Director of Public Prosecutions v Maynard

[2016] VCC 2047

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02195

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP JOHN MAYNARD

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2016
DATE OF SENTENCE:	23 December 2016
CASE MAY BE CITED AS:	DPP v Maynard
MEDIUM NEUTRAL CITATION:	[2016] VCC 2047

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Balek Mr A. Foster	OPP
For the Accused	Mr D Gurvich Ms T. Milides	Malkoun &Co Lawyers

HIS HONOUR:

1       Phillip Maynard, you have pleaded guilty to one charge of aggravated burglary; one charge of armed robbery; one charge of kidnapping and one charge of intentionally cause injury.

2       The maximum penalty for each of the first three offences is 25 years' imprisonment. The maximum penalty for the offence of intentionally cause injury is 10 years' imprisonment.

3       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A.

4       Briefly, in November 2014 you were a patched member of the Vigilante Motorcycle Club. Your two co-offenders, David Gibbs and Peter Riddle were also patched members of the same motorcycle club. The victim, Bradley Ingram, was not a member of the club but was a friend of members of the club and over the previous 12 months you had become a friend of his.

5       In December 2013, the victim had purchased a Harley Davidson ‘Night Train’ motorbike for $16,000. It was imported from America and needed modifications before it could be registered.

6       At 10.30 pm on 2 November 2014 the victim was watching television with his partner, Ms Yakimov, in a renovated garage on his property. You entered the garage holding a shotgun. You pointed it at the victim and said you were there for his bike. You pushed the barrel into his chest and forced him into the kitchen telling him to ‘get the fuckin keys’ to his bike. Ms Yakimov had followed you into the kitchen. She was crying. You pointed the gun at her and told her to close the blinds to the front window. She left to do this. You then pointed the shotgun at the victim’s head and asked a man you were with, Gordon Chestnut, whether you should shoot the victim.

7       You grabbed the keys to the motorbike and threw them to Chestnut, telling him to go and get the bike. You threatened to kill the victim unless he signed a document stating that he had sold you the bike. You gave him paper and told him to write, ‘I, Brad Ingram, sold one soft tail bike for $10,000.’ The victim did not use his real signature when signing the paper.

8       You took the bike and one of the victim’s helmets. You said if he told anyone from the club or the police, you would be back. Unfortunately for the victim, you were as good as your word.

9       The victim subsequently contacted members of the Vigilante club to try and facilitate the return of his motorbike. He was unsuccessful.

10      At about 1 am on 7 March 2015, you returned to the victim’s residence. At the time the victim’s two young children were asleep in a bedroom of the house. You threw a removal trolley through the front glass window and the glass door to the garage. You entered the house. You confronted the victim in the bedroom where the children were. He tried to reason with you. An unknown male who was with you stated that there were children present. You said, ‘fuck the kids’. You told the victim he was coming with you to the clubhouse. You also wanted to know whom he had spoken to about getting his bike back and where the import papers for the bike were. You grabbed him by the hoodie and dragged him from the house. You took his phone and smashed it on the ground. While these events were happening, a friend of the victim called the police.

11      You dragged the victim to a black Toyota four-wheel drive. Peter Riddell was in the driver’s seat. You forced the victim into the front passenger seat and you and an unknown male got into the rear of the vehicle. You directed the victim to ring Ms Yakimov and tell her to call the cops off. He did this. You made a number of phone calls to various people telling them to ‘bring the sawn-off shotgun.’

12      Riddell pulled over on the Ring Road where another car was waiting. That vehicle was a Yellow Hyundai Getz. David Gibbs was the driver and Chestnut was his passenger. You forced the victim into the rear of that car and you got in beside him. During this time you were still telephoning people looking for a sawn-off shotgun. Gibbs drove to the Ballarat Road exit. You punched the victim to the head a number of times. The first punch caused the victim to see stars.  You kept asking him about who he had spoken to at the club and you threatened him.

13      When Gibbs stopped the car in Deer Park, the victim told you he was going to be sick. You told him not to be sick in the car. He got out of the car and he ran off, jumping fences and eventually hiding in the back yard of a property. He attracted the attention of the owner who called the police. The police attended and collected him at 2.30 am.

14      Over the next two weeks the police tried to arrange for you to surrender yourself. They weren’t successful. On 24 March you attended at the Wallan Police Station. You refused to be interviewed and you were remanded in custody on the same day.   

15      The police executed a search warrant at an address in Wallan on 1 April 2014 and located the original receipt for the stolen bike. Later that day, the police located the motorbike at the property of Steve Rizzolio. You had asked him to store the bike for you.

16      Mr Maynard, this is very serious offending. On 2 November 2014 you armed yourself with a sawn-off shotgun and attended at the victim’s home with the intention of seizing his motorbike. You entered his property whilst armed with the shotgun and you used it to threaten him and effect the armed robbery. You also threatened the victim’s partner. It was a terrifying experience for the victim and his partner.

17      In March 2015, you stormed into the victim’s home and you kidnapped him. This was a planned operation. You were on a Community Corrections Order at the time. Young children were present and you cared nothing for their welfare. You bundled the victim into a car and subsequently transferred him from that car to another car. You repeatedly called other people in an effort to obtain a firearm. When the victim was in the second vehicle you repeatedly punched him to the head. He suffered the following injuries:  multiple bruises, cuts and swelling to the face and a sprained ankle.

18      I have been provided with three Victim Impact Statements that detail the profound impact of your offending upon the four victims.

19      Mr Ingram states that he has been shattered by these events.  He has been diagnosed with depression and is taking medication daily to try and manage it. He was unable to work for over 12 months and was rarely able to leave the house. He and his partner spent time living away from their home and have been unable to afford to repair the damage that you caused.  He is concerned for the welfare of his children. He concludes his statement by saying:  “I have never felt so low as I have in the last 18 months. I have tried to take my own life, I’d given up. This has destroyed me. I’ve started counselling and have come back from wanting to end my life, I’m not sure if this is helping, only time will tell.”

20      Ms Yakimov details how she feared for her life on the evening of the first incident and how after the kidnapping she thought she would never see her partner again. She suffers ongoing trauma and anxiety and is being treated by a psychologist. She is also concerned for the welfare of the two children who were present when you kidnapped their father. Ms Yakimov has also suffered financially as a result of your offending.

21      The mother of the two children who were present on 7 March 2015 says this in her statement:  “They have struggled to come to terms with what happened that night. They slept in my bed for around a month after the incident, as it was the only place where they felt safe. It took them seven months to be able to go over to their dad’s place to visit him, and still don’t feel safe enough to sleep over. Their relationship with their father is now damaged and will take many years to repair.  The children are still traumatised and frightened and are now seeing a counsellor."     

22      Mr Maynard, with this serious offending, general deterrence – that is the need to deter others from acting in the way that you acted – just punishment and denunciation of your behaviour, are all central sentencing considerations.

23      You have a relevant prior criminal history. That history commences with an appearance in the Hobart Children’s Court as a 14 year old. An appearance in court at that age is usually indicative of a troubled and disadvantaged childhood. Such has been your experience. I will return to this matter later in my remarks.

24      Between 1999 and 2008 you appeared regularly in courts in Hobart. In 2001 you appeared in the Supreme Court for offences of aggravated burglary and assault. You served a short period of detention before being released on an order that required, among other things, that you undergo assessment and treatment for alcohol or drug dependency. Many of your Tasmanian priors show the pernicious influence alcohol had on your life at that time.   

25      Your prior history in Victoria commences in 2008. Some of your prior court appearances were in the Magistrates’ Koori Court at Broadmeadows. In 2010 for offences that included intentionally cause injury and threat to inflict serious injury, you were released on a suspended sentence. You had been bailed on these matters after serving 146 days pre-sentence detention. You were bailed on a deferral of sentence that was managed by the Magistrates' Koori Court. Your criminal record notes that the matters were finalised on 20 October 2010 with a notation that you successfully completed the Credit Bail Program and actively participated in the Koori Court over a lengthy period.

26      In April 2012 you were dealt with for offences that included recklessly cause serious injury and breach of suspended sentence. You were sentenced to a total effective term of 12 months' imprisonment with a six month minimum before being eligible for release on parole.  

27      In November 2014 you received a six months' suspended gaol term for offences that included reckless conduct endangering serious injury and recklessly cause injury.

28      In December 2014 you were sentenced on charges including make threat to kill and recklessly cause injury. This was just after you committed the armed robbery and aggravated burglary that are subject to the current indictment.  In December 2014 you were released on a CCO. The other two charges on the current indictment, namely kidnap and intentionally cause injury, were committed whilst on a Community Corrections Order. This aggravates your offending.   

29      Given your prior criminal history, specific deterrence and protection of the community are highly relevant sentencing considerations. Your history also helps explain why I am guarded about your prospects for rehabilitation.

30      I now move to a discussion of your background and of those matters in mitigation.

31      You are a Tasmanian man who identifies, through your mother’s side of the family, with your Aboriginal heritage. 

32      You had a harsh and disadvantaged upbringing. Your mother wrote a letter to the court detailing the abuse, neglect and violence that you were exposed to at the hands of your father, who left the family when you were a young child, and her subsequent partners. Your mother described your father in these terms:  “He was violent towards me, cheated and he was a heavy substance and alcohol abuser. When we were together he would come and go as he pleased and by the time Phil was about four years old he had completely abandoned us. He was a terrible example and role model of what a father should be and so were my partners that followed.”  One subsequent partner is described by your mother as an alcoholic and extremely violent man who beat and abused her, you and your older brother. This history of abuse and neglect is also referred to in the report of Mr Matthew Staios, Consultant Psychologist, dated 12 December 2016.

33      Because of the ongoing and persistent abuse you and your brother suffered through your childhood and early adolescence, you felt insecure, unsafe, and at times, abandoned. You told Mr Staios that you lived in perpetual fear of your mother’s unstable partners. On occasions when your mother intervened to protect you, she was severely beaten. During the latter part of your childhood you fantasised about your father coming to rescue you. In your teens you relocated to Melbourne and renewed contact with your father who, according to your mother, exposed you to drugs, violence and bad company. This background helps explain why you were a poor student with no formal schooling beyond Year 8. Since the age of 15, or thereabouts, your life has been blighted by drug and alcohol abuse.

34      I am satisfied that you come from circumstances of great disadvantage and deprivation. There must be some moderation of your moral culpability in acknowledgment of the hardship you suffered in your formative years. On the other hand, that hardship has left you with a propensity to behave violently towards others. It has been a feature of your prior court appearances. In this case there has been a significant escalation in your violent behaviour. These facts require me to give appropriate weight in sentencing to the principle of community protection.

35      You will be given credit for your plea of guilty. It was not an early plea of guilty. You ran a contested committal where the victim and his partner were cross-examined. The matter did not resolve until 25 July 2016, after post committal negotiations. I am satisfied that your change of heart in relation to the offending is indicative of some measure of remorse and that over time you have developed a much better understanding of the seriousness of your offending. Your plea is an acceptance by you of responsibility.    

36      Although the victim and other witnesses were required to give evidence at the committal, your plea of guilty has now spared them from the burden of giving evidence at a trial. Your plea has also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.

37      You consented to having the charges heard in the County Koori Court.  In doing so you agreed to participate in a process that involves appearing before elders from the Koori community.  The process is described as a “sentencing conversation.” I give you credit for your participation in the Koori Court process.  Participation in the process is not easy, indeed it is challenging. Although you are a man who finds it difficult to articulate his feelings, it was apparent from your participation in the process that you are now sorry for what you have done.  

38      However, it cannot pass without comment that you have attended the Magistrates’ Koori Court in the past and you have not made the most of the opportunities given to you by that court. It is to be hoped that your appearance in the County Koori Court will have an impact on your behaviour in the future. 

39      Mr Maynard, your past history, the seriousness of this offending and your past difficulties in engaging with support services, make me guarded about your prospects for rehabilitation. You do have the advantage of family support. Your mother travelled from Tasmania to support you. Your partner Mandi Hilder spoke about your good qualities. She also commented on the need for you to place the interests of your family before those of your associates and the importance of maintaining a drug-free status. Ms Hilder’s father also spoke in support of you. Ms Hilder said that you would be able to reside with her and her children upon release from prison.

40      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.

41      In determining sentence, I take account of the fact that shortly after you went into custody the riots occurred at the Melbourne Reception Centre. You were not involved. However, you were transferred to Port Phillip Prison and spent some months in lockdown for 22 to 23 hours per day. The onerous nature of this punishment is a relevant matter for me to take into account in sentencing.

42      Your counsel submitted that an appropriate order would be a sentence of imprisonment, followed by a Community Corrections Order. This offending is far too serious for such an order. As I have said, you invaded the home of a man with the intention of stealing his motorbike and whilst armed with a sawn- off shotgun. You used that weapon to threaten him and to threaten his partner. It was a terrifying ordeal for both of them. Some few months later you returned to the house and again forced entry into his home. You were on a Community Corrections Order at the time. You confronted the victim in the presence of his children, you cared nothing for their welfare. You carried the victim away and assaulted and threatened him. It was only through the greatest good fortune that he managed to effect an escape. Mr Maynard, the gravity of this offending requires me to impose a sentence of imprisonment that is commensurate with its seriousness.   

43      Would you please stand.

44      You are convicted on all charges and sentenced as follows:  On Charge 1, which is the aggravated burglary, convicted and sentenced to four years' imprisonment.  On Charge 2, which is the armed robbery, convicted and sentenced to four and a half years' imprisonment. On Charge 3, which is the kidnapping, convicted and sentenced to five years' imprisonment. On Charge 4, convicted and sentenced to 12 months' imprisonment.

45      I order 21 months of the sentence on Charge 2, and three months of the sentence on Charge 4 be served cumulatively upon each other and cumulatively upon the sentence on Charge 3. This makes a total effective term of seven years.  I fix a minimum of five years before you will be eligible for release on parole.

46      I declare that you have served 640 days pre-sentence detention.

47      Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective term of nine years and three months with a minimum term of seven years and three months.  

48      Yes, thank you, you can be seated there.

49      Are there any other matters?

50      MS MILIDES:  Nothing from me, Your Honour.

51      MR FOSTER:  Nothing further, Your Honour.

52      HIS HONOUR:  No, thank you.  You can remove, Mr Maynard please.

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