Director of Public Prosecutions v Phillips

[2017] VCC 772

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00128

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLAYTON JAMES PHILLIPS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2017
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2017] VCC 772

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr D. Langton

HIS HONOUR:

1Clayton James Phillips, you have pleaded guilty to: one charge of false imprisonment; one charge of common law assault and one charge of contravention of a Family Violence order.  Those crimes carry maximum penalties of ten years, five years and two years respectively.  You pleaded guilty to a settled indictment.  You must get the benefit of that with remorse in this scenario, I suspect, when you are well as probably there, and you must also, of course, get the utilitarian benefit of that plea of guilty.

2You have now been in custody for some 410 days as a result of this offending by which some 30 days was used in a Magistrates' Court sentence that was imposed.  Accordingly, I take that into account in a generalised way as a Renzella principle.

3You do have a significant criminal history going back many years.  You do have significant prior convictions in that you have a subsequent and a prior matter for at least threatened violence against the same victim as in these proceedings.  As I understand it, a further intervention order is to be taken out and it is a matter for the Magistrates' Court and not me.  However, I have heard the victim impact statement in this matter which eloquently describes the damage that you have done and the fear in which you have placed an innocent woman, which fear has not gone away and may not go away for quite some time.  I understand from your counsel it is your intention upon release to leave this area and it is to be hoped that if you are able to do that and settle elsewhere her fears may be somewhat allayed.

4A summary of the offending can be done in brief.  You have been in a boyfriend/girlfriend relationship with the victim, for some 18 months at the time of this offending.  There obviously have been prior difficulties between you and an intervention order in place prevented you from committing family violence or attending her address.  There was no restriction on her attending your address.

5On 27 April at around about 11 o'clock at night she attended your home, intending to stay the night, to be with you for your birthday on the following day.  She described you being in a strange mood, that you were playing music loudly and talking about having witnessed a homicide as a child and about cutting people up.

6At about 12.45 am on the following morning she said she was going home and walked towards the back door.  You grabbed her and pushed her into the kitchen.  That is part of the common law assault.  You sat her in a chair, took off her glasses and the phone from her pocket.  You grabbed a kitchen knife and asked if she would fit into a wheelie bin.  As I understand it, the wheelie bin was in the kitchen.  She was terrified but tried to remain calm and talk to you.  You placed the knife on the kitchen bench next to her phone and glasses

7You asked her to come to bed and give you a cuddle.  In the bedroom you took off your clothes and told her to remove hers and she did.  You said that you were going to deadbolt the doors so she could not leave.  You climbed into the bed and told her to do the same.  She did so.  You wanted her to lie next to you but not touch you.  You started to talk about dying, about calling the police and holding her hostage.  You said that you had a two litre can of petrol in the front bedroom, that you were going to tie cigarette lighters to your wrists and ankles.  You asked her what would be a better way to die, to be burnt alive or drowned in a half bucket of water.  She was trying to stay calm.  You were insulting her and then slapped her in the face with an open palm, which is again part of the common law assault.  You talked again about dead bolting the doors, got out of the bed and went towards the front door.

8She took this opportunity to grab her clothes and ran for the door.  As she was opening the inside of the back door you shut the door and prevented her from leaving.  That gives rise to the charge of false imprisonment.  You grabbed her and pulled her back into the kitchen.  She began screaming for help.  At that stage you pushed her to the floor, climbed on top of her and covered her mouth, blocking her nose, which caused her to stop breathing momentarily.  That again is part of the common law assault.  She was clearly terrified.  There was a struggle and she managed to get your hand off her mouth.  She yelled to let her go home.  She apparently made a religious pronouncement towards you, which I have read, which appeared to calm you down.  You got off her and led her back to the bedroom.  Eventually you fell asleep.  She got out bed, grabbed her clothes and was able to escape the premises.

9That gives rise to the breach of the intervention order, the common law assault and the false imprisonment, as I have described them.  As I have indicated, I have heard the victim read out her victim impact statement, in eloquent and simple terms, if I might say so.

10The offending has to be regarded as serious.  You have behaved in this way before and general deterrence and specific deterrence have to play a part in this sentence.  There must also, of course, as in all forms of domestic violence, be an element of denunciation and there must be an appropriate punishment.  In my view, an active gaol sentence is the appropriate punishment and it is then a matter of determining what it needs to be.  It is my view, as it was Judge Mullaly's view, that the reality is this matter should have been dealt with in the Magistrates' Court but the timeframe, realistically, precluded that occurring.

11In terms of determining the length of the sentence I have then looked at matters personal to you which have been described to me by your counsel.  You are now 46 years of age.  You were born in Melbourne to a heroin addicted mother who, as I understand it, had prior convictions for theft, loitering for prostitution and the like.  Your natural father disappeared from the scene.  You were institutionalised from the age of 18 months through to 12 years of age.  You were at St Vincent's in South Melbourne I am assuming, St Augustine's, which is well known to me, Baltara and Turana.  You were ultimately then released back to your mother and her de facto partner and I am sure that was not the best environment for a teenager to live.  In fact it was during that period of time where you were involved in the commission of a murder of a taxi driver, as I recall it all.

12Subsequent to that you have basically survived, leading a transient lifestyle with occasional appearances before the courts.  You received 16 years with a minimum of 12, for the murder and you have, in the ultimate, done that entire sentence as you have been brought back on breach of parole on occasion.  I note that that murder was committed at the age of 16 years.

13I take into account the principles outlined in decisions such as Bugmy where children who have had that experience in their young lives very rarely recover.  You are still plagued by depression, by anxiety and it would seem clear from the material here, potentially at least, of drug abuse and very strange behaviour.  There is nothing in a medical sense before me that I could use or apply the principles in Verdins, mental disturbances, and this is what it has come down to.  You have spent periods of time homeless.

14You, at around the time of this offending had been in the Latrobe Valley area for a couple of years and had become involved in St Luke's church.  You own a van and believe that the church still have that van.  At the time that this all occurred you were living in church premises which were rent free on the basis that you were going to renovate them.  You stated through your counsel that is your intention upon your release to get the van literally back on the road and just simply become transient again.  Your mother is now deceased.  You had the unfortunate experience of seeing your father in a homeless state some years ago and it is clear that you are pretty much on your own.

15The prospects of your rehabilitation are really up to you but have to be regarded as problematic.  The risk of you re-offending is almost impossible to estimate.  I would be surprised if you never offend again.  The main thing from this sentencing purpose is that an intervention order will be put in place and you do intend to leave the area and I cannot be engaged in preventative sentencing.  It is not my function.

16In any event, taking all those matters into account as best I can, on the three charges you are sentenced to be imprisoned for an aggregate period of
13 months.  I direct that 380 days be reckoned as having been served under that sentence.  That leaves a period of around about 15 days still to be served where you can get your head around being released and your victim can get into a situation where the appropriate intervention orders or order is in place.

17I have directed 380 days, have I not? Yes. I direct that 380 days have been served under this sentence. Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty you would have been sentenced to imprisonment for a period of 18 months with a minimum term.  There are no other orders I have to make, are there?

18MS GUESDON:  No, Your Honour.

19HIS HONOUR:  All right, you can take him now, thank you.

20MR LANGTON:  As Your Honour pleases.

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