Director of Public Prosecutions v Phillips
[2014] VCC 1691
•8 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00556
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW PHILLIPS |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 September 2014 |
| DATE OF SENTENCE: | 8 October 2014 |
| CASE MAY BE CITED AS: | DPP v Phillips |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1691 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Aggravated burglary – Plea of guilty – Co-accused - Parity – Adjustment disorder with mixed anxiety and depressed mood – Good prospects of rehabilitation
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence:Total Effective Sentence 2 years and 6 months’ imprisonment with non-parole period of 16 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Burnett | Solicitor for Public Prosecutions |
| For the Accused | Ms E. McKinnon | Lewenberg & Lewenberg Solicitors |
HER HONOUR:
1Andrew Dixon Phillips, you have pleaded guilty to one charge of theft which has a maximum penalty of 10 years' imprisonment and one charge of aggravated burglary which has a maximum penalty of 25 years' imprisonment. The maximum penalties reflect the seriousness with which each of these offences are regarded by Parliament.
2There was no dispute as to the Prosecution opening which is the basis upon which I sentence you.
3The case against you is put on the basis that at all relevant times, you were acting in concert with co-accused, Armando Perri and Stuart Martin, and that, in respect of the aggravated burglary, you knew of the presence of the firearm, which was used, and the intended plans involving it.
4On a date sometime during May 2013, you met with the co-accused. All three of you mentioned that you were struggling with financial problems. You and Perri then suggested you should rob a person, to whom I shall refer as VF.
5Perri told you and Martin that he had known VF for thirty or forty years. He also said that VF had inherited a substantial amount of money throughout his life, as well as having a substantial market gardening business. He said that VF had several hundred thousand dollars secured in a safe in the master bedroom of his house in the Werribee area.
6Sometime in June 2013, you and Martin purchased a navy blue baseball cap and an orange high visibility jumper from Laverton Market. Sunglasses, duct tape and plastic cable ties were purchased from an unknown location. The plastic ties and duct tape were to be used to tie up your intended victims. A pair of King Gee brand work pants were purchased from a shop in Hoppers Crossing and 4 portable radios from an Aldi supermarket. You and Martin also purchased a brown wig sometime in July, 2013 through eBay. Perri ordered from an unknown associate a Ruger Mark 1 22 calibre pistol with a 10 cm suppressor attached, paying $6000.00 for this.
7You, Martin and Perri got together at a market garden shed where you were residing at that time to devise a plan to commit an Aggravated Burglary. The first stage of the plan was for you to hire a white van, to then conceal the van at a location in Point Cook. Martin would then take possession of the van before driving it to a farm rented by Perri in the same general area, where the intended victims lived. Martin would then put on the baseball cap, wig, sunglasses, workpants and an orange fluorescent jacket disguising himself as a courier. He would also take possession of a cardboard box with the pistol concealed inside and you would wear a balaclava and conceal yourself by lying down in the back of the van.
8The plan then involved Martin driving the van to the victims’ address and pretending he was a courier delivering a package. Once the door of the victims’ house was opened it was planned that he would then enter the house and detain VF and RF with the pistol. Martin would then radio you to exit the van, and you were to tie up the victims before forcing them to open the safe.
9You and Martin were to then collect the money from the safe and drive the van back to Perri's rental farm, where Perri would collect the cash, disguises and pistol. You would then return the van to the hire company.
10On Wednesday 24 July 2013, at about 10 pm, you and Martin attended an address in Seabrook and stole two registration plates with the number OOU611 from a white Toyota van parked outside. This gives rise to charge 1, the charge of theft.
11On Tuesday 13 August 2013, at about 4 pm, Martin drove his car to Glenmoyne Square, Werribee and met you. You were driving a blue Nissan Navara work ute with an unknown registration and the word "Taylors" written on the side doors. You then drove Martin to your shed in Werribee South. When you arrived, Martin changed into the blue work trousers purchased by you as well as a pair of work boots, which were owned by him.
12He left his car keys, his phone, a wallet containing numerous identification cards, a pair of sunglasses, and running shoes, that he had been wearing, behind at your office. You and Martin then drove toward a nature strip off Grainger Circuit in Point Cook where the van was parked. You arrived at about 4.30pm and Martin took possession of the white van.
13You and Martin then drove from Point Cook to Perri's rental farm in Werribee South, arriving at approximately 4.45 pm. Martin then put on the rest of his disguise by donning the brown wig, baseball cap, sunglasses and high-visibility jumper. You and Martin had a brown cardboard box which had a hole cut out with the unloaded pistol concealed inside as well as a walkie-talkie.
14You put on a black three-hole balaclava, black tracksuit top, leather gloves and you were carrying cable ties and duct tape. You and Martin then used zip lock cables to attach the stolen number plates to the front and rear of the van.
15Martin got into the driver’s seat of the white van while you hid in the back of it. Martin then drove the van into the driveway of the victims' house and left the engine running.
16He approached the front door and rang the doorbell. RF, VF’s wife, opened the front door. Martin, whilst standing at the doorway said to RF “I have a parcel for your husband and he needs to sign for it.” RF then walked back into the house, a short distance from the front door and alerted her husband.
17As VF approached the door, RF said “ I didn’t unlock the screen door because he’s wearing sunglasses and I don’t like the look of him.” RF remained in the kitchen whilst VF opened the front door and screen door.
18VF then said to Martin “What’s in the parcel?” Martin did not reply. VF then said to Martin jokingly “It could be a bomb!” Martin then reached into the box with his right hand and produced the pistol. He then pointed it at VF’s face. Upon seeing Martin wielding the pistol RF fled through the back of the house and outside to her mother’s house before ringing for police assistance.
19Martin directed VF to move inside the house by pushing him with the parcel and saying to him “Get in, get in.” He then followed VF inside the house through the entrance way to the kitchen pointing the pistol at him and yelling "Where's your wife?! Where’s your wife?!" VF then replied several times “I don’t know!” This gives conduct rise to Charge 2, aggravated burglary.
20Martin then said “Get back in there” before forcing VF into the games room. Martin was still pointing the pistol at VF, putting him in fear that he was going to shoot him. Martin then followed VF into the games room and searched the nearby billiard room and hallway. He became more agitated and said “Where’s your wife?!” VF replied multiple times “I do not know!”.
21 VF then said “I’m fainting.” and pretended to faint by falling to the floor and lying still. Martin panicked and ran out the front entrance. He ran out of the house, dropping his hat on the gravel driveway as he ran towards the white van. He then ran back to collect his hat before running back and getting inside the van.
22Whilst Martin was fleeing, VF got up and retrieved his shotgun and ran outside. He saw Martin in the driver seat of the white van starting to reverse out. VF then stood on his front veranda 10 metres from Martin. He pointed his shotgun in the air and fired one shot to scare Martin away.
23You yelled from the back "Get us the fuck out of here!" Martin reversed the van out onto the driveway and drove the van into Perri's rental farm and parked it behind the nursery.
24You got out of the van and removed the cardboard box containing the pistol. Martin also got out of the van and removed his baseball cap and his other clothing, which were worn to disguise him as a courier. In a state of panic, you then asked Martin to drive the van back towards Point Cook where it had been picked up at Grainger Circuit in Point Cook.
25Police responding to the incident intercepted Martin driving the van with the stolen registration plates still attached to it. They intercepted him at a location in Werribee at about 5.31 pm. Checks conducted on the stolen registration plates alerted police, who later arrested Martin for the theft of the plates. Martin was still wearing the same workpants and boots he had worn when he committed the aggravated burglary.
26Perri was following Martin when he was intercepted by police. Perri alerted you about retrieving Martin’s car, which was still parked at Glenmoyne Square in Werribee. You and Perri then moved Martin’s car to a different location.
27Police later identified you from the messages left on Martin's phone and asked you to provide a statement. You told police that Martin had borrowed the van and that you had no involvement with the aggravated burglary.
28On Thursday 19 September 2013, Martin attended the Werribee Police Station in company with his solicitor. He made a full confessional statement, making admissions to committing the aggravated burglary with the firearm at Werribee South, as well as theft of the registration plates at Seabrook. Martin also identified and offered to give evidence against you and Armando Perri.
29On 25 September 2013, police executed a search warrant at 100 O’Connors Road, Werribee South. Police arrested you and Perri. During a recorded interview, you made admissions to committing the aggravated burglary as well as the theft of the registration plates. You told police that you committed the aggravated burglary because you were having financial issues and receiving pressures from your wife.
30On 4 September 2014, you attended the Werribee Police Station and made a full confessional statement to committing the aggravated burglary and theft of the registration plates. You also offered to assist police with their inquiries.
31You explained to police that you were sorry to be involved in such a stupid act.
32On 14 March 2014, before His Honour Judge Lacava, Martin pleaded guilty to one charge of theft, one charge of aggravated burglary and a summary charge of unlawful assault. He gave a sworn undertaking to give evidence against you and Perri. Martin was convicted and sentenced to a Community Corrections Order for 3 years, with various conditions imposed.
33On 27 March 2014, Perri was committed to stand trial in the County Court. The matter is now listed for a final directions hearing on 23 March 2015 and a trial is listed on 25 May 2015.
34Before me, you gave a sworn undertaking to give evidence against Mr Perri in accordance with the matters in your police statement.
35The impact of the aggravated burglary on the victims has been profound, as you would expect. Although you knew the gun wasn’t loaded, this is not something the victims knew. To be confronted with a firearm with a silencer attached must have been an horrific experience for VF in particular. As a result of this crime which you helped commit, VF and RF suffered emotional trauma and were fearful for their personal safety. VF suffered stress and experienced difficulty performing normal daily activities for several days after the incident. Indeed, it appears from his victim impact statement that he has endured sleeplessness, illness, sadness and an undermining of his confidence because of what you have done. VF says that his life has been shattered by the offending and that he has attended counseling on two occasions to help him deal with the dreadful effects of it. He has been helped by the support of family and friends. I have not had regard to VF’s hopes in respect of the term of imprisonment that he feels is appropriate, in your case. Like VF, RF has endured feelings of anxiety and depression which have been exacerbated from time to time because of the various stages of the investigation and upon hearing that you and your co-offenders had been released on bail.
36Mr Phillips, your offending is most serious and is deserving of a punishment which is just in all of the circumstances. Your conduct must also be denounced. Objectively, the offending is a most serious example of aggravated burglary, involving a good deal of premeditation and planning, and which involved confronting one of the victims with a gun and silencer. Of course, the offence of aggravated burglary comprehends the use of a weapon but the weapon of choice in this case was particularly frightening. It is fortunate that more harm wasn’t done to the victims in view of the fact that the plan had also involved you physically restraining them with duct tape and plastic ties, and forcing them to give over information to access their money. Not only did you terrify the male victim, his wife would have fled the premises not knowing what was to be the fate of her husband. You were an active participant in an elaborate plan, reminiscent of a Hollywood movie or some crime show.
37In terms of your moral culpability, I have factored in that you were prepared to have your far younger cousin who was also your godson do your dirty work, in that you were prepared for him to initially confront the victims with the gun. Then you were prepared to leave him high and dry, having instructed him to return the van. You left him to deal with the police on his own, with you telling police that he had borrowed the van and you denied any involvement. At the plea hearing it was said that you were frightened of Mr Perri being violent toward you and your family, and it was at his bidding that you gave an initial false statement to the police about lending the van and your lack of involvement. Even if this were so, and I make no finding in this regard, you took the decision to make that false statement and effectively abandon your cousin and godson.
38By way of explanation, for the offending itself, I was told that you were struggling financially and personally; that your wife was putting a good deal of pressure upon you to provide for the family. She had asked you to leave and you had felt like a failure as a father and husband. You were and are extremely devoted to your family. While this is an explanation, it in no way excuses your criminal behavior.
39At the time that you committed the offences, you and Mr Perri were living in a market garden shed. While it was Mr Perri who nominated the victims as being good targets, you had significant input in the planning and execution of the plan from the outset. I was told that you had treated the idea of committing the aggravated burglary as something of a fantasy, that you did not expect to come to fruition; perhaps this was so for a time, but it is difficult to accept that this was your abiding state of mind, as you performed a number of steps along the way to execute the plan.
40You have one prior court appearance, being a charge of obtaining property by deception which was dealt with at the Melbourne Magistrates' Court on 22 May 2001, by way of an adjourned undertaking without conviction. I understand that this matter concerned you providing a car for a fraudulent insurance claim made by another person. The matter is rather dated and has limited relevance to the matters before me.
41In respect of the matters before me, I was told that you were prepared to enter a plea of guilty from an early stage and you did so without the need for a contested committal or trial. In this regard, I note from Ms McKinnon’s helpful chronology that you had initially obtained leave to cross-examine the informant and Mr Martin, but that after Mr Martin was sentenced, you entered a plea of guilty on the committal hearing date, having indicated an intention to do so before this. Therefore, it may have been that despite your record of interview being so comprehensive, you had in mind a contest of the matters until some later stage. Although, I do note, as Ms McKinnon has said, that the victims were not required to give evidence at the committal, in any event. It is your right, of course, to conduct committal proceedings. You are not to be punished for taking such a course, which in fact was not taken, I look at the comprehensive record of interview, in the context that at one stage, you required Mr Martin and the police officer to give evidence at a contested committal hearing. In any event, your early pleas of guilty entitle you to a significant discount in the sentence you would otherwise receive, as you have saved the witnesses, especially the victims the trauma and time of giving evidence and you have saved the community the time and expense of contested proceedings.
42I do take into account in your favour, that shortly after you made the false statement to police, you gave a comprehensive and frank record of interview, and on 4 September this year, you made a further lengthy statement to police, which you have adopted as being a truthful account of events. You have undertaken to give evidence in accordance with that statement at the trial of Mr Perri, which entitles you to a very substantial discount in the sentence you would otherwise receive. You have given this undertaking in circumstances where you live in close proximity to Mr Perri and are concerned about your welfare and that of your family’s in taking this step. I was told that you gave the statement and undertaking so late in the piece because of your fear of Mr Perri, although it was conceded that you were partially motivated by the disposition imposed upon your godson.
43I also accept that you have insight into your offending and are genuinely remorseful for it, although it must also be said that this was no spur of the moment action that you have since regretted. There was plenty of opportunity for you to desist from going through with the plan you helped devise but you chose to go ahead with this.
44I take into account your background.
45You are now 45 years old. You were educated to Year 11 then attended an agricultural college in South Australia. You moved to Melbourne to live with your uncle and commenced work with him in his irrigation business which was engaged for market gardens in the Werribee area. You returned to Adelaide in 1988 where you worked as a catering manager for three and a half years, then returned to the irrigation business with your uncle. You met your wife in 1996 and married in 1998. You and she have three children now aged 14, 12 and 7. You are a devoted father.
46Your uncle sold his business to a large American company and you then worked for this company for about two years. In 2001 you started your own irrigation business and did a good deal of sub-contracting work predominantly for ‘Taylor Irrigation’. You bought a house and things were going well for a number of years. In the last year or so before the offending, your business slowed down dramatically and you encountered financial difficulties. This led to your decision to commit the offences now before me.
47I understand that you and your wife have separated but that reconciliation is likely. You are on good terms with one another. She attended the plea hearing as did other members of your extended family. You have these people to look to for support which is a matter going positively to your prospects of rehabilitation.
48In March 2013, you injured your knee during the course of work but, I was told, you made no claim through WorkCover in respect of this. At the plea hearing on 25 September, I was told that you were then working at a pizza restaurant in Laverton, which you very much enjoyed, receiving on the job training in cooking. I was told that you were unable to return to your irrigation business. You had also enrolled in a digital technology course. Shortly after that time, I was advised through my associate that your Counsel had a new matter to raise with me and I have since been advised that you have been offered a permanent full time position with a market gardener in the same area in which you previously worked. This is something of a breakthrough for you as, since your offending, you had been shunned by those in the industry.
49I understand that your business is now largely destroyed as your offending has meant that those in the market gardening industry had wanted nothing to do with you. This is an aspect of punishment, which you have already endured as a result of your offending, although it appears that the business was already struggling and you have now a job offer in the same line of work, albeit, not as an employee.
50I take into account the report of Mr Newton psychologist dated 10 September 2014, and the referring letter from Dr Movahedian, who indicates that you had a history of depression ‘since 11 months ago.’ Mr Newton has diagnosed you as suffering an adjustment disorder with mixed anxiety and depressed mood. He found that although a proportion of your symptoms have arisen because of legal proceedings, it is likely that you were suffering this condition at the time of the offending, such that your cognitive processes and capacity to make logical and rational decisions were compromised. As against this, you embarked upon a sustained course of action where you were able to make a number of decisions in a bid to ensure that you successfully took money that you needed from the victims and to avoid detection. There is a certain high level of rationality to what you planned and intended to do. However, I accept that your judgment as to the appropriateness of such actions was somewhat clouded, and will therefore allow for a marginal reduction in your moral culpability. I also allow for a marginal reduction in the weight which I attribute to specific and general deterrence and have factored in your mental state when imposing a punishment which is just in all of the circumstances. I also allow for the fact that your mental state would make time in gaol more onerous for you than for someone without it, and that if you were to be incarcerated, it is likely that your mental health would deteriorate.
51I have also allowed for the fact that any time in custody may well need to be served in protection because of your undertaking to give evidence and that there would be additional hardship suffered by you because of your devotion to your family and concern for them in your absence.
52I accept that save for this offending and the one prior matter, you are of otherwise good character, and it is unlikely that you will re-offend. In light of these matters, your early plea of guilty, remorse, good work ethic and family support as well as your devotion to your family, I find that you have very good prospects of rehabilitation and I need only place minimal weight on specific deterrence, which is further moderated by Verdins considerations, albeit to a minimal extent. Strong weight would ordinarily attach to general deterrence in a bid to deter others from offending as you have. In the circumstances, I marginally reduce such weight.
53Parity is a relevant consideration in your case. Your co-offender, Mr Martin was sentenced by His Honour Judge Lacava on 14 March 2014 and receiving a three year community corrections order. He gave an undertaking to give evidence against you and Mr Perri, indicating his preparedness at an earlier stage than you. He also suffered from an adjustment disorder but this was taken into account in a general way as opposed to your situation, albeit that in some respects I have made limited allowance for your condition. Mr Martin also pleaded guilty at an early stage, and was remorseful. He had no prior convictions. As His Honour pointed out, the law requires that the courts ‘bend over backwards’ to facilitate a youthful offender’s rehabilitation, which was Mr Martin’s situation, not yours. His Honour also said that he had ‘gone out on a limb’ to keep Mr Martin out of gaol and that the case had troubled him because of the seriousness of the offending. He said that the main fact in granting a community corrections order was Mr Martin’s undertaking to give evidence against you and Mr Perri. His Honour also had regard to the fact that the Crown had conceded that a community corrections order would not be manifestly inadequate in Mr Martin’s case. No such concession is made in your case; however, I do not factor this in on the question of parity. I do not factor in the different roles that you played in respect of the aggravated burglary either, as Mr Martin was merely playing the part that you were all happy for him to play.
54Whilst you have a number of matters in common with Mr Martin; namely, your detailed confession, your preparedness to plead guilty at an early stage, your remorse and undertaking to give evidence, there are some qualitative matters which divide you in a way that puts Mr Martin in a different position. These are:
55That he had undertaken to give evidence against two people, you and Mr Perri, as opposed to your undertaking which is in respect of Mr Perri alone.
56That he was only 21 years old at the time and therefore a youthful offender, as opposed to you.
57He gave an undertaking at an earlier stage than you did.
58He had no prior court appearances, whereas you have one prior matter.
59He was your godson, and a good deal younger than you and Mr Perri.
60I accept that Mr Martin did not have Verdins considerations and I also accept that you presently live in the same area as Mr Perri, and are less mobile than Mr Martin. This makes your situation and your family's situation potentially more perilous than that of Mr Martin. Hence, your undertaking is perhaps attendant with more risk to your safety and that of your family’s than Mr Martin’s. However, I’m afraid that I do not accept that these considerations, such as they are, balance out against the qualitative differences to which I have referred so as to entitle you to a non-custodial disposition. Your offending is too serious to warrant anything other than an immediate term of imprisonment, and I am not of the view that it is appropriate to combine this with a community corrections order; however, the term which I impose has been considerably reduced in view of the matters in mitigation in your case, and I have borne in mind the leniency extended to Mr Martin. With your consent, I shall also make the authorities aware of your psychological condition and that this is to be your first time in custody, a matter I have also taken into account when sentencing you.
61Please stand up, Mr Phillips.
62In relation to each of the offences you are convicted.
63You are sentenced to the following terms of imprisonment:
64Charge 1 two months
65Charge 2 two years, six months, which will be the base sentences
66These terms are to be served concurrently with each other, producing a total effective sentence of two years six months' imprisonment and I direct that you serve 16 months' imprisonment before becoming eligible for parole.
67If not for your pleas of guilty and your undertaking to give evidence, I would have sentenced you to a total effective sentence of six years, six months' imprisonment with a non-parole period of four and a half years.
68Is there anything further, counsel?
69COUNSEL: No. Thank you, Your Honour.
70HER HONOUR: Thank you. Ms McKinnon, do I have your client's consent to advise the authorities in relation to his psychological conditions?
71MS MCKINNON: May I approach the dock?
72HER HONOUR: Yes.
73MS MCKINNON: Yes, Your Honour.
74HER HONOUR: Yes, all right. I'll have that made know. Yes, you might remove Mr Phillips.
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