Director of Public Prosecutions v Ellis-Lynch

[2014] VCC 1758

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01441

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHOENIX VAUGHAN ELLIS-LYNCH

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2014
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	DPP v Ellis-Lynch
MEDIUM NEUTRAL CITATION:	[2014] VCC 1758

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Picone	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Victoria Legal Aid

HIS HONOUR: 

1You, Phoenix Vaughan Ellis-Lynch, have pleaded guilty before me to one count of armed robbery.  This crime arises out of circumstances which were opened by the learned prosecutor, and the agreed statement of facts is an exhibit before me.

2You are aged 22, having been born on 15 August 1992, at the time of the offending you were 21.  You were not known to the victims.

3On Sunday 18 May 2014, just prior to midnight, the victim in this matter and his partner were with their two young children and were watching television.  A noise was heard outside and then a loud banging at the front door.  The victim opened the door briefly in a small way, when he saw a man, yourself, wearing a black balaclava and he could feel the door pushing against him.  You insisted he open the door and you demanded money and car keys because you wanted to go and see your girlfriend in Wallan.

4The victim's wife then assisted him in trying to push the door closed, and at that stage you were, "Mr Ellis-Lynch was pushing at the door with one hand and pushing the knife at Mr Farage with the other."  His partner then rang 000.  The police arrived and had to subdue you.  You are noted to be uncooperative and behaving badly in such a manner required a number of police officers to restrain you.  A kitchen knife of 25 cm length was found and identification and belongings relevant to you were found on the front lawn.

5There are two victim impact statements tendered in the matter and I have read each and take their contents into account.  And as I am rightly reminded by the prosecutor, the victims, as can be readily understood, do not feel as safe as secure in their own home as they previously did as a result of what happened on that night.

6Of course, as been pointed out by your counsel, a number of mitigating factors.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  And I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

7I take into account in your favour that you intimated early your intention to plead guilty to this charge and you were apprehended on the evening and ultimately made admissions in an appropriate way to your part in the crime, even though that meant an initially a non-responsive record of interview.

8However, subsequently, I understand you have expressed your remorse to those around you and certainly to the psychologist who provided the report and I accept, in the circumstances, that your plea does indicate remorse on your part.

9I have been told a great deal of your personal history and your circumstances and that has been very helpfully summarised in the submissions of Mr Pyne.  Those submissions are Exhibit 1 and in Paragraph 3 thereof, he helpfully summarised features of your background, which he noted were that you had, as he put it, a fractured relationship with your parents.  Neither of them was able to care for you properly because of their heroin dependency, and of course that then led to your very unstable home environment.  The Department of Human Services was heavily involved in your childhood.  You were frequently moved.  You lived with your grandparents.  You lived in Odyssey House with your parents.  You lived in a flat with your father, and then in foster care.

10Thirdly, you have grown up with drugs.  You were born opiate dependent and you, of course, bore witness to your parents' drug addictions.  You have used a number of drugs yourself, and of course, by the early 20s, you were abusing drugs.

11Fourthly, you had clearly inadequate schooling and you have not really held a job of any consequence as a result.

12Fifthly, the hardship that you have experienced in life was aggravated even further because of a physical disorder you suffer, particularly with the formation of your bones, as a result of your mother's addiction, it is thought by the treating doctors.  An apparently promising sporting career was brought to an end as a result of this condition and it persists until this day and requires, potentially, a further operation.

13Sixthly, you clearly suffered as a result of the situation with your parents, your mother having died when you were 16 in circumstances, which are fully explored in the material before me, and also your father committed suicide when you were 18.  You left your foster home and lived an aimless existence and you were homeless for a period.  And, of course, that in the context of excessive drug and alcohol use provided the context for this offence.  The situation with your mother and your father is very helpfully explored not only in the psychologist report but also in your auntie's very extensive, thoughtful and reflective note, which is an exhibit.

14Your foster mother's document was also of considerable assistance in the resolution of this matter.

15Finally, you are about to take on the very significant responsibility of parenthood.  You have been in a relationship for 15 months and your partner is pregnant, and she also has another child of three years of age, and she has provided, also, a document which I have had the opportunity of read.  I understand the relationship has had its difficulties, particularly at the time of your offending, but it is to be hoped that both of you have put those difficulties behind you, and you can accept the role of parenthood and all its responsibilities, bearing in mind all these additional burdens that you have.

16The case of R v Verdins has some modest applicability in the circumstances for the reasons which are developed by the author of the psychological assessment, Dr Aaron Cunningham.  I note the interview the author had with your foster mother.  It was Dr Cunningham's view that your psychometric testing indicates cognitive functioning in the average range and you are a moderate risk of reoffending.  He reflects on your traumatic background, and the physical and mental abuse in foster care until you found some stability with your foster carer, Christine.

17Your unmanaged generalised anxiety disorder and unresolved trauma contributed to the violent nature of your offending behaviour whilst under the influence of alcohol in Dr Cunningham's view.  And, of course, that therefore engages R v Verdins in that modest way to which I have referred.

18In Dr Cunningham's view, the presence of significant alcohol intoxication at the time of your offending obscures the ability to draw a temporal nexus between your offending behaviour and your generalised anxiety disorder, and the unresolved trauma.

19You present with protective factors, which are important, because these may reduce your risk and improve your prospects for rehabilitation.  It was his view that you would be unlikely to receive appropriate treatment in prison environment and I understand that simply because of the inadequacies, generally, of that environment, particularly given relative to the difficulties from which you suffer.

20There's no doubt, in Dr Cunningham's view, which I share, that you require long term psychological intervention to address your various traumas and that your mental state can be significantly improved through engagement with rehabilitation.

21As I say, I was also greatly assisted by the various exhibits, particularly, the very thoughtful and extensive document provided by your aunty, which gave me a significant insight into the difficulties and background of your situation.  Mr Goss is also prepared to give you another chance at employment.

22I suppose it is trite to observe that you have got a lot of people who can support you, but in the end that may be part of the problem, because you need to make all those decisions yourself, and you need to do the heavy lifting and not rely on all of those people to do it for you.  But the very comforting thing is that they have all found it in their hearts to keep on finding the best in you, so you owe them a great deal.

23

You have been in custody since 18 May, and that is a period of 151 days. 

I am, on balance, satisfied the chances of rehabilitation are reasonably good, given that extensive period in custody and the matters that Mr Pyne has been able to tell about how you have utilised the passing of that time to effect your rehabilitation.  You have taken the very first steps, it must be said, but some very positive steps towards your rehabilitation with respect to alcohol and also the other debilitating emotional difficulties from which you suffer.  You are to be encouraged and these things have weighed heavily in the sentencing balance.  You have used the time in that practical and effective way and you will be provided with the opportunity of continuing that after you spend some modest further time in prison.

24Of course, as well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and, especially general deterrence, which is always of considerable importance in a case such as this involving, as it does, invasion of another person's home late in the evening, in circumstances of violence and, no doubt, have created a situation which will cause them some difficulty for some time to come.

25Specific deterrence is of some modest importance, given your prior convictions, although having read them, it seems to me that they are of a modest kind, involving, as I recall, street offences, motor vehicle offences and larcenies, but nothing that speaks to the violence on this particular occasion.  They were all dealt with, as I recall, by at worst fines and community based orders, which of course, you unsuccessfully attempted to complete.  That is a matter of course which was brought to my attention in the community corrections order assessment outcome report, a document which I must mark as an exhibit and I will do so, and that will be the next sequential Crown exhibit.

26Whilst that document has found you unsuitable for an order, for the reasons that you have had prior involvement with Community Correctional Services, having first received a community corrections order on 9 November 2012.  On 21 May 2013, you appeared at the Broadmeadows Magistrates' Court where a contravention of that community corrections order was proved.  The community corrections order was varied by giving you a second opportunity to comply.  On 26 February 2014, you again appeared at Broadmeadows Magistrates' Court where a contravention of the second community corrections order was proven.  That order was again varied giving you a third opportunity to comply.  So the charges to which you are before the court today constitute a third contravention of your original community corrections order, and one can readily understand, in the circumstances, you were simply found unsuitable for the order.

27Notwithstanding the findings of the officer who was assessing you, which I can readily understand, it is my view, as a result of the pre-sentence detention you have spent and the way you have utilised that to effect the beginnings of your rehabilitation that a modest amount of gaol with a community corrections order is appropriate to your circumstances.  It seems to me that also reflects the question of the protection of the members of the community from you, and bearing in mind the likelihood of you reoffending, which I find to be modest, if you continue on the current path that you have embarked on whilst in prison.

28Application has been made for an intimate forensic sample to be taken from you and you have consented to this through your counsel, and I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending that, in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you.  That sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.  I will also make a disposal order sought by the prosecution and not opposed by counsel on your behalf.

29

Mr Ellis-Lynch, if you stand please.  This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence, and you are convicted and sentenced to six months' imprisonment.  There will also be a community corrections order for

18 months and that will involve 200 hours of unpaid community work and I will also adopt the other recommendations of the author of the community corrections report that there be treatment and rehabilitation condition, including assessment and treatment for drugs, assessment and treatment for alcohol, a mental health assessment in treatment, and there is also a supervising condition, all of which are recommended and which I adopt.

30Now I understand you have been indicated your preparedness to give it another go, is that right?

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  All right, well in those circumstances, I will just draw up that document and we will have you sign that.  Mr Pyne, if you would attend with Mr Ellis-Lynch and have that signed please.

33MR PYNE:  Yes, Your Honour.

34HIS HONOUR: All right, as prescribed by s.18 of the Sentencing Act, I declare that the period of time you have already spent in custody is 151 days, and I direct that such be noted in the records of the court.  I think that means you have got another month to for, but Mr Pyne will tell you about that.

35

Had you not pleaded guilty, then I would have ordered a sentence of

18 months' imprisonment.  So Mr Ellis-Lynch, I want you to be very clear, you have earned this chance because you have used the time that you have in prison for those last five months doing what you have.  So you are entitled to continue it, but we all understand that when you get out, it gets a lot harder because the choices are a lot broader, and the people that may want to choose to knock on your door are not going to be the best people for you to talk to.  But you have got to make all of those decisions yourself, with your partner, and with your support people.  But in the end, you are the one who has got to say no, and you need to understand, obviously, that we have just run out of chances.  People usually get one chance, you have just been given three.  So you have got to be very clear that we have got to the end of the chance giving.

36All right, so in a month, as I say, that should give you enough time to prepare for life on the outside, and hopefully those around you and also to be present when your baby is born.

37Anything further?

38MS PICONE:  Nothing further, Your Honour.

39MR PYNE:  Nothing, Your Honour.

40HIS HONOUR:  All right.  Thank you.

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