NZLII Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand
You are here:  NZLII >> Databases >> Court of Appeal of New Zealand >> 2015 >> [2015] NZCA 212

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Philpot v R [2015] NZCA 212 (4 June 2015)

Last Updated: 16 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
30 April 2015
Court:
French, Simon France and Clifford JJ
Counsel:
K H Cook for Appellant P K Feltham for Respondent
Judgment:


JUDGMENT OF THE COURT

The application for an extension of time in which to bring an appeal against sentence is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Craig Richard Philpot, pleaded guilty to two representative charges of sexual conduct with a young person under 16, two representative charges of meeting a young person following sexual grooming and one specific charge of driving with excess breath alcohol (his fifth conviction for drink driving). That offending all occurred in 2011.[1]
[2] Mr Philpot was sentenced by Judge Crosbie in the Christchurch District Court on 22 June 2012 to six years and seven months’ imprisonment.[2] Mr Philpot now applies for an extension of time in which to bring an appeal against that sentence. Mr Philpot says there are good reasons why his appeal is out of time and that his sentence is manifestly excessive.

Facts

[3] Mr Philpot’s sexual offending involved two female victims under the age of 16, S and K.
[4] Mr Philpot met S towards the end of 2010 through an intimate relationship he had formed with her mother, C. S was aged 13 at the time, Mr Philpot was 32.
[5] On the afternoon of 28 January 2011, C asked Mr Philpot to look after S while C went to the doctors. C did not want to leave S at home alone. Over the next few hours, Mr Philpot drove S to different pubs around Christchurch. He took S inside, buying her lemonade and occasionally adding vodka to her drink whilst he drank beer.
[6] In the late afternoon, C began texting both Mr Philpot and S to find out where they were, what they were doing and what time they would be back. Mr Philpot told S not to text her mother back, and S did not. C then began ringing both Mr Philpot’s and S’s mobile phones. She contacted her former partner, S’s father. Around about 10 pm that evening, S’s father also began ringing her phone. Mr Philpot told S to ignore the calls from both her parents.
[7] Throughout this time and into the early hours of the next morning, Mr Philpot continued to take S to various pubs where they both drank. Mr Philpot became very intoxicated. At about 4 am, Mr Philpot told S he was too drunk to drive her to her own home and that he would take her back to his home where he lived with his parents. When Mr Philpot and S arrived at his home, Mr Philpot took S up to his bedroom, undressed to his underpants, turned on the television, got into bed and told S to get into bed with him. S watched television whilst Mr Philpot slept next to her. Some time later, Mr Philpot’s father came into the bedroom and woke him up, saying the police were at the door and that the girl in his bed was only 13 years old. S’s father arrived shortly thereafter and took S home with him.
[8] Mr Philpot did not see S for several weeks after that. Eventually, however, he resumed contact with C and again began visiting C at her (and S’s) home. Mr Philpot texted S, arranging to pick her up after school and drive her to places she wanted to go.
[9] In March 2011 Mr Philpot and S agreed they wanted to have a relationship. Mr Philpot began to take S to pubs where they would drink with his friends. He would introduce S to his friends as his girlfriend, telling them she was 16 years old. Sometimes S would still be wearing her school uniform. Mr Philpot would buy her alcoholic drinks.
[10] Several weeks after that relationship commenced they began to have sex. They had sexual intercourse on numerous occasions, always at Mr Philpot’s house. Unprotected, penetrative sex occurred. S would occasionally perform oral sex on Mr Philpot.
[11] Mr Philpot would, during this period, let S drive his car. They were stopped by the police on one occasion, and she was forbidden to drive. On another occasion, in August 2011, he was driving with her when he was stopped by the police and processed for drink driving.
[12] S explained the time she was spending away from home by telling her mother she was at a friend’s house. Over this period she began missing school and her general conduct deteriorated.
[13] In early August 2011, C became suspicious of her daughter’s movements and behaviour. She discovered text messages between S and Mr Philpot arranging meetings and sexual encounters. C confronted S the next day. S told her that she had been raped by Mr Philpot. The police were advised.
[14] Text messages obtained by the police over a period between 31 July and 10 August 2011 clearly established that the sexual relationship between Mr Philpot and S was a consensual one. S ultimately admitted having such a relationship with Mr Philpot.
[15] When spoken to by the police, Mr Philpot admitted that he knew S was 14 years old and that he had been meeting her on a regular basis. He denied having sex with her.
[16] Mr Philpot was arrested and charged with one representative count of grooming (s 131B of the Crimes Act 1961) and one representative charge of sexual conduct with a young person under 16 (s 134 of the Crimes Act). Mr Philpot was admitted to bail on those charges.
[17] In late September 2011, while on bail, Mr Philpot again began sending S text messages. He persuaded her to meet with him. They began meeting regularly. They would have sex in Mr Philpot’s car in remote locations. Again, unprotected, penetrative sex occurred on multiple occasions. Their continuing relationship was discovered when, in December, Mr Philpot was stopped by the police driving in Rangiora, and S was found to be with him.
[18] As a result, Mr Philpot faced a second representative charge of sexual conduct with a young person. He was remanded in custody.
[19] Mr Philpot’s offending against his second victim, K, occurred in the early part of 2011 whilst his relationship with S was developing.
[20] Mr Philpot met K in 2010 through a relationship he was having with K’s older sister. In February 2011, he attended K’s uncle’s funeral, began talking with K and put his arm around her. K’s father reminded Mr Philpot that K was only 15, and removed Mr Philpot’s arm from around his daughter’s shoulders. Mr Philpot obtained K’s mobile phone number and began texting her, communicating on Facebook and sending her messages on the internet.
[21] After that Mr Philpot met with K on several occasions. On the last of those occasions, he took K to the pub and then to his home where they arrived at about 11 pm. In very similar fashion as earlier happened with S, Mr Philpot took K up to his bedroom, stripped off to his underwear and turned on the television. K did not take her clothes off. However, Mr Philpot and K lay on Mr Philpot’s bed, as Judge Crosbie put it, “cuddling et cetera”.[3] Early the next morning, Mr Philpot’s mother came into Mr Philpot’s bedroom, told K that her mother had called and that she had to go home.
[22] After that incident Mr Philpot continued texting K. That contact only stopped at the end of March 2011 when S texted K and told K to stop communicating with Mr Philpot.
[23] As a result of that behaviour Mr Philpot faced one representative charge of grooming K.
[24] The driving with excess breath alcohol charge was laid after Mr Philpot was stopped by the police on 4 August 2011 when he was driving with S, and found to have excess breath alcohol. Mr Philpot had three previous convictions for driving with excess breath alcohol. Those convictions dated back to 1995, when he had been convicted as a person under 20. In 2001 he had, whilst driving with excess blood alcohol and driving dangerously, caused death. On that occasion Mr Philpot was sentenced to two years’ imprisonment and disqualified from driving for four years. He was subsequently convicted twice for driving whilst disqualified.

Sentencing decision

[25] Having recorded those facts, the Judge first considered the aggravating and mitigating features of Mr Philpot’s sexual offending. He noted the period of time over which that offending had occurred, the deliberate targeting of victims and the breach of trust involved, particularly as regards S. The Judge concluded that the targeting was very clearly grooming. That is, Mr Philpot communicated and met with his victims for the predatory purpose of luring them into a sexual relationship. In the case of S, there was an extensive sexual relationship.[4] Mr Philpot had exploited the belief he had encouraged in S that he loved her and that they had a future together. Mr Philpot’s offending had had extremely negative impacts on both of his victims, and on C, who felt her trust had been betrayed in the worst possible way.
[26] Having done so, the Judge said he would assess Mr Philpot’s culpability in the round. Referring to the drink driving offence in that context and, somewhat fortuitously for Mr Philpot, he said that there was “nothing remarkable in that in terms of facts but it is your fourth”.[5]
[27] Referring to the decision of this Court in R v Davidson,[6] the Judge arrived at a starting point sentence of nine years’ imprisonment in the following way:[7]
[28] Allowing the full 25 per cent discount available for Mr Philpot’s guilty pleas,[8] the Judge arrived at an end sentence of six years and seven months’ imprisonment.

Application for an extension of time in which to bring the appeal

[29] The appeal was filed approximately two years and two months out of time.
[30] Mr Philpot and his sister swore affidavits in support of his application for leave to appeal out of time. Mr Philpot pointed to the difficulties he faced in prison as a convicted child sex offender. Those difficulties had adversely affected his communications with his lawyer. He had been told by inmates and others not to appeal, as an appeal could adversely affect his parole chances and his sentence could be increased on appeal. Mr Philpot did not discuss those issues at the time with his lawyer, and only did so subsequently. However, it was because of those factors that he had decided not to appeal. When he explained that to his lawyer, he was given the correct advice. By that time, however, his lawyer was committed to another trial and Mr Philpot was not able to get his appeal under way until months later.
[31] Mr Philpot’s sister explained how, when Mr Philpot was first imprisoned, he had chosen not to see his family because of the difficulties he was having coping with prison life. Ms Philpot confirmed that Mr Philpot had told her he had decided not to appeal because of what he had been told by fellow prisoners and others.
[32] In our view, the matters Mr Philpot and his sister have referred to are not, by themselves, sufficient to provide the basis for the considerable extension of time Mr Philpot seeks. However, as is well-established, the touchstone for a decision to grant leave to appeal out of time is the interests of justice.[9] That usually involves an assessment of the merits of the proposed appeal, which in deference to the argument we heard, we now consider in some detail.

The merits of Mr Philpot’s appeal

Submissions

[33] For Mr Philpot, Mr Cook accepted the four year starting point adopted by the Judge for the first representative charge of sexual conduct by Mr Philpot with S. Mr Cook submitted the Judge had gone wrong in the series of uplifts that he had applied to that starting point. Taken overall, and with reference to the decision of this Court in R v H and a number of other cases,[10] Mr Cook argued that an end sentence before discount for Mr Philpot’s guilty pleas in the vicinity of seven to seven and a half years would have been appropriate on the basis of:
[34] For the Crown, Ms Feltham accepted that the Judge had taken a somewhat unorthodox approach in his sentencing exercise, and that the sentence he imposed was a stern one. However, the end point arrived at was, she submitted, within range. This was serious and persistent offending. It was aggravated by Mr Philpot’s conduct in taking S drinking and, after his arrest, re-entering that relationship and driving her to remote spots to have sex. Mr Philpot had ignored a number of warnings about his offending. His grooming had been deliberate and clearly aimed at sexual conduct with his victims. Further, the drink driving charge was more serious than the Judge recognised.

Analysis

[35] The offences of grooming and sexual connection with a young person found in ss 131B and 134 of the Crimes Act respectively are two of a number of offences designed to increase the protection of young persons who are in a position of vulnerability. Section 131B identifies and criminalises preparatory behaviour at the point where steps are being taken to implement the grooming, but before the offender has had a real opportunity to sexually abuse the victim. In some grooming situations it would previously have been possible to charge the offender with an attempt of sexual connection with a child or sexual conduct with a young person, but in most cases the proximity requirement for an attempt would have provided a serious obstacle.[11]
[36] In 2005, at the same time as s 131B was enacted, the maximum sentence under s 134 was increased to 10 years’ imprisonment from seven years’ imprisonment. In R v H, following that increase, this Court observed:[12]

By following the R v V approach and re-calibrating the starting point of eight years for rape to the new maximum penalty of ten years’ imprisonment, the starting point on conviction for sexual connection under s 134 could be fixed at four years’ imprisonment ...

[37] In its 2008 decision in R v Davidson this Court commented, by reference to its earlier decision in R v Boyd, on the following factors relevant to s 131B:[13]

(a) The legislation is designed to protect young girls against predatory behaviour by adults. That factor is now considerably stronger because of the enactment of s 131B, which makes the grooming aspect an independent offence;

(b) As the English Court of Appeal observed in Attorney General’s Reference No 39 of 2003 (Wheeler) [2005] UKHL 49; [2004] 1 Cr App R (S) 79, young girls who consent to sexual activity with considerably older men frequently become disturbed when they reach an age where they have full understanding of what they have been involved in;

(c) Offending of this character must be regarded as very serious indeed. The Court endorsed the observation from Wheeler at [49] that:

Where a man considerably older than a teenager makes contact with young girls [through Internet chat rooms] and this leads to sexual offences against the girls, it needs to be clearly understood that sentences will be to the top end of the range.

[38] More recently, in R v Johnson this Court noted that the R v H starting point had been followed in a number of its decisions[14] and, in light of R v AM,[15] went on to observe:[16]

[17] We consider that the four year starting point in R v H is still a useful reference point in relation to sentencing for sexual connection with young persons, where the offending shares features present in that case. Particular aggravating features in R v H were abuse of trust, a significant age gap between the offender and the victim, full penetrative sex on a number of occasions, and significant adverse effects on the victim. Where aggravating features in R v H are present, a starting point of four years may be appropriate. Other aggravating factors not present in R v H may be seen as increasing culpability. Such features could include grooming, or abusive and demeaning behaviour. Where there has been no breach of trust as in R v H but the same aggravating features are present, a lower starting point will be appropriate. A different combination of aggravating and mitigating factors might produce yet another result. It follows that the starting point of four years should be seen as no more than a mid-point in the range of offending where there is moderate culpability.

[39] Turning to Mr Philpot’s offending, we accept, as Mr Cook submitted and as the Crown acknowledged, that Mr Philpot’s behaviour that attracted the representative grooming charges, particularly as regards S, is perhaps not the type of behaviour that s 131B was principally introduced to address. We accept, therefore, that some caution needs to be taken to the comments in Davidson relating to the need for a significant uplift for offending under s 131B when s 134 offending is also being sentenced. Nevertheless, and as R v Johnson and the cases referred to there by this Court reflect, that behaviour aggravates the criminality of Mr Philpot’s conduct. It shows that his sexual conduct with S was the result of a deliberate pattern of predatory behaviour, including the use of alcohol, designed to procure sexual contact. It is also clear that Mr Philpot’s relationship with K was entered into for exactly the same purpose.
[40] We also recognise that Mr Philpot’s sexual conduct with S did not involve demeaning and degrading sexual conduct as was the case, for example, in Davidson and Johnson. There are, however, a number of seriously aggravating factors present.[17]
[41] Seen as a single course of conduct, and by reference to the four year midpoint for offending of moderate seriousness recognised in R v H, in our view a starting point sentence for Mr Philpot’s offending of five and a half years’ imprisonment would have been appropriate. That starting point responds to Mr Philpot’s conduct in grooming S, the length of time over which he engaged in sexual conduct with her, the frequency of that conduct and the aggravating features of unprotected sex, S’s age, the warning Mr Philpot received at the start of that relationship on the evening he took S home with him to his parents, the use of alcohol and the normalisation of his relationship with S (as reflected in him having taken her, including when she was still wearing her school uniform, to pubs as his girlfriend).
[42] We think an uplift of a further year to that starting point would be appropriate to reflect the second charge of sexual conduct with S given Mr Philpot’s brazen behaviour in recommencing his relationship and sexual conduct with S after he had been arrested and charged.
[43] We think separate cumulative sentences of imprisonment of one year each would also be appropriate as regards Mr Philpot’s offending against K and his drink driving offending. The drink driving offending was considerably aggravated by the fact that Mr Philpot had S in the car with him at the time and by his very serious history of previous drink driving offending, including most particularly the one occasion on which his driving caused death.
[44] The ultimate question is always whether the end sentence, however constructed, represents an available total for all the offending that falls within it. Looking at the matter on this basis, we are not persuaded that the outcome is manifestly excessive for such a sustained course of damaging conduct towards young girls.
[45] Our assessment is therefore that although the Judge’s sentence was, as the Crown accepted, a stern one, the merits of Mr Philpot’s appeal are not compelling. Our assessment would result in an end sentence of six years and five months’ imprisonment after the guilty plea discount in place of the sentence of six years and seven months imposed by the Judge. In those circumstances, interfering with the sentence the Judge imposed would amount to tinkering.

Result

[46] We therefore decline Mr Philpot’s application for an extension of time in which to bring his appeal.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] There is some confusion as to whether all the sexual charges Mr Philpot faced were, indeed, representative. They were described as such by the sentencing Judge, and by the Crown. For Mr Philpot, Mr Cook referred to the second charge of “grooming” as being a specific charge. Little turns on that distinction for the purposes of this appeal, and we adopt the classification used by the Judge and by the Crown.

[2] R v Philpot DC Christchurch CRI-2010-009-11997, 22 June 2012.

[3] R v Philpot, above n 2, at [18].

[4] R v Philpot, above n 2, at [19]–[20].

[5] At [32].

[6] R v Davidson [2008] NZCA 484.

[7] R v Philpot, above n 2, at [36]–[40].

[8] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[9] R v Knight [1998] 1 NZLR 583 (CA) at 587. See also R v Tohu [2008] NZCA 89.

[10] R v H(CA94/08) [2008] NZCA 237; R v Stacey [2008] NZCA 465; R v A(CA194/07) and (CA271/07) [2007] NZCA 488; R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298; , above n 5; and R v Brunie [2009] NZCA 300.

[11] Bruce Roberston (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA131B.01].

[12] R v H(CA94/08), above n 10, at [17]; citing R v V(CA180/01) CA180/01, 30 August 2001.

[13] R v Davidson, above n 5, at [25]; citing R v Boyd (2004) 21 CRNZ 169 (CA).

[14] R v Brunie [2009] NZCA 300 at [11]; R v Burdett [2009] NZCA 366 at [18]; R v Davidson, above n 5, at [27]; and R v Misileki [2008] NZCA 513 at [18].

[15] R v AM [2010] NZCA 114, [2010] 2 NZLR 750.

[16] R v Johnson [2010] NZCA 168.

[17] In Johnson, the Court appended to its decision a summary of some ten sentencing decisions under s 134 since the increase in the maximum sentence from seven to ten years. It can be seen, therefore, that there can be a wide range of sentencing outcomes for offending of this nature. More helpfully, perhaps, that summary recognises a range of aggravating factors in connection with s 134 offending including the vulnerability of the victim; grooming; planning and predatory behaviour; use of alcohol; breach of trust; period and frequency of offending; demeaning and degrading sexual behaviour; and the impact of the offending on the victim.

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2015/212.html