Director of Public Prosecutions v Phillips
[2021] VCC 1393
•17 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00876
CR-21-00877
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA PHILLIPS & HENRY STOWERS |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July, 7 September 2021 | |
DATE OF SENTENCE: | 17 September 2021 | |
CASE MAY BE CITED AS: | DPP v Phillips & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1393 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Malik | Office of Public Prosecutions |
| For Accused STOWERS | Mr S. Tovey | Kaczmarek Grigor Lawyers |
| For Accused PHILLIPS | Mr A. Chernok | Slades & Parsons Criminal Law |
HER HONOUR:
1 Henry Stowers and Joshua Phillips, you are two of four men who at about 10.30 pm, on 26 March 2020 entered, uninvited, a home in Cranbourne West, and forced your way into a bedroom occupied by Jade Falcone and Tyler Walker. You Mr Stowers had known Tyler Walker since you began playing rugby together at the age of 12. You had maintained a social relationship since then. This, however was no social visit. Both of you, Mr Stowers and Mr Phillips are members of the Finks outlaw motorcycle gang. Mr Walker, who recognised you, Mr Stowers, despite the facemask you were wearing, knew you were a member of the Finks.
2 All four intruders were disguised and some, if not all of the other assailants produced and threatened or tried to use various weapons against Mr Walker. With you, Mr Stowers, leading the assailants, and at different times using a baseball bat, your fists and bear mace, you threatened Mr Walker, tried to strike him with the bat, wrestled with him, punched him in the jaw, and tried to spray him with the bear mace. You demanded that he hand over his car or pay you a substantial amount of money. He refused.
3 There was a third person in the house, in another bedroom at the time you entered. He too was threatened, and chased as he ran away by some of the four assailants. All four assailants fled as it became clear police had been called. Someone discarded a knife on the roadway as the getaway car left. That knife was later connected or would appear to have been taken from the kitchen of the house in the course of the home invasion.
4 Mr Walker suffered bleeding gums, multiple scratches and scrapes to his arm.
5 These events give rise to the charge of aggravated burglary (entry as a trespasser with intent to assault, knowing people were present) and intentionally cause injury to Mr Walker, to which each of you has pleaded guilty.
6 They are not the only charges that you face and that you have pleaded guilty to. To appreciate the other charges, and the context, it is necessary to go back, and then forward a little in time.
7 Three weeks earlier, you, Mr Stowers, had been approached by Mr Walker, the victim of the aggravated burglary and the assault. Mr Walker had asked you to accompany him to the home of a man by the name of Jacob Perger. The aim was to intimidate Mr Perger because you were told Mr Walker believed that Mr Perger had been contacting Ms Falcone, Mr Walker’s partner. You agreed to accompany Mr Walker to Mr Perger's home. Whilst inside the premises somebody took a quantity of cocaine and cash.
8 From 5 March 2020, Mr Walker began receiving frequent calls and messages from you, Mr Stowers, demanding that he return the money that had been taken from Mr Perger's house. Mr Walker refused, saying he had not stolen anything and accusing you of having stolen the drugs and the money. He says that you said it did not matter because the entry into Mr Perger's house was not his job, but Mr Walker’s and that you continued to demand Mr Walker pay you money. Initially the demand was for $6,000 but then you put it up to $10,000.
9 The initial requests made by you, Mr Stowers, of Mr Walker to pay the money turned into threatening demands, with implications that if he did not pay something bad would happen to him. At one stage you rang Mr Walker and discussed payment of $10,000. During that phone call a second person came onto the phone and said amongst other things to Mr Walker:
a. ‘10k by tomorrow or I will put a fucking bullet in you, you fucking dog’
b. 'I am going to fucking shoot you, you little rat’
c. ‘Get the fucking money or I will put a bullet in you, you fucking dog’
d. ‘If you don’t have the money by 7 o’clock I am going to fucking shoot you, you fucking dog’
10 Not long after that call, the day before the aggravated burglary, you, Mr Phillips, at Mr Stowers request, conducted surveillance on Mr Walker’s home. Then on the day of the aggravated burglary Mr Stowers rang you, Mr Phillips, telling you that he wanted you to go with him to see a guy who owed him money. He asked you to pick him, that is Mr Stowers, up, later that evening. You did so. You and Mr Stowers, in a stolen Toyota Kluger driven by your then partner, Mr Phillips, arrived at the Walker house in Cranbourne West. Two other men, at this stage unidentified, were also present. All four assailants entered the house together.
11 In addition to entering as trespassers and committing the aggravated burglary, the bedroom door of the room that Mr Walker and Ms Falcone were in was damaged. It was kicked from the outside and as Mr Walker tried to hold it closed, it was struck with a baseball bat which broke the door in half and allowed it to be opened and for Mr Stowers and the others to force their way in. That gives rise to an additional charge of criminal damage to property to which the two of you have pleaded guilty.
12 Just coming back to the circumstances surrounding the assault on Mr Walker. He said he saw four people in the doorway of the bedroom once it had been broken down. According to him, you, Mr Stowers, were at the front and remained in effect at the front of the pack the whole time. He said that all four offenders had their faces concealed and were carrying weapons. You, Mr Stowers, were initially armed with a baseball bat. Mr Walker identified one other was carrying a switch blade knife. Another produced and later handed you, Mr Stowers, the can of bear mace. At some stage you handed the baseball bat to one of the others, and then later again on your demand it was returned to you. Mr Walker said that whilst he was wrestling with you trying to get hold of the baseball bat to stop you striking him with it, two of the assailants who were behind you, Mr Stowers, produced guns, and pointing them over your shoulders, aimed them directly at Mr Walker. Mr Walker gave detailed descriptions of the two firearms. However, neither you, Mr Stowers, nor Mr Phillips have made any admission to carrying, producing or being aware of anybody else carrying or producing firearms. In those circumstances I cannot be satisfied beyond reasonable doubt that either of you produced, or were aware that anybody else produced firearms in the course of the attack.
13 I have already noted that Mr Walker had recognised you, Mr Stowers, when you came into the bedroom. You told him to ‘pay the money so this shit can end'. Mr Walker again said he would not pay anything. It was after his refusal to pay that the struggle and the attempt to assault him occurred in the manner I have described. At some stage, in addition to the blows that you were aiming at and sometimes landing on Mr Walker, one of your co-offenders came into the room armed with a knife and tried to stab Mr Walker in the stomach. He however fended that away. It was after that, Mr Stowers, you took the can of bear mace and tried to spray Mr Walker.
14 The taking of the bear mace and trying to spray it on Mr Walker, Mr Stowers, establishes the related summary offence to which you have pleaded guilty, use of prohibited weapon. Mr Walker was eventually able to push you, Mr Stowers, out of the bedroom. On the way you punched him to the left side of the face. That ends the assault on Mr Walker.
15 Ibram Girgis, the third person occupant of the house, was in a separate bedroom. He came out of his bedroom, saw what was happening and retreatred to his bedroom. He was pursued by one of the four assailants. He tried to hold the door closed, but was unsuccessful. The door was forced open causing some damage to it. Mr Girgis escaped and ran down the street but was pursued by one of the offenders who was by then armed with the baseball bat. A car also followed him. Mr Girgis called the police. At some stage after Mr Walker pushed you, Mr Stowers, out of the bedroom, he heard someone from the front of the house yelling 'cops' before the four assailants left.
16 Now you, Mr Phillips, at the time of this were on bail and were unlicensed. It is of course a condition of bail that you not commit any indictable offence whilst on bail. So it is those circumstances that gives rise not only to the charge of commit an indictable offence on bail to which you have pleaded guilty but also, as you were one of the assailants who apparently drove away, it gives rise to one of the charges of unlicenced driving to which you have pleaded guilty.
17 Girgis later discovered that a Maserati watch that he owned was missing from his bedroom. When you were arrested some days later, Mr Phillips, it was found on you. That gives rise to a further charge of theft that you have pleaded guilty to, Mr Phillips.
18 After the four assailants had fled and whilst police were in attendance a further phone call was received by Mr Phillips again demanding that he pay $10,000 the following day. This call was overheard by the police. After the police had left Mr Walker's house you, Mr Stowers, again continued to contact Mr Walker and demand payment of $10,000. In total, between 14 and 27 March, you called, or attempted to call, Mr Walker 28 times. On the 27 March you also sent a message via Signal, asking whether he had the money yet.
19 As a result of the threats made to Mr Walker over that period of time, you, Mr Stowers, have pleaded guilty to a charge of extortion with threat to kill. That is a course of conduct charge covering the period from the first demand, three weeks before the aggravated burglary, through to the demands made during it and after you fled the scene and up until the time shortly before you were arrested.
20 Some days later, on 29 March 2020, you Mr Phillips, drove the stolen Kluger car that had been taken to the Cranbourne West address to Warragul. This gives rise to a second related summary charge of unlicenced driving. Police found the car parked in Warragul. Nearby was a Holden Commodore ute also stolen, which police searched. In it they found a loaded sawn-off bolt action .22 calibre rifle, in a camouflage bag under the driver's seat. It matched the description of one of the firearms given by Mr Walker that he said was produced on the night. Police examined that firearm and your DNA, Mr Phillips was discovered on it. A phone traceable to you was also in the stolen Holden Commodore ute and that had, amongst other things, photographs of you posing with that firearm. As a result of the finding of the firearm and the connection of it to you, you Mr Phillips have also pleaded guilty to a charge of being a prohibited person in possession of a firearm and the related summary offence of being a prohibited person possessing cartridge ammunition. That charge relates to the cartridge ammunition found in the gun. A baseball bat was also pound in the stolen car. And, on that phone found in the car, Mr Phillips, were screenshots from an online retailer of a Maserati watch, the same model as that stolen from Mr Girgis.
21 It was not until 20 April of last year that you, Mr Stowers, were arrested, charged and remanded. You, Mr Phillips, were arrested a couple of days later I think on 22 or 23 April. Each of you has spent the last 17 months in custody. For you, Mr Stowers, all of that counts as pre-sentence detention in respect of this offending. For you, Mr Phillips, some of that time has counted towards a sentence imposed for unrelated matters in December of last year.
22 The charges against the two of you resolved during contested committal proceedings, following three days of cross-examination of witnesses including Mr Walker, and Ms Falcone. You entered your guilty pleas to these charges on 29 April 2020 bringing to a premature end, the contested committal proceeding. Given the nature of the resolution of the charges I treat your pleas as being entered at the first reasonable opportunity. That is, by reason of the Crown agreeing not to proceed with some of the more serious charges that had been laid, an overall resolution of the charges and a resolution of some of the factual issues in dispute between the parties.
Objective Seriousness of Offending
23 The objective seriousness of the offending, particularly the aggravated burglary and for you alone, Mr Stowers, the extortion, is high. This is a serious example of the confrontational aggravated burglary with all of the features identified in Meyers[1] being present. At the point of entry, both of you acknowledge you intended to use violence. Both of you acknowledged that you were aware or at least believed that people were at home. That is borne out by the surveillance conducted by you, Mr Phillips, at the request of Mr Stowers earlier. At best, the motive for the aggravated burglary was a dispute between Mr Walker and Mr Stowers about what could be euphemistically characterised an unpaid debt. Given the surrounding circumstances and the extortion charge to which you have pleaded guilty, Mr Stowers, in my view it is better characterised as occurring in the course of, and as further means of seeking to compel Mr Walker to comply with your demands he pay you $10,000. The two offences, the aggravated burglary and the extortion are linked, but are separate offences. Acknowledging the link, it is of course necessary to avoid the risk of double punishment.
[1] DPP v Meyers [2014] VSCA 314.
24 As for you Mr Phillips, you were not a party to the original break into Mr Perger’s home with Mr Walker and Mr Stowers. Whatever you knew or believed of Mr Stower’s reasons for wanting to attack Mr Walker in his home that night, it was not a fight of your making. You were, it would appear, simply there as muscle, or enforcement, to add to the weight of numbers and severity of the incursion.
25 This was, it would appear, Mr Stower’s operation, and you, Mr Phillips, were recruited to conduct surveillance, and to lend support on the night. It makes little difference in my view in assessing the relative culpability between the two for sentencing purposes.
26 You gained entry into the premises as a group and forced entry into the bedroom occupied by the victims, Mr Walker and Falcone, by breaking through the locked bedroom door. You were both armed, you, Mr Stowers, with the items I have described. It is unclear what item or items you were armed with Mr Phillips. But I accept the accounts of Mr Walker and Ms Falcone that all four assailants were armed. Although as I have noted I cannot be satisfied beyond reasonable doubt that either of you had or were aware that any others had or produced firearms. You, all four offenders, acted in company. The offending took place in the late evening at a time that you knew or reasonably believed that Mr Walker would be home. You, Mr Phillips, had gone to the target property the day before at the behest of Mr Stowers to carryout surveillance to confirm that belief. And you, Mr Stowers, were known to Mr Walker to be a member of the Finks outlaw motorcycle gang.
27 Whether it was also known that Mr Phillips was too a member of the Finks is of lesser significance. This is, as the prosecution rightly submitted, gang related offending.
28 The extortion is also a serious example of a serious offence. It extended over a period of three weeks, the threats were serious and repeated, chilling and given your motorcycle gang membership, clearly capable of and intended to instil real fear to compel compliance.
29 Dealing with some sentencing facts: you, Mr Stowers, dispute the prosecution assertion that it was you, not Mr Walker, who stole the drugs and cash from Mr Perger's house. It is not necessary for sentencing purposes for me to determine what was stolen or who stole it. No charge of theft of drugs or cash is on this indictment. It appears to be common ground that drugs and cash were stolen, and that you, Mr Stowers, demanded that Mr Walker repay an amount of money in compensation for that; that Mr Walker refused; and that Mr Walker asserted that it was not he who had stolen the drugs and cash; however, you, Mr Stowers, persisted in your demands. That in my view is the relevant context for the offending. Even if Mr Walker were the thief, that would be no mitigator.
30 This is properly characterised as a ‘confrontational’ aggravated burglary. The indictment is not framed with the additional aggravating feature that you carried weapons at the point of entry. And as noted, I proceed on basis that I am not satisfied beyond reasonable doubt that either of you were aware that firearms were produced inside the house and during the attack on Mr Walker or that they were pointed at Mr Walker whilst he was being attacked by Mr Stowers.
31 I accept that the offence was of relatively short duration, that all four assailants were inside the house for a reasonably short period of approximately two minutes. That the injuries sustained by Mr Walker were relatively minor and the damage to the house was limited to the bedroom doors. I also accept that you, Mr Stowers, enlisted Mr Phillips to assist you in the offending.
32 It was put on your behalf, Mr Stowers, that this was not, or at least that there was no evidence that this was a Finks operation, as opposed to a frolic of your own. It makes no difference in my view. You were, and were known by Mr Walker to be a member of the Finks. The nature of the threats and demands made by you and others in your presence, make it clear that at the very least you were trading on your known association with the Finks, and intimating that you were under pressure from others to repay the money and drugs stolen from Mr Perger's home, and that further harm, from those others, would flow to Mr Walker if he did not accede to your demands.
33 Each of you has a significant, and relevant criminal history of violence, and other serious antisocial behaviour.
34 Despite the difference in roles, (you, Mr Stowers, being the instigator, you, Phillips the enthusiastic assistant in the four charges that both of you have pleaded guilty to); the difference in age (you Mr Stowers being only 22 and you Mr Phillips being considerably older, 35 at the time); and criminal history (you, Mr Phillips having used those additional years to amass a more extensive criminal history), I see no basis for imposing different sentences on each of you for charges you both face. In my view, you share equal responsibility for your roles in joining in committing these offences.
35 It follows from all of this that subject to considerations personal to you, denunciation, deterrence both general and specific, and just punishment, loom large in the sentencing mix.
36 Turning then to matters applicable to both of you and which must be taken into account in reduction of the sentence otherwise appropriate, having regard to the objective seriousness of the offending and your prior convictions, first is your guilty pleas and the time at which they were entered. As I have said, are to be treated as pleas of guilty entered at the first reasonable opportunity.
37 They have a utilitarian value. They have saved the time and expense of a trial and they have an added utilitarian value given the ongoing impact of the COVID-19 pandemic and its impact on the operations of the court.
38 For you, Mr Stowers, it was not put that your pleas are evidence of remorse. And for you, Mr Phillips, it was put that the pleas were some indicator of remorse. Having regard to the circumstances and the materials put before me on the plea I do not accept that the pleas of guilty by you, Mr Phillips, are any indicator of remorse.
39 Having said that, absence of remorse is not an aggravating feature. It simply means that there is absent one additional mitigating feature which if present can either further add to the weight to be given to the guilty plea or provide some further weight to the weight to be given to prospects for rehabilitation.
40 Turning then to matters personal to you Mr Stowers. For a man who was only 22 at the time, you have a significant and disturbing criminal history for violence, and other offences.
41 Between August 2012 and May 2015, you were dealt with by the Children’s Court on three separate occasions. The offences for which you were sentenced include multiple assaults, as well as burglaries, thefts and a range of driving offences. On all three occasions you received a non-conviction outcome and were released upon entering a Good Behaviour Bond subject to special conditions including attendance at school and at boxing classes. Between May 2016 and May 2018 you were dealt with by the Magistrates’ Court on six separate occasions. The offences for which you were dealt with in the Magistrates' Court involved violence, dishonesty, property damage, custody, breach of court orders and driving offences. The offences of violence include robberies, aggravated burglary, recklessly causing injury, intentionally cause injury and assault. You were also dealt with for breach of a community correction order, failure to answer bail and eight charges of contravene family violence intervention orders. For those offences, you faced a range of sentences from conviction with a fine, to community correction orders through to detention in a Youth Detention Centre.
42 It would appear none of those sentencing dispositions in the Children's Court or the Magistrates' Court deterred you from further offending.
43 Given the circumstances of the offending, your criminal history, your membership with the Finks and its connection with this offending, it is clear therefore that the weight to be given to emphasising rehabilitation is less than it would be for other youthful offenders. That is those without this combination of offending and offence circumstances. That is, this is a classic example of the principle that is the level of seriousness of the criminality increases there is to be a corresponding reduction in the mitigating effects of youth.[2]
[2] Azzopardi v The Queen [2011] VSCA 372 at [44].
44 Dealing with your personal circumstances. You were born in New Zealand and your parents came to Australia when you were aged seven in pursuit of a better life and more opportunity. Although you have been in Australia since the age of seven you have never become a permanent resident or citizen. That clearly is relevant now because your visa has already been cancelled and you are subject to deportation following the conclusion of your sentence.
45 You parents and your two brothers and sisters are all Australian residents and have made their lives here. Your parents have both been engaged in full time work. You report a history of in effect parental neglect because of your parents absence at work, and behavioural problems manifesting from a very early age, partly as a result of that absence of parental oversight.
46
You grew up and completed your schooling in the Pakenham area. You left school at Year 10. You were a talented young sportsman. You were in a junior talent rugby squad between the ages of 10 and 15, represented Victoria in the sport but were apparently unable to advance further to
A-League level because you were not an Australian citizen.
47 At the age of 13 you commenced boxing and by the age of 17 had won a Victorian heavy weight title. Again, your progress in professional boxing appears to have been hampered by the fact that you or your parents had not taken out Australian citizenship on your behalf.
48 After leaving school you enrolled in TAFE but did not last very long. From the age of 18 in 2015 you started working as a concreter. You appear to have had in your times not custody a steady history of hard work as a concreter, at times working with family members.
49 You have been in a long term relationship and your partner Ms Vemoa. She provided a very loving and supportive reference, despite a significant history of family violence which has led to quite a number of your criminal charges for violence and also to all the charges for breach of family violence intervention orders. Together you and Ms Vemoa have three children, now aged six, five and two. You have barely had any contact with the two year old because of the time you have spent in custody.
50 I am told that since your teenage years you have intermittently struggled with alcohol and substance abuse, and from 2016 onwards you have had struggles with your mental health, in particular with depression and anxiety. That, it is said, explains part of your early criminal offending and your family violence offending. You struggled with becoming a father at an early age which appears to have manifested itself frequently in episodes of violence. The last episode of family violence was so serious, that you were detained for eight months in Youth Detention before being released on, and completing youth parole. It was not long though before you returned to other offending and by 2019 at least it appears you have become, from what I now know, a fully patched member of the Finks.
51 When not in custody you appear to have, most of the time, engaged in work as a concreter often with your father or your brother. And although you successfully completed youth parole, substance abuse, both alcohol and other drugs, has formed a significant part of your life and circumstances.
52 In addition to your guilty plea, the effect of COVID on imprisonment and the principles applicable to sentencing a young offender, Mr Tovey relied on your disadvantaged background, mainly parental neglect because of your parents absence due to work, your mental health, family support - particularly from your partner, Ms Vemoa, the impact of imprisonment upon your family, your almost inevitable deportation and principles of totality.
53 Your plea was adjourned in order for a psychological assessment to be conducted, your lawyers advising that they had concerns about your intellectual functioning. The neuropsychologist, Mr Staios, conducted an assessment of you. He has ruled out any intellectual impairment or acquired brain injury.
54 Surprisingly, at the time of the initial assessment, Mr Staios, was not given the prosecution opening, and there was no reference in his original report to your membership of the Finks outlaw motorcycle gang or its connection to this offending. So whilst I accept, so far as it goes, Mr Staios' assessment of your mental health, history of substance abuse and account of a disadvantaged childhood, I approach with some caution his conclusions about the significance of their connection with the offending, and your prospects for rehabilitation, because they are devoid of any factoring in of the significance or otherwise of membership of an outlaw motorcycle gang.
55 When in the course of the resumed plea these deficiencies in the information available to or relied on and identified by Mr Staios was pointed out by me, a further adjournment was sought for an opportunity to seek a supplementary report from Ms Staios.
56 In his supplementary report Mr Staios said:
'Mr Stowers legal representation provided me with additional documentation relating to his current offending. Specifically the summary of prosecution opening for plea. Please note that I was not provided with this document at the time of conducting my psychological assessment'.
57 I am somewhat surprised that the absence of the prosecution summary was not noted in the certification, given the practice note in relation to the use of psychiatric and psychological reports on pleas.
58 The failure to mention that sits somewhat uncomfortably with the obligations of an assessor under practice note.
59 So far as membership of the Finks is concerned, Mr Staios in his supplementary report indicates that information about that was sought and provided. He advised the opinions provided in his original neuropsychological assessment report remained unchanged. He said:
'In addition to the background information provided in the neuropsychological report prepared by myself on 3 September,
Mr Stowers reported becoming a member of the Finks Motorcycle Club in 2019. He reported that he was a patched member and characterised his time at the club as positive. He stated that the members provided him with a sense of belonging, community and brotherhood. While the co-accused listed in this matter is a member of the Finks Motorcycle Club, Mr Stowers stated that no other members within the club encouraged the aggravated burglary'. Consistent with the formulation and opinion provided in my initial report, Mr Stowers reported heavy use of both alcohol and methamphetamine throughout the course of his current offending. He reported turning to substance use as a means of coping and escapism as a result of ongoing, poorly managed depression and anxiety. Mr Stowers psychological vulnerabilities appear to have risen in the context of a maladapted early childhood and exposure to substance use within the family home during his formative years leading to maladapted coping strategies, the expression of intermittent periods of depressive episodes, substance use as a means of coping. Within the context of his current offending Mr Stowers reported that he was intoxicated on alcohol and methamphetamine, which would have significantly impacted on his ability to exercise appropriate judgement and display consequential thinking'.
60 I do note that we are talking not about one impulsive act but what was clearly a calculated, persistent course of conduct over a period of time. And again, the reference to intoxication impacting your ability to exercise judgement and consequential thinking is an opinion of limited value in my view.
61 As these were considered and calculated offences I do not see a causal connection between mental health or substance abuse which would significantly reduce your moral culpability.
62 Despite your appalling history of family violence, I accept that your partner remains supportive and that she reports struggling to bring up three children alone and with the additional hardships imposed by COVID lockdowns. I accept that that adds or should add to your burden of imprisonment that you are not available to assist and support her.
63 I accept that there is an additional burden of imprisonment also by reason of your inability to provide support to your partner or to your oldest daughter who suffers from asthma and has, as a result, to regularly attend hospital or to be hospitalised. I also accept that the prospect of deportation will be a significant burden during imprisonment for you, not only for you but also as your reflect on the impact on your family. You have lived in this country since you were a child. You have little support in or connection with New Zealand. I am told that your visa has already been cancelled which means that you will be unable to remain in or return to Australia post-release. As your partner and children are Australian citizens you will be separated from them unless they come back to New Zealand either to live or to visit you.
64 Despite the limited weight to be given to your youth by reason of the number of previous convictions and the seriousness of this offending, you are nonetheless a young person, a youthful offender who will be deported after sentence, separated from children and partner. That is a significant additional punishment.
65 Whilst general deterrence, denunciation and punishment must play their role in your sentence and so must specific deterrence, I take into account that you are still young, and that your prospects for rehabilitation, although guarded at present, must be encouraged. I have therefore moderated the sentences to take that into account, along with the other mitigatory matters to which I have referred. And doing that, to reflect as best I can totality.
66 Turning now to you, Mr Phillips.
67 You are 36 now, and you have an extensive criminal history dating back to 2002 It did not start, it would appear, until your late 20s, but it covers a wide and recurring range of offences. Multiple charges of theft including theft of motor vehicles, burglary, intentionally damaging property, assault, robbery, possession of cannabis, failure to answer bail, and multiple charges of driving whilst your authorisation to drive is cancelled, suspended or unlicensed. And a number of charges, significantly too of being a prohibited person in possession of a firearm, and contravening other court orders. This wide range of offending demonstrates a widespread disrespect for the law across a range of offending. Sentences that have been imposed on you since 2002 have ranged from a non-conviction bond through to a community correction orders and suspended sentence (which you breached) and imprisonment.
68 No sentences have deterred you either from further offending. It is clear you have lived an adult life where you show little regard for the law or the rights of others. Like Mr Stowers, your prospects for rehabilitation must be characterised as guarded. Like Mr Stowers there was an absence of reference during your plea to your association with the Finks outlaw motorcycle gang or its connection with these offences or your offending generally. I cannot be expected to sentence in a vacuum and clearly the association with that club bears on this specific offending, your offending generally, and rehabilitation.
69 You report a long history of substance abuse, attentional and behavioural regulation disorders, poor social skills, and difficulties in establishing and maintaining pro-social relationships. You have had some long term relationships and fathered some children but it would appear that relationships with them have been difficult to maintain.
70 Your intellectual functioning has been assessed as borderline to low-average. You have shown yourself at times capable of holding employment and establishing relationships but maintaining both has been a problem. Essentially, substance abuse and antisocial attitudes explain your offending. Attentional difficulties, social interaction difficulties and at times episodes of depression and anxiety all seem to be related to your substance abuse and its role in your offending.
71 I was provided with reports from Ms Borg and Ms Lechner that detail that and which I have very, very generally summarised. It is clear you have a long history of substance use disorder, symptoms of ADHD which have persisted into adulthood, a strong sense according to Ms Lechner of emotional deprivation resulting in a lack of identity and a drive to please people. That may explain to some extent why you have become involved in the Finks but it does not excuse or mitigate that.
72 You appear to be a follower rather than a leader. That is consistent with your role in this as well as the assessments by Ms Borg and Ms Lechner.
73 You engage in self-defeating behaviours including increased reliance on drugs and alcohol. Intervention is clearly necessary to address those problems but drug and alcohol counselling and relapse prevention, developing strategies to minimise the risk of relapse have been relatively unsuccessful and relatively spasmodic.
74 It is really up to you at your age to decide whether you want to avail yourself of opportunities that are offered to you, Mr Phillips. You have shown some indication during the time you have been in custody this time of doing courses to assist and improve yourself. But essentially it is not for others to provide you with courses, it is for you to take advantage of them and to make a conscious decision to change your associates, to change your attitudes and to change your way of life. The sentences that I impose are structured in a way that should assist you to do that. That is to take steps yourself with supports that are offered to you to live a better and more meaningful life.
75 Neither of you are beyond redemption but both of you need to have a good, hard look at yourselves and do some hard work in order to have a different life, one that will not have you continuing to spend time in custody, short times at liberty, abusing substances and mixing with the wrong people, only to go back into custody for longer and increasingly longer periods. It is no life. And the restrictions imposed on custody by COVID make it even harder in custody and should give you an even greater realisation there is a better chance of a better life outside for you if you choose that.
76 I take into account for both of you in the broad sense that all the time in custody, both your time on remand and the time of you serving your sentences whilst COVID remains a real threat in our community will be much harsher than it was for people in a pre-COVID time.
77 So coming back to you, Mr Phillips. Although I accept that you are probably characterised as a follower, not a leader, you are old enough, you have had sufficient experience of life, the consequences of poor choices and of what you can achieve when you stay substance free and you mix with better associates of what a better life you could have and therefore to be aware of and work towards accepting consequences of antisocial associations and behaviour and trying to turn yourself around.
78 I do not consider there is any real evidence of a causal connection between your offending and your underlying condition so as to enliven the first limb of Verdins. But I do accept that in a general sense your history of childhood disadvantage and the general psychological makeup identified by both Mr Lechner and Ms Borg, explain the poor choices and should in a general sense therefore moderate the weight to be given to your moral culpability and to general deterrence. It is clear, however, that for you specific deterrence also must play a large role. And I take into account for both of you that imprisonment is likely to be more onerous for you, because you are both more likely to suffer from depression, anxiety and associated psychological disorders and therefore I reduce the sentences accordingly. And for you, Mr Phillips, as for Mr Stowers, the principle of totality is clearly relevant to sentence.
79 Sentencing is an imperfect exercise, it is not a science. Balancing all of those matters as best I can I have fixed upon the following sentences.
80 On all charges, to which each of you has pleaded guilty you are convicted.
81 Charge 1, of aggravated burglary, you are each sentenced to be imprisoned for a period of five years.
82 On Charge 2, of intentionally cause injury, you are each sentenced to be imprisoned for a period of one year.
83 On Charge 3, of criminal damage, you are each sentenced to be imprisoned for a period of one year.
84 And on Charge 4, of car theft, that is of use of the stolen Kluger when it was driven the address in Cranbourne West that night, you are each sentenced to be imprisoned for a period of one year.
85 On Charge 5, theft of the watch, you, Mr Phillips, are sentenced to be imprisoned for a period of six months.
86 On Charge 6, of being a prohibited person in possession of a firearm, you, Mr Phillips, are sentenced to be imprisoned for a period of two years.
87 On Charge 7, of extortion, you, Mr Stowers, are sentenced to be imprisoned for a period of five years.
88 For you, Mr Stowers, on the related summary offence, 13, of carrying a prohibited weapon you are sentenced to be imprisoned for a period of one year.
89 For you, Mr Phillips, on related summary offence five of commit an indictable offence on bail, you are sentenced to be imprisoned for a period of one month.
90 On related summary offence eight, of being a prohibited person in possession of cartridge ammunition, you are fined a sum of $5,000.
91 On related summary offence 12, of unlicenced driving, you, Mr Phillips, are sentenced to be imprisoned for a period of three months.
92 And on related summary offence 13, of unlicenced driving, again you are sentenced to be imprisoned for a period of three months.
93 For you, Mr Stowers, on Charge 1, I make that the base sentence. I direct that six months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 4, three years of the sentence on Charge 7,and six months of the sentence on related summary offence 13, be served cumulatively upon each other and upon the sentence on Charge 1. That makes a total effective sentence of nine years and six months. I fix the non-parole at seven years and six months.
94 I am sorry, can you just remind me of the number of days of pre-sentence detention for Mr Stowers?
95 MR TOVEY: Your Honour, I understand the agreed upon figure for Mr Stowers is 515.
96 HER HONOUR: Is that correct?
97 MR MALIK: That's agreed, Your Honour, yes.
98 HER HONOUR: I declare that you have spent 515 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
99 And I declare, pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed a total effective sentence of 12 years and three months, with a non-parole period of 10 years.
100 For you, Mr Phillips, again the base sentence is the sentence on Charge 1. I direct that six months of the sentence on Charge 2, three months of the sentence on Charge 3, three months of the sentence on Charge 4, two months of the sentence on Charge 5, 12 months of the sentence on Charge 6, one month of the sentence on related summary offence five and three months of the sentence on related summary offence 12 are to be served cumulatively upon each other and upon the sentence on Charge 1. That makes a total effective sentence of seven years and six months and I fix the period of six years as the time that you must serve before being eligible for parole.
101 Again, can you confirm for me the days of pre-sentence detention for
Mr Phillips?102 MR MALIK: Four-hundred and forty-eight days, Your Honour.
103 HER HONOUR: I declare that you have spent - 448?
104 MR DEAN: Yes, Your Honour.
105 HER HONOUR: Four-hundred and forty-eight days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
106 And I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed a total effective sentence of 10 years' imprisonment with a non-parole period of eight.
107 And on Charge 4, theft of the car I also declare that for each of you all licences held by you are cancelled and you are disqualified from obtaining any further licences for a period of 12 months. I make no further licence order in respect of summary offences 12 and 13 for Mr Phillips.
108 And I make the forfeiture and disposal orders sought in the terms that they have been sought.
109 Now, can I ask counsel please to confirm that the sentences have been properly declared, that the arithmetic is correct, therefore that the calculation of the total effective sentence and non-parole period and that there are no further orders that are required to be made.
110 MR TOVEY: All correct form my position, Your Honour.
111 HER HONOUR: Thank you, Mr Tovey.
112 MR MALIK: Agreed, Your Honour.
113 HER HONOUR: Thank you, Mr Malik.
114 MR DEAN: Agreed, Your Honour, on my end as well.
115 HER HONOUR: Thank you, Mr Dean. And no further orders?
116 MR MALIK: No further orders sought, Your Honour. Perhaps just one matter and it won't make any difference to Your Honour's sentencing. But in Your Honour's remarks Your Honour noted that the firearm located in the vehicle matched the description of the firearm described by Mr Walker. Your Honour's correct in that assessment however it was put on behalf of the Crown that the firearm - well, it couldn't be established that the firearm located in the vehicle was in fact the firearm used in the aggravated burglary.
117 HER HONOUR: Yes, indeed. I had intended to convey that in what I had already said about the inability to make any findings adverse to either of the offenders in relation to the firearms. I have noted it as part of the surrounding circumstances but I did not intend to convey that that was or I was drawing any inference it was one of the firearms, if used, that was used in the offending.
118 MR MALIK: Thank you, Your Honour, that's very clear.
119 HER HONOUR: Yes. Thank you and I thought - I actually thought I had said that in the course of the plea but if I had not it certainly was my intention and I thought the number of times I had already referred to not drawing any adverse inference to the accused in respect of the firearms had made that link. So I am sorry if there was any ambiguity in that.
120 MR MALIK: No, it may be my - probably my fault, Your Honour, thank you.
121 HER HONOUR: Probably an abundance of caution.
122 MR MALIK: Always, Your Honour.
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