Director of Public Prosecutions v Phillips

[2025] VCC 929

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

 Revised

Not Restricted

 Suitable for Publication

CR 24-01588

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHYS PHILLIPS

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2025
DATE OF SENTENCE:	16 May 2025
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2025] VCC 929

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW - SENTENCE

Catchwords:              Sentence – plea of guilty– aggravated burglary (with intent to cause damage), Bugmy, Verdins, dysfunctional childhood, family violence, parental substance abuse, mental and physical health issues.

Legislation Cited: s8A Sentencing Act 1991

Cases Cited:Bugmy v the Queen (2013) 249 CLR 571,R v Verdins [2007] VSCA 102;

Sentence:                  Community Correction Order without conviction; punitive and therapeutic, with supervision and treatment for drug use and mental health, treatment counts toward work hours 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Profitt	Ms C. Papaluca, Office of Public Prosecutions
For the Accused	Mr L. McPhie	Ms E. Oliver, Balmer & Associates.

1Rhys Phillips, you have pleaded guilty to Aggravated Burglary (with intent to cause damage) that was committed on 12 December 2023, on a complicity basis. The maximum penalty for this offence is 25 years' imprisonment.

2At the time of offending, you were 19 years of age. Your co-offender, Cody French-Hodgkinson, was 18 years of age and the victim was 19 years of age.

3Your co-offender and his girlfriend were known to the victim through the Melbourne nightclubbing scene and had frequently attended his address. You had no direct link with the victim.

4The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows:

5At around 11:07 pm on Tuesday 12 December 2023, the victim was in his apartment in Werribee when he heard a noise on the roof. He got out of bed and saw the silhouette of two people on his balcony.

6As the victim moved to the front of his apartment, one of the windows was smashed by a person on the balcony. At this point, the victim ran into the bathroom and locked himself inside. French-Hodgkinson entered the apartment holding a hammer, while you remained on the balcony. French‑Hodgkinson proceeded to go through the victim's personal belongings.

7The victim barricaded the bathroom door by leaning against it. French‑Hodgkinson began to smash the door using the hammer, which struck the victim's head. Fortunately, the victim did not sustain any injuries. French‑Hodgkinson then began to smash the wall of the bathroom from the other side, as well as some of the victim's personal items including a computer and some plates. He stole three pairs of Nike sneakers. French-Hodgkinson then left the apartment through the back window and returned to the balcony where you remained. You both then left the building.

8Police were contacted and the following day, they attended the victim's address and acquired a statement from him. Police obtained CCTV footage that depicts two men dressed in black, climbing on the side of the building at 11:02 pm. As the offenders decamped, one was seen in possession of a hammer.  Police also obtained CCTV footage from the Department of Transport which showed the offenders travelling to the Werribee train station prior to the incident and returning to the station shortly thereafter.  

9The victim advised police that he had received a message at 2:21 am on
12 December 2023, stating 'so you're not gonna pay yh?'. The victim suspected it was from 'Cody' and that it related to damage sustained to a car that the victim had driven. Police confirmed that the mobile number was registered to your co-offender.

10On 29 December 2023, police executed a search warrant at French‑Hodgkinson's home address. They located clothing that matched the CCTV footage of the clothing worn by the offender that carried the hammer, as well as the stolen Nike sneakers.  French-Hodgkinson and his partner were both arrested. He has pleaded guilty to Aggravated Burglary and his matter will proceed on 8 July 2025. His partner was not charged.

11Police examined French-Hodgkinson's mobile phone and found messages between you. On 12 December 2023, French-Hodgkinson suggested a plan to 'run through a house' in Werribee that night and asked you to go with him. Your response that 'It'll be some good fun' indicates your attitude at the time you agreed to participate.

12On 14 February 2025, you attended the Werribee police station for interview, where you admitted that you were one of the people captured on the train station footage. You recalled being contacted by French-Hodgkinson and asked to attend the Werribee address with him. However, you said that you could not remember the actual incident itself, due to your memory issues that result from mental health struggles, stemming from your upbringing. You did remember attending the front of the apartment building and looking up at the balcony. You also recalled going back to French-Hodgkinson's house after the incident and leaving early the next morning. You admitted that following the incident, you received a picture from your co-accused, of him wearing a pair of Nike runners. This prompted you to remember that Nike runners were stolen from the victim, but you denied that you were involved in taking them. You were subsequently charged with a number of offences and released on bail. You have not spent any time in custody. 

13A Victim Impact Statement has not been provided and there is no further information about the residual effect of your misconduct. There is no dispute that this must have been a terrifying experience for the victim, to have been at home at night and have his balcony window smashed, before he was confronted in his apartment. His perception of safety and security must have been affected. This was a planned offence and you acted in company with your co-offender. However, your role was limited, as you did not enter the premises and remained outside at all times. You had no interaction with the victim.  I am told that your intention was to support your co-offender, rather than cause harm to the victim. You were not the principal offender. I accept that your role in the offending is at the lower end of seriousness.

14You were charged on 14 February 2024 and offered to plead guilty to the current offence on a complicity basis, on 7 May 2024. The prosecution did not accept this offer and when the committal was first listed, it was adjourned as the victim failed to attend. Regardless of this, you maintained your offer and at the second listing of the committal on 12 September 2024, your guilty plea was accepted.  The parties agree that your plea of guilty was entered at an early opportunity and has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and you are entitled to a benefit for that. 

15Your plea of guilty demonstrates an acceptance of responsibility for your offending.  There is no dispute that you cooperated with police, identified yourself on the CCTV footage and made full admissions in your interview, as well as subsequently expressing remorse. The prosecution agrees with your counsel that you have shown genuine remorse for your misconduct and I am prepared to moderate your sentence to reflect this.

16Your plea of guilty is also consistent with having developed an insight into your offending and the effect of your conduct. After you were interviewed by police, you have acknowledged the need to address a number of issues, including ceasing drug use, moderating your use of alcohol and engaging in employment. In accordance with your bail conditions, you have had no contact with your co-accused, in order to successfully manage your rehabilitation.

17You prepared a letter of apology to the court, dated 1 May 2025, outlining the shame and disappointment that you feel as a result of your offending. You acknowledge that this offence has been a 'wakeup call' for you and that you are committed to personal change. You have commenced employment which has had a positive influence on you and you are truly sorry for your misconduct.

18I turn now to your personal circumstances.

19You were born in Deniliquin, New South Wales in March 2004 and are now 21 years of age. Your parents separated when you were very young. You have seven siblings and several paternal half-siblings, some of whom you maintain a good relationship with.

20You describe a dysfunctional childhood, marked by family violence and parental substance use. You grew up with your mother and moved to Western Australia when you were four years old, for about 10 years. I am told that during this time you had no contact with your father who lived in Victoria.

21Your mother had two long term relationships during this time, both marred by family violence and substance abuse. Your mother and her first partner used drugs, and you witnessed them smoking cannabis and her partner injecting drugs. He was verbally and emotionally abusive towards you and your mother.  Your mother and her partner then separated but remained living in the same house, due to her financial situation. During this time, the family violence perpetrated by your mother's partner escalated to physical violence towards you, including striking you to the face.

22At the age of 12, your mother was able to afford to move out and you lived with your mother and your sister. They both used drugs and you were exposed to more emotional family violence. Your mother then commenced a relationship with her second long-term partner, who had drug and alcohol abuse issues and schizophrenia. Initially, this man was verbally abusive towards your mother and sister. This escalated to him assaulting each of them on separate occasions and when you intervened, you were physically assaulted. You instruct that the police were called both times and this man then spent time in custody. The relationship ended soon after.

23At the age of 14, you returned to Victoria to live with your father and his partner, who were both also using drugs. You report experiencing some stability while at high school between the ages of 14-17. During this time, you had a stable girlfriend. Your father spent time at a rehabilitation facility when you were
16 and you lived with your girlfriend’s family. They provided you with the most stable environment you had ever had. However, once they found out about your father's substance abuse issues, they no longer wanted you to see their daughter. When you were 17, your partner became pregnant but suffered a miscarriage at around 8-10 weeks.

24At the age of 17 you returned to reside with your father, before moving to Ballarat to live with your mother, who had been abstinent from drugs for approximately three years. You then started to experience your own substance abuse issues and lived transiently. Since your offending occurred, you moved back with your father, before returning to live with your mother in Ballarat at the end of 2024. You maintain a good relationship with both of your parents and although you have not extensively discussed past events, your mother has now apologised to you.

25In September 2024, you commenced a new relationship. Your partner does not use drugs and lives a prosocial life. She has two children from a previous relationship, and you see yourself as a 'father figure' in their lives.

26Your mother and your partner were present to support you at your plea hearing. You are most fortunate in this regard. Your mother has provided a letter to the court, dated 1 May 2025. She describes the complexity of your upbringing which must have had an impact on your lifestyle. Her own circumstances have improved and she is committed to helping your healing process. She has observed your genuine remorse for the offending.

27You were educated at two primary schools in Western Australia and commenced high school for a few weeks before moving to another high school, which you failed to attend. You recommenced school in Victoria in Year 8 until early Year 11 when you left school to start an apprenticeship in horticulture. However, you withdrew from this after a few weeks as you relied on your father to drive you from Wantirna to Monbulk, which he was unable to do.

28In the past, you have had difficulty maintaining employment due to your residential instability. You briefly worked at a chocolate factory and a fish and chip shop. You also spent approximately 12 weeks working with a labour-hire company in Ballarat, before your mental health significantly declined and this offending occurred.  At the time of your offending, you were unemployed.

29Since January 2025, you have been employed as a housekeeper at Hotel Vera in Ballarat. I am told that you enjoy your work and hope to increase your responsibilities by obtaining work at the hotel restaurant. You also have ambitions to work overseas at one of the international hotels connected to Hotel Vera.  Your employer is aware of your offending and has written to the court, confirming that you have taken responsibility for your misconduct and that you are committed to change your lifestyle. He has observed that you are surrounded by positive influence at work and that you benefit from the support you receive. Although you have struggled in the past, you are now in a position to move forward with determination and focus.

30Regarding your substance abuse, you commenced using cannabis and alcohol at the age of 11. By the age of 14, you were smoking cannabis daily. At the age of 17, you experimented with using methamphetamine, GHB, cocaine, MDMA as well as prescription medications, including Xanax. I am told that at the time of your offending, you were abusing cannabis and Xanax as well as binge-drinking alcohol. After you were interviewed by police, you ceased your substance abuse as you were distressed about your conduct and the inability to remember your behaviour. You have not used drugs for more than a year. You also ceased drinking alcohol for a short time and now limit your consumption to small amounts on special occasions, such as your
21st birthday.

31Turning now to your physical health, you were involved in a significant car accident in 2004 and suffer from back pain. You currently wear a back brace and are waiting on a physical assessment with a medical professional. You also report having trouble breathing which you attribute to your cigarette use. I am told that you currently smoke one to two cigarettes a day but are in the process of quitting.

32You experience significant mental health issues and until recently, were not formally diagnosed to receive treatment for your conditions. At the request of your solicitor, you participated in an assessment with psychologist Ms Jane Bidjossian on 14 October 2024. She has provided a report to the court, dated 28 October 2024. She has summarised your personal circumstances and referred to your indication that your mental health considerably deteriorated due to substance abuse. She has provided her opinion regarding your psychological functioning, the impact of this in relation to your offending and other contextual factors relevant to your case. She has made the following observations and findings:

You had a tumultuous upbringing, characterised by familial conflict, exposure to polysubstance use from your parents and chronic instability in your living arrangements. You suffered from verbal and physical assault which created an unstable and harmful environment that significantly impacted your emotional development. Additionally, the absence of stable role models during your formative years has likely hindered your ability to develop healthy coping strategies and secure attachments.[1]

[1] Paragraph 105.

You engaged in polysubstance use at the time of the offending to manage your mental health symptoms and expressed that you felt disorientated and unaware of your actions. However, you had a strong understanding of personal accountability and recognised that you were entirely responsible for your behaviour, describing your actions as 'disgusting'.[2] You displayed some insight and judgment and were receptive to receiving support to address these matters.[3]

[2] Paragraph 61

[3] Paragraph 68.

You do not meet the full criteria for post-traumatic stress disorder, yet you continue to experience ongoing trauma-related symptoms. These symptoms can fluctuate and you may experience them in the future.[4]

[4] Paragraph 103.

Your unresolved trauma and avoidance strategies can significantly impact your emotional regulation and decision making. These coping strategies may manifest as offending behaviour, where the interplay of trauma-related symptoms and substance use creates a cycle of impulsivity and disconnection from consequences.[5]

[5] Paragraph 104.

You have persistent depressive disorder, which can be understood through the lens of your adverse childhood experiences and ongoing psychological challenges.[6]

Your diagnosis of substance use disorder can be attributed to your extensive history of polysubstance use. Your early exposure to a chaotic environment marked by your parents' substance use, likely normalised illicit substance consumption as a coping mechanism for stress and emotional regulation.[7]

The combination of intoxication and unresolved trauma contributes to a cycle of despair and maladaptive coping strategies, further heightening your vulnerability to engaging in harmful behaviours.[8]

Understanding your substance use in the context of your background is essential to address the root causes of your behaviour and develop effective interventions that promote recovery and reduce the likelihood of future offending.[9]

You demonstrated a potential diagnosis of attention deficit hyperactivity disorder (ADHD), which may significantly contribute to your offending behaviour by exacerbating impulsivity and difficulties with emotional regulation.[10]

Your experiences of trauma and instability, coupled with symptoms suggestive of ADHD, may have led you to seek out substances as a form of self‑medication, further impairing your decision-making abilities.[11]

Your mental health challenges have likely influenced your decision‑making processes, leading to a propensity for engaging in harmful behaviours as a means of coping with overwhelming emotions. The combination of unresolved trauma from your formative years and the chaotic environment you experienced has contributed to your emotional dysregulation, making it difficult for you to assess risks and consequences effectively.[12] Notably you have not received any prior mental health treatment in the community.[13]

Your young age is an important consideration. The cognitive control system, subserved by the prefrontal cortex and responsible for goal-directed decision-making through impulse control and self-regulation, is not fully developed in young adults.[14]

Imprisonment would likely weigh more heavily on you as a vulnerable individual. Your young age, personality and mental health vulnerabilities make you more susceptible to threat, intimidation, and exploitation.[15] Imprisonment would likely have a negative effect on your development and future behavioural outcomes.[16]

Your general risk of reoffending is assessed as 'moderate',[17] and can be mitigated through appropriate treatment and management of your substance use and mental health and by establishing employment.[18] I note that this report was written prior to your current employment.

[6] Paragraph 105.

[7] Paragraph 107.

[8] Paragraph 108.

[9] Paragraph 108.

[10] Paragraph 109.

[11] Paragraph 110.

[12] Paragraph 111.

[13] Paragraph 99.

[14] Paragraph 115.

[15] Paragraph 116.

[16] Paragraph 117.

[17] Paragraph 97.

[18] Paragraph 98.

33Your counsel has submitted that your childhood and upbringing were characterised by significant social disadvantage, family violence and instability. As a result of being exposed to misconduct and to drug use by your parents, you developed an issue with abusing substances and alcohol during your teenage years. There is no dispute from the prosecution that you faced significantly difficult experiences as a young person. You have endured a disturbing upbringing, over an extended period.

34I accept that your disadvantaged childhood was traumatic and had an impact on your personal development. The relevance of trauma does not generally diminish over the passage of time and is likely to have lasting consequences. Although your circumstances do not provide an excuse for your offending, they must be given due weight in the sentencing synthesis.  I accept that the principles of Bugmy v the Queen[19]  are applicable and are enlivened, which is a mitigating factor on your plea. The prosecution does not dispute this submission.  Your moral culpability will be reduced accordingly. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and are not entirely eliminated.  This is counterbalanced, however, by the need for community protection, which remains a relevant sentencing consideration.

[19]Bugmy v the Queen (2013) 249 CLR 571

35It appears that your mental health issues have been exacerbated by your use of drugs and alcohol. Your counsel submits that Verdins[20] limbs 1-4 are applicable here. The prosecution does not agree with your counsel's submissions in this regard.   

[20]R v Verdins [2007] VSCA 62

36It is impossible to evaluate the extent to which your mental health issues are connected to your offending, in light of the effect of your consumption of substances. There is no material that isolates them as having a causative effect on your offending. In fact, your plea material has made clear that since you are not using drugs and have reduced your consumption of alcohol, your mental health issues do not have the same persistent impact, as your life appears to be better managed.  The impact of your drug and alcohol use cannot be disentangled enough to determine if the relevant Verdins considerations are applicable. There is no cogent and positive evidence to apply Verdins limbs 1-4 and I am not satisfied that they are enlivened here. However, I do take your background and Ms Bidjossian's findings of your general mental health factors into account in your favour, as part of your general circumstances.

37I accept that Verdins limb 5 and 6 are engaged, as your diagnosis will add to the burden of custody. Ms Bidjossian found that a sentence of imprisonment would weigh more heavily on you than a person in normal health and that it may have a significantly adverse impact on your mental health. I take these factors into account.

38Apart from the incident that occurred on 12 December 2023, you have led an unblemished life. You have no criminal history, nor have you been charged or convicted of any subsequent offending. You are someone of previous good character.  You are entitled to call upon that good character on your plea. You are working to reorganise your life and have remained out of trouble. I accept that your prospects for rehabilitation are very good.

39At the time of this incident, you were 19 years old. Your age is relevant when considering your prospects of rehabilitation.  You are to be sentenced as a youthful offender. I consider that the principle of rehabilitation must strongly feature in the sentencing mix, particularly as you do not have a criminal history.  I take your age into account as a mitigating factor when imposing the appropriate disposition. 

40The defence submission is that a community corrections order (CCO) would adequately address all relevant sentencing considerations.  The prosecution agrees that such an order is within range of appropriate dispositions, and I agree that a term of imprisonment is not required.

41You were assessed by the Office of Corrections on 6 May 2025 and were cooperative. You admitted that prior to the offending, you were using drugs heavily and you do not know why you participated.  The author suggests that your pattern of behaviour demonstrates patterns of impulsivity and lack of consequential thinking, particularly prevalent among the youthful cohort. However, you have improved your circumstances given your abstinence, stable accommodation and employment. The author indicated that while your drug addiction is the main contributing factor, should any alcohol issues arise they can be addressed through the corrections order. You admitted providing a letter of remorse. You were assessed as a medium risk of general re-offending.  Given your self-reported level of motivation, lack of criminal history and your protective family, you were found suitable for a CCO.

42You were also assessed by the Mental Health and Advice Response Service (MHARS). You stated that you were acutely intoxicated at the time of your offending but have been abstinent from substances since February 2024. You have consumed alcohol on three occasions since that time and not excessively. You have no history of mental health treatment, despite having anxiety since your childhood. You were insightful and realistic about your mental health and substance use issues and their relationship to your offending. You hope to engage in psychological supports to develop more positive coping mechanisms.

43The MHARS report outlines that it is essential to include a mental health condition in the CCO. I note that Ms Bidjossian also recommends that you engage with a psychologist and endorses a mental health assessment and treatment condition, if a CCO is to be imposed.

44I am told you are capable of performing unpaid community work and that you are prepared to do so, in conjunction with your employment.  You indicate that you are willing to comply with a CCO and have been found suitable for such an order.

45I am required to take your mitigating factors into account, as well as imposing a sentence that is proportionate to the gravity of your offending. I accept that a period of supervision on a CCO will be of benefit to you and will also provide community protection. There is no dispute that you have good prospects in light of your age, your early plea of guilty, your cooperation with police and your admissions, in the context of your lack of criminal history.

46I take into account the maximum penalty for the offence and current sentencing practices. I accept that a CCO which is both punitive and therapeutic in nature, provides the appropriate balance between all of the competing sentencing considerations in your case. I propose to impose such an order.

47Having regard to the criteria set out in s8 of the Sentencing Act, including the parties' position with which I agree that the offence is at the lower end of the scale, as well as your age, your previous good character and your future goals, I have determined that no conviction will be recorded in this matter.

48You are to be sentenced to:

·A 12 month community correction order, without conviction.

·You are to report to the Ballarat CCS Centre within two working days of being sentenced.

·You are to perform 120 hours of unpaid community work.

·You are to comply with supervision

·You are to undergo assessment and treatment as directed for your drug use

·To undergo assessment and treatment as directed for your mental health

·To participate in other programs as directed

·I direct that 50 hours of treatment and rehabilitation may be accredited to the community work hours.

49So I will ask my associate to print out a copy of the order and then Mr McPhie, if you would not mind just taking your client through so that he understands it.

50MR McPHIE:  Of course, thank you, Your Honour.

51HER HONOUR:  Are there any further orders sought?  Mr Profitt?

52MR PROFITT:  No, Your Honour, thank you.

53MR PROFITT:  As the court pleases, yes.  Your Honour, I note that Your Honour has already made a determination on the sentence and expressed Your Honour's position in relation to the matter of recording a conviction, but I unfortunately neglected to address Your Honour on the matter before Your Honour commenced the sentencing reasons, and although Your Honour appears to have come to a decision already ‑ ‑ ‑

54HER HONOUR:  Yes.

55MR PROFITT:  ‑ ‑ ‑ I just feel I am obliged consistent with my instructions to have it noted on the record that the prosecution position was that due to the inherent seriousness of the offending, a conviction was warranted, but ultimately it is a matter for the court.

56HER HONOUR:  All right.  I can't remember if that was raised last time, but I assumed that that was the position of the Crown.

57MR PROFITT:  If that is the case - my memory was that it wasn't explicitly stated but that but that perhaps the investigation into the potentially outstanding matter might have swayed the prosecution one way or the other.

58HER HONOUR:  Had an effect on that, yes.

59MR PROFITT:  That hasn't been a factor in the prosecution's position on that matter.

60HER HONOUR:  All right.

61MR PROFITT:  But if Your Honour has made that determination on the assumption of the prosecution's position in any event, then obviously it would not have any bearing on Your Honour's determination so I just thought it necessary to raise it.

62HER HONOUR:  All right, thank you.

63HER HONOUR:  Can I just confirm, does your client understand the order?

64MR McPHIE:  He does, Your Honour, yes and he's consented to it.

65HER HONOUR:  And he's prepared to comply?

66MR McPHIE:  Yes, correct, as procedure, thank you, Your Honour.

67HER HONOUR:  All right, thank you very much.

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