R v Phillips HC Napier CRI 2009-020-4936

[2010] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2009-020-4936

THE QUEEN

v

TIAKI LANCE EREUTI PHILLIPS HARLEY VANCE COLLIER Defendants

Charge:          Attempted Murder

Plea:               Not guilty

Counsel:         M J Inwood for Crown

A J S Snell for Phillips
G M Fairbrother for Collier

Sentence:       26 November 2010

Imprisonment

Eight years (cumulative)

Five year non-parole period (Mr Collier only)

SENTENCING NOTES OF MACKENZIE J

[1]      Tiaki Lance Ereuti Phillips and Harley Vance Collier you appear for sentence

on a count of attempted murder.  You were found guilty by a jury at trial.

R V PHILLIPS AND ANOR HC NAP CRI-2009-020-4936  26 November 2010

[2]      The facts are that on 27 October 2009 you were both inmates in Unit 4A at Hawke’s Bay Regional Prison.  On that morning the victim, who was also serving a sentence in that prison, was transferred into Unit 4A.  Within a few hours after his admission to the unit, while he was sitting in his cell, you two came into his cell. You Mr Collier grabbed him and put him in a headlock.   You Mr Phillips used a weapon which you had improvised from the blades of a disposable razor to slash the victim’s  throat.    You  inflicted  two  deep  wounds  to  the neck.    Those  caused  a complete transection of the external jugular veins on both sides of the neck and the anterior jugular vein.   The greater auricular nerve on the right was also severed. Fortunately, the internal jugular vein and carotid arteries were not severed.   The victim activated his cell alarm.  Prompt action by Corrections staff and medical staff helped to stem the loss of blood.  The victim was taken to the Hawke’s Bay Regional Hospital where he required the transfusion of four units of blood.  The major blood vessel were tied off but not rejoined.  That controlled the immediate threat to his life and he was then transferred to the intensive care unit until the following day and was discharged from hospital on 30 October.

[3]      This was a savage and brutal attack.  It is inherent in the jury’s verdict that you intended to kill your victim.   The nature of the attack and the severity of the wounds inflicted made that finding virtually inevitable.   No clear motive for your brutal actions is apparent.  You both denied involvement.  The victim was able to identify you by means of the very distinct tattoos which each of you has.

[4]      The effect on your victim has been ably described by him in his victim impact statement.  He said:

When my throat was cut I thought I was going to die at the age of 18. I was too young to die.   It has left me living in fear and always on alert.  Sometimes I hope that I don’t get out of prison because I am now marked and I believe the Mongrel Mob will find me and kill me.

[5]      The scar is a constant reminder to him of what happened and he says:

I wish I knew why they did this to me as to this day I don’t know and I

just want to know “why”?

[6]      There have been practical consequences for the victim in his sentence.  He had to be moved from Hawke’s Bay Regional Prison, so that he was unable to complete programmes that he would have done.  He considers that this has affected his chances of parole.

[7]      As to your personal circumstances you Mr Phillips are 23 years old.   Your mother died when you were aged three and you suffered from your father’s heavy binge drinking and violent behaviour.  You are a member of the Mongrel Mob and you are not ready to give this up because they are like family to you.  You have a six year history of offending which has escalated in the last three years to some very serious violent crimes.  You are currently serving sentences totalling eight years and nine months, which commenced in October 2007.  You are assessed as being at very high risk of re-offending given your gang affiliations, age at first conviction, and regular offending.   You have multiple issues including alcohol and drug abuse, violence and gang affiliation.

[8]      You Mr Collier are 25 years of age.  You had a disadvantageous upbringing being moved between family members and with a long history of involvement with Child Youth and Family Service.  You too are a member of the Mongrel Mob.  You have a lengthy history of previous offending and are currently serving a sentence of five and a half years imprisonment imposed in December 2005.  That is cumulative on an earlier term of five years imposed in 2002 for which you had been released on parole in January 2005 and subsequently recalled in May 2005 following a remand in custody in March 2005.

[9]      The first task in sentencing each of you is to assess a starting point having regard to the circumstances of the offending.   In doing this, I regard you both as equally culpable and would make no distinction between you in fixing that starting point.

[10]     There is no guideline judgment for the offence of attempted murder as the circumstances can vary very widely.  In a case such as this the guidelines given in the case of serious violent offending in R v Taueki can be relevant.[1]    All counsel

have referred to that and also have referred me to a number of relevant decisions, to which I have had regard.  I do not propose to lengthen these sentencing remarks by discussing those in detail.  The cases to which I have been referred and to which I have had regard will be listed in the written version of these sentencing notes.[2]

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[2] R v Te Hei CA411/97, 23 April 1998;   R v Johansen HC Auckland CRI-2004-083-001849,

2 June 2005; R v Vincent HC Auckland CRI-2006-044-000285, 2 April 2008.

[11]     The aggravating features of the offending are particularly the fact that it was pre-meditated, that it involved serious injury, that it involved the use of the weapon which had been improvised for that purpose, and the fact that two of your were involved.  There is a degree of vulnerability arising from the fact that your victim was also a prison inmate and therefore had little ability to escape from you.  Beyond that I do not regard the circumstances as indicating vulnerability as an aggravating factor.

[12]     It is a serious aggravating factor that this occurred in the prison environment. That is a factor which has been recognised in other cases as requiring a deterrent response and I take that into account.  While you are both gang members it is not a suggestion that this attack was directly gang related.

[13]     Taking into account those features of the offending and assessing those in the light of the authorities to which I have been referred, I fix a starting point.  Counsel for the Crown submits that a starting point in the range of ten to 12 years is justified. Mr Snell submits that a starting point of nine to ten years would be appropriate. Ms Fairbrother  submits  that  an  appropriate  starting  point  is  eight  to  ten  years. Having had regard to the authorities and all that counsel have said and to the features of the offending as they have described it I consider that an appropriate starting is ten years.

[14]     The next task is to have regard to any personal aggravating or mitigating factors.     Ms Fairbrother  draws  attention,  Mr Collier,  to  your  background  of emotional deprivation, instability of parenting and social and emotional problems, and notes that you are still young and with some insight, and submits that you are not without hope of rehabilitation but are at risk of becoming institutionalised.  Those

submissions are well made and those matters go some distance towards explaining your offending.   But they cannot, in my view, be regarded as mitigating factors which should lead to a reduction in the starting point.

[15]     For  you  Mr Phillips  Mr Snell  also  refers  to  your  disadvantaged  personal background and submits as mitigating factors that you are motivated to address issues which have caused you to offend and that you are still a relatively young man who is capable of being rehabilitated.  He submits that those factors could offset any uplift the Court may be considering on account of your previous convictions and I consider that that approach is indeed an appropriate one.

[16]     That comment leads to the significant aggravating personal factor for each of you, and that is your previous convictions.  Ordinarily, those would justify an uplift to the starting point.   But that aggravating feature is, in this case, to be balanced against the consequence which those previous convictions have had for you.  That is that you are both serving significant terms of imprisonment for previous offending. So, while I must take into account your previous convictions as an aggravating factor, I must also take into account the totality of the sentences to which you will be subject following this sentencing.  The sentences which I must impose today must be cumulative on your existing sentences.  No other approach would be appropriate.  I have briefly described the terms of those sentences, and the extent to which they have been served.  The starting point of ten years which I have identified would lead to a total sentence of 18 years and nine months for you Mr Phillips and 20 and a half years for you Mr Collier, both of which you have of course served different amounts. For young men of your ages, sentences of that length could properly be described as crushing.   I consider that the principles applied by the Court of Appeal in R v

Johansen,[3]  are relevant here.   I need to stand back and look at the totality of the

criminal behaviour, the conduct leading to your existing sentences as well as present conduct, and at the total resulting penalty.  When I make that assessment, I consider that those total end sentences would be excessive.  The severity of those sentences must be mitigated.

[3] R v Johansen (1997) 15 CRNZ 111

[17]     Counsel for the Crown acknowledges that an allowance should properly be made.  Your counsel also submit that an allowance should be made.  Counsel have discussed, again, the authorities in this regard and I have had regard to those and again I do not propose to lengthen these remarks by discussing them in detail and they will be referred to in these sentencing notes.[4]     I do not consider that any differentiation  in  the  reduction  which  I should  make  on  account  of the  totality principle should be made between you.   There are differences, both in the terms which  you  are  already  serving  (although  that  is  quite  small)  and  there  is  a

[4] R v Hei at 4; R v Connelly at [31]; R v Bradley [1979] 2 NZLR 262 (CA); R v Johansen.

significance difference in the extent to which those sentences have been served. That is, as the Court of Appeal noted in Johansen, a relevant consideration.  But in this case I consider that any disparity which arises from your present situations is not such as should cause me to distinguish between you in the sentence which I will impose.  I think there is a greater risk of creating disparity by distinguishing between you as to the term of the sentence, if I were to adjust that to reflect the differences in time already served.  I have given careful and anxious consideration to the extent of the reduction which I should make to reflect the totality principle.  I have had regard to counsels’ submissions and to the authorities to which they have referred.  In the end it requires an exercise of judgment on my part.  I consider that a discount for each of you of two years from the starting point of ten years which I have identified is appropriate.  That leaves an end sentence for this offending of eight years.

Counsel for the Crown also seeks a minimum period of imprisonment.  That may be imposed if I consider that the period otherwise applicable would be insufficient for the purposes of holding you accountable for the harm done to the victim and the community, denouncing your conduct, deterring you or others, or protecting the community from you.  The circumstances of each of you is such that the minimum period otherwise applicable is unlikely to have any relevance to you.   But I am satisfied that that period would be insufficient for the purposes to which I have referred so as to justify the imposition of a minimum period in each of your cases. However  I  have  listened  carefully  to  the  submissions  which  counsel  have

made and I have considered the helpful table supplied by counsel for the Crown as to the effects of cumulative sentences and minimum periods of imprisonment on you. As I have said, I have not considered that your different circumstances should justify a different end sentence.  But when it comes to the imposition of a minimum period of imprisonment I consider that the situation is different.   The different periods which you have already served will make large differences in the dates of eligibility for  parole  for  each  of  you.    In  your case Mr Phillips  I think  that  to  impose a minimum period of imprisonment, having regard to your sentence stage, would not be appropriate, although, as I have said, your circumstances would otherwise justify it.

[18]     In your case Mr Collier I think that the further stage which you have reached through your sentence is such that a minimum period of imprisonment is now required.  In your case I would impose a minimum period of five years.

[19]     So I come now to sentence you.  You Mr Phillips are sentenced to a term of imprisonment of eight years which is to be cumulative on the term which you are presently serving.

[20]     Mr Collier, you are sentenced to a term of imprisonment of eight years, again cumulative on the terms which you are presently serving, and you will serve a minimum period of five years.

“A D MacKenzie J”