Director of Public Prosecutions v Heke; Director of Public Prosecutions v Phillips
[2013] VCC 2178
•29 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00144
Case No. CR-13-00145
| DIRECTOR OF PUBLIC PROSECUTIONS | |||
| v | |||
| NEVADA PORCHE HEKE | |||
| JACOB BRIAN PHILLIPS | |||
JUDGE: | HER HONOUR JUDGE CANNON | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 9 April 2013 | ||
DATE OF SENTENCE: | 29 April 2013 | ||
CASE MAY BE CITED AS: | DPP v Heke; DPP v Phillips | ||
MEDIUM NEUTRAL CITATION: | [2013] VCC 2178 | ||
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentences – aggravated burglary (one count) – intentionally causing injury (one count) both accused – Alcohol fuelled offending - Heke additional criminal offending – criminal damage (one count) and summary offences – Heke onset of serious mental illness – Schizophrenia with psychotic episodes – Phillips suffers from epilepsy
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Mental Health Act 1986
Sentence: Heke – Total Effective Sentence 12 months’ imprisonment with 6 months’ imprisonment non-parole period with 188 days pre-sentence detention declared as having been served; Phillips – Community Corrections Order for a period of 12 months with core and mandatory conditions – Both accused s.6AAA Sentencing Act 1991 declaration and Forensic Sample Order; Disposal Order for Heke
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Coombes | Solicitor for Office of Public Prosecutions |
| For the Accused Heke | Ms C. Woodward | Victoria Legal Aid |
| For the Accused Phillips | Mr A. Paull | James Dowsley & Associates |
HER HONOUR:
I understand that parties have received or at least counsel or representatives for Mr Phillips and the Crown at least have received a pre-sentence report in relation to Mr Phillips.
MS WOODWARD: Yes, that's right.
HER HONOUR: Are there any further submissions arising because of what is contained in that report?
MR PAULL: Not from us, Your Honour. It indicates he is a low risk and it says everything that was expected. I have no further submissions based on the contents.
HER HONOUR: Thank you.
MS COOMBES: No further submissions from the prosecution, Your Honour.
HER HONOUR: Thank you. Anything further to say for your client?
MS WOODWARD: No, Your Honour.
HER HONOUR: In those circumstances then I will proceed to sentence.
Nevada Porche Heke and Jacob Brian Phillips, you have each pleaded guilty to one count of aggravated burglary and one count of intentionally causing injury.
You, Nevada Porche Heke, have also pleaded guilty to one charge of criminal damage and to some summary matters to which I shall refer in a moment.
Aggravated burglary has a maximum penalty of twenty-five years’ imprisonment, and intentionally causing injury and criminal damage each have a maximum penalty of ten years’ imprisonment.
Nevada Heke, you have pleaded guilty to the following summary offences:
(a) Possess a controlled weapon, which has a maximum penalty of 120 penalty units or one year’s imprisonment;
(b) Use threatening words, which has a maximum penalty of 10 penalty units or two months’ imprisonment;
(c) Resist police, which has a maximum penalty of 25 penalty units or six months’ imprisonment;
(d) Unlawful assault, which has a maximum penalty of 15 penalty units or three months’ imprisonment;
(e) Failure to have a valid ticket, which has a maximum penalty of 5 penalty units.
The offending which gave rise to the charges on the indictment was opened by the learned prosecutor as follows:
I was told that you were both twenty-one years old when you committed these offences and both of you knew the victim, Shafire Hersie. You, Nevada Heke, used to live at a boarding house in Noble Park which is where the victim and you, Mr Phillips, were living at the time of the offences.
On 12 September 2012, the owner of the boarding house had taken out a Personal Protection Order against you, Mr Heke, after he had evicted you from the house for various other issues. One of the conditions of the Personal Protection Order was that you were prohibited from going to, or remaining, within 200 metres of the boarding house.
During the afternoon and evening of 21 October 2012, you, Mr Heke, and the victim had been in Frankston together, drinking. At about 11.00 pm, you both returned to the boarding house, even though the Protection Order prohibited you, Mr Heke, from doing so.
At the house, you, Mr Phillips, met with Mr Heke and the victim. Both of you started yelling at the victim. The argument was triggered by you, Mr Heke, believing that the victim had been taking your beer. You, Mr Phillips, later said that you were angered by the victim allegedly calling you a "white dog". The victim, who was afraid of being assaulted, took refuge in his room.
You, Mr Heke, went into the yard and picked up two bricks. You threw one brick through the victim’s window, which caused it to shatter. You then went to the door of the victim’s room with you, Mr Phillips. Both of you kicked the door and you, Mr Heke, used the second brick to smash the door handle off the locked door, then kicked the door in.
You, Mr Heke, entered the room to find the victim, where you punched and kicked him to the head. You, Mr Phillips, then punched and kicked the victim.
The victim suffered injury from the assault which comprised a laceration to the right upper forehead. He was taken by ambulance to the Dandenong Hospital and required five stitches to the wound and was then released.
You, Mr Heke, left the boarding house through the window before police attended. You, Mr Phillips, remained at the house and were found in your room listening to music when police arrived.
I was told by the learned prosecutor that the basis for the contravention of Personal Protection Order charge is that you, Mr Heke, went back to the boarding house the following day in breach of the order. There is not a separate charge for you contravening the order on the day of the indictment offences, but the fact that you attended on that occasion in breach of the same order is an aggravating feature of the offending.
You, Mr Phillips, were arrested at the scene, and when interviewed by police, you made admissions to the offences. You said you were angry over the victim calling you a “white dog” and admitted to kicking in the victim’s door and assaulting him. You were asked how many times you hit the victim and you told police you could not remember because you "sort of flipped out". You said that you could remember hitting him about ten times with your fists as hard as you could. You said that you hit him in the head and that you might have kicked him once that you could remember. However, you could not remember any more than that. You said you hit him because he called you a "white dog".
On 23 October 2012, you, Mr Heke, were arrested and made admissions in your interview with the police. You said that you thought the victim deserved what happened to him as he owed you alcohol and money. When asked where you kicked him, you said you kicked him in the head and that you did this because he deserved it "after everything he took from me and everything he said bad about me". *When asked how hard you punched and kicked the victim, you said "very hard".
Objectively, the offending in which you each engaged on this occasion is serious. The victim and both of you are indeed fortunate that the victim’s injuries were not worse than they turned out to be. In similar types of attacks, people have been known to die or to suffer injuries which leaves them with long-term devastating effects such as a serious brain injury. As the learned prosecutor said, this was a vicious attack on a defenceless victim whom you pursued after he attempted to remove himself from the situation. Your conduct must be denounced.
I turn now to the summary offences committed by you, Mr Heke, which were committed on 16 September 2012.
On that day, at about 9.40 pm, you were seated in a train carriage at Flinders Street Station and were seen by onlookers to be in possession of a 33‑centimetre kitchen knife. Police were called and found the knife hidden up one of your sleeves. You were escorted off the train and asked to produce some identification. You became extremely agitated and shouted that you did not have any. You were told that you were under arrest for the purposes of confirming your identity and you were handcuffed. As police and protective service officers walked you towards the escalators, you became increasingly angry, trying to shake loose of police and repeatedly shouting abuse. You said that when you got the cuffs off you would punch them in the face, and that you would stab them, calling the officers "dog cunts". You continued the tirade as you were taken to the police booth. Halfway up the escalators, you began to resist more violently, thrashing back and forth. At the top of the escalators, you started spitting and attempted to headbutt and kick out at police. You were taken to the ground whilst more police arrived to assist. Shortly after this, you were walked into the police booth holding area and it took three police members to hold you down. You had to be restrained for the whole time you were in custody. You were searched and did not have a valid public transport ticket in your possession.
An ambulance was called to assess you and you were eventually taken to hospital under s.10 of the Mental Health Act 1986. While the ambulance officers tried to reassure you and load you into the ambulance, you spat at the face of a female ambulance officer, Alexandra Walker. Ms Walker turned to the side and your spit landed on her right shoulder. This was particularly despicable conduct. You continued with your tirade of abuse.
You were subsequently assessed at St Vincent’s Hospital but were found not to be drug or alcohol affected and were found not to be suffering from any mental illness. You were asked whether you were willing to answer any questions in relation to your behaviour and you told the police to "fuck off".
Objectively, your behaviour on this occasion was dreadful but it does appear that on each occasion of your offending you may have been suffering some effects from the onset of mental illness. I shall return to this aspect of your plea later on.
You, Mr Phillips, have no prior convictions, whilst you, Mr Heke, have the following prior matters:
(a) 11 August 2011, a non-conviction fine for wilful damage (Queensland matter);
(b) 13 September 2012, you were fined a total of $800 in relation to one charge of contravening a personal safety intervention order, one charge of shop theft, one charge of acting indecently in a police gaol and one charge of causing loss or damage to gaol property;
(c) 19 September 2012, you were convicted and fined a total of $300 in respect of two charges of contravening a personal safety intervention order;
In relation to your priors for contravening intervention orders, these all involved you returning to the boarding house when you were not permitted to do so. I was told that you re-attended the house in order to socialise with others and obtain some shelter, rather than sleeping on the streets.
In relation to the offending on the indictment, both of you were fuelled by alcohol when you committed these offences. Certainly, this was a contributing factor to your offending.
Mr Heke, it appears that your mental health issues may have first presented in August 2012 when you were taken to The Alfred Hospital by police who were concerned about your condition. You did not meet criteria under the Mental Health Act and you were discharged at this time. Again, on 16 September 2012, police saw fit to have you mentally examined because of your irrational behaviour, but you were not found to be suffering from any mental illness at that time. However, whilst on remand for these offences, you were diagnosed with a first episode of psychosis and have been treated with anti-psychotic medication since.
Dr Cidoni, forensic psychiatrist, has provided a report in your case. He said that the first episode of psychosis which you suffered was highly unlikely to be cannabis induced and "more likely to be part of an underling psychotic disorder such as schizophrenia". He said that it is not possible to say whether this will be a temporary or permanent condition, although it is more likely that it is the latter.
Dr Cidoni expresses concerns in relation to your risk of relapse and said that ongoing imprisonment is likely to be a significant stressor with attendant risk of deterioration of mental state, especially given that paranoid symptoms focus on prison officers. He also said that you likely have a degree of alcohol abuse, saying that all of the offences occurred in the context of intoxication. I should say that this is not consistent with the offences which occurred on 16 September 2012 which did not occur in that context; however, the most serious instances of your offending did.
Dr Cidoni found that your presentation at St Vincent’s Hospital in September 2012 may have been a guarded one, or your illness had developed at some point between September 2012 and your incarceration subsequently. Dr Cidoni said that there did not appear to have been clear persecutory delusions contributing to your offending but that there had been a spate of offending in the lead up to the diagnosis of a psychotic disorder, so that it would be hoped that ongoing treatment of this would reduce the risk of re‑offending. He said that alcohol intoxication had played a role in disinhibition and impaired judgment and that you had shown remorse regarding the offences and were motivated to continue treatment to reduce the risk of re‑offending. I have also taken into account the discharge summary from the Thomas Embling Hospital where you were treated from 2 January 2013 to 28 February 2013. I have considered all of the material tendered on your behalf in relation to your psychiatric condition.
In the circumstances, I accept your counsel’s submission that the principle of general deterrence ought be sensibly moderated because of your mental health difficulties, and I further make allowance for the fact that time in custody for you has been more difficult and would continue to be more difficult than for someone without your mental illness issues. Your counsel did not submit that your moral culpability was reduced in any way, which is a most sensible submission in light of Dr Cidoni’s report. However, I take into account in a general sense Dr Cidoni’s remarks in relation to the onset of the illness in relation to the spate of offending in which you have engaged. The learned prosecutor, Ms Coombes, most fairly acknowledged that the spate of offending did seem to fit with the subsequent onset of psychiatric illness.
In each of your cases, you have pleaded guilty at an early stage and therefore you are entitled to a substantial discount in the sentence which you would otherwise receive. In taking this course, you have saved the witnesses, especially the victim, the time and trouble of giving evidence, and you have saved the community the time and expense of contesting proceedings.
Further, you are both youthful offenders and although your conduct is serious, I must do what I can to maximise your chances of rehabilitation. In your case, Mr Phillips. I must give considerable weight to the principle of general deterrence in a bid to deter others from behaving as you have. In your case, Mr Heke, the weight which I attach to this principle will be sensibly moderated because of your mental health difficulties.
I must also impose a sentence which is just punishment in all of the circumstances, including circumstances which are personal to both of you.
I take into account your individual backgrounds. In this respect, you have a good deal in common. In each case, your parents separated when you were quite young.
In your case, Mr Heke, your father looked after you and you do not enjoy a good relationship with your mother, who still lives in Queensland, not far from where you lived with your father. It would appear that you both may have experienced learning difficulties at school and suffered bullying and isolation. Your father, Mr Heke, wrote a most informative letter in support of you and you have him, your stepmother and other family members you can look to for support when you are released from gaol.
In your case, Mr Phillips, you do not enjoy strong support from family members, unfortunately. I was told they have distanced themselves from you because of problems you have experienced with alcohol. You have done a good deal in a bid to try to address your alcohol problems, both before and after your offending. A Salvation Army officer attended court in your support and Mr Boyce from that organisation has written a character reference in support of you and your good progress.
In your case, Mr Heke, I must place some weight on specific deterrence, although again, I bear in mind your mental health difficulties when doing so. I must also be concerned for protection of the community, but in doing so, it would appear that the best thing for you and the community is for you to receive ongoing psychiatric help as well as assistance with alcohol and cannabis use.
You, Mr Phillips, suffer from epilepsy and despite now taking Epilim, which generally stabilises your condition, you are prone to seizures every four months or so. Your last seizure was three weeks before the plea hearing. I have taken this into account in sentencing you. If sentenced to prison, your time there would be harder than for someone not suffering from this condition.
I have also taken into account, in your case, Mr Phillips, the report from psychologist, Mr Simmons, dated 3 April 2013. You do not suffer from any impairment of mental function as such, but have some deficits in cognitive functioning, especially in attention, memory and language. Mr Simmons said that the offences which you committed occurred in the context of alcohol consumption which would have further decreased your already impaired executive functions, leading you to act in an inappropriate manner. I take into account that this is the only instance of offending of any type and that in the past you have retreated from potentially volatile situations. You do not have any subsequent matters or matters pending.
You, Mr Heke, have some matters pending which are similar to the offences which you have committed for which I now sentence you. However, these have not been finally decided and, therefore, I do not take them into account other than to observe, as the learned prosecutor submitted, that they all appear to have allegedly taken place in the same timeframe as the present offences.
In terms of the offending on the indictment, you, Mr Heke, have committed the additional crime of criminal damage and you did play a more serious role than that of Mr Phillips in respect of Charges 2 and 3. Moreover, you have relevant prior convictions, whilst Mr Phillips has none. At the time that I heard your plea, you had been in custody on remand for about five and a half months. The reason that you were on remand is for breaching the Intervention Order on 22 October 2012. Had this not occurred, you would still be on bail for the most serious of the offences for which I sentence you both. It appears to be for this reason that the prosecution has submitted that a sentence of imprisonment with a non-parole period in your case is more appropriate than having you assessed for a Community Corrections Order which, in your case, would involve a report being obtained, delaying your sentence by some eight weeks.
In your case, Mr Heke, the prosecution submitted that an appropriate sentencing range would be between 12 and 16 months with a non-parole period of six to nine months. Given Ms Coombes' concern about delay and a report being obtained in your case, Mr Heke, I gather that the lower end of the range is deemed to be more than appropriate from the prosecution’s point of view.
In your case, Mr Phillips, the prosecution submitted that a sentence of imprisonment of three months, as well as a Community Corrections Order was appropriate; this is not a sentencing range, it is a particular sentence. However, it appears that the prosecution submits that you ought be sentenced to a term of imprisonment in addition to a Community Corrections Order and three months’ gaol is the maximum that I could sentence you to in combination with a Community Corrections Order. I suspect that the reason for the prosecution submission, in your case, Mr Phillips, may well be so as to accommodate parity because Mr Heke has served six months on remand. Had Mr Heke not been remanded, one can only wonder what the prosecution submission on range might be, given all the matters relevant to him.
The principle of parity is a most important one, however, it should not be blindly applied in order to have an offender like you, Mr Phillips, play "catch-up" with someone in Mr Heke's position, who the Prosecution seem to accept ought be eligible for parole just about now. In saying this, I make no criticism of Ms Coombes whatsoever, who has made submissions on sentencing range on the basis of instructions, and who has conducted the plea on behalf of the Crown with the utmost fairness.
Following the original plea hearing, I arranged for you, Mr Phillips, to be assessed for a Community Corrections Order. I have now received a comprehensive report as to your suitability for such a disposition, and I record my gratitude to Community Corrections - Erin Dodds, in particular - for expediting this. Whilst you, Mr Heke, will have supervision and support whilst on parole when deemed appropriate to be released, you, Mr Phillips, and the community, will be best served by you undergoing a Community Corrections Order, albeit that this will be somewhat onerous. I do not see any utility in imprisoning you for any length of time in addition to such an order, and in all the circumstances, notwithstanding the seriousness of your offending, a Community Corrections Order is the most appropriate disposition in my view and can accommodate the weight which I must give to all sentencing considerations.
Mr Heke
Would you please stand up, Mr Heke. In relation to each of the charges on the indictment you are convicted and sentenced as follows:
Charge 1: two months' imprisonment;
Charge 2: nine months' imprisonment - this will be the base sentence;
Charge 3: six months' imprisonment.
Summary Offences
In relation to each of the summary offences you are convicted save for the charge of failing to have a valid ticket.
In respect of the summary charges I sentence you as follows:
(a) Contravention of Intervention Order: one month’s imprisonment;
(b) Possess a Controlled Weapon: 14 days' imprisonment;
(c) Use Threatening Words: seven days' imprisonment;
(d) Resist Police: 14 days' imprisonment;
(e) Unlawful Assault: One month’s imprisonment; and
(f)Failure to have a valid ticket: I find the charge proven but it is dismissed without conviction.
I make orders for cumulation as follows: I direct that two months of the sentence on Charge 3 on the Indictment and that 14 days from the sentences for the summary charges of contravening an intervention order and 14 days from the unlawful assault charge be served cumulatively with each other and with the base sentence. This produces a total effective sentence of 12 months’ imprisonment and I direct that you serve a non-parole period of six months’ imprisonment.
I declare that you have already served 188 days by way of pre-sentence detention, so my calculation that means that you are eligible for parole now. If not for your pleas of guilty, I would have sentenced you to 16 months' imprisonment with a non-parole period of 10 months' imprisonment. Take a seat for a moment, please.
Mr Phillips
Stand up please, Mr Phillips. On Charges 1, 2 and 3, you are convicted and placed on a Community Corrections Order as follows: I propose to order that you undergo a Community Corrections Order for a period of 12 months. There are standard conditions of that order as follows:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
·You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
·You must report to the Reservoir Community Correctional Service within two clear working days of today - so that means by 4 pm on Wednesday 1 May 2013;
·You must let a community corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice (or his or her delegate); and
·You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).
In addition to the core conditions there will be the following conditions:
·You must perform 200 hours unpaid community work during the next 12 months;
·You must be under the supervision of a community corrections officer for the next 12 months;
·You must undergo a medical assessment and, if necessary, treatment with a view to assessing the nature of the unpaid community work that you can perform;
·You must undergo assessment and treatment, including testing for alcohol abuse or alcohol dependency or drug abuse or drug dependency as directed, such directions may include a requirement that you undergo assessment and treatment including testing at a residential facility;
·Further you must undergo assessment and treatment in respect of your mental health;
·You must undergo any program deemed necessary as directed by the secretary to the Department of Justice to address your offending behaviour, including a course in anger management; and
·Further, you must come back to court see me approximately every three months over the next twelve months. The first time that you will return to court for this purpose is on Monday 29 July 2013 at 9.30 am. At that time I will be advised by the Office of Community Corrections as to your progress and I will speak to you about this. I hope that I hear good news at each of these appointments, Mr Phillips.
Having heard the term and conditions of the Community Corrections Order that I propose to place you on, do you consent to the proposed Community Corrections Order?
ACCUSED PHILLIPS: Yes.
HER HONOUR: I should tell you that if you do not comply with all of the requirements of this Community Corrections Order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you face the very real risk of being sentenced to gaol. Do you understand?
ACCUSED PHILLIPS: Yes.
HER HONOUR: I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this?
ACCUSED PHILLIPS: Yes.
HER HONOUR: Do you still consent to the order?
ACCUSED PHILLIPS: Yes.
HER HONOUR: All right. Therefore in relation to all of the charges to which I previously referred you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out. You may now leave the dock and I will ask your counsel to assist you with the signing of the Community Corrections Order. I have signed that order. If not for your pleas of guilty, Mr Phillips, I would have sentenced you to 12 months' imprisonment with a non-parole period of six months.
Ancillary Orders
Forensic Sample Order – Further, in relation to each of you, I make an order for a forensic sample to be taken by means of a swab of saliva from the mouth. I make the order in each case because of the seriousness of the offending, because it is in the public interest to do so, and in your case, Mr Heke, because of your prior convictions.
I warn each you that if you do not cooperate with the taking of the sample, the authorised officer may use reasonable force in order to take the sample from you.
In your case, Mr Heke, I make a disposal order in respect of the knife which, as I understand it, is not opposed.
HER HONOUR: Take a seat, Mr Phillips. Is there anything arising from the sentence?
MR PAULL: No, Your Honour.
MS WOODWARD: If we could just have the - what was the term of imprisonment for the resist police and the summary matter? I think my instructor and myself ‑ ‑ ‑
HER HONOUR: 14 days.
MS WOODWARD: Thank you, Your Honour. No, that is all, I think that completes the matter. I have got draft orders, Your Honour, in relation to 464ZF which I can to Your Honour's associate now.
HER HONOUR: I thought I had previously received those and I have signed those orders.
MS WOODWARD: Very well. Thank you, Your Honour.
HER HONOUR: Thank you.
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