R v Phillips

[2013] NZHC 531

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-042-2382 [2013] NZHC 531

QUEEN

v

BERNARD PHILLIPS

Hearing:         19 March 2013

Counsel:         S K O'Donoghue for Crown

S Zindell for Prisoner

Sentence:       19 March 2013

REVIEW OF SENTENCING BY THE HON JUSTICE KÓS

[1]      Mr Phillips you were sentenced by Justice Miller to 20 months’ imprisonment on two charges – one of selling cannabis and the other of offering to sell cannabis. Justice Miller’s sentencing notes record that you were assessed by the Department of Corrections as having a low risk of reoffending.  The Judge said, and I agree, that that assessment seemed a little generous given your past cannabis conviction and your past recreational consumption of cannabis.  On the other hand, the latest home detention report from the Department of Corrections assesses you as having a “high risk of continuing to offend from home” and I have a little difficulty reconciling those two reports.

[2]      In terms of prior convictions, your record is still a slender one and I hope it will remain a slender one.   In fact I encourage you strongly not to add to it.  You

R v PHILLIPS HC NEL CRI 2012-042-2382 [19 March 2013]

have previous convictions for assault, a number of driving offences and in 2009 you were convicted of breach of community work.  You have never previously served any sentence of imprisonment.

[3]      Justice  Miller  concluded  that  you  were  a  suitable  candidate  for  home detention provided there was an appropriate address.   Leave was given to you to apply  under  s  80I  of  the  Sentencing Act  which  is  what  you  now  do  through Mr Zindell’s application on your behalf.

[4]      The police have opposed the application.  But responsibly Ms O’Donoghue confined the police opposition, and it is a qualified opposition at that, to a concern about the risks in terms of the suitability of the home detention address.  Because you have had in the past a stretched relationship, if I may so describe it, with your stepfather.  On the other hand your stepfather has consented to your serving your sentence of home detention at that address.  Your mother has provided an affidavit in which she confirms her belief that the address will be suitable.

[5]      Not without some reservations, I am going to grant the application and allow you to serve your sentence as one of home detention.  I bear in mind particularly that you  have  never  previously  been  imprisoned.    Your  prison  behaviour  has  been reported to me to be exemplary and as I have just said you have a still slender criminal record.

[6]      As to the risks of reoffending, I have noted that the Correction’s advice in that respect is conflicting and I am not able to form an adverse view about your application on that front.

[7]      As to the risk of domestic strain, I note that your home detention may be cancelled if the home address becomes unsuitable.   I am also going to direct as a condition that I receive a report from the Department of Corrections in three months’ time as to your compliance with the sentence and as to the continuing suitability of the home detention address.  If I am not satisfied, Mr Phillips, with your compliance, then you will find yourself back in prison.

[8]      Therefore,  in  terms  of  formal  orders,  your  application  is  granted.   Your sentence Mr Phillips is converted now to one of nine months’ home detention starting today.

[9]      The following conditions will apply:

(a)      You are to report to the community probation officer immediately after sentencing and then travel directly to 122 Songer Street, Stoke and await the arrival of a probation officer and a security officer.

(b)You are to reside within the monitoring boundaries of 122 Songer Street, Stoke and not to move address without prior written approval of a probation officer for the duration of the nine months’ sentence.

(c)      You are not to purchase, possess or consume alcohol or illicit drugs for the duration of that home detention and you are to undergo such alcohol or drug testing as the probation officer may direct to ensure compliance with that condition.

(d)You  are  only  to  possess,  use  or  access  a  cellular  telephone  as approved by the probation officer.

(e)      You are to make available to any probation officer and or their agent access to any cellular telephone in your possession for the purposes of checking compliance with that condition.

(f)       If you meet the criteria for it, you are to undertake a pre-programme interview and complete any departmental programme subject to availability to the satisfaction of the probation officer and programme facilitator.

(g)You  are  to  attend  and  complete  an  appropriate  drug  and  alcohol programme to the satisfaction of the probation officer and programme provider.  The details of that will be determined by the probation officer.

(h)Post-detention  you  are  to  undertake  and  complete  any  remaining rehabilitative programme counselling treatment and maintenance follow-up programme as directed by the probation officer.

(i)I direct as a special condition of your sentence of home detention, pursuant to s 80ZJ of the Act, that a report be provided to me by the Department of Corrections within three months, reporting on your progress and compliance with your sentence and on the continuing suitability of your home detention address.

[10]     Mr Phillips you are a fortunate young man.    You are going home.    Now behave yourself.

[11]     Stand down.

Stephen Kós J

Solicitors:

Crown Solicitor, Nelson