Director of Public Prosecutions v Phillips

[2017] VCC 244

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01517

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL PHILLIPS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2017
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2017] VCC 244

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr J. Desmond	Turnbull Lawyers

HIS HONOUR:

1Michael Phillips, around 5.00 pm on 5 April 2016 you went with a co-accused to deal with a young man you believed owed money to your oldest son. 
You knew the occupants of the house where this person, the young man who owed money, lived.  However you and the co-accused pushed your way in when the door was opened.  Two of you went straight to where the male victim was.  You held the door shut while the co-accused punched the victim and waved his knife around menacingly.  You demanded money and his phone. 
The co-accused started to ransack the room eventually stealing an iPod and a mobile phone.  Others who had been in the house had come to the door but you kept them out.  Then those others in the house, both males, females and children left in fear calling the police on the way.

2The victim is said to go to the garage.  Here you, Mr Phillips, assaulted him, the victim, by pushing him over and punching him.  He fought back, landing some punches on you.  The co-accused lunged at the victim with the knife but luckily it was deflected away.  The victim fought back again and you, again, punched him.  You and the co-accused left shortly thereafter, you grabbing two bongs as you left.  The victim managed to wrest one of the bongs back.  The victim suffered bruising to his head and neck. 

3You were arrested a short time later.  In your record of interview you admitted most of the allegations.  You claimed you were unaware that the co-accused had a knife when you went to the premises.  The next day you went back to the police station and returned the stolen bong, some cannabis and $30, being your share of some of the cash that was stolen.  I take these matters into account in your favour.

4You pleaded guilty to one charge of armed robbery, one charge of common assault and one charge of theft.  You did so on 21 September 2016 after I heard and determined a sentence indication hearing in your favour.  Meaning
I indicated to you that should you plead guilty I would not send you to prison.  For these crimes, taken together with your recent prior conviction, ordinarily would have seen a term of imprisonment or some imprisonment imposed. 

5However as pointed out at the sentence indication hearing a tragic and exceptional circumstance has arisen since your offending that has changed everything.  On 16 September 2016 your youngest son fell backwards on steps causing severe damage to his neck.  Tragically the consequence is that he is now quadriplegic.  He requires constant care and will so for the rest of his life.

6Nor surprisingly this tragedy has caused you to wake up to yourself.  You have stopped wasting your life using ice and cannabis.  You recognised how you are needed to care for and be a constant companion to your son and you have risen up to that challenge.

7Your relationship with your wife was greatly strained by reason of your drug use.  However she now sees that you have reversed that and are a dedicated father and carer and partner.  She and you work constantly to provide care to your son who remains in the Royal Children's Hospital.  She does have a job and it would appear at some points and in the future, should you not be around by reason of being incarcerated, then all the burdens of caring for your son will be solely placed on her. 

8This is a case where hardship to others, being your son and your wife, is powerfully mitigatory.  The higher test of exceptional circumstance that are required before I am allowed to take that sort of mitigatory fact into account, that high test is well met in this case.

9I have read the medical reports from the Children's Hospital regarding your son.  Today I have read your outline of your daily care for your son which was prepared by you dated 19 January 2017.  It is a compelling document.  I have also read the psychological report setting out your background.  I am not so sure about the conclusions of Mr Ball in his report but that matters little. 
Your attitude, personality and prospects for reform have all changed for the better after you faced the reality of your son's predicament.  As noted you have risen to the challenge thus far.  The risk of re-offending in your case is much less now than before.

10I take into account in your favour your attitude expressed in your record of interview and the return of the stolen items you still had.  Thus your remorse and regret were evident even earlier than your son's accident. 

11The options available to me to punish and yet allow you to care for your child are limited to a community corrections order.  You were assessed as suitable notwithstanding you breached an earlier community corrections order by committing these offences and were, as I understand it, not complying with the conditions.  I have been told today that that matter has been dealt with a magistrate re-imposing a community corrections order.  I am unaware of all the conditions save that I am told that you are required to do 200 hours of unpaid work.  I will return to this concept or this matter of unpaid work shortly.

12As earlier indicated, that is in the sentence indication hearing, gaol is not a just and appropriate penalty in this case with the exceptional circumstance that now prevail.  I intend to impose an aggregate term of a single community corrections order.  However I make clear, as I am required to, that the armed robbery is far and away the most serious offence of those three committed.  The assault is also a matter of some seriousness.

13My concern was whether you could do any unpaid community work.  As the Court of Appeal in the guideline judgment of Boulton pointed out, community corrections orders are onerous.  They are punishment by reason of, usually, unpaid work and supervision and the fact of a penalty hanging over a person's head for some time.  There are also aspects of community corrections orders that facilitate, or establish conditions that facilitate, rehabilitation such as requirement to attend for counselling or treatment in terms of drug addiction and mental health.

14It seems to me in the circumstance, having read your daily burdens and that of your wife in caring for your child who remains at the Royal Children's Hospital and will not return to the family home until finances from the NDIS or National Insurance Disability Service or however it is properly phrased but unless some funds come to do what will be fairly significant changes to your property at Sebastopol.  Until that happens he will be in the Royal Children's Hospital and you will be there with him almost every hour or indeed every hour. 

15I cannot see how the imposition of a requirement to do a full day's work in the community palpably paying back the community by obvious hard and unpaid work is of any benefit in this case.  You quietly get about helping your son daily.  It is a burden.  One that you take on but nonetheless a burden.  I think if the community well understood what you are required to do, the community would be well comfortable that you are not required to do any other work in the community fixing fences or weeding creek beds or the like along with others.  That is not necessary in this case.  I say all this because ordinarily in this set of circumstance you would have been imprisoned.

16So the community corrections order that I place you on will go for nine months.  You will be required to undergo treatment for drug addiction and for mental health difficulties.  I set no other conditions in respect of the community corrections order. 

17As to the community corrections order that the magistrate set, it is a matter for the magistrate but you should well understand through your lawyers the capacity to return to a court to indicate to them that there is a need to vary conditions or the like.  You also have the right to appeal against decisions of a magistrate to this court but that is a matter for you.

18I propose to make the order relating to a request that you provide a forensic sample as well.  I do so because of the seriousness of the offending and your prior criminal history.  So what that means is I will sign a document requiring you to undergo a forensic procedure.  It will be a scraping of your mouth or some such thing.  That has to be done at the police station that will be closest to you.  It has to be done within a window of time.  That window of time opens up a month from now.  Once the window is opened in a month, you have got a month, another month, to go down to the police and get the sample done. 
If you do not, once you get there, do not cooperate with the police then they are authorised to use reasonable force to get the sample.  It is just a scraping from your mouth.  Just cooperate and get through it that way.

19There being no other orders.  There was no time served, was there?

20MS PILLAI:  No, Your Honour.

21HIS HONOUR:  No.  It would not make any difference.  Is there anything else required in this matter?

22MS PILLAI:  No, Your Honour.

23HIS HONOUR:  In respect of s.6AAA I always get confused.

24MS PILLAI:  Yes.

25HIS HONOUR:  Because there was no requirement, at one point, that I give an indication if the sentence I impose is not a gaol term or a fine.  But I always indicated to the accused and thereby to the public that the plea of guilty was of value, it was in this case . Had you pleaded not guilty and been found guilty of this offence you would have been imprisonment for at least two years.  I do not propose to put any more to it than that as to whether you would have got a minimum term or a community corrections order would depend.  Things have changed so radically.

26But there is a co-accused and he is not - necessarily I am not speaking to him directly but it should be understood but for the serious circumstance personal to you that has arisen and but for your plea of guilty, two things the co-accused does not have, then gaol would be imposed involving years.

27Mr Phillips, the community corrections order that I have imposed goes for nine months.  It starts now, ends on 1 December.  You must comply with all the mandatory conditions that apply to all the community corrections orders. 
You have heard it before, I will say it again.

28Importantly you must not commit another offence which can imprison you in the time the order is in force.  You know what will happen if you go back to breaking the law.

29You must comply with any obligation requirement under the Sentencing Regulations.  I will need to sort out photographs and make sure that you - just cooperate with anything they ask of you in respect of those things.

30You must report to and receive visits from the Office of Corrections.  You must report to the Ballarat Community Corrections Service there in Nair Street within two days of this order.  So go and sort it out today or tomorrow.

31You must let a Community Corrections officer know within two clear working days if you change your address or job.  You cannot leave Victoria without getting permission and obey all lawful instructions.  Just cooperate with them.

32In addition I have imposed a couple of conditions.  You must undergo assessment and treatment for drug abuse or dependency as directed and you must undergo any mental health assessments and treatments.  Now in your case that might be getting a mental health plan from your GP.  Sometimes I rail against that when the Office of Corrections forces people onto that system and do nothing much themselves but I think that might be appropriate in your case.  You are going and getting some sleeping tablets but you might need a bit more.  See what they say about a mental health plan and chat to a counsellor or something.  It might be with your wife, it might be on your own, it is a matter for you.  Do you follow all that?  You cannot do all this on your own.

33OFFENDER:  No.

34HIS HONOUR:  The next part of it is that you have got to undergo treatment for drug abuse and dependency.  That too is essential.  If the nine months that
I have set up for you is not sufficient they will throw their hands up and say "There's waiting lists and we can't get you on" and all the rest of it, just do it anyway.

35OFFENDER:  Yep.

36HIS HONOUR:  People can voluntarily keep going with these sorts of things.  Do it.  Right, if you sign that then that will bring the matter, as far as I am concerned, to an end.  Is there anything else required?

37MS PILLAI:  No, Your Honour.

38HIS HONOUR:  Get a copy of that and you're free to go.

39MS PILLAI:  Thank you. 

40HIS HONOUR:  Thank you, Mr Desmond, for your assistance in this matter and Ms Pillai.  Mr Thompson, if all of this can be, in some way, communicated to
Mr Schoefbaenker's lawyers as well.

41MR DESMOND:  Thank you, Your Honour.

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