Director of Public Prosecutions v Phillips

[2017] VCC 1061

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01632

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAMMY FAYE PHILLIPS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2017
DATE OF SENTENCE:	3 August 2017
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2017] VCC 1061

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp
For the Accused	Mr J. Saunders

HER HONOUR: 

1Tammy Faye Phillips, you have pleaded guilty before me to one charge of aggravated burglary, two charges of being a prohibited person possessing an imitation firearm, three charges of armed robbery, two charges of intentionally causing injury, one charge of recklessly causing injury and one charge of obtain property by deception.  The facts underlying your offending are as follows.

2I will begin with Incident 1 which occurred on 17 June 2016.  At that stage you were driven to a house at 32 Norman Street, Melton, where you knocked on the door and spoke to the person inside, Leo Annand.  After telling him that someone in the house owed your brother Matthew money, you walked back to your car, then returned to the front door where another occupant of the same house was standing at the front door.  You said, "Call Adam here".

3Leo Annand went to the bedroom occupied by a person called Adam, who said, "I'm calling the cops, don't open the door".  You then began to go into the house.  You had a pistol in your right hand and were holding it at chest height.  Those actions underlie Charges 1 and 2 on the indictment, being aggravated burglary and prohibited person possessing an imitation firearm.

4You walked towards a bedroom door occupied by Adam Griffo and told him to open the bedroom door; he refused.  You then asked him to slide five grand under the door but he denied owing you any money and called police.  You were told police were on the way.  You struck the bedroom door three times with the gun, which caused some damage, then left.

5Incident 2 occurred on the same day, about nine hours later.  The first incident occurred at about 1.40 in the morning.  The next incident occurred at about
11 o'clock when you went into a milk bar in Melton West and asked about a pack of cigarettes.  You left the shop then returned about 30 seconds later and produced a black imitation handgun and demanded cigarettes and money.  These actions underlie Charge 3 on the indictment, armed robbery.

6You climbed the counter, kept demanding money and cigarettes, and hit the shop attendant, Mr Q.T. Bui, to the face and head using the butt of the handgun, which caused swelling to the left eye and a laceration.  These actions underlie Charge 4 on the indictment, intentionally causing injury.  The victim then handed over between $300 and $400 and you ran from the premises.

7Incident 3 occurred two days at about 4.50 in the afternoon of 19 June 2016.  The victim, Mavis Dillon, aged 87, was returning to her car near Ginifer Railway Station in St Albans Road after visiting a friend.  She put her walker in the backseat when she was approached by you and you said to her, "Give me, give me".  You then hit her to the right side of her head.  She described you as having a small black object in your hand.  Your actions in behaving this way underlie Charge 6 on the indictment, intentionally causing injury.  You kept saying, "Keys, keys, keys" then took Ms Dillon's keys from around her neck and pushed her to the chest area, causing her to fall over on the roadway. 

8You then got into the car and started it and Ms Dillon rolled away from the car to avoid being hit.  Most of her belongings were in a red bag which also contained her wallet and purse and which you also took because they were inside the car that you drove away.  Your actions in relation to taking the car underlie Charge 5 on the indictment, armed robbery.

9Ms Dillon suffered a fractured eye socket, bruising and lacerations from your attack upon her and a fractured left wrist as a result of the fall to the ground.

10Incident 4 occurred on 21 June 2016 at about 10.45 am when you approached 74 year old Gwenda Heap who was sitting in her car in the IGA Supermarket carpark at Cohuna with her three-year old granddaughter.  As she was turning around to get out of the car, she saw you crouching at the open door.  You said, "Give me your wallet or I'll hurt the little girl".  She noticed that you had a gun.  Before she had a chance to get her wallet, you jammed the gun into her right cheek causing a laceration and swelling to her face and Ms Heap then retrieved her wallet and handed it over. 

11Her glasses were knocked off her face and broken during the incident.  Her wallet contained about $150 in cash and an ANZ card.  You drove away, presumably in the car that you had stolen from Ms Dillon.  Your actions towards Mrs Heap, firstly in stealing the wallet from her in the way that you did, underlie Charge 7 on the indictment, armed robbery, and in the injury that you caused her, Charge 8, recklessly causing injury.

12Incident 5 occurred the same day when you went to shops in Kerang and used Ms Heap's ANZ credit card which had been in her wallet to undertake five transactions.  You bought a bottle of Canadian Club whisky and a bottle of dry ginger ale valued at $44.20.  A short time later, you bought a suitcase worth $95 from a shop and a $20 watch from Target.  These actions underlie Charge 9 on the indictment, obtaining property by deception.

13You were arrested at about one o'clock in Kerang, police searching the car that you had stolen from Ms Dillon which was parked at the Kerang Railway Station and in which they recovered the imitation firearm and the items purchased with the ANZ card you took from Mrs Heap.  Your possession of the firearm underlies Charge 10 on the indictment, prohibited person possess imitation firearm.

14You were then questioned by police and in a record of interview made full admissions of your conduct spanning the previous four days.

15The maximum penalty for armed robbery is 25 years' imprisonment, the maximum penalty for intentionally causing injury is ten years' imprisonment, the maximum penalty for causing injury recklessly is five years' imprisonment, the maximum penalty for aggravated burglary is 25 years' imprisonment and the maximum penalty for obtaining property by deception, which in this case was a rolled-up charge, is ten years' imprisonment, and the maximum penalty of being a prohibited person in possession of an imitation firearm is 1200 penalty units or ten years' imprisonment.

16I now turn to your personal circumstances.  Before doing so, I wish to refer to the victim impact statements in this case.  I will begin with the victim impact statement in relation to Ms Heap.  Your offending has involved violent assaults upon two elderly women, Ms Heap being one of them.  I received a victim impact statement from Ms Heap's daughter, who says that before the crime her mother was a happy person who enjoyed life, had a positive attitude, and was still working on her family farm.  She said now she is sad, depressed, fragile and struggles to communicate.  She said her positive attitude disappeared, she worried about everything and everyone a lot more than usual.  She had become depressed and unhappy.  She has trouble socializing, has trouble sleeping, has lost a great deal of weight, had many medical costs and indeed a report was received from her doctor, Dr Dushart, dated 13 March 2017.  Dr Dushart said that Ms Heap continued to suffer from severe depression with psychotic symptoms since September 2016.  She had no past history of mental illness and it appears that all her mental illness has been triggered by your attack upon her and indeed this is the opinion of the doctor.

17In relation to Ms Dillon, she was hospitalised for four days and she was not able to return home and lead her usual independent lifestyle.  She had to stay with her son and daughter-in-law 300 kilometres away, "as staying in Melbourne was not an option as there was no one who could take care of me while I was recuperating".  She said her enjoyment of life has changed, as being at her son's place she was far away from family and friends.  She feels hurt, she wonders what she did to deserve this as she had never hurt anybody, "I was just going about my daily life.  I feel anger for the same reasons, why me".  She is fearful that could happen again.  She has lost her total independence. 

18She said even when she is well enough to return to her own home, "I will still need assistance in my day to day living that was not needed prior to this incident".  She has trouble sleeping and she said while she feels she should be safe at her son's house, that when she closed her eyes, "I can still see the incident".

19The victim impact statement was written only three weeks after this incident but the experience of this court is the emotional impacts described by Ms Dillon are ones that last for extended periods of time.  She suffered significant loss of a car that was in good condition, there was enormous inconvenience having all her various cards replaced.  She had to put new security locks on her home and she talked about ongoing appointments with her doctor as a result of injuries she received, stating, "I have lost virtually all my independence having to have someone to feed me, help me shower, bathe and dress.  These things only a few weeks ago I could do with no problems".

20Hopefully, but we cannot say, she has been able to recover to a reasonable extent and to return home but there is no doubt that she suffered serious injuries.

21I now turn to your personal circumstances. 

22You are now 34 years of age.  You have an extensive prior criminal history but given the personal difficulties you have suffered throughout your life I do not intend to go into great detail in relation to those beyond saying that they are of a similar nature.  They are concerning and I do regard them as relevant for the purpose of the sentencing exercise before me.

23Mr Saunders, I am aware that Ms Phillips is not understanding anything of what I am saying.

24MR SAUNDERS:  Yes, Your Honour.

25HER HONOUR:  But I do have to sentence her in these terms.

26MR SAUNDERS:  No, Your Honour.  I'll explain to her the significance of these matters when I get a chance.

27HER HONOUR:  I will have a word to her at the end.

28MR SAUNDERS:  After some other matters I have to attend to this morning.

29HER HONOUR:  That is fine.  I will speak to her before she goes downstairs.

30MR SAUNDERS:  Thank you.

31HER HONOUR:  You have been assessed during the course of these proceedings both by a psychologist and a neuropsychologist and it is primarily to the neuropsychologist, Mr Martin Jackson's report, that I will refer. 
Mr Jackson said it was difficult to get an accurate history as to your upbringing.  He said that you grew up with your father and two halfsiblings but you reported living with an aunt as well as being in foster care.  You were unable to give details about how often you were in foster care.  It appears you cannot read or write. 

32You went to high school briefly but were unable to say what particular year that was and it also appeared that you may have got halfway through Year 9.  In other words, your history is a very mixed and difficult one. 

33It appears you told Mr Jackson you left school when you were 13 and have had no further formal education or training, nor have you had any formal paid employment.  You have only had one type of employment and that has been as a prostitute and sex worker. 

34You reported a long history of substance abuse beginning with heroin at age 13 after running away to Kings Cross and getting into prostitution.  You told
Mr Jackson you continued using that until you were 25 and then began using ice which ironically you used in order to get off heroin.  You said that you had been using ice virtually every, day unless you were imprisoned, since you were 25 and believed that you used about a gram a day.

35You began drinking at about age 16 and were a daily drinker, sometimes consuming up to three bottles of spirits a day.  Mr Jackson noted that when you went into custody you went into acute withdrawal, that is, with vision problems, shaking, cramps and you had to be treated with Valium for a week while you came down off alcohol.

36So your history is one that since the age of 13 you have worked as a prostitute.  You have used either heroin or ice on a daily basis and you are clearly alcoholic.  You reported five or six overdoses on heroin and have had to be given Narcan.  You said you were often taken to hospital and after one of your overdoses you spent two weeks there.  You reported hearing voices in your head when you were taking large amounts of methamphetamine and that when that happened you would use a friend's Medicare card to go to a doctor and get some Seroquel.  You denied any other psychiatric problems. 

37Ultimately there were three reports received in relation to you but the importance of them really was not so much as to your earlier life but the way you have been living your life since you were about 13.  You told Mr Jackson you have lived all over Australia.  You never lived anywhere particularly long except in South Australia and you travelled around by hitchhiking.  You had never received Centrelink payments and you simply got money by giving people sex.

38You have three children aged 16, 13 and five who are all in the Department of Human Services, you have never had custody of him and they all live in South Australia.  You had your first child when you were about 17.

39You have had many relationships and you will stay with men for a while rather than live on the streets and you have also lived in hotels and motels. 

40You had not been in Victoria for very long before the offending occurred.  You were in a relationship with a man called William Cashel and then you split up for two weeks after you went on a bender and then got back together again.

41Mr Warren Simmons, psychologist, also interviewed you.  In his report dated
20 September 2016 he described you as having experienced a very disturbed childhood, that you were from a very young age involved with local welfare services, often taken out of the care of your father and that you had been introduced to prostitution by your oldest sister from your early teens.  He noted also a very long history of substance abuse.  He stated that:

"There was evidence that she has a personality disorder with marked borderline personality traits as well as some antisocial traits.  She represented as being a very naïve and at times childish woman.  With regards to the matters before the court, it appears that these occurred at a time when she was substance affected.  She did not attempt to justify her behaviour and appeared generally remorseful."

42Again, Professor Michael Daffern in his report dated 20 March 2017 believed that you had an intellectual function which was well below average, that you had significant interpersonal and personal problems, that you have a drug and alcohol abuse history which may have compromised your neuropsychological functioning and it was possible that your drug and alcohol abuse had compromised a likely low level of premorbid intellectual functioning.  And again, he believed you had a severe personality borderline disorder.

43As a result of the neuropsychological examination, it appeared that you have an extremely low IQ, overall IQ which was 42 which is in the extremely low range and indicative of a moderate intellectual disability. I make the comment that the word "moderate" is not one used in the lay sense.  "Moderate" means moderate as compared to other persons suffering an intellectual disability which in fact means your intellectual disability is profound. 

44As a result of the neuropsychological assessment you have been assessed as a suitable candidate for intellectual disability services within the Department of Human Services which in my view is extremely important.  My concern is that it is clear that I must gaol you to a lengthy term of imprisonment but without proper assistance within the gaol system it is simply going to be a matter of you being released on parole which I imagine you would fairly promptly breach without assistance, possible relapse fairly promptly into drug use and repeat the sort of very serious and violent offending that has brought you before the court on this occasion.

45This is one of those difficult sentencing exercises where it is clear the offending is extremely serious.  Two vulnerable elderly women have been severely injured as a result of your offending.  At the same time, you present with a very pitiable history, one where you have been sexually exploited and been in the grip of severe drug and alcohol addiction since the age of 13.  You are also of extremely low intellectual capacity.  It is quite clear that protection of the community is the primary sentencing consideration to which I must have regard in sentencing you. 

46However, it is also important that I do take into account your general intellectual functioning.  The awful thing is it appears that you have completely slipped through the cracks over the years.  You were able to leave school, run away, become a prostitute at age 13.  You are now 34.  So that means for the last 21 years you have been an alcoholic and a drug addict and a sex worker, all the while living your life and coping with your life with an extremely low IQ so that there has to have been much exploitation of you from an early age.  It is appalling that your situation was not one that was picked up and dealt with much earlier in your life.

47As I have said, however, the danger you present to the community is by far the most important matter to what this court must have regard. 

48In sentencing you I do take into account the matters relating to your personal history, your drug and alcohol addiction and in particular your intellectual disability.  I accept that you are remorseful for your offending, as indicated by what you said to those professionals who interviewed you and by your early plea of guilty and your completely confessional record of interview.  It is my view that ultimately if properly cared for you are probably quite a kind person who would not engage in this type of behaviour.  However, the severe functional difficulties and lack of support that you have continued to experience throughout your life have very much led to you living this sort of crime ridden life and ultimately resulting in this appalling offending that as I have said has brought you here before this court.

49Could you stand up, please.  I therefore sentence you as follows. 

50Charge 1, you are sentenced to ten months' imprisonment.

51On Charge 2 you are sentenced to six months' imprisonment.

52On Charge 3 you are sentenced to two years' imprisonment. 

53On Charge 4 you are sentenced to eight months' imprisonment.

54On Charge 5 you are sentenced to two years and six months' imprisonment.  No, I beg your pardon.  You are sentenced to three years' imprisonment.

55On Charge 6 you are sentenced to 12 months' imprisonment.

56On Charge 7 you are sentenced to two years' imprisonment.  No, I beg your pardon.  You are sentenced to three years' imprisonment on Charge 7, I am sorry.

57On Charge 8 you are sentenced to 12 months' imprisonment.

58On Charge 9 you are sentenced to two months' imprisonment.

59And on Charge 10 you are sentenced to six months' imprisonment.

60The base sentence will be the sentence imposed on Charge 5, three years' imprisonment. 

61I order that 18 months of the sentence imposed on Charge 7 and 12 months of the sentence imposed on Charge 3 be served cumulatively to the sentence imposed on Charge 5 and with each other and I also order that two months - sorry, one month of the sentence imposed on Charge 10, beg your pardon, no, I beg your pardon.  And I also order that three months of the sentence imposed on - beg your pardon, two months of the sentence imposed on Charges 4,
6 and 8 be served cumulative to the sentence imposed on Charge 5 and all other sentences which should give a total effective sentence of six years.  I order that a minimum term of three years and ten months be served before becoming eligible for parole.

62What is the pre-sentence detention?

63MR SAUNDERS:  On my calculations, Your Honour, it was 412.

64HER HONOUR:  Is that right?

65MS THORP:  I had 408. 

66HER HONOUR:  We will need to sort that. 

67MS THORP:  Yes.  We will work out the difference, Your Honour.

68HER HONOUR:  Thank you.  Now, Tammy, that is the longest sentence you have ever got.   It is a really long sentence and I can see that you are extremely unhappy.  But you broke the face bone of an 87 year old lady.  Another old lady is living in a mental healthcare asylum because of what you did to her.  This is really really serious.  You did it all in four days and you hurt so many people and that is why it is such a heavy sentence and I know it is horrible for you but that is why. 

69Now, Mr Saunders will come down and explain it to you and it is really important that as best you can you use what you can in gaol.  If you had pleaded not guilty you would have got a lot more and I know it is the most gaol you have ever gotten in one time but I think it is probably the worst offending you have ever done.  Do you understand why?  I am not expecting you to be happy but that is what it is.  So you are going to be in gaol for at least another two or three years.  All right.  Thank you.

70Pursuant to s.6AAA I declare that had - you can take Ms Phillips down.  Pursuant to s.6AAA I declare that had Ms Phillips not pleaded guilty I would have sentenced her to a term of imprisonment of seven years and six months with a minimum term of five years and six months. 

71I note that the minimum term of three years and ten months is less than would ordinarily be the case in a matter of this kind and has been done specifically because of the neurological findings. 

72All right.  Now, is there anything else that I need to ‑ ‑ ‑

73MR SAUNDERS:  Your Honour, just bear with me.

74HER HONOUR:  We need the PSD. 

75MR SAUNDERS:  408, Your Honour.

76MS THORP:  Pre-sentence detention is 408 days.

77HER HONOUR:  I declare that 408 days of this sentence have already been served by way of pre-sentence detention.

78MS THORP:  Your Honour, there was a disposal order ‑ ‑ ‑

79HER HONOUR:  Yes.

80MS THORP:  ‑ ‑ ‑ requested.

81HER HONOUR:  Yes, I can see that here.  Thank you. 

82MS THORP:  I can't remember what it was for.

83HER HONOUR:  I think I have signed that.

84MS THORP:  Are they already signed?

85HER HONOUR:  Yes, I have.  There you are.  Thank you very much.  Yes, thank you.  Anything further?

86MR SAUNDERS:  No, Your Honour.

87HER HONOUR:  Thank you very much for your assistance in this matter,
Mr Saunders.  Yes.  Thank you.  You're excused and I've now got two judicial monitoring so I will get on with those.

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