The Queen v Phillips

[2008] NZCA 440

IN THE COURT OF APPEAL OF NEW ZEALAND

CA526/2008
[2008] NZCA 440

THE QUEEN

v

RUSSELL PHILLIPS

Hearing:15 October 2008

Court:Arnold, Randerson and Hugh Williams JJ

Counsel:M A Woolford for Crown

S Fernando for the Respondent

Judgment:24 October 2008 at 10.30 am 

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED.

BThe appeal against sentence is allowed and a sentence of eight months home detention is substituted for the sentence of four months home detention. The substituted sentence is to commence on the same date as the sentence imposed in the District Court and with the same conditions.

_____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       The Solicitor-General appeals against a sentence of four months home detention imposed on the respondent by Judge Field in the District Court after the respondent had pleaded guilty to two charges of burglary: DC AK CRI-2006-090-009674 31 July 2008. 

[2]       The grounds of appeal are:

(a)The learned Judge was wrong to have awarded a discount, from a nominated starting point of two years, of over 60 per cent for mitigating features; and

(b)The learned Judge erred in concluding that a sentence of home detention was appropriate in all the circumstances; or, in the alternative,

(c)       The term of four months’ home detention was manifestly inadequate.

Factual background

[3]       The respondent burgled two West Auckland residential properties on the same day in March 2006.  He took property from both residences valued at $390 and $4,000 respectively.  There was very strong forensic evidence linking him to the first burglary and items from both burglaries were found in his bedroom upon execution of a search warrant at his address. 

[4]       The respondent was aged 33 years at the time of the offending and had some 73 previous convictions.  Many of these were dishonesty-related including five burglaries and an attempted burglary.  While on bail for the subject burglaries the respondent was convicted on a further charge of shoplifting.  The respondent has a poor history of non-compliance with community-based sentences.

Sentence indication

[5]       Judge Field gave a sentence indication on 17 December 2007.  The Judge said he would be inclined to adopt a starting point of between two to three years imprisonment.  After allowing for a credit for a guilty plea and any other factors bearing on the length of sentence, the Judge said an end sentence would very likely be something under two years so that the respondent would be eligible for consideration for a sentence of home detention.  On a “without prejudice” basis, the Judge indicated he would seek a report for the purposes of home detention.  However, if by reason of the respondent’s record or other factors the probation service did not consider him a suitable candidate for home detention, a term of imprisonment would have to be considered.

[6] The Judge made it clear that the options were being kept open and in the event of a guilty plea, the respondent would very likely be “stuck with his plea” even if that meant a sentence of imprisonment: at [4].

[7]       The respondent pleaded guilty to the charges in January 2008 but some months elapsed before he was sentenced on 31 July 2008.  The delay was caused by difficulties in obtaining a suitable address for the purposes of home detention.  Despite opposition by the police, the Judge eventually accepted that the respondent had available a suitable address for home detention purposes.

The sentence

[8]       The Judge accepted a submission by the Crown that a starting point for sentencing purposes was two to three years imprisonment.

[9]       Taking into account mitigating factors, the Judge considered a sentence of nine months imprisonment would otherwise be appropriate.  He arrived at that conclusion by allowing a deduction of 25 per cent for the guilty pleas and further deductions for other matters referred to in the pre-sentence report.  Chief amongst these was a letter from a medical practitioner advising that the respondent’s partner had a social phobia which required the respondent’s help and support.  The Judge noted that the probation officer assessed the respondent as having a moderate risk of reoffending.

[10]     The Judge then imposed a sentence of four months home detention with certain standard conditions, a condition that the respondent refrain from the consumption of alcohol and illegal drugs, and a condition that he undertake any treatment or counselling directed by the probation officer.

[11]     The Judge did not specify any reasons for imposing home detention but it is reasonable to infer that he again took into account the medical condition of the respondent’s partner. 

Was the discount excessive?

[12]     While we have no particular difficulty with the starting point of two years imprisonment adopted by the Judge, we accept the submission on behalf of the Solicitor-General that a total discount of 62.5 per cent (including a discount for the guilty plea) was excessive.  While some deduction was appropriate for the guilty pleas, the strength of the prosecution case was such as to render convictions virtually inevitable.  As well, any reduction for mitigating features should have been at least partially offset by an uplift for the respondent’s previous history of convictions.  We accept that the Judge was entitled to make some allowance for the fact that, as a result of her medical disorder, the respondent's partner relied heavily upon him: see R v Harlen (2001) 18 CRNZ 582 at [22] (CA).  But that type of factor will have limited weight in cases where the offender is, like the respondent, an habitual offender.  In our view, a discount for the respondent's guilty pleas and personal circumstances greater than 25 to 30 per cent was not justified.  This suggests that an appropriate sentence would have been around 18 months imprisonment.

Was home detention appropriate?

[13]     Mr Woolford accepted there was jurisdiction to impose a sentence of home detention but submitted it was inappropriate in the circumstances of this case.  He emphasised particularly the respondent’s poor criminal record and his previous failures to respond to community-based sentences.  He relied on the decision of this Court in the R v Hill [2008] 2 NZLR 381 at [34] for the proposition that a sentence of home detention must be imposed in a way that is consistent with the purposes and principles of the Sentencing Act 2002. In that respect, he submitted that specific and general deterrence as well as denunciation were important statutory purposes which should have been given weight.

[14]     Mr Woolford also referred us to the recent decision of this Court in R v Columbus [2008] NZCA 192 in which the appellant was sentenced on several charges including burglary. He had a very poor record of previous convictions including a number for burglary and other property related offences. This Court was not prepared to impose a sentence of home detention on appeal even though the appellant had made attempts at rehabilitation before sentencing. The Court was not satisfied he had demonstrated a real commitment to change. Home detention would not serve the sentencing purposes of deterrence and protection of the community (at [23]).

[15]     We are in no doubt that a sentence of home detention was not appropriate in the circumstances of this case.  The probation officer referred to the respondent’s abuse of drugs as lying at the root of his offending which had continued unabated despite previous attempts at rehabilitation.  The respondent was identified as having a moderate risk of reoffending.  There was nothing to suggest a real commitment by the respondent to a rehabilitative programme or that such a programme was likely to succeed. 

[16]     The need for the respondent to support and care for his partner is the only factor which could have given the Judge cause to consider that home detention might have been suitable.  But that factor was clearly outweighed by the need for denunciation and deterrence. 

[17]     The difficulty for this Court on appeal is that the respondent has continued to serve his sentence of home detention since his sentencing on 31 July 2008.  It is also possible that once the respondent had pleaded guilty, he may have been led to believe he would receive a sentence of home detention so long as he could find an acceptable address.  It is only for that reason that we consider it would be unjust at this stage to impose a sentence of imprisonment. 

[18]     We therefore turn to consider the alternative submission made by the Solicitor-General that the period of home detention was manifestly inadequate and that a period of around eight months home detention would have been appropriate if that alternative were pursued.

Was the period of home detention imposed too short?

[19]     Again, we have no difficulty in accepting the Solicitor-General’s submission that there was no proper basis for the Judge’s view that a sentence of four months home detention was appropriate.  Given our conclusion that the period of imprisonment which ought to have been imposed was in the order of 18 months, there was no justification for a sentence of home detention of only four months.  In the circumstances of this case the least period of home detention which could realistically have been imposed was eight months.  But for the fact that this is an appeal by the Solicitor-General a longer period of home detention could have been justified in the circumstances.  

Leave to Appeal

[20]     The Solicitor-General was obliged to seek leave to appeal out of time as the appeal was filed one day late.  The grant of leave to appeal was opposed by the respondent’s counsel but he responsibly accepted that he could not point to any prejudice resulting from the delay.  It was candidly acknowledged on behalf of the Solicitor-General that the appeal was prepared in time but, through inadvertence, it was not filed when required.  In the circumstances, we grant leave to appeal out of time.

Result

[21]     For the reasons given, the appeal is allowed and a sentence of eight months home detention is substituted for the sentence of four months home detention imposed in the District Court.  The substituted sentence is to commence on the same date as the sentence imposed in the District Court and with the same conditions.

Solicitors:

Crown Law Office, Wellington