Director of Public Prosecutions v Phillips

[2020] VCC 599

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01981

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON PHILLIPS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2020
DATE OF SENTENCE:	12 May 2020
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2020] VCC 599

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms M. Walker	Mel Walker

HER HONOUR:

1Clinton Phillips, you have pleaded guilty before me to one charge of recklessly causing serious injury.  The facts underlying your offending are as follows. 

2In December 2016, the victim in this matter, Mr Payet, purchased an unregistered Holden Clubsport sedan with the intention of fixing it up.  On
26 December, he had been working on the Holden, including fitting out a stereo unit.  At this time, the car was parked on the nature strip outside his house. 
Mr Payet was still outside at about 12.30 am and he fell asleep in the car; this was outside his home in Wynden Drive in Frankston. 

3At about this time, the co-accused in this matter, David Maddocks was being driven in a car by his girlfriend, Hope Borg, when he received a phone call from a third person about someone being in a car.  He apparently became very excited by the call; this is evidence it was obtained from Hope Borg during a compulsory examination in the Magistrates' Court. 

4At Maddocks' direction, Ms Borg drove the car past Mr Payet, asleep in his car.  Maddocks then told Ms Borg to park the car near a nearby milk bar while he called you via  mobile phone.  You arrived at the milk bar in a car driven by your then girlfriend, Donna Garth.  This was at about 2.20 am.  You left the car to speak to Maddocks, and after this returned to your car, and then followed in that car, Maddocks' car, into Wynden Drive.

5Maddocks directed Ms Borg to park further down the street, keep the car in neutral and leave the lights off.  You drove to the same place as Maddocks.  You then left the car and told Ms Garth to get into the driver's seat.  Maddocks went to the boot of your car and removed a jerry can.  This evidence was also obtained from the compulsory examination of Ms Borg.

6The two of you then walked towards Mr Payet's car, where he was asleep.  Maddocks poured an accelerant through the window of the car where Mr Payet was sleeping.  He awoke feeling cold and wet.  Maddocks then lit the accelerant.  This was at 2.29 am. 

7Mr Payet opened the car door and stumbled out on the street, screaming; he was engulfed in flames.  He was then helped by neighbours and his own family. 

8The two of you then ran to your cars and told your girlfriends to drive away.  You went to your house, while Maddocks and Borg went to Borg's mother's house in Skye.  There, Mr Maddocks warned Ms Borg never to talk about the incident. 

9As a result of this shocking piece of violence, Mr Payet suffered extensive deep burns to 68 per cent of his body, predominantly to the upper torso.  He also sustained what is called a severe inhalation injury.  He underwent multiple surgical proceedings for his injuries between 28 December 2016 and 16 March 2017.  He was then discharged into in-patient rehabilitation until 17 May 2017.

10I am going to turn immediately to the victim impact statements of both Mr and Mrs Payet.  I also received photographs of the injuries suffered by Mr Payet; they are entirely horrific.  Mr Payet continues to suffer from these injuries, he is forced to wear a burns compression mask to this day and indeed, attended court wearing that mask. 

11Turning first to Mr Payet's relatively brief victim impact statement.  He talked about the excruciating pain after first describing recalling a cold wet feeling all over, saying, 'At first, I thought my partner threw ice water on me as a joke to say, "Come to bed"; I was cold and wet from head to toe'.  He then describes seeing what he thought was a Zippo lighter spinning in slow motion and he said, 'At that moment, it didn't click what was happening, and suddenly I was engulfed in flames'. 

12He described having to put his fist through the driver's rear window, as he was not able to get out.  He then had to leap out the window and tried the 'tuck and roll'.  He was completely on fire at this stage. 

13He described himself being engulfed in flames, he said he was screaming in pain for help, and he states most heartbreakingly, 'What I didn't know at the time was my eldest son had come out with a hose in his hand and witnessed me screaming in pain and on fire, an image he is still trying to deal with to this day'.  Mr Payet describes neighbours assisting, he said, 'It all felt like an eternity; the pain was excruciating'.

14He then describes the extensive and very painful surgery that he underwent.  He stated the doctors had told him it was a miracle for anyone to survive such extreme burns.  He was kept in a coma for many days.  He said he went from being a fit and healthy 110 kilograms to 'a skeleton of my former self.  I had to learn to walk, talk and feed myself, to wiping my bottom, showering and dressing.  It was a nightmare'. 

15Mr Payet describes himself now as looking like 'a freakshow.  I hate what I see when I look in the mirror'.  He talks how he has no future now, no prospects.  He said, 'The only thing keeping me alive is the love and support of my partner and my family'.  He talks very sadly of his own granddaughter being petrified of his appearance not coming near him, 'I can't even cuddle her anymore'. 

16He stated, 'No one will ever really understand the trauma I hold onto.  The thoughts of maybe it would've been better to have died.  The looks and stares I get everywhere I go; I feel for my family.  I hate they are going through this.  I feel like a burden to everyone'. 

17Mr Payet's partner, Ms Lewis, wrote a longer victim impact statement, equally moving.  She talked about sitting for hours and hours, seven days a week for two months by Mr Payet's bedside while he was in intensive care in a coma, being told that he would possibly die and to prepare for his death. 

18She spoke of the full thickness third degree burns that Mr Payet suffered down to the dermis.  She wrote of seeing him dwindle to 67 kilograms, of going in and out of surgeries, having his burns bandaged continually to protect them, that wrapping his wounds would take three to six hours at a time.  She said she was running on auto pilot.  Mrs Lewis stated, 'Once he awoke from coma, I then watched him learn to walk and to feed himself again.  This took months of rehab.  The basic everyday things one takes for granted he had to learn again.'  She stated, 'A once fit, handsome, strong, skilled and active man who loved his family was at that moment a shell of his former self.'

19Once Mr Payet finally came home five months after this appalling incident
Ms Lewis had to massage his scars to break them down which she said could take an hour at a time and she had to do it up to three times a day.  She had to bathe, dry, moisturise and dress him, feed him until his hands worked again, help him with his day to day home exercises to get movement in his arms, neck and shoulders.  'His entire body to make sure those scars didn't seize up.'

20She spoke of driving him to numerous and endless appointments, to his rehabilitation sessions. She spoke of him coming down with an infection, rushing him to the emergency department.  She said, 'I spent countless hours every day caring for my partner as a burns patient.  It has taken a terrible toll on our family.  This was a full time job.  I began to neglect the boys and felt awfully guilty at times but he had no one else to help.'

21She talked of going out with her husband shopping and people staring at her, At one stage whilst Mr Payet was sitting in a car because he was wearing the burns compression mask on his face someone called police because they thought that there was a man in a balaclava about to rob the supermarket.  She talked about the enormous trauma on her sons, both of whom have made suicide attempts and indeed spoke on one occasion of Mr Payet himself making a suicide attempt.  This has been incredibly traumatic for her.  Ms Lewis also spoke of the financial strain on her family.  She said, 'We will never be the same, Phil will never be employable again.'

22She made the point that Mr Payet will always be on the welfare system and stating to you, Mr Phillips, 'You have given us a life sentence.' 

23I have spoken and read more extensively from the victim impact statements than I normally would because it seems to me that the suffering of the Payet family deserves special recognition in light of the horrendous effect that the actions on that night had upon them.  Indeed, your offending has had the gravest possible effect on the Payet family.  Well over three years later, Mr Payet remains massively scarred and will for life.

24I now turn to your personal circumstances.  You are now 41 years old.  You were 38 at the time of this offending.  You are the only child of your parents, your father being killed in a motor vehicle accident before you were a year old.  Your mother soon re-partnered with an abusive man who was alcoholic and violent, in particular to your mother, although occasionally to you.  You had a younger brother and sister who were born to that relationship, they are now 37 and 30 and you enjoy a good relationship with them.

25You described your step-father, to psychologist Carla Ferrari whose report was tendered on the plea, as a monster.  Your mother and step-father separated when you were 14 or 15 and you moved in briefly with your step-father saying that although you detested him you wanted to understand him better to make sure that your half siblings were safe.  This arrangement did not last long.  When you were 15 you had a physical altercation with your step-father who was attacking your mother during the children's changeover.

26You then moved in with an older male friend, leaving school to financially support yourself and it was about this time you began to dabble in drugs and alcohol.  Your mother again re-partnered, this time with a positive male figure with whom you remain in contact, although that relationship ended after
23 years.  You enjoy a good relationship with your mother who remains supportive of you and you speak to her regularly. 

27You described to Ms Ferrari being hyperactive and distractive at school.  You attended three high schools, being expelled from one, leaving at age 15 in the circumstances I have described. 

28You then compiled a relatively good work history, undertaking casual work then completing a butchery apprenticeship when you were 20.  You worked in that field until you were 27, then changed careers, completing certificate qualifications in earth moving equipment, working ultimately in Western Australia, Victoria and New Zealand.

29You began binge drinking from about the age of 16, then you turned to heroin as a means of getting off alcohol, using intravenously for about nine months when you were aged 18 or 19.  This then ceased and you have not used heroin since.  However, you began using amphetamines, progressing to methylamphetamine as this was the most accessible drug.  At your peak you were using two grams per day.  You found it calming and made your mind focussed.  You were diagnosed by Ms Ferrari as suffering ADHD, and it is well known to these courts that persons who suffer from this condition often find amphetamine a calming rather than exciting and disinhibiting drug.

30You have been in several long term, most significantly a four year relationship, with a mental health nurse whom you married.  During that relationship you stopped using ice but ended up instead abusing alcohol.  You worked on a fly-in/fly-out basis during that relationship which caused strain on you and your partner, that relationship ending abruptly in 2014 when you were suddenly asked to leave and a new partner moved in two weeks later which apparently devastated you.

31You returned to use of methylamphetamine which increased to the extent that it affected your employability and you had not worked for about two years prior to the offending. 

32You formed a relationship with a much younger woman who was also a drug user.  You have never undertaken de-toxification or attended a rehabilitation facility.  You have attended court ordered drug counselling previously.

33Your prior convictions, up until 2010, were relatively minor.  You were dealt with in the Magistrates' Court for possession of cannabis, driving offences, possessing amphetamine for which you were fined and placed on an adjournment to be of good behaviour. 

34However, on 11 September 2018 you were sentenced by Judge Grant of this court to a total effective sentence of three and a half years with a minimum term of two years on two charges of armed robbery, one charge of attempted armed robbery, one charge of possessing a drug of dependence and one charge of dealing with the proceeds of crime.

35This offending occurred on one day in August 2017 when you and your then partner held up a Subway store using a knife.  You then went to a jeweller's store where you and your partner took in crowbars and demanded money but were refused and left.  You then went to a Shell station in Morwell where, with a knife you demanded money which was handed over.  You wore disguises on each occasion.  When you were apprehended by police, you were found in possession of a small amount of methylamphetamine.  You were later seen after those armed robberies and attempted armed robbery, playing the pokies nearby, clearly using money you had obtained in that offending.  That offending post-dated the offending that has brought you here before this court.

36It took police a long time to trace and identify the offenders involving the attack upon Mr Payet.  They did not charge Maddocks and yourself until 20 March 2019 by which time both of you were serving sentences for other offending.  You refused to conduct a record of interview with police.

37The matter was resolved after a compulsory examination of Hope Borg in the Magistrates' Court in June 2019.  It was resolved before any witnesses were called at a contested committal after considerably more serious charges were dropped following negotiations.  You entered a plea of guilty to the charge of recklessly causing serious injury and the committal then proceeded by way of a straight hand-up brief.

38The non-parole period to which you were sentenced by Judge Grant expired on 21 June 2019 due to the current charges and your parole eligibility was not considered.  Your current sentence expires on 21 December this year.  You have no pre-sentence detention applicable to these charges. 

39Whilst in custody you have undertaken a number of drug and alcohol courses and returned 12 out of 13 clear urine screens.  You have been working as a laundry billet. Your counsel submitted that your offending occurred in the context of your ongoing drug use and subsequent involvement with Maddocks. 

40Ms Walker, on your behalf, told the court that at the time of the offending you had a significant drug debt and you had met Maddocks as part of the drug scene you were then mixing in.  She told the court that you agreed to assist him to light the car, and by your plea accepted that when you got to the car and Maddocks poured the petrol in, that someone was present in the car at that stage.

41Ms Walker submitted by way of mitigation, by your early plea of guilty you had facilitated the course of justice, demonstrated an acceptance of your guilt and responsibility for your actions as early in the proceedings as you could.

42This, she submitted, was of considerable utilitarian value.  It was clear however, that Mr Payet was unknown to you.  Ms Walker submitted that contingent upon you remaining drug free, you had good prospects of rehabilitation, pointing to your good work history and relying in particular on the continuing support of your family.  She submitted that your offending represented a significant deterioration in your personal circumstances and increasing drug use and offending.

43Ms Walker submitted that because you are still completing a current sentence, any further sentence imposed should not result in a crushing response.  She submitted that concurrency and that a longer than normal parole period would be an appropriate response by this court.

44The prosecution conceded that Maddocks was the instigator and very much the main offender in this incident and that he had a far more lengthy and serious criminal history than you, including a sentence he is currently undergoing for arson for which Judge Stuart of this court sentenced him to a total effective sentence of six years with a minimum term of four years.

45However, the prosecution submitted that there still remained a void as to the motivation for this most serious offending which negatively impacted your aspects of remorse and hence your prospects of rehabilitation.  Mr Pickering submitted that your guilt lay in the fact that once you realised there was probably someone in the car you did not stop and leave the scene.  It was submitted that the effect on Mr Payet and the seriousness of the offending meant that general deterrence, punishment and condemnation of your actions were the primary sentencing factors to which this court should have regard.

46This was, of course, appalling, hideous and incredibly serious offending.  The injuries inflicted on Mr Payet could hardly have been more grave.  They are devastating and the effects are lifelong for he and his family.  Whilst your role was a lesser one and whilst your criminal antecedents are far less than Maddocks, the objective gravity of your actions mean that this offending is very much at the upper end of seriousness in comparison to other scenarios underlying this charge.

47The mental element of recklessness means you were aware your actions would probably cause serious injury.  Your moral culpability therefore in my view remains high.  In sentencing you I take into account your plea of guilty which was made at an early stage, but only I note, after Ms Hope was subjected to a forced examination.  I accept that the charge which you ultimately faced was considerably less than the original charge laid which was one of attempted murder.  However, you offered no cooperation to police, there does remain the void as to motivation for this appalling offending.  I accept this does impact on your remorse.  You will however be given utilitarian benefit of your early plea.

48I accept that you have used your time in custody productively and continue to enjoy the support of your family.  I accept that you have a good work history.  However, in my view your prospects of rehabilitation can only be described as guarded.  Whilst your previous offending was not great, your offending on this occasion represented a massive escalation and you then went on to commit further, serious offending in the following year.

49Given that those prospects rely on you remaining drug free and that your addiction led to you committing very serious episodes of criminal offending, the future largely remains unknown and in my view your prospects can be termed in no more optimistic way.

50Totality certainly has a role to play in my sentencing of you, given the sentence that you are currently undergoing and the fact that you have not had the opportunity to serve only a minimum term.  I do take this into account in affixing an appropriate term.  Ultimately, as I have said, this was appalling, dangerous offending resulting in, as I have said, horrendous lifelong and life altering injury to Mr Payet with consequent devastating impact on his family.  This to a man you did not even know.

51In all the circumstances I am satisfied that just punishment, condemnation and general deterrence dominate the sentencing exercise I must undertake. 

52I therefore sentence you as follows:  on the charge of recklessly causing serious injury I order that you serve a maximum term of seven years and the minimum term is five years.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of nine years' imprisonment and ordered that you serve a minimum term of seven years.

53Thank you.  Is there anything else that I need to attend to?

54MR PICKERING:  No, Your Honour.

55HER HONOUR:  Thank you very much.  We will stand down.

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