Garrett-Phillips v R [2015] NZCA 563 (20 November 2015)

Last Updated: 26 November 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA270/2015 [2015] NZCA 563
BETWEEN	CHAZ PAKI GARRETT-PHILLIPS Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2015
Court:	Randerson, Lang and Clifford JJ
Counsel:	J D Munro for Appellant J Murdoch for Respondent
Judgment:	20 November 2015 at 9:30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Chaz Garrett-Phillips, pleaded guilty after a sentencing indication to one charge of wounding with intent to cause grievous bodily harm and three charges of injuring with reckless disregard. In accordance with his indication, Judge Roberts sentenced Mr Garrett-Phillips to six years and nine months’ imprisonment.^[1] Mr Garrett-Phillips now appeals on the basis that his sentence is manifestly excessive. He says that the starting point identified by the Judge was too high, because the Judge mistakenly regarded premeditation as an aggravating factor of the offending. Further, the Judge gave insufficient credit for genuine remorse and other personal circumstances.
[2] The Judge imposed a minimum period of imprisonment (MPI) of 50 per cent, which Mr Garrett-Phillips appeals as being unwarranted.

Facts

[3] The summary of facts to which Mr Garrett-Phillips pleaded guilty records that on Saturday 15 November 2014, Mr Garrett-Phillips and his de facto partner, Ms Sylvia Fletcher, were drinking at a local tavern. Mr Garrett-Phillips took offence at a comment about his dancing made by a woman, a Mrs Stacy Foley. He became angry and verbally abused Mrs Foley. Ms Fletcher then became involved, and struck Mrs Foley. Mrs Foley’s husband, Simon Foley, intervened, and asked what was going on. Mr Garrett-Phillips swore at Mrs Foley, and Mr Foley told Mr GarrettPhillips not to talk to his wife like that.
[4] Mr Garrett-Phillips, who by now had a knife in his hand, struck Mr Foley on the left side of the neck in what was described as a roundhouse haymaker motion. As a result, Mr Foley received a large slicing wound under his left ear and down his neck. A scuffle ensued. Mr Garrett-Phillips struck Mr Foley two more times causing further wounds to the upper left side of his body. Mr Foley, realising he had been stabbed, moved away.
[5] Others had joined in the scuffle in an attempt to stop Mr Garrett-Phillips. He continued to struggle with them, during which he cut Mrs Foley and two other members of the group — Roxanne Robins and Benjamin Gibson — with the knife he was holding.
[6] Mr Garrett-Phillips was tackled to the ground and the knife taken off him. Mr Garrett-Phillips initially denied possessing the knife. He later admitted to having used it. He said he did so because he was scared and had to defend himself.
[7] Mr Garrett-Phillips’ victims, in particular Mr Foley, suffered serious injuries. Mr Foley collapsed on the floor of the tavern, bleeding heavily. Mr Foley was rushed by ambulance to Taranaki Base Hospital where he underwent what he describes as life-saving surgery. We have no reason to doubt that description. He was then airlifted to Waikato Hospital for surgery to repair facial nerve damage. Mr Foley has suffered permanent damage to the nerves of his left eye, which now does not shut properly and requires constant medication. Further surgery may be required. Mr Foley’s injuries have adversely affected his ability to work, and he has suffered financial loss accordingly. The injuries have also affected his wife and family, and his own lifestyle, which used to involve hunting and diving but cannot at the moment.
[8] Mrs Foley received a deep cut to the hand, requiring ten stitches, and a cut to the arm. She, and their five children, were deeply affected by the attack on Mr Foley, both in terms of the impact on them of the events of the evening and the subsequent impact on their lives of the very serious, life-threatening injury Mr Foley suffered.
[9] Roxanne Robins’ left bicep was pierced by Mr Garrett-Phillips’ blow. The knife also cut through a lymph node, resulting in an infection. Both Roxanne Robins and her husband, Aaron, speak of the emotional impact of these events, and of the fear they now feel of encountering Sylvia Fletcher, and of the possibility of retaliation from the gang they assert Mr Garrett-Phillips is associated with.
[10] Mr Gibson, the fourth victim, suffered a stab to his forearm, which took a considerable time to heal and adversely affected his ability to work. Again, he speaks of the emotional impact of the violent incident and, in particular, of watching Mr Foley bleeding on the tavern floor.

The challenged sentence

[11] Judge Roberts provided Mr Garrett-Phillips with his sentencing indication on 5 March 2015.^[2] Applying the tariff decision of this Court in Taueki v R,^[3] and identifying the aggravating factors of the use of a weapon, the attack to the head, premeditation and serious injury, the Judge indicated a starting point of eight years’ imprisonment. He indicated that there would be a one year uplift to take account of the offending against the three other victims. Allowing a full discount for an early guilty plea, the end sentence indicated was six years and nine months’ imprisonment. The Judge also indicated an MPI of 50 per cent.
[12] Mr Garrett-Phillips pleaded guilty on 12 March, and was sentenced by Judge Roberts on 12 May 2015. During the intervening period there had been an unsuccessful restorative justice process. At sentencing the Judge was provided with letters from Mr Garrett-Phillips himself, his wife, cousin, mother-in-law, grandparents, an aunt and a neighbour, all of whom expressed the view that the offending was out of character. Mr Garrett-Phillips was described as a caring and loving person, a good father and not violent.
[13] Material was also provided to the Judge to address the Judge’s indication that he regarded premeditation was an aggravating factor. Mr Garrett-Phillips and his father provided written accounts which explained that they had been paua fishing at Opunake earlier in the day, that the knife Mr Garrett-Phillips had with him that evening had been used for paua shucking and that, as he had not changed his clothes afterwards, that knife was still in Mr Garrett-Phillips’ pocket when he went to the tavern. He had not taken it to the tavern intending to use it and his offending was not, in any relevant sense, premeditated.
[14] A psychologist’s report had also been prepared by the defence for the purposes of sentencing. That report recognised the influence of alcohol on Mr Garrett-Phillips’ behaviour, recorded that he had provided a different narrative of events than that set out in the summary of facts to which he had entered his guilty plea, and assessed his risk of violent reoffending as being low.
[15] The Judge declined to reconsider his sentencing indication, in terms of the sentencing impact of premeditation. He did not believe the paua fishing account. It had not been mentioned before. Having himself consulted tide charts for Opunake on the day in question, by his assessment the alleged paua fishing would have occurred at full-tide. The Judge did not, therefore, accept that Mr Garrett-Phillips would have been wearing the same clothes in the tavern as he had worn whilst fishing for paua. Further, the Judge did not consider the knife to be the sort of knife that would be used for paua fishing.
[16] On the question of premeditation, and the significance that had played in his sentencing indication, the Judge explained:^[4]

[5] I had at paragraph 22 of the sentence indication, indicated:

I accept that in relation to premeditation, I accept the specific encounter could not reasonably have been forecast but the inescapable fact remains you Garrett-Phillips took a knife into a drinking situation and at the first indication of trouble you used it.

[6] I have never gone so far as to say that long-term premeditation had occurred here. I have never gone to the point where I suggested that this was a long-term attitude you had and that you would take a knife later on into the bar and subsequently use it if the need arose. ...

[17] Nor did the Judge give Mr Garrett-Phillips any credit for remorse or youth, as he was urged to do.

Analysis

[18] Mr Garrett-Phillips’ appeal raises three issues:

(a) Whether the eight-year starting point sentence identified was too high because, in particular, the evidence did not support the Judge’s conclusion on premeditation.

(b) Whether adequate credit was given for remorse and other personal circumstances.

(c) Whether the Judge was correct to impose a 50 per cent MPI.

[19] Counsel for Mr Garrett-Phillips referred us to a number of cases, including decisions of the High Court and the District Court, in support of his argument that the Judge’s starting point was too high. We do not need to repeat the comments that have been made by this Court on the relevance for sentencing appeals of such decisions. In terms of the decisions of this Court that Mr Munro referred us to, we note that Peng was a challenge that an eight-year starting point, following what was very serious violence, was too high because the Judge’s findings of fact did not appropriately reflect the jury verdict.^[5] This Court rejected that argument, and on that basis concluded that the starting point was not excessive. In our view, that decision is of no particular relevance here. Sun involved a challenge to a seven and a half year starting point sentence for a prolonged attack to the head with a bottle that was taken to have broken on impact.^[6] This Court found that a seven and a half year starting point was too high. It did so because of the absence of premeditation, the presence of provocation and the fact that the bottle, which was used as a weapon, was not taken to the scene and was not deliberately broken before it was used.^[7] The focus of argument in McGregor would appear to have been whether the offending was properly placed within Taueki band 2 rather than the particular starting point adopted.^[8] We consider the fact that in Mr Garrett-Phillips’s case a knife was used to cause a life-threatening wound to the head and neck, in the absence of provocation and where the weapon had been taken to the scene — albeit without a particular expectation of violence — distinguishes the two cases.
[20] We do not view these cases as providing any real support for Mr Munro’s submission.
[21] Of the cases referred to us by the Crown, we consider the recent decision of this Court in Lewis is the most helpful.^[9] There a starting point of eight years and six months adopted for not dissimilar offending — a knife slash to the back of the victim’s neck and across his left ear, followed by puncture wounds to the left side of the chest and abdomen — was imposed on appeal.^[10] The injuries in that case would appear to have been less severe than those inflicted on Mr Foley.
[22] We do accept Mr Munro’s submissions that the premeditation, in the sense perhaps of taking a weapon intending to use it in expected violence, was not present. But that was not the type of premeditation that the Judge referred to. Rather, in identifying premeditation, the Judge recognised that, in response to Mrs Foley’s perceived insult and Mr Foley’s intervention in support of his wife, Mr GarrettPhillips took the knife from his pocket and opened the blade before using it. There is, therefore, a degree — albeit not especially significant — of premeditation present.
[23] Taueki requires an overall assessment, not a mechanistic counting of separate identifying factors. In our view, Mr Garrett-Phillips’ assault on Mr Foley, and his injuring of Mrs Foley, Ms Robins and Mr Gibson, was serious grievous bodily harm offending. Mr Garrett-Phillips used a knife to slash Mr Foley’s neck, and then struck Mr Foley twice more with the knife. In terms of Taueki, the aggravating factors of serious violence, use of a weapon, and attack to the head are clearly present.^[11]
[24] When we stand back and assess Mr Garrett-Phillips’ offending, we are satisfied a starting point of eight years (which in terms of Taueki is near the middle of band 2) is within range for Mr Garrett-Phillips’ offending against Mr Foley.
[25] Likewise we are satisfied an uplift of one year for the injuring of the other three victims is also within range. Looked at another way, a starting point of seven years, and an uplift of two years, could not be challenged.
[26] As regards the questions of remorse and the MPI, we acknowledge that the Judge formed an adverse view of Mr Garrett-Phillips on the basis of the approach he had taken to the sentencing exercise, and that in part that may have been based on a misunderstanding of the significance of the information relating to tides that the Judge had consulted.
[27] We consider it was unwise of the Judge to have consulted factual material that was not in evidence before him. We note, however, that the Judge did discuss that material with counsel, and that he gave Mr Munro the opportunity to discuss it with Mr Garrett-Phillips. In any event, the Judge allowed a full, 25 per cent, discount for Mr Garrett-Phillips’ guilty plea. That includes an acknowledgement of the remorse that is reflected in such a plea. We are not persuaded that, however the material the Judge had before him may have been approached, it showed any additional remorse so as to justify a further discount on that account. We are also satisfied that no additional discount was required to reflect Mr Garrett-Phillips’ personal circumstances.
[28] Nor are we persuaded the Judge was wrong to impose an MPI of 50 per cent. The Judge referred explicitly to the statutory criteria and, by our assessment and given the seriousness of the offending, the number of victims and the injuries they suffered, we consider that the principles of deterrence, denunciation and the need to hold the offender accountable justified an imposition of the MPI of 50 per cent.

Result

[29] We therefore dismiss Mr Garrett-Phillips’ appeal against his sentence.

Solicitors:
Crown Solicitor, Auckland for Respondent

---

^[1] R v Garrett-Phillips [2015] NZDC 8377.

^[2] R v Garrett-Phillips DC New Plymouth CRI-2014-043-1985, 5 March 2015.

^[3] Taueki v R [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[4] R v Garrett-Phillips, above n 1.

^[5] Peng v R [2015] NZCA 45.

^[6] Sun v R [2014] NZCA 278.

^[7] At [10].

^[8] McGregor [2007] NZCA 435.

^[9] Lewis v R [2015] NZCA 444; R v Heitia [2009] NZCA 398; R v Konui [2008] NZCA 401; Rautahi v R [2011] NZCA 351; and Watene v R [2014] NZCA 381.

^[10] The sentence arrived at in Lewis, notwithstanding a twelve month discount for Mr Lewis’ mental health issues, was six years and nine months imprisonment.

^[11] Taueki, above n 3.