Phillips v R - [2021] NZCA 651

Date of Judgment

03 December 2021


Phillips v R (PDF 251 KB)


Appeal against sentence allowed.
Sentence of seven years’ imprisonment substituted with 15 months’ imprisonment. 

Criminal Law. Sentence. Constitutional Law. New Zealand Bill of Rights Act 1990. 

The appellant was convicted of indecent assault after entering a sleeping woman’s room and rubbing her hand, arm and back.  It was his third strike under the three strikes regime, so he was sentenced to the maximum sentence of seven years’ imprisonment.  After the appellant was sentenced, the Supreme Court gave its judgment in Fitzgerald v R [2021] NZSC 131.  This held that where the application of the three strikes regime would amount to disproportionately severe punishment under s 9 of the New Zealand Bill of Rights Act 1990, the defendant should be sentenced under ordinary sentencing principles.  The appellant appealed his sentence on the grounds that it was covered by the reasoning in Fitzgerald

Whether the appellant’s sentence was disproportionately severe?Held: Yes.  When considering whether a sentence is disproportionately severe, three factors will likely be significant: first, whether ordinary sentencing principles would result in a sentence of a different nature, such as a non-custodial sentence; second, the numerical difference between the sentence under the three strikes regime and under ordinary sentencing principles, including the multiplicative and additive difference; and third, whether the defendant is an inadvertent and unforeseen casualty of the three strikes regime.  In this case, the appellant’s sentence under ordinary principles would have been 15 months, so his sentence under the three strikes regime was 5.6 times greater. The appellant’s offending was also on the lower end of indecent assault, so he is an inadvertent and unforeseen casualty of the three strikes regime.