Director of Public Prosecutions v Holt

[2016] VCC 2079

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01559

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP HOLT

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 December 2016
CASE MAY BE CITED AS:	DPP v Holt
MEDIUM NEUTRAL CITATION:	[2016] VCC 2079

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Maddern
For the Offender	Mr N. Hutton

1HER HONOUR:  Yes, thank you.  Can you see and hear me all right, Mr Madden? 

2MR MADDEN:  I can, Your Honour, yes. 

3HER HONOUR:  Thank you. 

4Phillip James Holt, you have pleaded guilty before me to three charges of theft, the maximum penalty for which is 10 years' imprisonment; one charge of theft of a firearm contrary to s.74AA of the Crimes Act, the maximum penalty for which is 15 years' imprisonment; and summary offences being two charges of possessing a controlled weapon contrary to s.6(1) of the Controlled Weapons Act 1990, the maximum penalty for which is 120 penalty units or imprisonment for one year; and two charges of contravening bail conditions contrary to s.3A(1) of the Bail Act 1977, the maximum penalty for which is 30 penalty units or imprisonment for three months.

5The facts underlying your offending are as follows. 

6Between 28 May and 30 May 2016 you attended a number of houses in Ballarat stealing items from cars, breaking windows to gain entry into them. 

7Between 28 May at 11.30 pm and 29 May at 12.40 am you went to an address at 35 Majestic Way, Delacombe, arriving in a dark‑coloured Holden Commodore sedan, where you were captured on CCTV footage from a neighbouring property.  You walked over to an Isuzu utility parked in the driveway and removed two automated batteries from the rear tray, leaving them at the edge of the road near the driveway.  You then returned in your car and picked the batteries up and put them in your vehicle and then drove away.  Those actions underlie charge 1 on the indictment. 

8On 29 May 2016 at about 12.55 am you took your car and parked opposite a house at 64 Majestic Way, Delacombe, and walked across the road to a Hyundai iLoad work van parked on the nature strip about four metres away.  You broke into the left rear window to gain entry to the van, the alarm sounded and the owner, Patrick Kermond who was asleep in his bedroom, was awoken. 

9You removed a Makita tool kit from the van containing a Makita drill, an impact driver and two batteries and returned to your car.  Mr Kermond watched you walk back over to your car and drive away.  He got dressed and drove around looking for you and a few minutes later saw your car back near the front of his house and called police.  He then followed you in his car around the Delacombe area but after a while lost sight of you and drove home. 

10At about 10.30 am on 29 May, Mr Kermond went for a drive around the Delacombe area and saw you sitting in your car parked you outside 23 Tudor Avenue, Delacombe and contacted police to tell them of your whereabouts. 

11Charge 2, theft.  Between 9.30 pm on 29 May 2016 and 30 May of that year you parked your car near 396 Greenhalghs Road, Delacombe, got out of your car and went to a car parked in a driveway belonging to one Peter O'Keefe. 

12You then broke in through the rear back passenger window and rear tailgate window of the car and took an Engel fridge, Rayban sunglasses, a satellite phone, a CFA radio, a box of ammunition and two firearms, being a Ruger .22 calibre rifle with scope and a Boito double barrel shotgun belonging to Mr O'Keefe.  These actions underlie charge 3, theft, and charge 4, theft of a firearm. 

13On 30 May 2016 at about 7 am police attended at Masada Boulevard, Smythes Creek and located your car with no registration plates stuck in a ditch on the side of the road.  They searched the car and located a number of stolen items, including the Rayban sunglasses, the fridge, the satellite phone, boxes of ammunition and shotgun cartridges.  They also located a dagger with a brown leather handle and case.  Your possession of that item, that is the dagger, underlies the summary offence possession of a controlled weapon. 

14You were arrested and taken to Ballarat police station for interview which commenced at 8.30 am.  Soon after investigators asked for consent to search your residence at 23 Tudor Avenue, which you refused and a search warrant was granted. 

15You then changed your mind and began to speak to investigators about the firearms you had stolen and said you would take them to retrieve them.  They drove to the Delacombe area where you pointed out where you had stolen the firearms from 396 Greenhalghs Road, Delacombe, explaining how you had popped the window to gain access to the car. 

16You led police to your address, where you produced the Ruger .22 calibre rifle inside a gun case hidden in a pile of clothes on the floor of your bedroom.  You told police you had sold the other firearm to a drug dealer in exchange for drugs. 

17You were returned to the Ballarat police station while police executed a search warrant at your home, where they located the CFA radio which had been stolen from the property, the car outside 396 Greenhalghs Road. 

18You were then interviewed again at the police station and made admissions to stealing the two batteries but denied stealing the Makita tool kit.  You admitted breaking into that vehicle and stealing the firearms, ammunition and other items. 

19You then said you knew where the other firearm was and could take investigators to it if you were granted bail.  You then accompanied police back to your house at Tudor Avenue where you took a piece of wood from behind your bedhead and produced a shotgun. 

20You were bailed with strict conditions which included a curfew to remain at your home between 10 pm and 6 am, with a condition that you report to police every Tuesday and Thursday. 

21On June 1 you were located by police at 11.30 pm in breach of your bail conditions and they located three knives concealed in the waist of your pants.  You had failed to sign in on 31 May 2016.  These actions underlie the second charge of possessing a controlled weapon and the two charges of contravening bail conditions, that being your failure to sign in and your failure to abide by curfew conditions. 

22You were then remanded from 1 June 2016. 

23You entered a plea of guilty to these charges at committal mention on 8 September 2016, which means you entered an early plea of guilty. 

24I now turn to your personal circumstances. 

25You are 34 years of age.  You have a very extensive prior criminal history dating back to 2000.  Overwhelmingly you have been dealt with in the Magistrates' Court for driving offences, theft of motor vehicles, numerous thefts, some violence, including a charge of reckless conduct endangering serious injury in 2002, and you have been placed on a number of noncustodial dispositions such as community correction orders and intensive corrections orders. 

26You successfully completed a community‑based order in 2001. 

27In 2002 you contravened a parole order by failure to abide by conditions and further offending. 

28In 2004 you contravened the conditions of an intensive Corrections order. 

29In 2007 you contravened a parole order, both by way of condition noncompliance and further offending. 

30In 2009 you contravened a parole order by way of further offending. 

31In 2010 you successfully completed a parole order. 

32In 2012 you contravened a community corrections order by way of further offending. 

33At the time of this offending a Magistrates' Court had placed you on a community corrections order on 8 March for theft, negligently dealing with the proceeds of crime, dishonestly undertaking and the retention of stolen goods and for trafficking cannabis. 

34I received on the plea a report by a psychologist, Dr Aaron Cunningham, which was prepared for that previous appearance.  In a report outlined in detail your background, which is an extremely difficult one.  You were raise indeed a home where your father was a violent alcoholic, you witnessed a great deal of violence, and witnessed a horrific incident where your mother was raped by your father, who then poured boiling water over her, after which your mother left the relationship. 

35You ended up as a Ward of the State and were raised in your teenage years in family group homes and youth hostels, stating that you essentially moved on a monthly basis. 

36You attended Fawkner Primary and Glenroy West Primary School and told Dr Cunningham you recalled attending school with bruises from your father's beatings. 

37You went to Northland Secondary School and Kensington Community College, being expelled from Year 9. 

38You had minimal employment until you moved to Ballarat.  At the age of 18 you moved in to live with a woman with whom you had formed a relationship, which lasted for six years but which despite it being a supportive relationship ended because of your incarceration.  I should add that you have been gaoled on numerous occasions over the years. 

39When you were 25 you lived with your brother before living on the streets, and then you gained a Housing Commission property in Ballarat where you met your current partner Kylie.  You have been in a relationship with her now for six years.  She has a 15‑year‑old son from a previous relationship and you effectively have been a father figure in that boy's life.  You also have two children aged four and two and a half years.  You told Dr Cunningham that your partner and her family are supportive.  They are very involved in the Christian community. 

40At the time that Dr Cunningham compiled the report you expressed considerable anxiety about the demise of your relationship, that is you were very concerned that your partner might end that relationship.  It appears that your partner does continue to remain supportive of you but has stated that if you do not mend your ways, that is if there is further offending by you that will be the end. 

41As I have said, you have an extremely extensive prior criminal history.  Whilst in custody on this occasion you have been held at the MRC.  You are in protection and in lock down, that is 23‑hour lock down because you are in protective custody due to issues with other inmates at the MRC.  Nevertheless, you have managed to complete a six hour AOD and Loss program. 

42It appears that you have had drug problems, unsurprisingly, since your teens and the last couple of years, methamphetamine has been your addiction.  It previously has been heroin.  And you also reported to Dr Cunningham that you were using frequently at the time of that previous offending and I have noted in the Community Corrections assessment, which I ordered, that you stated that when you were released from custody and placed on the previous community corrections order you continued using methamphetamine on a daily basis, and indeed it was your drug addiction which lay behind the offending you engaged in. 

43I note that had you not stolen the guns, this would have been a matter that would have been dealt with in the Magistrates' Court, which is a mitigating factor.  Nevertheless, Mr Holt, and we had quite a discussion about this during the plea, your prior convictions are such now, and particularly given the number of opportunities that you have been afforded by the court, that any further offending by you will undoubtedly result in terms of imprisonment of increasing length unless you decide ultimately that you have to change what you are doing. 

44You were granted an opportunity in March of this year and you simply did not take advantage of it.  You said during the plea hearing that this was because you returned to Ballarat and took up with old peers, which is always a problem for anyone who has been using over any period of time.  The point was made to you then, Mr Holt, that you are far too old to be swayed by your peers and that you have now reached an age that unless you make a decision about the way you want to live your life you are ultimately going to be a person who goes through the revolving door of drug use, offending to support it and gaol sentences in increasing length until you die, and that is going to be your future. 

45Somewhat reluctantly I have decided to give you one further chance but it is going to be a chance which is attached to a sentence of imprisonment which is longer than the time you have already served and you will then be released on to a community corrections order with your consent which will last for two and a half years and which will have very strict conditions, including very frequent visits back to this court by way of judicial monitoring. 

46At the end of the day this is a matter for you.  You have got one last opportunity.  If you do not take advantage of it then the future is on your own head.  You will lose your partner, you will lose your children, you will lose your life and as these courts have seen sadly time and time again you will be simply one of those people who comes back to receive whatever sentence it is, being a gaol sentence, until you either die or give it away. 

47I also talked to you during the plea hearing about the fact that men of your age, that is at about 34, often come to the conclusion, and it seems to take an awful long time for them to get there, but they do no longer wish to spend their time in gaol and that the only way they are going to avoid gaol is if they themselves decide they are going to avoid it. 

48A court can afford you every possible support but unless you decide to commit yourself to it, it is all going to be of no avail. 

49So, the way in which I propose to deal with this matter is by way of an aggregate sentence.  In my view the offending that has brought you before this court is one which involves a series of offences committed over a short period of time and I intend to deal with you by way of an aggregate sentence. 

50I will just turn to you, Mr Hutton.  Are there any charges here which I cannot deal with by way of a custodial sentence? 

51MR HUTTON: I just checked that briefly on the way in, Your Honour. The Sentencing Act says if they're part of a series of offences or of the same character or based on the same facts, I was going to suggest that the first four could adequately be dealt with by an aggregate sentence and the others are breach of bail and possession of weapons. They're slightly different, Your Honour.

52HER HONOUR:  They are, but they do all arise out of the same ‑ essentially I know he got bail and then failed to abide by the gaol and breached two of the conditions, nevertheless they seem to me sufficiently attached, if you like, to this last episode of offending that we might just take a punt and do it that way. 

53MR HUTTON:  I'm content, Your Honour.

54HER HONOUR:  Because otherwise as long as I can impose gaol for those.

55MR HUTTON:  Yes, you can do that.

56HER HONOUR:  That's the way I'm going to go.

57MR HUTTON:  I'll just check that as you're speaking but I'm sure that's all right.

58HER HONOUR:  All right.  Could you stand up, please, sir. 

59In relation to this offending I am going to sentence you to an aggregate sentence of eight months' imprisonment, after which you will be released on a community corrections order for a period of two and a half years.  Do you understand? 

60OFFENDER:  Yes.

61HER HONOUR:  Now I can only place you on a community corrections order with your consent.

62OFFENDER:  Yes.

63HER HONOUR:  I note that I have received a very full report from Corrections, who unsurprisingly, given your history, have found you unsuitable for an order.  So I am flying in the face of the advice from Corrections.  It was not an unsympathetic report but it was certainly a report that was to be expected in the circumstances.  As I said to you, this is your last chance, Mr Holt. 

64OFFENDER:  Yes.

65HER HONOUR:  You either make this order work or resign yourself to going to gaol, in and out, in and out, in and out until you die.  You got it? 

66OFFENDER:  Yes.

67HER HONOUR:  All right.  And by the time you do die you will be a very lonely man, do you understand that as well? 

68OFFENDER:  Yes.

69HER HONOUR:  Thank you.  Now, I need to explain to you, although I'm sure given the number of orders you have had you should probably know the conditions off by heart but I'll go through them again, as I'm obliged to do. 

70You must report to Corrections within two days of you being placed on this order, that is within two working days of you being released from prison.  Whilst on this order you must not commit another offence punishable by imprisonment.  If you do you will be brought back in front of me on a breach.  I will resentence you on this original offending and you can expect a great deal more gaol than you got today.  Have you got it? 

71OFFENDER:  Yes. 

72HER HONOUR:  You must report any change of address or employment to the Office of Corrections within 48 hours of that change.  You may not leave Victoria whilst on this order without the permission of a Community Corrections office. 

73You must not attend upon the Community Corrections Office whilst under the influence of drugs or alcohol.  You must report to and receive visits from the Community Corrections Office as directed and you must obey all lawful directions of the Community Corrections Office.  Clear? 

74OFFENDER:  Yes.

75HER HONOUR:  I am going to order the following special conditions: you will undertake 200 hours of unpaid community work.  You will submit for assessment and treatment for drug use.  You will also submit for assessment and treatment for mental health difficulties.  One of the aspects of Dr Cunningham's report was that you are probably suffering the effects of post‑traumatic distress disorder as a result of what occurred in your childhood and it may well be, and is probably the case, that to some extent you are self‑medicating by the use of illicit drugs.  You need to learn how to deal with what happened to you in your childhood by appropriate psychological means rather than illicit drugs.  All right? 

76OFFENDER:  Currently I'm on medication for that now.

77HER HONOUR:  Good.  You will need to continue that but you will also need to learn ways of dealing with this that don't involve either licit or illicit drug use, all right? 

78OFFENDER:  Yep.

79HER HONOUR:  I am going to order that you be under supervision and are going to have fairly intense judicial monitoring.  I am going to order judicial monitoring three months after you are placed on this order and I will probably continue in this way for some time until I am satisfied that you are settling into and making real attempts at abiding by the conditions of that order.  Have you got it? 

80OFFENDER:  Yes.

81HER HONOUR:  Thank you.  That date will be ‑ the first judicial monitoring will be on 2 May 2017, at which time I will be receiving a report from Corrections as to your progress, all right? 

82OFFENDER:  Yep.

83HER HONOUR:  Thank you. 

84OFFENDER:  The 190 days I've already been ‑ ‑ ‑

85HER HONOUR:  I'm going to do that, that's all right, thank you.

86OFFENDER:  Oh, sorry.

87HER HONOUR:  Yes, I declare that 191 days of this sentence has already been served by way of pre‑sentence detention. 

88Now you need to understand, as I told you before, Mr Holt, my sentencing remarks will be reduced to writing and everything I have said today will be available for me for my reference every time you come up for judicial monitoring.

89OFFENDER:  Yep.

90HER HONOUR:  And I am making it very clear again, sir, this is your absolute last opportunity.  I warn you against taking the view should you get employment, that if you get employment that means the Corrections order doesn't matter anymore.  I see so many men who get this opportunity, they get a job and then Corrections doesn't matter.  Your primary focus over the next two and a half years after you have served this eight months is to be abiding by the conditions of this order and your employment comes second.

91OFFENDER:  Yep.

92HER HONOUR:  All right?  I know that you have told Corrections that you have got good chances of work at MaxiTRANS in Ballarat if released from custody.  Well good luck with that.  If that happens, you need to know that you have got obligations under the community corrections order which come first.

93OFFENDER:  Yep.

94HER HONOUR:  That doesn't mean that you don't go and find employment, you probably need it, but if I get a report, as I so often do, that you're running into arguments with Corrections about attending for this and attending for that, drug and alcohol treatment, psychological treatment ‑ and the psychological treatment will involve you going to a GP, getting a mental health plan and being referred to a psychologist, all of which information you have to give to Corrections.  If you neglect those conditions and you come back and I discover that even if you haven't been offending, you have not been abiding by your conditions, that will still be a breach.

95OFFENDER:  Yes.

96HER HONOUR:  All right? 

97OFFENDER:  Yep. 

98HER HONOUR:  So those are the conditions.  Are you prepared to enter this order? 

99OFFENDER:  Yes.

100HER HONOUR:  Thank you, have a seat.  We'll prepare the necessary paperwork.  We'll get you to sign that. 

101Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three and a half years and ordered that you serve a minimum term of 18 months. 

102We've got a forfeiture order.  So the next time I see you, Mr Holt, that will be in May.

103OFFENDER:  Yep.

104HER HONOUR:  You better be making a good fist of this order, all right?  I'm prepared to see how you go with the understanding that your back is to the wall.  If I find you are not making a really big effort both with the drug and alcohol aspect of the order, the unpaid community work and the mental health treatment plan, you better bring your toothbrush, all right?  Thank you. 

105MR HUTTON:  Your Honour, there's also a 464 application.  I know you indicated that he's probably been profiled but I have no information to say that he has.

106HER HONOUR:  You haven't got it?  I think in the circumstances his prior history and the current offending do require in the interests of the protection of the community that I grant this.  So I need to tell you, Mr Holt, I have granted an application so that police can take a swab from your mouth and I need to advise you that if you do not consent or allow that to happen police are entitled to use reasonable force in order to obtain that sample.  Is that clear? 

107OFFENDER:  Yes.

108HER HONOUR:  Thank you.  Yes, thank you.  I thank counsel for their assistance in that matter. 

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