[41]   Having regard to all these factors I consider it would be manifestly unjust to require you to serve the whole of the sentence with no prospect of parole. The primary reason for this is that it would produce a result that represents a grossly disproportionate response not only to the present offending but also to your Stage 1 and Stage 2 offending. I consider your situation to be broadly analogous to those in the cases relied on by your counsel, in which the courts have held it would be manifestly unjust to require an offender to serve the whole of a term of imprisonment without parole.13

[42]   You have now been in prison since your arrest in October 2019, a period of approximately 17 months. Had you not been subject to the three strikes regime you would already have been released into the community. The present offending and the material contained in the psychologist’s report make it clear, however, that you need to undergo treatment to address the issues identified in the report prior to your release from prison. Should that not occur it is virtually inevitable that you will consume alcohol again upon your release and then be at risk of committing further similar offences.

[43]   The Government has indicated it proposes to repeal the three strikes legislation. It is not known at this stage when that is likely to occur. It seems likely that the amending legislation will require Stage 3 offenders to be re-sentenced. In that event it is inevitable that you will receive a sentence that results in your immediate release. Should that occur before you have addressed the issues identified in the report there is an obvious risk to the community that you will offend again soon after your release.

[44]   In an attempt to address this issue I delayed your sentencing so you could find a residential facility to which you could be admitted on EM bail for rehabilitative

13     Fitzgerald v R, above n 4; R v Campbell [2016] NZHC 2817 and R v Rutherford [2019] NZHC 1628.

purposes. That has not proved possible, so I have had no option but to sentence you under the law as it currently stands. The prison authorities need to be aware, however, that you are likely to be released as soon as the three strikes legislation is repealed. It would therefore be in the community’s interests for you to be offered such rehabilitative measures as are available in prison before you become eligible to apply for parole on the present sentence.

Sentence

[45]   On the charge of indecent assault you are sentenced to seven years imprisonment. I am satisfied under s 86D(3) of the Sentencing Act 2002 that it would be manifestly unjust for you to serve the whole of that sentence without parole. I therefore decline to make an order that you must serve the entire sentence without parole. You will be eligible for parole in the usual way after serving one-third, or two years four months, of your sentence.

Lang J