Director of Public Prosecutions v Phillips (a pseudonym)
[2023] VCC 766
•12 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD PHILLIPS (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 March 2023, 5 May 2023 |
DATE OF SENTENCE: | 12 May 2023 |
CASE MAY BE CITED AS: | DPP v Phillips (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 766 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Rape
Legislation Cited: Sentence Act 1991 (Vic)
Cases Cited: Mercer (a pseudonym) v The Queen [2015] VSCA 257
DDP v [Phillips] [2012] VCC 956, R v Renzella [1997] 2 VR 88, Sayer v The Queen [2018] VSCA 177
Sentence:Imprisoned for 7 years, non-parole period of 4 years and 11 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Mr C. Hooper | Ann Valos Criminal Law |
HER HONOUR:
1Richard Phillips,[1] on 13 February 2023 you were found guilty by a jury of your peers of two charges of rape. You were found not guilty of two charges of rape, and the jury were discharged without verdict in relation to two charges of rape, those two charges having now been discontinued.
[1] A pseudonym.
2In sentencing you for those matters for which there was a finding of guilt, I am obliged to have regard to the maximum penalties which attach to the offence you have committed. The maximum penalty for the charge of rape is 25 years imprisonment. This maximum penalty reflects the seriousness with which Parliament regards the offence.
The offending
3In terms of the background, the offending took place between
14 September 2010 and 18 September 2010. The victim of your offending is Jessica Campbell[2] with whom you had been in a de facto relationship for aboutseven years by September 2010. At the time of your offending you were the parent of two children, Joshua[3] and Ryan.[4] Ms Campbell had two further children with you with the relationship concluding in 2015.[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
4The findings of guilt were in relation to two offences which occurred on the
one occasion. Ms Campbell placed the timing of the rapes at about one week before the AFL Grand Final in 2010.5She was awoken by you at approximately 5 am at which time you confronted her about being unfaithful to you. She admitted to you that she had been unfaithful in June 2009. According to Ms Campbell, you left the room angry and she followed you. Ms Campbell asked if you could talk about it and she could see that you were angry.
6By this stage in the lounge room of the home you shared, you turned, grabbed Ms Campbell by the throat and threw her against the wall in the lounge room.
You told Ms Campbell that you wanted her to do what she did to the other guy. With her back against the wall and your hand on her throat you then undid your pants, grabbed Ms Campbell’s head and pushed it down. She thought you were going to kill her. You told her that you wanted her to suck your penis. In those circumstances, she did as you asked. You forced her head to go faster and further to the point where she was gagging.7As a continuation of this event charge 2 occurred. You pulled Ms Campbell up by the hair and dragged her, whilst walking, to the couch area. You told Ms Campbell that you want her to ride you like she rode the other guy. Ms Campbell’s evidence at trial was that you sat on the couch and that she removed her pyjama bottoms and underpants and hopped on top of you. You put your penis inside her vagina. She said that she was crying and shaking and did not know what to do other than comply. This is understandable given what had just transpired. You ejaculated inside of her, threw Ms Campbell from you and left.
8Your account at your trial was that neither of these events occurred and that Ms Campbell was lying when she said that it did. You gave evidence that you did confront Ms Campbell about information you had received that she had cheated on you. According to your account she admitted infidelity as a retaliation as she had been told that you had been unfaithful to her.
9Your account was that you were gutted and angry and that you left the room and cleared out the spare room to stay in. Your account was that you did not have sex that night.
10Whilst it was not directly put to Ms Campbell, it was implicit in your account at your trial that you were not violent to Ms Campbell on this evening. Your counsel contends that the jury's verdict allows me to accept the elements of the offences have been established beyond reasonable doubt.
11In written submissions filed it is submitted that,
'No other facts alleged by the prosecution can be taken as having been established unless they are implicit in the finding of guilt. This poses some difficulty for the court in determining the facts upon which to sentence Mr [Phillips].
12In effect it is argued that I should not be satisfied that the violence alleged in the immediate advance to each rape occurred. It is submitted that,
'Any further aspects of the offending on which the Crown seeks to rely to aggravate the offending must be proved beyond reasonable doubt unless they are an element of the crime charged'.
13I accept that circumstances of aggravation need to be proved beyond reasonable doubt. Axiomatically, rape is an inherently violent offence.
14I do take the view that the circumstances of violence attached to each rape and the account given by Ms Campbell would aggravate the objective gravity of each offence.
15Your counsel contends that inconsistencies in the evidence of complaint to witnesses Joe[5] and Jennifer Adams[6] and the direction given at trial in relation to prior inconsistent statements means that Ms Campbell’s credit is impacted and that the degree of violence used in your offending cannot be quantified.
[5] A pseudonym.
[6] A pseudonym.
16Mr Adams’ account was that he recalls speaking to Jessica Campbell with his now wife Jennifer Adams at his premises. This was said to have occurred shortly after the rape. Jessica Campbell told him that she had been raped by Richard but he could not recall much else.
17I accept that there were some factual inconsistency as to the circumstances in which the complaint was made and the content of it. This is perhaps not unusual with witnesses recalling events which occurred some 13 years previously.
18Evidence at trial was called by the prosecution from Ms Jennifer Adams as to the complaint made to her by Jessica Campbell. Ms Campbell’s evidence was that she told her close friend, Jennifer Adams, the day after the then alleged rapes of both oral and vaginal sex which were the subject of the findings of guilt.
19Ms Adams’ evidence was that Ms Campbell rang her in the morning. She described Ms Campbell as hysterical and that she told Ms Adams he, referring to you, grabbed her around the throat and held her up against the wall and she said he raped her. She said that she was told “he sexually assaulted her while he was holding her around the throat up against the wall”. The account given by Ms Campbell to Ms Adams was consistent with Ms Campbell’s evidence at trial.
20My conclusion as to the circumstances of your offending is based on the evidence of Ms Campbell, which was accepted by the jury in respect of the charges on which you were found guilty. The jury had been given clear direction as to the pathway on which a finding of guilt could be made. That is, they could only make that finding if they accepted Ms Campbell’s account of events. The jury clearly rejected your account.
21I do accept Ms Campbell’s account as to the circumstances of each rape as occurring in the context of the violence she also described, and I do so beyond reasonable doubt.
Victim impact and offence gravity
22I turn now to victim impact and offence gravity.
23The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them. Ms Campbell has provided a victim impact statement.
24In that statement she describes struggling to perform normal healthy relationships. She also speaks of mental health consequences which she attributes to the offending against her, and to still having nightmares of the crimes committed against her. She struggles to sleep and has chosen to work as a cleaner so that she is isolated from others. You have made her fear men.
25It is clear from Ms Campbell’s victim impact statement that the ramifications for her of your offending have continued well past September 2010 and indeed continue to this day.
26Her victim impact statement was read to the court by the prosecutor. The effect of your offending upon her is therefore well known to you.
27You cannot call in aid in amelioration of sentence any plea of guilty enabling a sentence to be reduced. Remorse is not a factor that I can take into account.
28Your counsel has referred me to factors that I can look to in assessing the gravity of your offending. I accept that there was no premeditation. Rather, that you became angry after discussing with Ms Campbell allegations of infidelity by her which she then admitted.
29It is submitted that your offending ought to be viewed as a spontaneous response in the context of a volatile mix of emotions and that this could be seen to reduce your moral culpability. This, it is submitted, is furthered by your age at that time, 24 years, and your suggested immaturity at the time associated with that number.
30Whilst relatively young you were working full time and managing a relationship and young family. On both accounts at trial you left the room at the time Ms Campbell admitted to her infidelity and you had some opportunity for quiet reflection. I see little basis to reduce your moral culpability.
31There are two distinct offences which occurred close in time to each other and over a relatively confined time period overall, allowing for a high degree of concurrency between the two charges in the sentences to be imposed.
32No weapon was used but your violent response would have been unexpected, giving Ms Campbell little opportunity to protect herself from you. You were seeking to punish.
33The placing of hands to the throat is an inherently dangerous act as time has shown unfortunately again and again.
34Your offending has clearly occurred in the context of family violence. The
Court of Appeal said in Mercer (a pseudonym) v The Queen [2015] VSCA 257 and I quote,'This court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this court said recently in Filiz v The Queen offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is entirely unacceptable. This court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences'.
35The Court of Appeal has been clear that general deterrence and denunciation loom large in the relevant sentencing considerations where offending has occurred in the context of family violence.
36The denial of your offending, the grave nature of it and your other sexual offending which occurred around the same period as the two rapes of Ms Campbell lends weight to the sentencing principles of both specific deterrence and protection of the community.
37On 12 September 2012, you were sentenced by the Melbourne County Court
to ten years and four months imprisonment with a non-parole period of
seven years imprisonment after being found guilty by jury of ten charges of indecent act with a child under 16 years and five charges of sexual penetration of a child under 16 years. One hundred and twenty nine days were declared as having already been served by way of pre-sentence detention. You served the entirety of the sentence imposed, not having received a grant of parole.38The circumstances of that offending are set out in the reasons for sentence of Her Honour Judge Patrick, dated 12 July 2012. I have had recourse to these reasons. The dates of the offending before Her Honour Judge Patrick were between 1 January 2008 and 2 May 2011.
39I draw from paragraphs 15 to 17 of the sentencing reasons of Her Honour
Judge Patrick in DPP v Phillips [2012] VCC 956 in which she details your activity during the exact period of your offending against Ms Campbell.40In September and the later months of 2010, you were sexually offending against each of Ms Campbell’s two younger sisters, both of whom were children at the time. The offending at this time involved grabbing by the hair and forcible oral penetration of each child.
41I observe that the catalyst for the offending against Jessica Campbell was your anger at being told that she had had an affair. Something which she admitted. It is obvious from the offending period against her two sisters that you were hardly in a position to be so aggrieved. In that context, your volatile reaction to Ms Campbell’s admitted infidelity seems somewhat misplaced.
42Your sexual offending against her two sisters at around the same time also augurs against the submission made on your behalf that your moral culpability should be reduced due to your reactive response and your youth.
Totality
43Your counsel referred to this previous sentence and initially submitted that the principles set down in R v Renzella [1997] 2 VR 88 have application. This discretion allows courts to consider an offender's pre-sentence detention which is not subject to a declaration under s18 of the Sentencing Act 1991.
44It was argued that time ought to be taken into account in a general way and result in a moderation of both head sentence and non-parole period for the present offences. I agree that your previous sentence has relevance to the sentencing exercise.
45The totality principle requires that where an offender is being sentenced to multiple terms, or is to otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending. This principle does have application to the two charges of which you have been found guilty and to your previous sentence.
46In your case, you now fall to be sentenced for offending which occurred around the same period as your offending against Ms Campbell’s two younger sisters but at a time since your sentence of imprisonment for that offending has been served. You were not identified for the offending before me until a time late into that sentence.
47Both the Renzella type discretion and the totality principle are concerned with both fairness and the imposition of a sentence which can be described as just and appropriate. It is now accepted that the totality principle should be applied.
48In a decision of Sayer v The Queen [2018] VSCA 177 the Court of Appeal considered the case of an offender who had committed three separate rapes during three separate burglaries, one in July, one in October and one in November 1984 when he was then aged 17 years. Mr Sayer was sentenced for the first offence in time in 2015 by which time he had already served a sentence of imprisonment imposed around 1986 for the third offence in time and a sentence imposed in 2008 for the second offence in time.
49The court said that to the extent totality applies in such a case it does so distinctly and not by considering the sentence that would have been imposed had all offending fallen for sentencing on the same occasion. Instead, the prior sentences and the time spent in custody simply remained part of the offender's circumstances that must be considered to comply with the principle of totality. It is conceded that this has application in your case.
50I therefore take that approach to your sentencing exercise. I accept that the sentence to be imposed should not be a crushing one. I agree that it is proper to make some allowance for the fact that a lengthy term of imprisonment has already been served for offences that occurred at around the same period and were also sexual in nature.
Delay
51I turn now to arguments raised on your behalf in relation to delay.
52You were aware of the police investigation from June 2020 following Ms Campbell’s complaint to police in November 2019. In November 2020 you were charged with the offences the subject of your recent trial. You were in custody serving the sentence imposed by Her Honour Judge Patrick at that time. You declined to be interviewed by police.
53Your counsel notes the period of some ten years between the actual offending and to being charged and the twenty six months between charge and finalisation of the trial. I was referred to the decisions in:
The Queen v Cockerell [2021] 126 A Crim R 44,
Dragojlovic v The Queen [2013] 40 VR 71,
Arthars v The Queen [2013] 39 VR 613,
Chandler v The Queen [2010] VSCA 338 and
R v Nikodjevic [2004] VSCA 222 as to the relevance of delay.
54I accept that delay, particularly where not attributable to the offender, can be a powerful mitigatory factor. Here it appears to me that the relevant period to be assessed in terms of the relevance of delay relates to the time at which you knew you were the subject of charge in late 2020 and the conclusion of your trial in February 2023.
55It would appear the prosecuting authorities acted relatively promptly once the allegations had been brought to their attention by Ms Campbell’s complaint in November 2019. There was some delay while the Court of Appeal finalised an interlocutory appeal by you against a pre-trial ruling of another judge. You are not to be criticised for exercising your rights.
56The relevance of delay lies in the period of time you have had criminal proceedings hanging over your head keeping you in a state of suspense as to the outcome and the assessment that period offers as to your prospects of rehabilitation. The focus therefore is on rehabilitation and fairness.
57The delay does not appear to be out of the ordinary. I accept that having been in custody at the time of charge for offences committed at around the same time as those for which you are undergoing sentence and to then being newly released from that sentence at the time of your trial would have been a source of stress, particularly in terms of a potential return to the custodial setting.
58I also appreciate that the time frame has meant you were not able to access any concurrency with your previous sentence and I take that into account in a general sense.
Prospects for rehabilitation
59In terms of your prospects for rehabilitation you are now aged 37 years and as referred to earlier you were aged around 24 years at the time of the offending before me. In some ways your prospects of rehabilitation are difficult to assess. I have almost no background as to your personal circumstances. Some can be gleaned from the sentencing reasons of Her Honour Judge Patrick but no additional material has been put before me.
60You have been in custody undergoing sentence from 5 March 2012 until
7 June 2022. As referred to earlier, you did not undertake a parole period. I accept there must have been a degree of both sanction and deterrence in you serving an extended period in custody by way of the sentence imposed by
Her Honour Judge Patrick.61In sentencing you, Her Honour Judge Patrick indicated that given the nature of the offending before her, the time over which the offending occurred and the deliberateness in which you engaged in offending that she was of the view, that you presented with 'at least a moderate risk of reoffending in the future in a similar way'.
62No psychological material was tendered on your behalf on either the plea hearing before Judge Patrick in 2012 or the plea hearings before me in 2023 to assist either assessing your future prospects or your future risk.
63Tendered on your behalf was an extract of programs you have completed whilst undergoing that sentence. You have completed programs in communications, workplace safety arrangements, recognising familiar workplace signs and symbols, food safety, hygiene, literacy and numeracy. Some efforts have clearly been made by you to use your time wisely.
64You do not appear to have completed any programs designed to minimise your future risk.
65You were released from the sentence imposed by Her Honour Judge Patrick on 7 June 2022. Again, I have relatively limited information as to what has occurred since your release.
66All that has been known to me is that you went to live with a friend in
Capel Sound, Victoria and you worked as a kitchenhand. You were returned to custody upon the jury's verdict on 13 February 2023.Other matters
67Turning now to other matters.
68As you have been convicted of two or more sexual offences, for each of which you will be sentenced to a term of imprisonment, you do fall to be sentenced as a serious sexual offender pursuant to Part 2A of the Sentencing Act 1991.
69Section 6D of the Sentencing Act provides that when sentencing you as a serious sexual offender, I must have regard to the protection of the community as the principal purpose for which the sentence is imposed.
70Section 6E provides that unless otherwise directed by the court, every term of imprisonment imposed on a serious offender be served cumulatively.
71In all of the circumstances I do not consider that a disproportionate sentence should be passed and the prosecution does not seek one.
72In terms of the sentencing exercise, the basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
73In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
74I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
75I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences and the principles of totality and proportionality.
76Your counsel has referred me to at least six cases said to assist in the sentencing exercise in submissions dated 21 March 2023 and 27 April 2023 and I have had recourse to each of those decisions.
77Richard Phillips, in relation to charge 1, rape, you are convicted and sentenced to six years imprisonment.
78On charge 2, rape, you are convicted and sentenced to six years and
six months imprisonment. This is the base sentence.79Six months of the sentence imposed on charge 1 is cumulative on the sentence imposed on charge 2. Your total effective sentence is therefore one of
seven years imprisonment.80I fix a period of four years and eleven months before you are eligible for parole.
81Ninety one days are reckoned as having already been served.
82Anything I missed from your end, Mr Gray?
83MR GRAY: I think it needs to be declared on the record that he is a serious sexual offender but I suppose Your Honour's done that in your sentencing remarks.
84HER HONOUR: And it will be reflected on the record of order.
85MR GRAY: Indeed. Thank you.
86HER HONOUR: But thank you for raising that. Mr Hooper?
87MR HOOPER: No Your Honour, sorry. Although if it's at all convenient I would like to seek Your Honour's leave to speak to Mr Phillips once the court's
been - - -88HER HONOUR: I would do that in any event, Mr Hooper. You'll be given that opportunity.
89MR HOOPER: I'm grateful to Your Honour.
90HER HONOUR: So I'll stand down until 10.30 and you'll be able to speak with your client privately.
91MR HOOPER: I'm grateful to Your Honour. Thank you.
- - -
0
5
0