Phillips v R
| Jurisdiction | New Zealand |
| Judge | Collins J |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] NZCA 651 |
| Docket Number | CA652/2021 |
| Court | Court of Appeal |
[2021] NZCA 651
French, Miller and Collins JJ
CA652/2021
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Bill of Rights, Criminal Sentence — appeal against a sentence of seven years imprisonment imposed in the High Court for indecent assault — the maximum sentence was given because it was the appellant's third qualifying conviction under the three strikes regime — application of Fitzgerald v R [2021] NZSC 131 — where the application of the three strikes regime would amount to disproportionately severe punishment under the New Zealand Bill of Rights Act 1990, ordinary sentencing principles applied — determining when a sentence was “grossly disproportionate” — Sentencing Act 2002 — Canadian Charter of Rights and Freedoms — European Convention on Human Rights
W D McKean and T W Luders for Appellant
P D Marshall and M F Laracy for Respondent
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A The application for an extension of time to appeal is granted.
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B The appeal is allowed.
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C The sentence of seven years’ imprisonment is quashed and substituted with a sentence of 15 months’ imprisonment.
(Given by Collins J)
On 24 November 2021, we extended time for Mr Phillips to file his appeal against a sentence imposed pursuant to s 86D(2) and (3) of the Sentencing Act 2002 (the three strikes regime). We also allowed Mr Phillips' appeal and said that our reasons would follow. We now set out our reasons.
Mr Phillips' appeal was from a sentence of seven years' imprisonment imposed in the High Court on 25 March 2021, after he was found guilty of indecent assault. 1 The seven-year sentence is the maximum for indecent assault and was only imposed because it was Mr Phillips' third qualifying conviction under the three strikes regime.
On 7 October 2021, the Supreme Court delivered its judgment in Fitzgerald v R, 2 in which the Court allowed an appeal against sentence for indecent assault in circumstances that were similar to those of Mr Phillips' case. Mr Phillips applied for an extension of time to appeal his sentence soon after the Supreme Court delivered its judgment in Fitzgerald.
The Crown accepted that, following Fitzgerald, an extension of time should be granted and the appeal allowed.
On 20 October 2019, four days after he had been released from prison following his “second strike” offence, Mr Phillips travelled to Paihia with his cousin. There they checked into a backpackers' hostel. That evening Mr Phillips went to the bar at the hostel where he drank with other guests until the bar closed.
The complainant was also staying in the hostel. She was, at the time, 27 years old and was a tourist travelling around New Zealand with two friends. She went to bed early and did not participate in the socialising that took place in the hostel bar.
Soon after 2.30 am, Mr Phillips entered the room where the complainant and her two friends were sleeping. Mr Phillips approached the complainant and began to rub her hand. She pushed Mr Phillips' hand away, but a few minutes later Mr Phillips started to rub her hand again. On this occasion the complainant told Mr Phillips to stop. A short time later she felt his hand on her arm and her back. The complainant called out to her roommates, one of whom activated the torch on her cellphone, which enabled the three women to see Mr Phillips standing near the complainant's bed. He then left the room.
When questioned by the police, Mr Phillips said he touched the complainant in order to find out if she wanted to engage in sexual activities with him.
Following a Judge-alone trial conducted before Lang J on 2 and 3 November 2020, Mr Phillips was found guilty of having indecently assaulted the complainant when he touched her arm and back. The Judge was satisfied “that there was virtually no premeditation in the offending” and that the touching “did not extend to more sensitive areas of the complainant's body”. 3
When sentencing Mr Phillips, Lang J explained that were it not for the three strikes regime, he would have sentenced Mr Phillips to “around 15 months imprisonment”. 4 As he had been in custody since the night of the offending, Mr Phillips would have been eligible for immediate release if he had been sentenced to 15 months' imprisonment.
As we have noted at [1], Mr Phillips' case engaged s 86D(2) and (3) of the Sentencing Act, which state:
86D Stage-3 offences other than murder: offender sentenced to maximum term of imprisonment
…
(2) Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.
(3) When the court sentences the offender under subsection (2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.
Mr Phillips had 18 previous convictions for offences that included burglary, various assaults and disobeying court orders. His “first strike” offence occurred in April 2011 when he squeezed the buttocks of a woman who was walking along a footpath ahead of him. Mr Phillips followed the complainant to a carpark at her workplace, where he unsuccessfully attempted to snatch a handbag she was carrying. Mr Phillips was convicted of indecent assault and assault with intent to rob the complainant. He was sentenced to six months and three weeks' home detention for that offending.
The “second strike” offence occurred in December 2014 when Mr Phillips participated in a group attack on two men who were walking along a footpath and then engaged in theft of property belonging to the men. Mr Phillips was convicted of assault with intent to rob and was sentenced to four years and nine months' imprisonment. He served the full term of that sentence and was released just four days before he committed his third strike offence.
Psychological reports prepared for the High Court revealed that Mr Phillips lacked social support and that he abused alcohol. Lang J was in no doubt Mr Phillips' consumption of alcohol was a major factor in his offending.
When considering the requirements of s 86D(3) of the Sentencing Act, Lang J explained that it would be manifestly unjust to require Mr Phillips to serve the whole of the sentence with no prospect of parole. Therefore, while the Judge sentenced Mr Phillips to the maximum sentence proscribed for the offence of indecent assault, he declined to make an order requiring Mr Phillips to serve the entire sentence without parole. 5
Mr Fitzgerald's third strike offence was also for committing an indecent assault when he kissed a woman on her cheek when she and a friend were walking along a Wellington street.
Mr Fitzgerald had a long history of significant mental illness, including schizophrenia. Like Mr Phillips, Mr Fitzgerald's third strike offence could be properly viewed as less serious than his two earlier qualifying offences.
In the High Court, Mr Fitzgerald sought a discharge without conviction. 6 However, Simon France J held that there was no jurisdiction to grant a discharge in the context of the three strikes regime. 7 The Judge therefore sentenced Mr Fitzgerald to seven years' imprisonment in accordance with s 86D(2) of the Sentencing Act, though the Judge observed that but for the three strikes regime, Mr Fitzgerald would likely have been given a non-custodial sentence. 8
On appeal, all members of this Court said the sentence imposed on Mr Fitzgerald breached the right affirmed in s 9 of the New Zealand Bill of Rights Act 1990 (the NZBORA) not to be subjected to a disproportionately severe punishment. 9 However, a majority of this Court agreed with the High Court that there was no jurisdiction to discharge Mr Fitzgerald without conviction. 10
The Supreme Court granted leave for Mr Fitzgerald to appeal his sentence. A majority of the Court explained that where a sentence imposed pursuant to s 86D(2)
All four members of the majority in Fitzgerald confirmed that there is a “high threshold” to establishing that a sentence breaches s 9 of the NZBORA. 13 Rarely will a sentence be found to have breached s 9. Winkelmann CJ referred to phrases in Taunoa v Attorney-General, 14 which state that, in order to breach s 9, the sentence would need to be “so out of proportion to the particular circumstances as to cause shock and revulsion”, “so excessive as to outrage standards of decency”, or be a sentence that was “so severe as to shock the national conscience”. 15 O'Regan and Arnold JJ adopted a similar approach, when they said that “a sentence which is simply severe, disproportionate or manifestly excessive would not meet the test”. 16 Glazebrook J agreed with the reasons given by Winkelmann CJ and O'Regan and Arnold JJ. She said that a “sentence that breaches s 9 would be one that is so out of proportion in the circumstances of the case that it would shock the conscience of New Zealanders”. 17
Distinguishing in practice between a sentence that is so disproportionate as to shock the conscience and a sentence that is merely disproportionate is a difficult exercise that has been...
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...CJ, [176] per Blanchard J and [288] per Tipping J. 53 At [219], [231] and [236] per O'Regan and Arnold JJ and [245] per Glazebrook J. 54 Phillips v R [2021] NZCA 651 at [4] and [34]; and Mitai-Ngatai v R [2021] NZCA 679 (result), [2021] NZCA 695 55 Fitzgerald (SC), above n 4, at [220] per ......