Director of Public Prosecutions v Phipps

[2022] VCC 1192

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-00003
CR-22-00004

DIRECTOR OF PUBLIC PROSECUTIONS

v

Sean PHIPPS
Raymond NUNN

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	July 2022
DATE OF SENTENCE:	26 July 2022
CASE MAY BE CITED AS:	DPP v Phipps & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1192

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:      Sentence –Arson – Guilty pleas – Sentence indication sought and accepted by one offender – Complicity – $132,939 in damage to social housing – Primary offender motivated by perceived ‘rip-off’ in drug deal – complex trauma and multiple adverse childhood experiences – Polysubstance abuse – positive prospects for rehabilitation

Cases Cited:Bugmy v The Queen [2013] HCA 37; Marrah v The Queen [2014] VSCA 119; Worboyes v The Queen [2021] VSCA 169

Sentence:   PHIPPS: 18 months’ imprisonment, 9 months of which to be served cumulative with sentence currently being served, new non-parole period of 26 months.

NUNN: 9 months’ imprisonment and CCO for a period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z. Menon	Office of Public Prosecutions
For the Accused PHIPPS	Mr Z. Petric	Adrian Paull Criminal Lawyers
For the Accused NUNN	Mr T. Sullivan	Adrian Paull Criminal Lawyers

HER HONOUR:

1Sean Phipps and Raymond Nunn, you have each pleaded guilty to a single charge of arson.

2

On the morning of 26 May 2020, you, Mr Nunn, went to a Department of Health and Human Services property occupied by Spencer Holt.  You gave Mr Holt $300 to purchase drugs for you.  Mr Holt left, and you stayed in the apartment.  It would appear he did not return, and you came to the belief that you had been

‘ripped off’ by him.  Whilst waiting at the apartment, eventually, you Mr Phipps arrived along with two women.

3Between approximately 4:30pm and 4:40pm that afternoon, a fire broke out in the unit.  CCTV footage shows both of you in close proximity to the unit at the time. Men matching your appearance on the CCTV were described by eyewitnesses leaving the unit shortly before the fire was detected.  It would appear that the women, although they had been present, were not around, or had clearly distanced themselves by the time the fire broke out.

4A fire scene examination found that there were three seats of fire: one in the bedroom, one in a rubbish bin, and one in the bath.  The fire scene examiner was of the view that the fire in the bedroom was caused by ignition of a mattress on the floor, and the fires in the bin and the bath were caused by the ignition of combustible material.  The examiner also concluded that all fires were ignited directly by a match or a cigarette lighter.  The fires caused extensive damage; the value of the damage has been assessed at $132,939.

5In addition to the fires, the words 'You owe me' were found carved into the lounge room wall.

6It was not until February of 2021, that you Mr Phipps were arrested by police in relation to this.  Police had executed a search warrant at your home earlier, in December 2020, but your arrest was not until February the following year.  When interviewed, you said that you knew that the fire was going to happen, but you had nothing to do with it, that you did not go into the house; that Mr Nunn had asked you to assist but you had said no; that Mr Nunn had said several times that he wanted to go to Mr Holt's house and collect his money and burn down the house; and that Mr Nunn had said to you that if Mr Holt was not at home, he would burn the house down.

7You, Mr Nunn, were not arrested until about a month and a half after that.  In your interview, you told police that you wrote the words on the lounge room wall, before walking into the bedroom and setting the mattress on fire, then trying to put it out.  You told police that you had been at Mr Holt's house earlier that day and you had given Mr Holt money.  You identified yourself and Mr Phipps, and the two women who had come to the house from the CCTV footage, but you said that when the fire was lit there was only one other person with you.  You said you had stomped on the fire (that is the one where the mattress was ignited) and poured Coke on it but you said you did not know 100 per cent whether it went out or not.

8Whilst you, Mr Nunn, admitted to lighting the fire in the bedroom, and the Prosecution is not able to say which of you lit the other two fires. The charges of arson against both of you, and to which you have both now pleaded guilty, are put on the basis that you were both complicit for the conduct of each other, and that is both of you are legally responsible for the lighting of all three fires.

9Whilst it is accepted, Mr Nunn, that you lit the first fire, and the evidence does not establish who lit the other two, each of you now accept that you are legally responsible for all three fires and for the damage caused as a result, regardless of who actually lit each.  It is also accepted that the original dispute was Mr Nunn's, that lighting a fire at least in the unit was his idea, and that it was he who scrawled the threat or revenge note on the wall.  Even accepting that it was Mr Nunn's idea, his grievance, and his initiation by lighting that first fire, you Mr Phipps at least by your presence, active encouragement and assistance are equally legally complicit.  Although it is for sentencing purposes unclear who lit the other two fires, you must understand as I think you now do accept, Mr Phipps, evidenced by your plea of guilty, that you too bear responsibility for all that happened, even if you were not the actual fire-setter in respect of any of them.

10Mr Nunn, you indicated your intention to plead guilty to the charge at a very early stage at the committal hearing.

11You, Mr Phipps, on the other hand had maintained that you were not guilty.  You had a contested committal and were committed to this court for trial. It was only following a sentence indication before me in May of this year that you ended up entering a guilty plea. I understand it can be difficult for those who were present but were not the instigators and may have done nothing more than active encouragement by presence, to understand that the legal principle for complicity means that they too are criminally liable. That is in large part the reason for the later guilty plea entered by you.

12Although you are legally equally guilty, your role Mr Phipps can be distinguished from that of Mr Nunn.  But it is also important to understand why you and not the two women were charged.  It would appear from the evidence before me that whilst they were present at the house, they were not there when the fires were lit and did not by their presence or by their acts, encourage or assist in the commission of the arson offence.

13And so despite the significant differences between your role, Mr Phipps, and that of Mr Nunn, and the differences between the roles of both of you and the two women who had been at the house, both pleas of guilty are properly regarded as an acknowledgment of criminal responsibility for the acts of both of you.

14Arson is a serious offence.  One measure of that is the maximum sentence proposed by Parliament, 15 years' imprisonment.

15This was nothing more than an act of wilful, wanton destruction of somebody else's home and possessions, and that is a terrible thing to do.

16It was clearly motivated on your part, Mr Nunn, by spite and revenge. That is no mitigator.

17And your role, Mr Phipps, is properly characterised as I understand it, of mindless joining in of the wanton destruction.  Although you had no personal involvement, in some ways that makes it worse, or at least in a different sense and for different reasons, just as bad.

18The victim here was not just Mr Holt, the occupant of the house. All of us in the community can properly be regarded it as victims of this.  This was public housing, provided by the State for those in need, who are unable to secure accommodation on their own, whether as an owner or a renter. There is a great shortage of social housing, and the need far exceeds the demand, so it is all of us in the community, the other people who are in need of State help to provide them with safe and secure housing, and the community who through their taxes and other contributions provide the funds for provision of social housing that are also affected by this destructive behaviour.

19So, there is a knock-on effect, not just for Mr Holt who lost his home because it became uninhabitable and his possessions because they were destroyed, but for all those other people, some of them desperate, who are waiting for public, safe, secure permanent public housing and the pressure put on the State to provide sufficient housing is exacerbated by acts of wilful, wanton destruction such as this.

20So, it is clear for these reasons, the sentencing considerations or principles of denunciation, general deterrence, and just punishment loom large. The motivation for you, Mr Nunn, anger and vengeance, it would appear at being or believing that you had been ripped off in a drug deal for $300, when we are looking at damage of over $130,000, of destruction of personal items that may not have enormous monetary value but that can have significant personal sentimental value for the owner, and of this public asset there to assist the needy, is clearly something that deserves and warrants denunciation, and a sentence that reflects deterrence and just punishment. Vigilantism and that scale of destruction that is so wildly out of proportion to the amount of the debt clearly is something that cannot in any way be justified or countenanced. You, Mr Phipps, do not even have revenge for being ripped off to account for, just as I said, a mindless joining in, a sort of mob mentality.  That clearly must also be denounced, and those who think they can join in somebody else's dispute like this, and engage in such behaviour must understand that if detected they will be punished too.

21Each of you has a significant criminal history. Yours, Mr Nunn, goes back to 2012, and yours, Mr Phipps, to 2008.  In 2012, Mr Nunn, you were still a young person and you were dealt with in the Children's Court.  You were dealt with for offences of intentionally causing injury, burglary, and theft.

22Then, although staying out of trouble for about five years, in December 2018, then being old enough to be dealt with in the Magistrates' Court you were convicted of using a carriage service to harass.  It appears that that was harassment of your then or ex-girlfriend.

23Your last criminal conviction before this was in December 2019, when you were convicted of contravening a family violence intervention order, theft from a shop and possessing a drug of dependence.  Again, that family violence intervention order was in respect of a partner or a former partner.  On that occasion, you were fined and placed on an adjourned undertaking, on condition that you complete counselling and engage in a men's behaviour change program.  It is of note, that you have not before now, been sentenced to a term of imprisonment.

24You, Mr Phipps, have a longer and much more serious criminal history, dating back to 2008.  You have been dealt with for offences including threats to inflict serious injury, unlawful assault, possession of controlled weapons, also contravening a family violence intervention order, and recklessly cause injury.  You have been dealt with for contravening a suspended sentence, a community correction order, and conduct conditions of bail.  You also have convictions for driving offences and possession of drugs of dependence including methamphetamine. You have been sentenced to a number of terms of imprisonment, and you have also previously been placed on community correction orders, which you have struggled to be able to comply with.

25It is clear, therefore, that for both of you, specific deterrence as well as general deterrence must play a role in the sentencing process.

26What then was relied upon for each of you to mitigate the weight to be given to denunciation, deterrence, and just punishment?

27Dealing with your circumstances first, Mr Nunn.  You were 25 at the time of the offending, so on the outer edge of what is properly described as a youthful offender.  

28You, like Mr Phipps, have had a markedly disadvantaged upbringing which has clearly shaped your life, and can be seen as demonstrated in part by the convictions which you have admitted. The neuropsychologist, Dr Matt Treeby, drawing on his assessment and a wealth of historic records relating to you reported that your troubles started at birth.  You were born prematurely, and you experienced significant delay in development of speech and language abilities. Your parents struggled with managing their own behaviours, their substance abuse and violence.  Your parents separated by the time you were two, and you were in and out of foster care following child protection intervention for the first five years of your life.

29You went to six different primary schools; you were expelled from secondary school three months into Year 9 for fighting and disruptive behaviour.  Stability was nowhere in your life.

30You have experienced complex trauma and multiple adverse childhood experiences including parental substance abuse, exploitative family violence, parental mental illness, neglect, frequent relocations and sexual abuse whilst in State care.  Medical records show that you were diagnosed with ADHD during your middle adolescence and prescribed Ritalin. That also can be seen to be connected with that disruptive school record that has been identified.  You have since also attracted a number of other diagnoses: bipolar disorder, depression, anxiety, and significantly, Complex Post Traumatic Stress Disorder. You have presented with persistent suicidal ideation, you struggle with negative emotions.  You have a history of deliberate self-harm, and a long history of polysubstance use often used or related to an attempt to manage your distress.

31You have an extensive history of engagement with mental health services. Your first documented psychiatric admission was at the age of 16 following multiple suicide attempts via drug overdoses.  In late 2018, you spent 28 days in Barwon Health Prevention and Recovery Care (PARC) program.  You have had multiple other presentations to emergency in 2018 and 2019 in the context of suicidal ideation.

32You have an extensive history of substance abuse which commenced in adolescence, it would appear not long after and perhaps directly related to the experience of sexual assault that you endured whilst in State care.  Your substance abuse is properly described as polysubstance abuse; alcohol, cannabis, amphetamines, cocaine appear to have been the most abused substances, but you also report at times use of heroin, benzodiazepines and GHB.

33Dr Treeby assessed your premorbid intellectual functioning as falling in the 'Low average range' with an overall IQ of 85.  His assessment ruled out any long-standing learning difficulties or intellectual disability, which I hope comes as a comfort to you, given that disruptive schooling you had and the ADHD that was diagnosed while you were at school.  It means you have got the capacity to learn and engage and to better yourself.

34Although consistently with this history you have at times been assaulted or injured yourself and you have identified a number of head-related traumatic injuries, there have been no hospitalisations for traumatic brain injury, no history of seizure, and there does not seem to be any evidence of acquired brain injury.

35In February 2020, following a CT scan of your brain, a malformation described as an Arnold Chiari 1 malformation was diagnosed.  That is a descent of the cerebellar tonsils below the foramen magnum, which is further down into the body.  This causes regular headaches caused by that malformation of the cerebellar tonsils. 

36Dr Treeby is of the opinion that you satisfy the criteria for a formal diagnosis of complex post traumatic disorder, as well as bipolar disorder, stimulant related disorder, alcohol use disorder and cannabis use disorder. He also noted that you continue to present at risk of self-harm and suicide and that you will require ongoing monitoring. 

37Not surprisingly against this background you have got a very limited experience of employment. When you were about 15, you obtained some work with a relative in cabinet making.  Later you obtained some work as a roof tiler. However, your substance abuse particularly methamphetamine, alcohol and cannabis, as well as your mental health difficulties, have clearly compromised your ability to work over the last seven years.  In more recent times, you have been on Jobseeker payment as a result of your unemployment.

38Your history of relationships in a sense reflects the impoverished parenting that you experienced.  You were in your mid-teens when you fathered a child; that child is now 12.  You have not seen her since she was three weeks old, and she has been in DHHS care herself from birth.  You described your relationship with that child's mother as chaotic, marred by substance misuse and family violence.  But to father a child and then not to have the contact with them is clearly a distressing and traumatic event in itself.

39It is clear just from this comprehensive summary of the traumatic experiences, deprivation and disadvantage in your life since babyhood, that the principles outlined in Bugmy and Marrah clearly have significant application here.  This is yet another case where it is clear that the enduring effects of childhood deprivation and disadvantage have been demonstrated.[1] Although it is clear that your circumstances fit more neatly within the principles in Bugmy and Marrah, certainly so far as your diagnoses of mental illness are concerned, the Verdins principles in relation to the burden of sentence, the risk of imprisonment exacerbating your condition and to some extent to the type of sentence to be imposed, clearly have operation.  I am not satisfied, however, that there is a significant or sufficient causal connection between those conditions and the offending, so as to have on a Verdins basis an assessment that your moral culpability has been limited.

[1]          Bugmy v The Queen [2013] HCA 37; Marrah v The Queen [2014] VSCA 119

40It would appear that you have never engaged in any meaningful drug and alcohol treatment, therapy for the complex traumas that you have experienced, counselling or behavioural change programs, although some opportunities have been offered to you sometimes through court mandate and sometimes through other services.

41Countering that bleak picture, however, is the change in your life in recent times. You have formed what appears to be a stable relationship with a woman, and you have assumed parental responsibility for her young son.  She gave evidence on your plea; she said you have been a very good partner to her and a good father to her son.  She has a no violence, alcohol or drugs in the house policy, and she said she strictly enforces that, in the knowledge that she risks losing the custody of this child, and that is a loss that she has already endured with her older children, so is something she understands very well and, and I accept, is assiduous in enforcing.

42The evidence that she gave, and your account of when the relationship with her started, when it was called off, discovering that you had relapsed into drug and alcohol use, and when, after you had cleaned up your act, it resumed after you had satisfied her that you were again abstinent, was contradictory and confusing. Nevertheless, I am satisfied that this offending occurred at a time that you were not abstinent and at a time when the relationship with your now partner had been called off.  I am satisfied it has resumed since you have been charged, and that you have demonstrated a significant commitment to her and to her son, and to maintaining at least in the house with her, a sobriety and a genuine commitment to that.  She has given evidence that she has at times been aware that off the premises you have used cannabis and maybe alcohol, but that your behaviour at home has been sober and responsible.

43She has also given evidence that your shared interest in reality TV cooking and baking programs has ignited a real interest in you in baking in particular, and you hope with your partner's active encouragement to pursue a career as a pâtissier.

44You have shown a commitment not only to sobriety and to living with your partner, accepting the rules that she has imposed in relation to that, but also to following a routine important for the sake of her young child, who is still a pre-schooler. You take him to childcare and back on the bus, because you do not have a licence or a car. That means getting him there at a set time and picking him up at a set time.  Even more admirably, for one who had such an impoverished upbringing, impoverished in every sense, you have demonstrated your capacity to care for him full-time when your partner has been hospitalised.  She was diagnosed in September last year with a significant kidney condition.  She has had three five day admissions to an Intensive Care Unit since then and expects further like admissions.  She has no one else to care for the child when she is hospitalised, and you have stepped into the breach on each of the three occasions when she has. She has been confident, and her confidence seems to have been well-rewarded, that you are able to properly care for the child in her absence.

45So, the combination of a relationship that is not marred by substance abuse or violence, living a more stable life, with a partner and a child, having to adapt to a routine that is based around the child's needs rather than getting up when you want to, sleeping when you want to, eating or not eating when you want to, the  abstinence at home rule, and an interest that holds out hope of training and employment in an area of interest to you, all lead to a more promising view of your prospects for rehabilitation than might otherwise have been expected.

46In addition, you have counting in your favour the sentencing benefit of your guilty plea, and the added weight to be given to it, and to the burden of imprisonment by reason of the continuing impact of COVID-19 on the community, the courts and the justice system.  You have expressed regret for your conduct, and importantly, you said to Dr Treeby that you have never been able to think about the consequences before doing something, but you recognised you needed to do better.

47You instruct that you have personally apologised to Mr Holt, the two of you have met, you have shaken hands, and are again on good speaking terms.  All of this suggests a maturing and a learning from this process and a desire to learn and to do better.

48Turning then to you, Mr Phipps. You are now 32 and your present circumstances are different from Mr Nunn's – You are currently serving a sentence for another offence or set of offences, predominantly for an attempted armed robbery which occurred after the arson, right before you were arrested and charged with the arson. However, you too have a very sad history of extreme childhood deprivation and abuse.

49I have read and I adopt the history and personal circumstances that were detailed by His Honour Judge Gucciardo when he sentenced you for the armed robbery and other offences in November 2021.

50Like His Honour, I was provided with the psychological report of Ian McKinnon dated 29 September 2021, and a report written way back in 2007 by the then practising forensic psychologist, Bob Ives.  Like His Honour Judge Gucciardo, I accept the history recounted in those reports and the recommendations and conclusions.  Those reports and the history provided to me detail a personal history that shares many aspects of the deprivation, abuse, and disadvantage that I have already recounted as affecting your co-offender, Mr Nunn.

51Your parents also separated when you were very young, only two.  You remained with your biological mother.  You are estranged from your father.

52It is clear that you grew up in unstable, dysfunctional and traumatic circumstances. Your father was ultimately imprisoned for child sex offences.  You suffered abuse at the hands of an uncle.  You have been exposed as a child to prolonged domestic violence and threats from your mother's partners.  You spent many periods in crisis accommodation in women's refuges as your mother fled a violent partner.  You too, suffered the disruption of frequent dislocation.

53By the time you were in kindergarten you were diagnosed with dyslexia and you received some speech therapy.  Your mother moved to Geelong when you were about six.  So, more disruption and dislocation.  You were bullied and teased, and you struggled at school to complete academic tasks.  Not surprisingly, you started to develop anger problems that led to social isolation and ostracizing.  You were eventually expelled from one school in Year 7 after damaging a teacher's car.  You went to yet another school until your schooling finished at Year 9.

54You have had some short stints of casual and unskilled work, often - well mainly as a labourer on poultry farms. But, no recent employment history, and at the time of your remand, you too were in receipt of benefits, namely Newstart.

55You too report a long history of poly-substance use.  It too commenced in adolescence and is clearly related to your traumatic childhood experiences.  You too have abused substances including alcohol, cannabis, amphetamines, MDMA, GHB, cocaine, benzodiazepines and abusing other prescription medication. Throughout most of the time, the two years prior to your remand, you were using methamphetamine daily in combination with alcohol and substances.

56Back in 2007, Mr Ives assessed your overall IQ at 76, which is just a little bit lower than Mr Nunn's, and in the low range.  Your verbal ability was very low, one percent, probably a reflection in part of dyslexia as well as the problems in schooling.  You scored even back then very highly on the trauma symptom checklist, in particular on the indicators for anger, depression and dissociation.

57

I was also provided with something that had not been provided to His Honour Judge Gucciardo, a neuropsychological assessment report following a Mobile Forensic Mental Health Service assessment conducted by Ms Emily Zou.  The Mobile Forensic Mental Health Service is a confidential mental health service provided by Forensicare to persons in prison.  The report notes that the Mobile Forensic Mental Health Service does not address offending related or alcohol and drug issues.  Significantly, Ms Zhou reported normal performance in aspects such as visual spatial abilities, reading and spelling, and aspects of executive functionAgain, a very comforting report, given the disruptions to schooling and the sense at least that you had that you were not very bright.

58She Identified as a result of the neuropsychological test that your challenging areas were your general verbal skills, your speed of thinking, your verbal memory, planning and organisation.  She made some good recommendations to assist you to work, to manage those, so as to be able to cope better in being able to express yourself, to read, write, and to engage.

59Despite your significant criminal history, it appears that you have used the time that you have spent in custody, (about seven months when you were assessed by McKinnon, now closer to twenty), to reflect, and to reassess your life. If you can access and accept supports in prison and in the community on your release to deal with your complex mental health needs, and address your substance abuse you have got a much better prospect of leading the happier, more meaningful and offence-free life that you clearly want to, and hope to lead.

60I adopt and endorse Mr McKinnon's opinions and conclusions and urge Corrections to make available to you such programs and supports as are recommended, to better prepare you for a life on release.

61It is important to note that Mr McKinnon concluded that you present with all the clinical and historical symptoms of an individual who suffered multiple and severe trauma and abuse during your formative years. He says that you now present as a deeply emotional and psychologically scarred individual, who has spent much of his adult life abusing illicit substances, intermittently encountering criminal legal problems, being imprisoned and struggling to maintain stable and enduring interpersonal relationships. You have been largely bereft, Mr McKinnon noted, of a supportive and stable family unit with which to identify and seek support from. 

62He diagnoses that you now present with long-standing complex post-traumatic stress disorder and associated poly-substance abuse disorder, that is currently being in an advanced stage of remission as a result of incarceration.

63Like Mr Nunn, you do not have a significant history of engaging in rehabilitative treatment, but at the age of 32 (31 when Mr McKinnon assessed you) he was of the belief that you may be more able now to make good use of therapeutic treatment and make additional rehabilitative progress.  Particularly, if you can stabilise, find  independent accommodation and abstain from substance abuse.  They are challenges that will not be easy to meet, but he notes that you are open to establishing workable therapeutic relationships and engaging in rehabilitative treatment that may be indicated.

64

He is of the view that you would benefit from maintaining psychological therapy with a suitable professional for several years to address your complex

post-traumatic stress disorder, your poly-substance abuse disorder and your associated issues, and probably a review too of the medication, prescribed medication you are currently on. 

65Mr McKinnon recommended that you would benefit from ongoing treatment with a psychologist and treatment by the Australian Community Support Organisation Community Offender Advice and Treatment Service (ACSO COATS) for your substance abuse needs when you are still under the supervision of the justice system and emphasises too, the need for stable accommodation upon your release.

66He recommends giving serious consideration to completing a long period of residential treatment as a useful steppingstone between prison and the wider community, becoming involved in a self-help group such as Narcotics Anonymous in order to help provide a supportive social network.  I thoroughly support those recommendations.

67It follows then that there are many common features for the two of you. You each have a long and well-documented history of significant childhood deprivation and disadvantage, that has clearly affected your capacity to navigate adult life.  Therefore, the principles in Bugmy apply to both of you.

68Each of you has diagnosed mental health issues and the impact of your mental health is clearly deserving of some weight in the circumstances that I have identified.

69The history of substance abuse of each of you is so clearly linked to your traumatic and deprived upbring and childhood, that you properly fall into the category of people who were not making conscious choices as mature adults who embark upon risky behaviour with substances. Your  trauma made it almost inevitable that you would turn for relief from the awfulness of your lives to abusing substances.  That means each of you has been affected by the embarking upon substance abuse, at a time when your immaturity lessened your ability to make sensible long-term decisions, to manage impulsive behaviour, and to weigh the long-term harm of illicit substances against the immediate euphoria of short-lived alleviation of distress.  Each of you is in clear need of support and rehabilitation in the long-term. But as AOD counsellors will understand, but the broader community should also, your circumstances are deserving of pity, not condemnation in respect of that.

70Each of you is entitled to a significant benefit for your guilty pleas, although as I note they were entered at different stages.  But both guilty pleas require a reduction in the sentence for their utilitarian value, for advancing the interests of justice, for sparing Mr Holt the ordeal of giving evidence, and in COVID times for the impact of reducing or not adding to the backlog of trials before this court.

71Both of you are entitled to have the added burden of imprisonment in these COVID times taken into account.

72The differences between you are these. Although both of you are equally criminal responsible, Mr Nunn, your role was greater and, in my view, your moral culpability is higher as a result.

73Mr Nunn is entitled to a greater reduction in sentence, by reason of the earlier stage of the guilty plea than Mr Phipps.

74On the other hand, Mr Phipps, also I note that you did seek a sentence indication and for sentence and pleaded guilty after that.  This is yet another example of the benefits of the extended regime of sentence indication, and the sentence in my view should reflect an encouragement of other people awaiting trial to consider participation in this extended sentence indication scheme, as a means of encouraging more guilty pleas for the benefits to the administration of justice and the reduction in delay that I have already mentioned.

75Mr Phipps, you have a much more significant criminal history, although you were the lesser player.  Mr Nunn has a lesser history and has not previously served time.

76Also, Mr Nunn has been on bail since being charged, and has made progress in addressing his substance abuse and stabilising his life. You, Mr Phipps have been in custody serving a sentence for the other unrelated offending.  But it is offending that occurred at a time when the same circumstances that I have detailed that show you deserving of mercy and pity, also apply.  So, the same matter is properly able to be relied on to explain and to some extent mitigate your moral responsibility here, and to mitigate the harshness of sentencing otherwise appropriate also applied to the circumstances before His Honour Judge Gucciardo.

77The non-parole period that of the sentence that His Honour Judge Gucciardo imposed is just about to expire. Totality considerations clearly have to play into looking at sentencing you for this in relation to the other offending as part of an episode or a period of your life when all of these factors applied.  It is not your fault that the sentencing has taken place with such a gap between the two.

78So, although parity in a strict sense does not apply, it is clear the sentences must be proportionate to each other, having regard to the similarities and differences.

79It was initially put on your behalf, Mr Phipps, on the sentencing indication that a straight sentence was the appropriate outcome.  I took the view that that was not appropriate, that you should be given the benefit of again, a non-parole period, and that I should not just add to your head sentence, without also reconsidering the non-parole period.  It was all then put that maybe a combination sentence with a CCO was appropriate.  Again, I took the view that because you were currently serving sentence with a non-parole period, it was overly complex and not appropriate to fix a CCO at the end of that. Rather, it would be more appropriate give the parole authorities more flexibility to support you upon your release.  You ultimately accepted those views of mine, and pleaded guilty on that understanding. What I propose to do is to sentence you to a term of imprisonment which would have a degree, but a modest degree of cumulation on the sentence that you are currently serving, and that would add but not substantially to the non-parole period that was about to expire.

80For you, Mr Nunn, on the plea, Mr Sullivan put in a spirited submission in favour of a CCO alone. I indicated then that given your role as the instigator, the person whose idea it was, and who had the motive, who lit the first fire and wrote the vengeful message, and for such a reason, that in my view, no sentence other than a term of imprisonment was appropriate.  Even knowing that the occupant was not at home, to take the law into your own hands like that, to light a fire and damage someone's home, which like yours, was part of limited public housing stock, means that a CCO alone would be insufficient to meet the needs of denunciation, deterrence, and just punishment. Therefore, a term of imprisonment has to be imposed.

81However, I am satisfied, given the history of deprivation and disadvantage, the positive changes that you have been able to sustain, and the impact of the pandemic on the justice system and the manner in which terms of imprisonment are to be served, that you are entitled to the certainty of a known release date, and the structured support of a Community Correction order, is warranted and would provide good prospects for rehabilitation.

82You have been assessed, Mr Nunn, by Corrections as suitable for a CCO.  Not surprisingly, given that history, you are assessed as a high risk offender and therefore, Corrections indicates that as part of a combination sentence that supervision in addition to rehabilitative conditions are appropriate.  I accept those recommendations.

83You were also assessed as part of a CCO assessment for mental health.  That assessment confirmed the recommendation of Corrections, that a mental health treatment condition be included as part of the rehabilitative conditions of the CCO. 

84Therefore, that is an explanation of the differences in the sentencing dispositions, the reasons for it, and my efforts to achieve not strict parity but a proportionality between the two sentences, and also take into account, for you, Mr Phipps, the need for totality having regard to the other sentences you are serving, as well as  giving full weight as I must, to the principles in Worboyes.[2] So, I come now to sentence.

[2]          Worboyes v The Queen [2021] VSCA 169.

85Raymond Nunn, I am going to sentence you first.  On the one charge of arson to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 9 months and then to be released on a Community Correction order for a period of 2 years. 

86The Community Correction order will have that following conditions. First, that it will commence upon your release of this term of imprisonment that I have just imposed. There are mandatory conditions that apply to all Community Correction orders.  They are these. You must not commit another offence, for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by any substances at the time that you attend upon Corrections, or at their direction, for any assessments, consultations, or treatment, or participation in programs. You must submit to drug or alcohol testing if directed to do so.

87You must report to and receive visits from the Secretary or delegate.  You must report to Community Corrections Centre at Geelong at state government offices, Level 5 30A Little Malop Street, Geelong, within two clear working days of your release from custody.  You must let a Community Corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must obey all lawful instructions from and directions of the Secretary or delegate.

88In addition to those mandatory terms, the following special conditions are imposed.  First, you must be under the supervision of a Community Corrections officer for the period of two years. You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager. You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.

89You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric treatment, or treatment in a hospital, or residential facility, as directed by the regional manager. You must participate in programs and courses that address factors relating to the offending, as directed by the regional manager.

90Now, Mr Nunn, do you understand the effect and conditions of this order?

91ACCUSED NUNN:  I do, Your Honour.

92HER HONOUR:  And do you consent?

93ACCUSED NUNN:  I do, Your Honour.

94HER HONOUR:  All right, thank you.  You may well be required to sign a copy of this order, but you have given your verbal consent and that is sufficient evidence that you have indeed consented to the conditions of the order.

95I have not imposed a condition of judicial monitoring, Mr Nunn, but I think those conditions are probably sufficient.  But I do want you to understand that if you are struggling to comply with the conditions of the order, that it is really important to speak to Corrections about it.  If need be, you can ask them to make a time for the matter to come before me, or either an application for judicial monitoring so I can try and broker any agreement between, or re-negotiation between the two of you, or vary any conditions of the order if your circumstances change.  But otherwise, I hope I do not see you because that means you will be released, and you will be well on your order and picking up your life.

96ACCUSED NUNN:  May I ask a question, Your Honour?

97HER HONOUR:  Yes, you can.

98ACCUSED NUNN:  I don't - so that means I won't get released until April next year?

99HER HONOUR:  That is right.

100ACCUSED NUNN:  All right, thank you, Your Honour.

101

HER HONOUR:  All right, and I declare that you have spent 16 days in

pre-sentence detention, and direct that that be counted and reckoned as part of the sentence already served.

102Now for you Sean Phipps, on the charge of arson to which you have pleaded guilty, you too are convicted.

103

You are sentenced to be imprisoned for a period of 18 months and I direct that

9 months of that sentence be served cumulatively upon the sentences that you are currently serving. 

104

When you were sentenced by His Honour Judge Gucciardo on 8 November 2021, he fixed a non-parole period of 1 year and 8 months, or 20 months, and made a

 

pre-sentence declaration of 277 days.

105It is my intention to add to a further non-parole period of six months to that existing non-parole period.  I therefore fix a new total non-parole period of 26 months dating from 8 November 2021 and declare that the 277 days of pre-sentence detention declared by His Honour Judge Gucciardo must be taken into account in calculating as part of the sentence already served.

106I declare pursuant to section 6AAA of the Sentencing Act that for you, Mr Nunn, had you not pleaded guilty, and been convicted, I would have sentenced you to a term of imprisonment of 3 years and fixed a non-parole period of 18 months.  Had you not pleaded guilty, Mr Phipps, I would have sentenced you to a term of imprisonment of 2 years and 6 months and fixed a non-parole period for that offence alone at 15 months.

107Now have the sentences that I have pronounced correctly reflect what I said I intended to do?  Mr Menon?

108MR MENON:  Yes, Your Honour.  No submissions from me.

109HER HONOUR:  All right, thank you.  Mr Petric?

110MR PETRIC:  Yes, Your Honour.

111HER HONOUR:  And Mr Sullivan?

112MR SULLIVAN:  No, thank you, Your Honour.

113HER HONOUR:  All right.  Mr Phipps and Mr Nunn, I hope you can use the time in custody to help build on the advances each of you have made in addressing your substance abuse, and that you reach out and take advantage of any support that is going to be offered to you in relation to your mental health issues, which are complex for both of you, and painful but need addressing.  Also, to reach out and accept any help that is offered to you in relation to helping better equip you to deal with the temptation to abuse substances that will inevitably be there on your release.  I hope that on your release, each of you will be able to benefit from the support that will be offered to you, and that you will be able to live happier and more meaningful lives than you have to date.

114You cannot change your childhoods and the terrible things that happened to you.  But you can each try and take a little more control over your futures, so that you can let what you are doing now define you, rather than have what happened to you in the past still continue to so badly affect you.  So, I wish both of you well.

115ACCUSED NUNN:  Thank you, Your Honour.

116ACCUSED PHIPPS:  Thank you, Your Honour.

117HER HONOUR:  Thank you.  Please adjourn.

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