Director of Public Prosecutions v Phillips

[2018] VCC 1476

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

AT MELBOURNE (Sitting at GEELONG)
CRIMINAL JURISDICTION

CR 17-02347

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLINTON PHILLIPS

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne (Sitting at Geelong)
DATE OF HEARING:	3 September 2018
DATE OF SENTENCE:	11 September 2018
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2018] VCC 1476

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr J Lewis (3/9/18) Mr T White (11/9/18)	OPP
For the Accused	Ms M. Walker	Melinda Walker

HIS HONOUR:

1Clinton Phillips, on 5 April 2018, you pleaded guilty to two charges of armed robbery, one charge of attempted armed robbery and one charge of possession of a drug of dependence, on indictment number H12349705. You also pleaded guilty to an uplifted summary offence of dealing with property suspected of being the proceeds of crime. On 12 April 2018, I sentenced you to a total effective sentence of three years and six months. I fixed a minimum term of two years before you would be eligible for release on parole. I gave reasons for sentence. I also made a declaration on pre-sentence, a statement pursuant to s.6AAA of the Sentencing Act 1991 and made compensation, disposal and forfeiture orders.

2After I had sentenced you, it was discovered by the Director of Public Prosecutions that the plea indictment signed by a Crown prosecutor was filed when the signaturee was no longer a Crown prosecutor.  On 23 May 2018, this was raised before me at a mention hearing.  You attended that hearing via a video link.  Your counsel was in attendance.  It was the view of the prosecutor that the indictment was defective and the consequences flowing from that defect would need to be determined by way of judicial review in the Supreme Court.

3During that hearing, I explained to you as best I could that if, as seemed likely, the matter would eventually come back before me on a fresh indictment, you would not suffer any detriment.  On 16 August 2018, His Honour Mr Justice Germane declared the indictment to be invalid.  He set aside the conviction and sentence of 12 April 2018.  His Honour also determined that the invalidity of the indictment also required the conviction and sentence on the uplifted summary offence be set aside.

4The matter was remitted back to the County Court for hearing before me.  The matter was then listed on 3 September 2018.  A fresh indictment number H12349705.1, a notice of related summary offence and a criminal record, all in identical terms to those used at the original hearing were filed afresh.  You were arraigned and entered guilty pleas to the charges on the fresh indictment.  You also entered a plea of guilty to the related summary offence.  The Crown relied on the summary of your offending that had been exhibited in the earlier hearing, and tendered the same exhibits. 

5The transcript of the previous proceeding was tendered as Exhibit D.  Your counsel relied on the six exhibits that had been tendered on 5 April 2018.  Your counsel also filed a supplementary submission on sentence.  In that submission, it was conceded that the original sentence of 12 April 2018 was fairly structured and reasoned.  Given this concession, it is not my intention to repeat what I said on 12 April about the circumstances of the offending, or your personal circumstances.  Those original sentencing remarks will be attached to these remarks.

6However, your counsel raised an additional matter in mitigation that arises from the setting aside of the original indictment.  The supplementary submission refers specifically to the impact upon you of the delay in the final resolution of this matter.  Your counsel submitted that the period from 12 April 2018 to
3 September 2018, has been a period of uncertainty for you and that notwithstanding my words of comfort on 23 May, you were concerned at the unusual nature of the events and how they might ultimately impact upon you.

7Your counsel submitted that the delay in the resolution of the matter added to the burden of your imprisonment and for this reason, there should be some moderation of sentence.  I agree with the submission, although in the circumstances as I have explained them, the moderation should be modest.  This does mean that the order I make today will be slightly different to the order that I made on 12 April.

8Mr Phillips you are sentenced to the following periods of imprisonment.  Charge 1, two years and four months.  Charge 2, twenty-two months.  Charge 3, two years and four months.  Charge 4, one month.  I sentence you to one month's imprisonment on the summary offence.  I order six months of the sentence on Charge 2 and six months of the sentence on Charge 3, be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 1 on the indictment.  This makes a total effective sentence of three years and four months.

9I fix a minimum term of twenty-two months before you will be eligible for release on parole.  I declare that you have served 386 days pre-sentence detention.  Had you pleaded not guilty, and been found guilty after trial, I would have sentenced you to a total effective sentence of imprisonment of four years and ten months, with a minimum term of three years and four months, before you would be eligible for release on parole.  I order you to pay compensation to the Subway store in the amount of $290 and to the Shell Service Station in the amount of $347.50.  I also make the forfeiture and disposal orders requested by the prosecution.  Now Mr Phillips, do you understand what has happened?

10OFFENDER:  Um, yes, Your Honour.

11HIS HONOUR:  Yes, effectively I have knocked a couple of months off what you got originally because of what you have had to go through over the last few months.  So it is now a sentence of three years and four months, with a minimum term of twenty-two months.  I have declared 386 days pre-sentence detention. 

12OFFENDER:  Thank you, Your Honour.

13HIS HONOUR:  Is that all clear?

14OFFENDER:  Yep.

15HIS HONOUR:  Is there anything else Ms Walker?

16MS WALKER:  No, Your Honour.

17HIS HONOUR:   And thank you Mr White. 

18MR WHITE:  Your Honour, the only other thing I would say is that those draft orders, I understand, will need to be refiled, including today's appearances and dates.  I will attend to that before Your Honour signs it.

19HIS HONOUR:  Yes, thank you Mr White.  Just attend to it when you can.  It is an unusual case, even though the orders were made in the past, they are clearly invalid and so they have to be made again.

20MR WHITE:  Yes, Your Honour.

21HIS HONOUR:  Mr Phillips, you will now go with the officer. 

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