Director of Public Prosecutions v Phelps
[2017] VCC 1364
•22 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00190
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON PHELPS |
---
JUDGE: | HIS HONOUR JUDGE C.J. RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2017 | |
DATE OF SENTENCE: | 22 September 2017 | |
CASE MAY BE CITED AS: | DPP v Phelps | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1364 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Handling stolen goods – Reckless conduct endangering life – Assault police – Reckless conduct endangering persons – Robbery – Plea of guilty
Legislation Cited: Sentencing Act 1991
Sentence: 4 years imprisonment with a non-parole period of 2 years and 6 months’ imprisonment; 385 days pre-sentence detention. Section 6AAA declaration: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment. All driver’s licences and permits to drive under the Road Safety Act cancelled and disqualified from obtaining any such licence or permit for a period of 2 years from date of sentence.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Fallar | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr S. Lindner | Tyler Tipping & Woods |
HIS HONOUR:
1
Jason Phelps, on 7 September 2017, you pleaded guilty to an indictment containing six charges of theft (Charges 1, 2, 3, 5, 6 and 11); handling stolen goods (Charge 4); reckless conduct endangering life (Charge 7); assaulting
a police officer in the execution of his duty (Charge 8); reckless conduct endangering persons (Charge 9) and robbery (Charge 10).
2 In addition, you pleaded guilty to a number of related summary offences being: Charge 5, fail to stop a motor vehicle on request; Charges 8, 11 and 21, drive whilst disqualified.
3 The maximum penalties for these offences are:
Theft – ten years’ imprisonment;
Handling stolen goods – 15 years’ imprisonment;
Reckless conduct endangering life – ten years’ imprisonment;
Assault a police officer in the due execution of his duty – five years’ imprisonment;
Reckless conduct endangering serious injury – five years’ imprisonment; and
Robbery – 15 years’ imprisonment.
4 In relation to the related summary offences:
Charge 5, fail to stop – the maximum penalty is five penalty units;
Charges 8, 11 and 21, drive whilst disqualified – the maximum penalty for a first offence is 30 penalty units or four months’ imprisonment, whilst the maximum penalty for any subsequent offence is 240 penalty units or two years’ imprisonment.
5 You admitted your prior convictions, which included exceeding the speed limit by 20 kilometres per hour or more; driving whilst authorisation is suspended; careless driving and failing to stop after an accident; exceeding the prescribed concentration of alcohol within three hours of driving; and theft of a motor vehicle. The last mentioned prior conviction was one of a number of crimes that you were convicted of on 2 August 2016, which included dishonesty, drug and bail offences, an explosives offence and an offence against the Firearms Act. You were placed on a community corrections order and committed the instant offences whilst on that order, which is an aggravating feature of your offending.
6 Tendered as Exhibit A on the plea and read aloud in court, was the prosecution opening for plea. In summary, on 2 August 2016, you were captured on CCTV driving into the BP service station at Cranbourne North in a stolen Toyota Corolla. You filled the car with petrol and then drove off without paying. (Charge 1) As I have already remarked, earlier that day, you attended the Dandenong Magistrates’ Court in respect of a number of charges and were placed on a community corrections order for 12 months.
7 On 24 August 2016, you attended at the Casey Aquatic Centre in Cranbourne. You went into the male change rooms and stole a bag and its contents belonging to Benjamin Simpson. Contained within the bag were the keys to Mr Simpson’s Toyota HiLux twin cab, which you stole. (Charges 2 and 3)
8 The following day, on 25 August 2016, in company with another person, you, as the passenger in the stolen Toyota HiLux, drove into Coles Express at Albert Street, Moe. You got out of the HiLux and stole a red Commodore utility belonging to Mark Patuszyn. On this occasion, the Toyota HiLux was displaying a registration plate that had been stolen the day before, on 24 August 2016. (Charges 4 and 5)
9 On 31 August 2016, you stole sundry items from a 7-Eleven store, by selecting the items and leaving the store without paying for them. (Charge 6)
10 On 1 September 2016, Mr Simpson, the owner of the stolen HiLux, saw you driving his car in Berwick. He followed you and observed you to drive erratically in a number of streets, until you reached Elgin Street. Ultimately, Mr Simpson saw you go into 58 Elgin Street. Mr Simpson stopped his motor car where he could observe 58 Elgin Street and notified police of his observations.
11 Shortly thereafter, a number of police officers attended in the vicinity of 58 Elgin Street to arrest you. A police vehicle containing officers Moorfield and Lester drove into the vacant block at 60 Elgin Street. They observed you in the Toyota HiLux vehicle. You reversed and accelerated the HiLux towards the front of the police vehicle and collided with it. Moorfield got out of the police van and sprayed you with OC spray. You drove the HiLux vehicle towards the rear of the vacant block, executed a U-turn and then drove past the police vehicle. (Charge 8)
12 Whilst you were attempting to evade arrest by Moorfield and Lester, Sergeant Howe ran into the yard of the vacant property. You drove your vehicle directly towards Sergeant Howe. He directed you to stop your vehicle. You disregarded this instruction and continued to drive directly at Sergeant Howe, who discharged his service firearm towards the HiLux and then ultimately was forced to get out of the path of your vehicle to avoid being struck by it and potentially killed. (Charge 7)
13 After exiting the vacant block, you sped off along Elgin Street towards Manuka Road and then to the Princes Highway. A police pursuit began. The left hand front wheel of the HiLux was deflated and you drove on the rim. On two occasions, you drove against red traffic signals appropriate to you. Police observed several cars having to brake to avoid colliding with you. You entered the Princes Highway and drove along it, against the flow of traffic. You exited the Princes Freeway at Clyde Road again, against the flow of traffic and again drove against a red traffic signal. Shortly thereafter, you dumped the HiLux motor vehicle. (Charge 9) The interior and exterior of the HiLux had been damaged.
14 After abandoning the HiLux, you travelled on foot to the area of the Isomer Nursing Home at Lysterfield. Ms Atiye Ismail had parked her black RAV4 outside the Isomer nursing home, whilst visiting her elderly mother. Having concluded her visit, Ms Ismail entered her car and began reversing to the exit. You approached Ms Ismail’s car and opened the driver’s door and demanded she get out of the car. You repeated this demand twice in an angry voice. Ms Ismail managed to close the door and tried to lock it, but you immediately opened it once more and yelled at her. You removed the keys from the ignition and Ms Ismail, in fear of being harmed by you, got out of her car. You stole her car and sped away. (Charge 10)
15 On 2 September 2016 at 9.40 am, you stole a number plate from a Toyota RAV4 owned by Dinica Uskokovic. (Charge 12)
16 On 2 September, police, using Ms Ismail’s phone as a tracking device, as it had been left in her motor vehicle, arrested you at the Stud Park Shopping Centre. You were with a female companion, Holly Crowell. Parked near the Kmart entrance was Ms Ismail’s RAV4 that had been stolen the previous day and it displayed a registration plate stolen on 2 September 2016.
17 During the period between 24 August and 2 September 2016, several registration plates were stolen and subsequently located, either in your possession, in the stolen HiLux, attached to or in the stolen RAV4. (Charge 4)
18 In respect to the related summary offences, Charges 5 and 8 relate to you failing to stop when signalled to do so by a police officer on 1 September 2016 and driving whilst disqualified on that same day. Charge 11 relates to you driving whilst disqualified on 31 August 2016 along the Hallam-Belgrave Road, Hallam, whilst Charge 21 relates to you driving whilst disqualified in Moe on 25 August 2016. Your driver’s licence had been cancelled and you were disqualified from obtaining any such licence or permit on 2 August 2016 at the Dandenong Magistrates’ Court.
19 On the day of your arrest, being 2 September 2016, you were interviewed under caution and answered “no comment” to questions put to you by investigating police. You were charged and remanded in custody and as at the date of your plea, had spent 370 days by way of pre‑sentence detention.
20 Tendered as Exhibit D was the victim impact statement of Atiye Ismail. The victim impact statement was read aloud in court by counsel who appeared on behalf of the Crown. Ms Ismail has been profoundly affected by your conduct. As at the date of her statement, being 7 December 2016, she had lost all of her confidence, freedom and happiness. For a period of two months, she locked herself inside her house and was unable to leave it. She was unable to visit her mother in the nursing home. She lived in fear that you knew her address from personal details contained within her RAV4 and that you would come back to her house and attack her. In short, as at 7 December 2016, Ms Ismail’s life was in tatters.
21 Jason Phelps, you are 24 years of age and come from a loving family. You have one sibling, an older sister. Tendered as Exhibit 1 on the plea was the report of David Ball, psychologist, dated 18 August 2017, who described your “mental status examination as broadly unremarkable”.
22 You attended school and completed Year 9. To your credit, you searched for and found an apprenticeship as an electrician. Your father, who gave evidence on your plea, said that you enjoyed your apprenticeship and that you lived at home for its duration. Unfortunately, your apprenticeship came to an end at the conclusion of your third year, when your employer experienced financial difficulties and you were retrenched. This event understandably was a blow to your morale. You searched for a position as a fourth year apprentice and as your searches proved unsuccessful, your morale dropped further.
23
In September 2013, your father obtained for you a position working as
a storeman for 600 Cranes Australasia Proprietary Limited (“600 Cranes”) and you remained there until 29 January 2015. By reference to Exhibit 3, you were described by the managing director of 600 Cranes as a polite and enthusiastic employee who was always ready to help as required. However, your position at 600 Cranes was no substitute for your chosen trade.
24 In your counsel’s written submissions on plea, it was put that in the year 2014, you worked for 12 months, labouring for a caravan construction business, Pakenham A-Van Caravans. This does not sit easily with the reference from 600 Cranes. I think it more likely that you worked for Pakenham A-Van Caravans in the year 2015, having left your employment at 600 Cranes. Be that as it may, it is plain that since leaving school, you have been a good and conscientious worker.
25
It is unclear to me when you left your father’s home. However, you did so some many months prior to the instant offending. Your father swore that he was in regular telephone contact with you after you had left home, but that he saw you infrequently. He was of the view that during your time away from home, you fell into bad company. What is plain, is that at the time of the instant offending, you were involved in the drug world and abusing methylamphetamine (see
Exhibit 2, discharge summary from Casey Hospital, dated 9 August 2016).
26 You were remanded in custody on 2 September 2016 and initially you were imprisoned at the Metropolitan Remand Centre, where you worked in the kitchen and were permitted to drive a buggy to deliver meals to prisoners in all of the yards. You were transferred to the Fulham Correctional Centre, where you work as a billet in the food distribution area. I was informed that you have presented no problem to the prison authorities. Surprisingly, you have been unable to undertake any courses whilst at the Fulham Correctional Centre, although you have applied for some. You have applied for and been given permission to undertake a preliminary year of study which will make you eligible to commence a Diploma in Construction.
27 You entered your pleas at the earliest opportunity and are entitled to the benefits that flow to you from them, being that they have utilitarian benefit and are some evidence of your remorse. You have remained drug-free whilst in custody (see Exhibit 5). You have an eye to the future, in terms of what you will do when you are finally released from prison. Your brother-in-law, who is also an electrician by trade, is of a view that his business will be in a position at the time of your release to take you on as an employee and in particular, as a fourth year apprentice, so that you might finish your apprenticeship. You have the support of your family generally. Should you remain drug-free upon release from prison, I regard your prospects for rehabilitation as good.
28
You are young man who has made some preliminary steps towards rehabilitation and I must look to your rehabilitation in the construction of the sentence which I must impose upon you. However, your offending is of
a serious kind. It was committed whilst you were on a community corrections order and during your spree of offending, you committed 11 indictable offences and four summary offences. It is plain that this offending conduct occurred against a background of your abuse of the drug, ice.
29 General deterrence, specific deterrence, just punishment and public denunciation are all sentencing factors which must be taken into account when arriving at an appropriate sentence in your circumstances.
30 Would you stand.
31 Doing the best I can, taking into account the objective circumstances of the offending and your personal circumstances and applying sentencing principle, in respect to Indictment G12424944, I sentence you as follows:
On Charge 1 – three months’ imprisonment;
On Charge 2 – six months’ imprisonment;
On Charge 3 – 12 months’ imprisonment;
On Charge 4 – 18 months’ imprisonment;
On Charge 5 – 12 months’ imprisonment;
On Charge 6 – three months’ imprisonment;
On Charge 7 – 18 months’ imprisonment;
On Charge 8 – nine months’ imprisonment;
On Charge 9 – 12 months’ imprisonment;
On Charge 10 – 18 months’ imprisonment; and
On Charge 11 – three months’ imprisonment.
32 In respect of the summary offences:
On Charge 5 – I convict and fine you $100;
On Charge 8 – I sentence you to one month’s imprisonment;
On Charge 11 – I sentence you to two months’ imprisonment; and
On Charge 21 – I sentence you to two months’ imprisonment.
33 In respect to the indictable offences, I order that one month of each of the sentences imposed on Charges 1, 6 and 11, together with three months of the sentences imposed on Charges 3, 5 and 8 and four months of the sentence imposed upon Charge 9, together with six months of each of the sentences imposed on Charges 4 and 10, be served cumulatively upon each other and upon the sentence imposed upon Charge 7.
34 In respect to the indictable charges, this results in a total effective sentence of 46 months' imprisonment.
35 I order that one month of each of the sentences imposed on Summary Offences Charges 11 and 21, be ordered to be served cumulatively upon each other and upon the sentence imposed on Indictment G12424944.
36 This results in a total effective sentence of four years’ imprisonment and I order that you serve two and a half years’ imprisonment before you will become eligible for parole.
37 I declare that you have spent 385 days by way of pre‑sentence detention.
38 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years’ imprisonment, with a non-parole period of four years’ imprisonment.
39 Further, I order that all driver's licences and permits to drive under the Road Safety Act, be cancelled.
40 I further order that you be disqualified from obtaining any such licence or permit for a period of two years from today.
41 You may be seated.
42 There were a number of orders sought, being compensation orders in respect to Jason Phelps. Pardon me for a moment. I do beg your pardon, Mr Phelps. In respect of Atiye Ismail and in respect of Mr Benjamin Simpson and I have made those orders. There was a disposal order and as well, a forfeiture order and I have made those orders and there are three copies for the Crown.
43 Are there any matters that arise out of the sentence?
44 COUNSEL: No, Your Honour.
45 HIS HONOUR: Would you remove the prisoner please.
- - -
0
0