Director of Public Prosecutions v Payet

[2013] VCC 1817

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00872

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP PAYET

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2013
DATE OF SENTENCE:	22 November 2013
CASE MAY BE CITED AS:	DPP v Payet
MEDIUM NEUTRAL CITATION:	[2013] VCC 1817

REASONS FOR SENTENCE
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Subject:              Plea - sentencing
Catchwords:              Aggravated burglary - theft
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:                  26 months' imprisonment, minimum term 15 months

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APPEARANCES:	Counsel	Solicitors
For the Crown at hearing For the Crown at sentence	Mr D. Ellwood Mr M. Pitcher	Office of Public Prosecutions
For the Accused	Mr F. Cameron	Dribbin & Brown

HIS HONOUR:

1Mr Payet, you have pleaded guilty to one charge of aggravated burglary and one charge of theft. 

-    Aggravated burglary carries a maximum penalty of 25 years' imprisonment. 

-    Theft carries a maximum penalty of 10 years' imprisonment. 

2You are currently aged 38, having been born on 25 March 1975 and you were 37 at the time of this offending over a year ago. 

3You have an extensive criminal record about which I will go into more detail later.

4The circumstances of your offending are as follows. 

5In the early hours of 24 October 2012, an unknown number of persons entered a house in Lily Way, Skye.  Alone in the house, and in bed asleep, was Scott Young, aged 25 years. 

6The doorway connecting the garage to the house had a larger than normal doggy-door installed.  No damage was identified to the usual entry points of the house and it is believed that the offenders entered the house through that doggy-door.

7The burglars entered Young's bedroom and woke him with a blow to the head.  A demand was made for Young's phone and cash.  Young apparently offered some resistance.  One of the burglars hit him on the side of the head and he lost consciousness.

8When Young regained consciousness, he walked to his immediate neighbour's house in Lily Way and woke his neighbour by banging on his front door.  The time was then about 1.40 am.  When the neighbour opened his door, he found Young with blood “coming down his face and running down his chest”.  Initially he was also holding a machete.  The neighbour also noticed that the door to the garage at Young's house was open. 

9A Ford station wagon belonging to Young's father had been parked in the driveway in front of the garage at Young's house.  It was missing, stolen by those who had committed the burglary. 

10The neighbour accompanied Young back to his house and called ‘000’.

11Police arrived on scene and entered the house.  They observed that Young had a laceration injury to his left ear which appeared to be the source of the blood on his person.  Police took a number of photographs of the injury. 

12When they searched the house it was apparent that it had been ransacked.  Furniture and bedding were overturned, drawers pulled out and even the manhole leading to the roof space was out of position.  Aspects of the appearance of the house were photographed by police. 

13Victoria Police crime scene examiners were asked to attend.  Young was urged to attend hospital and eventually did so with a family member. 

14Before police and crime scene examiners could complete their tasks at the house they were advised that Young had made it clear he did not want the premises examined further.  Without his continued permission the police had no choice but to leave.

15At about 7.35 am on the morning of the burglary, the stolen Ford station wagon was involved in a collision in Wells Road, Seaford.  By then it had false registration plates fitted.  A number of people were observed in the car, including you, a David Maddocks and an Ashley Barnett.  Mr Maddocks was driving.  The car was immobilised as a result of the collision and the occupants fled on foot.

16At about 1.16 pm on 24 October 2012, you were riding a motorcycle when you were stopped by police in O'Grady's Road, Carrum Downs.  You were found in possession of a rough sketch map showing the route to Lily Way in Skye.  Police were already alert to the significance of this address.  You were arrested.

17On 25 October 2012 police executed a search warrant at an address in Paddington Way, Carrum Downs, occupied by David Maddocks.  Police located an iPhone 4 and an iPhone 5 belonging to Young.  Part of the mechanism - that is, the bolt, magazine and bullets in a plastic bag - of a .22 calibre rifle were also located along with 5.6 grams of methamphetamine.  Mr Maddocks was arrested.

18On 25 October 2012 Ashley Barnett attended Frankston Police Station on an unrelated matter.  He was arrested in relation to the aggravated burglary on Young's home.

19I now return to your circumstances and the police interview with you.  Initially, you denied any involvement in the aggravated burglary at Lily Way.  You said you had been home that night.  You agreed that you had been a passenger in the stolen Ford station wagon at the time of the collision in Wells Road, Seaford, but said that the first time you had seen the Ford was the morning of the collision.  You told police that you had picked up the piece of paper containing the sketch map of the route to Lily Way from the Ford you had travelled in earlier that morning.  You told police the writing on the paper meant nothing to you.  You did not know where Lily Way was. 

20Later, you admitted that you had attended the Lily Way address and identified Barnard, Maddocks and another man as being those who planned to go to the Lily Way address to get cash and drugs.

21You told police that the others had a gun - a .22 calibre rifle - and a machete, and that entry was gained through the doggy-door.  You denied entering the house and you denied assaulting Young.  You denied taking property from Young's house.  Your plea was accepted on the basis that you entered the garage of the house and did not yourself carry a weapon.

22You claimed that you went to the house to speak to Young, who you knew as “Scotty”, to tell Young to “lay off” another person who you claimed owed Young money for drugs supplied. 

23You told police that a handgun, two safes, a TV and tools were taken from Young's house, and that after you all left you met up at the home of Wendy Barnett. 

24A subsequent search of your home located a first-aid kid stolen during the burglary. 

25There is no victim impact statement in this matter.

26Maddocks and Barnard were each interviewed by police. 

27While Young signed a statement on the day of this offence, he failed to obey his witness summons to appear at the committal on 6 May 2013 for cross-examination.  The court issued a warrant for his arrest.  On 7 May 2013 that warrant had not been executed despite an extensive search for him.  As a result, a negotiated settlement was achieved in relation to Maddocks and Barnard.

28Maddocks and Barnett faced a committal proceeding with you and Glen Barnard on 6 May 2013.  A plea resolution was achieved on 7 May in respect of Maddocks and Barnett.  Charges relating to this event were withdrawn as against Barnard.  (There were unrelated charges in respect of which he appeared on a later date before the Melbourne Magistrates' Court.)  You elected to take a hand-up brief on charges relating to this offence, entered a plea of ‘not guilty’ and were committed to the Melbourne County Court for trial.  The prosecution accepted a plea offer made on your behalf on 22 August 2013 and an arraignment followed shortly thereafter.

29Your co-offenders Maddocks and Barnett also had prior convictions.  The maximum term of imprisonment faced by Maddocks and Barnett on a summary hearing in the Magistrates' Court for each of the offences for which a plea of guilty was entered was two years' imprisonment.   

30Maddocks was ultimately sentenced to a total effective sentence of 24 months' imprisonment with a non-parole period of 15 months, such sentence to be served cumulatively upon the sentence he was then undergoing.

31Barnett was sentenced on these offences to 18 months' imprisonment.  He was additionally sentenced on these and unrelated offences to an aggregate total of three years’ imprisonment.  A non-parole period of 27 months' imprisonment was fixed.

32I turn now to your personal circumstances.  As I noted earlier, you are currently aged 38 and you were 37 at the time of these offences. 

33Your criminal record extends over a 20-year period from June 1992 until May 2012, during which you have had some 31 appearances at the Magistrates' Court and one appearance at this County Court in 2002 for armed robbery.  Your history of offending is primarily for dishonesty offences in the context of illicit drug possession and occasional trafficking. 

34This offending was committed in October 2012 at a time when you were on parole after serving 6 months of a 12-month sentence, which is an aggravating factor for these offences.

35You had a difficult time in your youth with your parents separating when you were six.  You and your mother then experienced violence and other physical assaults from your stepfather.  Your mother's support for her partner over you led you to an emotional detachment from her.  You were raised in many different areas of Melbourne to the age of the 13 and attended some 21 schools.  You ran away from your mother and stepfather when you were 13 and then lived with your natural father until the age of 15, when you left home.

36A 2011 report from Mr Joblin has articulated the difficulties you have had as a result of your dysfunctional early family life and the steps you have taken to alienate yourself, from time to time, from the drug environment.  Dr Robert Weiss has seen you in the past and diagnosed depression and adjustment disorder and prescribed appropriate medication.  There is some evidence also of post-traumatic stress disorder.

37It is also apparent from Mr Joblin and the character reference from Ms Solerno that despite all your difficulties keeping out of trouble you have enjoyed a very loyal and loving relationship with your partner Elizabeth and have been otherwise a very loving and concerned father to your two boys. 

38Your partner Elizabeth has also provided a letter of reference attesting to your excellence as a father to the boys and your attempts to put your past ways behind.

39Clearly the current offending is very serious.  It is aggravated by the fact that you had only completed one month of your parole period before re-offending. 

40In mitigation I take into account the matters urged upon me by your counsel Mr Cameron, including that:

-you did not carry a weapon yourself,

-you did not enter the internal living quarters,

-you did not directly assault any person in the house,

-you were not directly responsible for any items found in the house,

-your dysfunctional earlier life which still has an impact on your life,

-your close and supportive family,

-your plea of guilty, and

-your ultimate cooperation with the police enquiry.

41Parity with your co-offenders is an important consideration.  Both your counsel and the prosecutor submitted that the various competing factors of difference effectively cancel out and that you should be sentenced similarly to your co-offenders.  I accept this submission. 

42Mr Payet, would you please now stand.

43On Charge 1 of aggravated burglary, you are convicted and sentenced to 24 months' imprisonment. 

44On Charge 2 of theft, you are convicted and sentenced to 6 months' imprisonment. 

45Charge 1 is the base sentence.  I direct that 2 months' of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

46The total effective sentence is 26 months' imprisonment. 

47I direct that you serve a minimum period of 15 months' imprisonment before being eligible for parole.

48Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 2012 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

49Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty the total effective sentence over both charges that would have been imposed is 36 months' imprisonment with a minimum period of 24 months to be served before eligibility for parole.

50At the plea hearing the Crown sought a disposal order as to the machete to which you have consented and I have made that order today.  You may be seated for the moment, Mr Payet.  Are there any other matters from either counsel?

51MR PITCHER:  No, Your Honour.

52MR CAMERON:  No, Your Honour.

53HIS HONOUR:  Mr Payet, just remain there.  Just as an aside to those sentencing remarks … it really is time to grow up.

54OFFENDER:  Yeah, I've had enough.  I ‑ ‑ ‑

55HIS HONOUR:  I can see from the reports that have been tendered from the extraordinary support that you have got from Elizabeth, from your own body language during the course of the plea hearing and indeed today, and in particular when any reference is made to your boys, that there is substance and truth to the fact of your concern for your boys that they do not follow your path.

56OFFENDER:  No.

57HIS HONOUR:  And your sincere attempts over the years to try to keep out of trouble, and you are still struggling to be able to do that.  How and why it was that you breached this by this type of offending with one month of being on parole is a mystery to me but you do seem to keep offending and it is always, it seems to me, in the context of a drug association. 

58Now, I know you are battling with internal demons and I know you have seen Dr Weiss, and from his report you are taking legitimate, legal medication.  You need to be doing that, but it seems to me - I have not sentenced you on this basis but it seems to me – that there is still a strong association in your life with illicit drugs and the people who are dealing with them.  I know from the past that you have been trying to get away and clearly your wife is supporting you with that but it is not working.  Somehow you have got to make a change now because your lad was in here, the boy who is about to turn 15.

59OFFENDER:  Yep.

60HIS HONOUR:  Your older son has got some problem but has not followed your path.  Telling them to do things is one thing ‑ ‑ ‑

61OFFENDER:  Showing them.

62HIS HONOUR:  But - exactly.  The demonstration - and your boy who is nearly turning 15 needs you now at this stage more than ever, and you are going to have more time away where you will not be with him at a very vulnerable time.  Now, I know that hurts you and I know that you regret but you have really got to put it into action and with a bit of luck you might prevent him from going down that path but it is going to be tough. 

63Your partner is not well and she needs you too.  So do whatever you can over that next period that you are going to be in custody to try and move away from any of this illicit stuff and work as hard as you can because you can turn this around.  People your age, even with a long career at this, have been able to put it aside if they are working at this on a day by day basis.

64OFFENDER:  Yep.

65HIS HONOUR:  So I know you mean well.  You have got to try a little bit harder and use whatever mechanisms you can to put it into practice because, despite your extensive record, in your hearts of hearts you are a decent man.

66OFFENDER:  Thanks.  Thank you, Your Honour.

67HIS HONOUR:  So we will see if we can clear this through.  You have got a reasonable period on parole now and work with the parole people as much as you can so that you can spend more time particularly with your younger son, who is at a very vulnerable age himself.

68OFFENDER:  Yeah.

69HIS HONOUR:  All right, good luck.

70OFFENDER:  No worries, thank you.

71HIS HONOUR:  All right.  10.30.

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