Director of Public Prosecutions v Phillips

[2014] VCC 1900

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-01416

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL THOMAS PHILLIPS

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JUDGE:	HIS HONOUR JUDGE MULALLY
WHERE HELD:	Geelong
DATE OF HEARING:	31 October 2014
DATE OF SENTENCE:	5 November 2014
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2014] VCC 1900

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr A. Paull	Michael Brugman Solicitors

HIS HONOUR: 

1Russell Phillips, on 1 April 2014 at approximately 7 pm you went to your then local milk bar in Goldsworthy Road, Corio.  You were, at the time, staying with your brother nearby.

2You were wearing a black hooded top with a distinctive "Ganda" logo on the front and your face was obscured by a black mask disguise; it was frightening.  Of course, more frightening than any of that was that once in the shop you produced a sawn-off double barrelled shotgun and pointed it at the victim who had come from his living quarters into the store to serve you.

3You pointed the firearm at him and demanded money, saying that unless he provided it to you, you would shoot him in the face.  These were chilling words.

4Naturally, the victim was in great fear for himself and also concerned for his wife and two very young children, who were in the living quarters of the shop, very nearby, in the next room.

5He yelled to his wife to call the police and got a chair to the doorway to stop you coming into the living quarters, such was his fear.

6You continued to threaten him, jumped the counter and opened the cigarette cabinet behind the counter taking three packets of cigarettes worth $76.10.  That was the sum total of this armed robbery; all of it for that.

7You then ran from the shop.  A fingerprint was left on the cigarette cabinet and was identified as belonging to you, and you were arrested on 8 April 2014 where you initially denied committing the armed robbery, but you have now pleaded guilty to the armed robbery, and did so at a very early time at a committal mention in August of 2014.

8Your plea of guilty is significant and you have saved the victims the added and, no doubt, significant trauma, of having to re-live this ordeal.

9People who work in small shops and necessarily with cash, must have a sense that if armed offenders terrorise them, then the courts will play a role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future.

10The way the courts will do this is by imposing stern terms of detention.

11Threatening shopkeepers with a sawn-off shotgun is very grave offending.  The impact on the victim, being confronted and threatened by you with your gun, has been significant. 

12In his victim impact statement, he wrote of being, since the crime, "Very insecure, always nervous when customers come in," especially if they are dressed as you were.  He has lost his enjoyment of running a shop.  He has trouble sleeping and has had nightmares.  He worries for his children, who he now prevents from coming into the shop as they once did.  His business has suffered.  He feels the need to reduce the hours so he is not open much when it is dark.  He invested significant sums in better security. 

13I do not ignore the adverse effect of your crimes on the victim.  The gravity of your crime and the impact on the victim are powerful matters against you.

14However, your youth and immaturity are the most important mitigatory considerations, that is, things for you.  You were 19 at the time and do not turn 20 until December of this year. 

15It has to be remembered what the then Chief Justice, Justice Phillips, Justice Chernov and Justice Vincent said of the relationship between young age, immaturity and moral culpability.

16They said, "When youth is raised for sentencing consideration, the focus is usually placed on the offender's prospects of rehabilitation, but this is, by no means, the only basis upon which it assumes relevance.  For at least a century the attribution of criminal responsibility and the response in terms of dispositions handed down upon offenders, has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability, and accountability.  In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity by reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions.  However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity."

17The principles of sentencing young offenders are well known, however, it is important in cases such as this that the community hear and understand why it remains important to encourage young offenders to mend their way and rehabilitate, especially as is the case here where the offending is; or one colossal mistake in an otherwise productive life.

18Justice Batt set out the principles as follows in R v. Mills.

" (1)  Youth of an offender, particularly a first offender should be a primary consideration for a sentencing court where that properly arises.

19(2)  In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may, in fact, lead to further offending, thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  Rehabilitation benefits the community as well as the offender.

20(3)  A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of past criminality.  The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated or a shorter period of imprisonment may be justified."

21I am acutely aware that these matters directed at facilitating rehabilitation of young offenders may need to yield to other sentencing purposes if the offending is particularly serious.  I can do no better than refer to the judgment of Justice Redlich in Azzopardi v. R in which His Honour comprehensively sets out the principles to apply when sentencing youthful offenders, and the matters that may mean that principles have to be ameliorated.

22I will not recite here paragraphs 34 to 44 of that judgment, but indicate that I have done all I can to adhere to, and apply them.  Relevantly, as set out in Mills for a long time the courts have done all that can be done to ensure that a young offender does not go into adult gaol, if that outcome can possibly be avoided.

23As Justice Buchanan said, in considering the impact of prison on young men, he said this, "Generally prison does not provide an atmosphere conducive to rehabilitation.  Prisoner's lives are closely regulated.  They have no real ability to adapt to society for they are isolated from the general community.  Their neighbours are fellow criminals, some of whom are malicious and violent."

24You, as I have said, are 19 years old.  You were raised by your mother in Tennant Creek, along with your three brothers.  You only went to Year 8 at school before leaving.  That was far too short. 

25You moved with your family to Innisfail in Queensland at the age of 15.  Your mother remains there.  She is an important support to you.  I have read her strong letter of support.

26One of your siblings resides in Geelong.  You were visiting him on holidays when you committed this crime.  He, it seems, was a user, or is a user, of illicit drugs.

27You have been troubled by drugs and alcohol abuse since you were 15.  That lifestyle has meant that you have had no further education or training and little by way of work history. 

28When you were 16, you became involved with a young woman four years older than you.  She was a user of ice and heroin and encouraged you to use those dangerous drugs.  You left that relationship when 18 and a half and commenced another with a woman who did not use drugs.  She wanted to settle and have children.  You ended that relationship to come to Victoria and reflect on your life. 

29However, while in Geelong you became seriously involved in using ice.  You had been, so it is said, without sleep for many days before committing this crime.  You have little memory of what you did.  Now you have woken up to yourself, you are insightful, ashamed, and say it is really not reflective of your true character; that is, what you did.

30You do have some prior court appearances, but, in the main, they saw non-conviction penalties.

31I accept you are remorseful and shocked at your behaviour while under the influence of ice.  Yet again that drug is involved in conduct of a serious violent kind, perpetrated by a young man with no previous indication that they would act in such a way.

32While drug use is no excuse, it does explain the extent or the nature of your offending.  That said, it remains the case that this offending is very serious.  You are sad, or reactively depressed, that you are in gaol and separated from your family.  You are desperate to get back to them.

33You have done what you could in prison to improve yourself and remain active.  You are on the waiting list for drug rehabilitation courses in the prison.

34I had you assessed for suitability for detention in a Youth Justice Centre.  Your report was done very efficiently and professionally and I am grateful to the Youth Justice worker, Ms Muscat, for her considerable efforts.

35A written report indicates that you are suitable for Youth Justice Centre detention, including that you are - your vulnerability in the adult gaol.  You have behaved well, it seems, in the prison, but there are more targeted rehabilitation opportunities in the Youth Justice Centre that would assist you to reform and advance your prospects for employment on release. 

36I note your expressed enthusiasm for these vocational opportunities.  I note also that you continue to express appropriate remorse to the report writer.

37You counsel ultimately sought that you be punished by a period of detention in the Youth Justice Centre.  The prosecution did not oppose such a disposition and have approached this matter, from the outset, that such a disposition should be considered, and the court is grateful for the prosecution's approach.

38Youth Justice Centre detention is no soft option.  It involves the deprivation of liberty, a sharp punishment for a young person who has never been in custody before except in relation to the offence for which I am dealing with you; but, also, in your case, it is a sharp punishment because you are in another State away from your family, in particular, your mother.

39Of course, your crime requires that there be practical punishment as part of the expression of denunciation for what you did, and deterrence to others.  Incarceration is a deterrence, and the sentencing purpose of deterrence remains weighty, notwithstanding your youth.

40I consider the best way I can satisfy the statutory mandate of endeavouring to establish conditions that will facilitate your rehabilitation, the best way to do that is by imposing upon you a Youth Justice Centre detention.

41Mr Phillips, can you please stand.  Just before I move to the sentence, what is the pre-sentence detention?

42MR PAULL:  210 days, Your Honour, not including today.

43HIS HONOUR:  210 days?

44MR GIBSON:  Yes, I agree with that.

45HIS HONOUR:  Thank you.

46Mr Phillips, for committing the serious crime of armed robbery, in your case involving the sawn-off shotgun pointed at the victim, you are sentenced to be detained in the Youth Justice Centre for two years' and six months'.

47Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed an adult gaol term of four years' and six months' with a minimum term of two years' and nine months'.

48You have already served 210 days in the adult gaol.  I declare that that period of time of 210 days be reckoned as part of the sentence that I have imposed, that is, the Youth Justice Centre detention, and I will ensure that the declaration that I have just made is entered into the records of the court so that the Youth Justice Centre administrators and the Office of Corrections, for what it's worth, are left in no doubt that you have already served 210 days of the period of time that I have just imposed.  That is, 210 days of the two years' and six months'.

49There are other orders that were sought?

50MR GIBSON:  There was a compensation order for the cigarettes, Your Honour.

51HIS HONOUR:  I will sign that order.

52I signed an order that you repay the sum of money that is the value of the cigarettes, that is, $76.10 to the proprietor.

53Is that the only order sought?

54MR GIBSON:  Yes, Your Honour, yes.

55HIS HONOUR:  There is no other matters?

56MR PAULL:  No, Your Honour.

57MR GIBSON:  No, Your Honour

58HIS HONOUR:  Thank you, I am grateful for counsels' assistance in this regard.

59Mr Phillips, you will now be transferred and taken, I am not sure how it works, to the Youth Justice Centre, perhaps the Youth Justice worker might advise or facilitate all of that, but I expect that it requires you to return back to the cells immediately and then be transported to the Youth Justice Centre and be under their detention thereafter. 

60You can be taken to the cells now, thank you.

61(Offender removed.)

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