THE QUEEN v PHILLIP JOHN SMITH [2003] NZCA 180 (17 July 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/02

THE QUEEN

v

PHILLIP JOHN SMITH

Hearing: 17 July 2003

Coram: Tipping J

HammondJ

Paterson J

Appearances: G J King and C J Milnes for Appellant

J M Jelas for Crown

Judgment: 17 July 2003

Reasons for Judgment: 4 August 2003

REASONS FOR JUDGMENT OF THE COURT

DELIVERED BY PATERSON J

[1]	In July 1996, Mr Smith was convicted of murder.He was sentenced to the mandatory sentence of life imprisonment and, in addition, he was ordered to serve a minimum period of 13 years.On 19 December 1996 his appeal, against both conviction and sentence, was dismissed, ex parte, on the papers.
[2]	On 19 December 2002, Mr Smith was granted a rehearing of his appeal.Although the original appeal was against both conviction and sentence, Mr Smith has now abandoned the appeal against conviction.
[3]	At the hearing on 17 July 2003 we dismissed the appeal against sentence.We now give our reasons for doing so.

Background

[4]	Mr Smith was a friend of the family of the deceased (Mr D).He was seen as a big brother to one of Mr D’s sons (the complainant).In September 1995 the complainant alleged that Mr Smith had committed sexual offences against him.At the same trial as he was convicted of murder, Mr Smith was found guilty of sexually violating and indecently assaulting the complainant.
[5]	After Mr Smith was arrested and charged with these sexual offences against the complainant he was granted bail on 27 October 1995 on the conditions that he not leave the Wairarapa without the permission of the senior police officer, and that he not communicate with any prosecution witness.
[6]	Because of concerns for their safety, Mr D’s family was relocated by Government agencies.Mr Smith found out where they had moved to.Approximately one month prior to the murder, in breach of his bail conditions, he went to that area, and hid a gun in a hedge at a vacant house near their home.
[7]	On 10 December 1995, Mr Smith, again in breach of his bail conditions, went to the family home and hid himself in the washhouse area.He stayed there for about three hours.After he saw a member of the household leaving, he surreptitiously entered the house through the front door.He was armed with a knife and wore a balaclava.He removed the telephone plug from the socket and put the plug in his pocket.He cut the telephone wire.
[8]	Mr Smith then went into the children’s bedroom where the complainant’s younger brother awoke, and started screaming.These screams awoke the complainant who saw Mr Smith holding the knife.He too started to scream.Mr Smith attempted to stab the complainant who was able to block the attack.On hearing the children’s screams, Mr D went into the bedroom.At this stage the complainant got out of bed and was stabbed twice by Mr Smith, but was able to leave the house and alerted the police.
[9]	Mr D struggled with Mr Smith.He was stabbed 19 times, with 14 of these stabs in the back.As a result of the stab wounds Mr D died.Mr Smith was subsequently convicted of his murder.
[10]	The complainant’s mother tried to lock herself and the younger son in the master bedroom.She was persuaded by Mr Smith’s threats to open the door.She was then confronted by him with the knife.He threatened the mother but told her that she was lucky, and that he would let her live.When the mother said she wanted to ring for an ambulance for her husband, Mr Smith replied “no, no, he will be dead soon.”When the mother repeated her request, she was told that there was little point in her assisting her husband.
[11]	Mr Smith then requested the mother to assist in bandaging his bleeding hand.After bandaging his hand, the mother again asked to be allowed to call an ambulance for her husband.Mr Smith again refused to allow this.
[12]	The mother then suggested that Mr Smith take her husband’s car.He forced the mother and younger son to go with him but he was unable to start the car.He then forced the mother, still carrying her younger son, to leave the property with him.Mr Smith said he wanted to look for the complainant.He walked them to the property where the gun was hidden, and on the way removed some rope from his pocket and told the mother that he would have to tie her and her son up.
[13]	At the vacant property the mother asked Mr Smith, for the third time, to let her and her son go so she could help her husband.Mr Smith again refused, and repeated that Mr D would be dead.He then retrieved the gun from the hedge and loaded it and, with the mother and her son, began to retrace his steps towards the family’s property.At that stage police cars arrived and the mother and young son were left by Mr Smith as he made his escape.He was arrested later in the morning after having taken a taxi to Upper Hutt where he boarded the Wellington-Masterton train.
[14]	Mr Smith subsequently told the police that his purpose in going to the house was to talk to the complainant about the sexual allegations.He took the knife for intimidation so that he could have control of the situation.The gun had been retrieved from a friend to whom he had loaned it approximately two months earlier.He had bought the knife one month previously and the balaclava had been purchased specifically for the trip to the home.The rope had been taken with him to tie up the father.

The law

[15]	In 1996 the relevant provisions of s 80 of the Criminal Justices Act 1985 read:

80. Minimum periods of imprisonment-

(1)	Subject to subsections (2) and (3) of this section, if a court sentences an offender to an indeterminate sentence, it may also order,-
(a)	In the case of murder, upon application made within 14 days after the date of the delivery of the verdict;and

...

that the offender serve a minimum period of imprisonment of more than 10 years.

(2)The court shall not impose a minimum period of imprisonment under subsection (1) of this section unless it is satisfied that the circumstances of the offence are so exceptional that a minimum period of imprisonment of more than 10 years is justified.

(3) Where a court imposes a minimum period of imprisonment under subsection (1) of this section, the duration of the period of imprisonment imposed shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

[16]	In R v Hapi [1995] 1 NZLR 257, this Court determined that the correct approach under the wording of s 80, as it applied at the time of Mr Smith’s sentencing, was to consider whether the circumstances of the offence were so exceptional that;
(a)	They were outside the normal range of offences for which life imprisonment was imposed, and
(b)	A minimum period of imprisonment of more than ten years was justified.

The sentencing Judge was then required to fix the minimum period justified, having regard to all the circumstances of the case, including those of the offender.

Grounds of appeal

[17]	The grounds of appeal were:
a)	That the imposition of a minimum non-parole period was inappropriate in that the offending did not meet the statutory criteria of “so exceptional” as required by s 80(2) of the Criminal Justices Act 1985;
b)	The minimum non-parole period of 13 years was outside the range applicable at the time when compared with other sentences for similar offending;
c)	His Honour did not properly consider the effect of s 80(3) in that Mr Smith’s personal circumstances were not properly before the Court.
[18]	We were asked to receive, pursuant to s 389(a) of the Crimes Act 1961, a psychological report on Mr Smith prepared in June 2003.This was said to be relevant because the absence of an up to date and detailed pre-sentence report meant that the sentencing Judge in 1996 did not properly consider the appellant’s personal circumstances, as required by s 80(3) of the Criminal Justices Act.

Discussion

[19]	We have no doubt that the circumstances of the murder were so exceptional as to justify a minimum period of imprisonment of more than ten years.The act itself was brutal with the victim being stabbed 19 times, including 14 in the back.A particular feature was the callousness displayed by Mr Smith.On at least three occasions, the victim’s wife asked Mr Smith to let her go to her husband’s assistance.On each occasion he declined with words to the effect of “he will be dead soon.”The two visits to the family home were in breach of bail terms.There was lengthy pre-meditation in that Mr Smith went there a month earlier and hid the gun nearby.He was disguised in a balaclava and took a knife, with the apparent purpose of dissuading the complainant from maintaining his allegations of sexual abuse against Mr Smith.Violence was threatened against more than one member of the family.Home invasion was involved.The disabling of the phone not only prevented the family from requesting help against the attacks, but also from obtaining assistance for a dying man.When all the circumstances are taken into account, this was an offence that fulfilled the “so exceptional” criterion within the meaning of s 80(2).
[20]	Counsel submitted that the Judge may have not applied the proper test when he referred to the circumstances being “sufficiently exceptional” as the statutory test was “so exceptional.”We very much doubt whether the Judge did misdirect himself but, even if he did, the circumstances were clearly so exceptional that the imposition of a minimum period greater than ten years was justified.
[21]	It was further submitted that if a term of more than ten years was justified, the actual term imposed of 13 years was outside the range applicable at the time.We are of the view that a minimum term of 13 years was justified.The circumstances of the offence differ from those in R v Parsons [1996] 3 NZLR 129, where a 13 year period was found to be manifestly excessive.The callousness, the offending while on bail, the entry into a private dwelling home at night, the unprovoked violence, the threats to others, when added to the manner in which the murder was committed, in our view justify a minimum period of 13 years.
[22]	The final submission was that the Judge did not take into account Mr Smith’s personal circumstances.We were asked to consider a report from a psychologist on Mr Smith’s mental state in June of this year because it was submitted that the Judge breached s 80(3) of the Act by not having a current pre-sentence report before him.On the basis of this new report, it was submitted that Mr Smith has made considerable progress in terms of his rehabilitation during his incarceration.This may be so, but the Judge was required to assess his circumstances at the time of the sentencing.Many of the matters raised in the report are matters which the Parole Board may well be interested in when it comes to consider Mr Smith’s eligibility for parole, but they are not relevant on this appeal.
[23]	There was no requirement under the Act, as it then stood, for a Judge to obtain a pre-sentence report before imposing a minimum term of more than ten years imprisonment.At the sentencing, Mr Smith was represented by experienced counsel.The Judge had before him a pre-sentence report on Mr Smith prepared approximately nine months before the sentencing in respect of another offence.It was a report prepared after the murder was committed.While it does not give some of Mr Smith’s history, which is included in the report obtained this year, it does give details of his health and his personal history.It noted that there should possibly be a psychiatric/psychological assessment of Mr Smith after his sentence for that offence.In the circumstances the Judge had details of Mr Smith’s personal situation at the time of the offence, and would have taken them into account.In the absence of his counsel providing further information or requesting an adjournment to have an assessment of him done, we are of the view that there is nothing material in this point.

Result

[24]	For the above reasons, we dismissed the appeal against sentence.

Solicitors:

Crown Law Office, Wellington