Director of Public Prosecutions v Maynard

[2023] VCC 2350

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02025

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP MAYNARD

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2023
DATE OF SENTENCE:	15 December 2023
CASE MAY BE CITED AS:	DPP v Maynard
MEDIUM NEUTRAL CITATION:	[2023] VCC 2350

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              False imprisonment – Causing injury intentionally – Theft – Offender not known to the victim – Premeditated offending committed in company with others – Guarded prospects of rehabilitation – Victim’s injuries towards the lower end – Application of Bugmy in a general sense – Relevant criminal history – Onerous time in custody

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Maynard [2016] VCC 2047; Bugmy v The Queen (2013) 249 CLR 571

Sentence:                  3 years’ imprisonment with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Guesdon (Plea) Mr A Hodgeman (Sentence)	Office of Public Prosecutions
For the Accused	Ms M Brown	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Phillip Maynard (“Maynard”), you have pleaded guilty to the following three charges on indictment number N11175963:

(a)   False imprisonment, contrary to common law;

(b) Causing injury intentionally, contrary to s 18 of the Crimes Act 1958; and

(c) Theft, contrary to s 74 of the Crimes Act.

2Each charge carries a maximum penalty of 10 years’ imprisonment.

3This matter initially came before me on 20 March 2023 for a pre-trial hearing relating to the admissibility of hearsay evidence. The victim in this matter passed away some three months following the offending, and therefore, was an unavailable witness for the purposes of a trial. I ruled that the majority of the victim’s previous representations were admissible pursuant to either s 65(2)(b) or s 65(2)(c) of the Evidence Act 2008.

4Shortly before I delivered my ruling, you instructed your solicitors to seek a sentence indication. A sentence indication hearing was heard on 10 October 2023. I indicated to you that if you were to plead guilty to the charges on the indictment I would impose a maximum total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years. You accepted this indication, and the matter was adjourned for a plea hearing on 6 December 2023.

Circumstances of the offending

5The circumstances of your offending are set out in an agreed summary of prosecution opening dated 9 October 2023.[1]

[1]Exhibit A.

6In early March 2022, the victim, Mr Ali, met the co-accused Erin Gray (“Gray”) and your son Thomas Prestage (“Prestage”) for the first time in the carpark of the Highlands Pub in Craigieburn. Gray was standing outside of a black Holden Commodore. She asked the victim and his friends for help to push her vehicle as the battery was flat.

7The victim exchanged phone numbers with Gray and saved her number in his phone. In the following days he purchased GHB from her, which she dropped off at his home address along with Prestage in a Holden Captiva vehicle. Whilst at his address, the victim and Prestage consumed GHB together. Gray and the victim subsequently exchanged flirty communications and Prestage blocked the victim’s number on Gray’s phone.

8In the early hours of 15 May 2022, Gray contacted the victim from mobile phone number ending ‘717’ which he did not recognise, and she told him that she had broken up with Prestage. This mobile number was used by you, Maynard, at the time.

9Gray stated that she had GHB that she wanted to “get rid of”, and it was agreed that Gray would drive to the victim’s home later that day.

10At 4:37 pm, Gray’s vehicle was captured on CCTV travelling East on Quebec Avenue, Craigieburn to pick up the victim. It is alleged by the prosecution that Gray was accompanied by Rory Walker (“Walker”). The victim got into the car and sat in the rear passenger seat behind Walker.

11The victim attempted to open his window to have a cigarette however the controls had been disabled. Gray, through the driver’s seat controls, opened the window to allow him to have a cigarette before closing it again shortly thereafter.

12Gray told the victim she was going to Bunnings in Craigieburn. Whilst Gray was driving, Walker used her mobile to text you, Maynard, on your mobile number ending ‘717’.

13Walker told Gray that she had a buyer for some of the GHB and had arranged a meeting. Gray then drove to a dead-end dirt road surrounded by farmland on Summerhill Road, Craigieburn and parked at the end of the dirt road.

14Shortly after they arrived, you pulled up alongside Gray’s vehicle in a white Mitsubishi Triton Ute. The victim attempted to have another cigarette and again noticed that his window wouldn’t open, but Gray was able to open it from the front driver seat controls. After he had his cigarette, Gray closed the window and he tried to open his door but could not. At this point, the victim became suspicious. (Charge 1 – False imprisonment begins)

15You then got out of your vehicle and got into Gray’s vehicle, sitting in the rear driver’s side next to the victim.

16You said to the victim, “Apparently you stood over my son for juice” and that your son was ‘Tommy’. The victim denied this and at this point both Gray and Walker got out of the car.

17You then began to punch the victim a number of times with both hands to both sides of his face and the back of his head. In between the punches, you grabbed a wooden handled mini sledgehammer. You hit the victim on his face, the back of his head and left hand with the handle of the sledgehammer. You asked the victim, “Is Tommy a liar?” At this point, Prestage got into the front driver’s seat of Gray’s car and you asked him, “Did he stand over you?” to which he replied, “Yes”. You said to the victim, “So are you saying my son is a liar?” and the victim said, “Yes, your son is a fucking liar.” You then repeatedly hit the victim’s right kneecap with the sledgehammer. (Charge 2 – Causing injury intentionally)

18You asked the victim for the pin to his mobile phone which he provided as he was in fear. You then went through his phone.

19At this point, Walker returned to the front passenger seat of the car. Walker did not say much during the assault other than “Shut the fuck up” to the victim.

20You took the victim’s phone. (Charge 3 – Theft)

21The assault lasted approximately 30 minutes.

22During the incident the victim told you that he was part of the Hells Angels OMCG. You told the victim you were making a call to a member from the East County Hells Angels Chapter and started driving Gray’s car. You used his phone to make a call to and stated to the member, “I’ve got one of yours and he is running around saying he is the President”. The victim heard the member say, “Just drop him off”.

23The victim was fearful but was unable to get out of the vehicle due to the child lock on his door and his window being locked. (Charge 1 continues)

24You continued driving and performed a burnout on Summerhill Road which was captured on CCTV. You stopped the car at the corner of Donnybrook Road and Brookeville Road in Craigieburn and got into the backseat and assaulted the victim further by punching him. (Charge 2 continues)

25You handed the victim a blue packet of baby wipes and told him to clean himself up because there was blood everywhere. You opened the victim’s door for him and the victim got out of the car. You then drove off in Gray’s car.

26The victim tried to run but was unable to because of the injury to his kneecap/thigh and collapsed on the ground before dragging himself to the side of the road. He was located by passers-by a short time later who called triple zero. By this point it was approximately 5.30 pm.

27The paramedics and police attended the location and the victim disclosed to them what had occurred. This was captured on the body worn camera of First Constable David Barlow and Constable Joseph Lual.

28The victim was conveyed by ambulance to the Royal Melbourne Hospital for medical assessment where his t-shirt and shoes were seized and his injuries were photographed. The photographs depict bruising and swelling to the victim’s face and right knee and a small laceration above the right eye.

29The victim self-discharged prior to the completion of his assessment and treatment by the medical staff.

30On 17 May 2022, the victim attended the Mill Park Super Clinic. Dr. Iman Jamali assessed him and concluded he had a fracture to his right knee and bruising over his right eye. He did not present with any other head trauma.

31On 9 June 2022, after a ‘Cordon and Call’ at Walker’s address to facilitate your arrest, you surrendered from the premises approximately 18 minutes after police arrived.

32On 10 June 2022, the victim identified you as the person who had assaulted him from a photo board.

33You were interviewed at the Melbourne West Police Station and exercised your right to silence.

34You were charged and remanded into custody.

Criminal History

35You have a lengthy and relevant criminal history that dates back to February 2008. You have many prior matters for violent offending, including an offence of recklessly causing serious injury, three offences of intentionally causing injury, three offences of recklessly causing injury, two offences of threat to inflict serious injury, and five offences of unlawful assault. You have been sentenced to various dispositions, including financial penalties, Community Correction Orders, terms of imprisonment immediately served as well as suspended. You have one prior appearance before this Court, when on 23 December 2016, you were sentenced for kidnapping, armed robbery, aggravated burglary and intentionally cause injury to a total term of seven years’ imprisonment with a non-parole period of five years.[2] Your last appearance was on 18 January 2017 when you received four months imprisonment for offences which included an unlawful assault.

[2]DPP v Maynard [2016] VCC 2047.

Personal circumstances

36You were born and raised in Tasmania. Through your mother’s side of the family, you identify yourself with Aboriginal heritage.

37Your parents separated when you were aged three. You and your brother continued to live with your mother. Your mother had a succession of new relationships. Her new partners exposed you and your mother to domestic violence and abuse. In addition to verbal abuse, you were physically assaulted and locked in your room. You would go to school with bruises and black eyes.

38You lived in poverty, and your mother struggled to provide you and your brother with regular meals. There were many times when you went without having dinner or breakfast. Your mother would seek food donations from the Salvation Army.

39While at primary school in Tasmania, you were assessed for ADHD and prescribed medication. You were not compliant with your medication as it resulted in side effects such as making your mouth dry and reduced appetite. You commenced high school, but due to your criminal activities you were asked to leave during year nine.

40As a teenager you were remanded for a period at the Ashleigh detention centre. There was an occasion when you were sexually molested by three prison guards and left alone locked all night in a cell without food or water. You have not spoken about this traumatic experience until now.

41You began using illicit substances at a young age. You first used cannabis at the age of 13. From the age of 15 you have been smoking cannabis regularly until your incarceration in 2015. You began using amphetamine at around the age of 15 or 16, and were using it daily by the age of 19. You were introduced to methamphetamine at the age of 23 and have been using it since on a daily basis. More recently, in 2020, you began using GHB. At the time of this offending, you were smoking between one to two grams of methamphetamine and 10 millilitres of GHB per day.

42You resumed occasional contact with your father when you were around seven years old. You describe your father drifting in and out of your childhood and adolescence but you became closer when you were in your twenties. I note that your father has supported you at various hearings in this Court.

43You have an adult daughter from your first serious relationship in Tasmania. Both your ex-partner and daughter continue to reside in Tasmania and you maintain a close relationship with them. Your next relationship lasted over 15 years and produced two children now aged 18 and eight. You have a good relationship with your children and maintain a close friendship with their mother.

44Your next relationship coincided with a time when you were working in a Victorian warehouse as a forklift driver from around 2012. You were saving money for a deposit on a house with your partner. This relationship ended when your partner took all the savings and told you to leave.

45Your most recent partner with whom you hoped to settle, unfortunately passed away a few months ago in a road traffic accident. It was a particularly difficult time for you, being on remand when she passed away. You were unable to express grief or pay your last respects.

46You told your psychologist Ms Lecluse, that you are keen to return to employment and establish a secure future for yourself and your children. You have two employment opportunities available to you.

Mental health

47I have had regard to Ms Lecluse’s psychological assessment of you. She has alluded to your traumatic background and diagnosed you with Complex Post Traumatic Stress Disorder, Major Depressive Disorder, Sleep Disorder and Substance Misuse/Abuse Disorder.

48She states you have shown motivation to address your issues, including your long standing substance abuse. You are keen to live a life that involves placing an emphasis on the interests of your children and seeking employment. You have taken steps to break all links with outlaw clubs. I do however note that similar sentiments were expressed when you were sentenced by this Court on 23 December 2016. On that occasion, His Honour Judge Grant said:

A number of other friends attended court and wrote letters explaining how they were prepared to offer you employment. Clearly, you do have a network of support in the community. In the past you have turned your back on those supports. It is to be hoped that you will not do so in the future. You have expressed a desire to change your life. You are now being treated for depression and you are maintaining a drug-free status in the prison. These are all positive developments.

49Now aged 38, one hopes your desire to steer clear from crime and substance abuse is genuine and meant. However, at this stage, I can only regard your prospects of rehabilitation guarded at best.

Objective gravity

50I regard both the false imprisonment and intentionally cause injury offending as serious. While the false imprisonment was of relatively short duration, it  involved premeditation. The victim was brought to a secluded location under false pretences where the offending was committed in company. During the course of the false imprisonment, the victim was subjected to violence. The injury charge involved a persistent attack on the victim over some 30 minutes with both fists and a sledgehammer. Fortunately, the injuries were, as the prosecution concede, towards the lower end. While there is no victim impact statement, it is plain that your victim was subjected to a terrifying ordeal.

51In sentencing you, general deterrence, specific deterrence, denunciation and protection of the community are relevant principles that I must take into account.

52You may have wrongly believed that the victim had assaulted your son. However, any perceived grievance did not entitle you to isolate, confront and assault the victim.

Matters in mitigation

53You pleaded guilty following a sentence indication. You requested a sentence indication prior to the handing down of my ruling. The prosecution case relied upon the untested hearsay representations of the victim. In those circumstances, I regard your pleas of guilty as valuable. Your pleas entitle you to a significant discount. You have saved valuable court time and expense, facilitated the course of justice and accepted responsibility for your actions. Your guilty pleas must be accorded an additional and palpable utilitarian discount as they were indicated when this Court was facing an increased backlog of trials.

54It is plain that you have endured a difficult and traumatic background which involved witnessing and experiencing abuse at the hands of many individuals within a fragile home environment and while in detention. This background explains your long term abuse of illicit substances and has contributed to your mental health issues and long term criminal offending. The principles in Bugmy[3] have application in a general sense. Your circumstances of deprivation and disadvantage allow me to moderate your moral culpability to some extent. However, the lasting impact of your deprivation leading to violent criminal offending requires me to give appropriate weight to the protection of the community.  

[3]Bugmy v The Queen (2013) 249 CLR 571.

55As alluded to earlier, I take into account that you lost your partner while on remand. Not being able to grieve or attend her final rites has no doubt made your custodial experience more onerous. I also bear in mind that your time on remand has coincided, to some extent, with more harsh conditions on account of lockdowns and reduced availability of counselling and courses due to the pandemic.

Sentencing

56Having considered all relevant matters, I sentence you, Mr Maynard, as follows;

57On Charge 1, false imprisonment, you will be convicted and sentenced to two years and six months’ imprisonment.

58On Charge 2, intentionally cause injury, you will be convicted and sentenced to 18 months’ imprisonment.

59On Charge 3, theft, you will be convicted and sentenced to two months’ imprisonment.

60Charge 1 will form the base sentence. Six months of the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1. The sentence on Charge 3 will run wholly concurrently. This makes a total effective sentence of three years’ imprisonment.

61I set a non-parole period of two years.

Pre-sentence detention

62Pursuant to s 18 of the Sentencing Act 1991, the period of 554 days of pre-sentence detention is declared as having already been served in respect of this sentence.

Section 6AAA declaration

63Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of four years and six months’ imprisonment with a non-parole period of three years.

Other orders

64I grant the forfeiture and disposal orders sought.