Director of Public Prosecutions v Phipps

[2021] VCC 1786

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01399

AP-21-1069

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN PHIPPS

---

JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2021
DATE OF SENTENCE:	8 November 2021
CASE MAY BE CITED AS:	DPP v Phipps
MEDIUM NEUTRAL CITATION:	[2021] VCC 1786

REASONS FOR SENTENCE

---

Subject:                Criminal Law – Plea and Appeal

Catchwords:         Attempted armed robbery - recklessly causing injury – possess a drug of

dependence – possess a controlled weapon without excuse – commit

indictable offence whilst on bail – unlawful assault – early plea of guilty –

long history of substance abuse – chronic post-traumatic stress disorder-

extensive criminal history - Verdins principles

Legislation Cited:

Cases Cited:

Sentence:          Total effective sentence of 26 months imprisonment on the indictment with

a non-parole period of 20 months.  Five months of the sentence on the

appeal will be cumulated upon that sentence, making a total

effective sentence of 2 years and 7 months imprisonment.

.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Jones	Mr D. Clark
For the Accused	Mr A. Paull

HIS HONOUR: 

1Sean Phipps, you come before the court on an appeal from the Magistrates' Court of Geelong and you also pleaded guilty to an indictment filed before this court.  On 23 August 2021 you pleaded guilty to a number of charges, including recklessly causing injury - Charge 1 - to assault, Charge 4, 5 and 7 and to possessing a controlled weapon without excuse, Charge 8.  Other charges were withdrawn and struck out. 

2On the first mentioned charges you were convicted and sentenced to an aggregate sentence, a total effective sentence of eight months' imprisonment.  The other charges of assault, Number 2, recklessly causing injury, 3, assault with a weapon, 6, were withdrawn and struck out.  The circumstances of this offending may be summarised briefly.  On 23 July with the co-accused at about 3 pm you approached a man in the centre of Geelong.  You asked this man why he was threatening you with a gun at which point you and your co-accused assaulted the man by punches to his face, leaving him with a blood nose and red eye.

3The two of you left the area.  Some 40 minutes later you approached another man and proceeded to punch him in the face and then ran off.  No other victim required medical attention.  Some time later you were arrested by police in the area of the assaults.  You were bailed to attend court.  When interviewed you made full admissions and said the first man you assaulted because you thought he was about to assault you.  The second you assaulted because you alleged he had a syringe which he had waved at you some time previously.

4Four days later at about 7.17 pm you approached the Kmart store exit in Belmont.  The victim was a 16-year-old store employee whose job was to greet customers.  Your partner was also with you.  As you exited the store the victim asked to check your partner's bag, which she complied with.  The victim then said 'No problem, have a great night'.  You then punched him to the face.  You left the store with your partner.  You were identified from CCTV footage.

5On 16 August you were interviewed by police and admitted being in the store and that you were in an angry mood but said you had struck the victim accidentally.  The third incident occurred on 11 December 2020 at about 3 pm.  Accompanied by Chantelle Niblett, you went next door to your residence in Norlane to ask for cigarettes of your neighbour, Mr Anderson.  You were invited inside and sat down.  Before long you stood in front of Anderson, accused him of being a dog; you then punched him with both fists about 12 times before he could put up his arms and struggle to get away from you.

6You struggled on the couch and as you did so a knife fell out of your pocket and landed on Anderson's chest. You grabbed the knife and used the handle to push down on his chest. You then stood up and you and Niblett left.  Police were called and found you nearby.  They conducted a field interview and you admitted punching Anderson but denied having a knife.  You admitted calling him a dog and hitting him a couple of times in the face.  You said Anderson had called you a dog and that made your head go because you have a short temper, mental health issues like anxiety and major depression.

7The indictment before the court, to which you pleaded guilty, contained four charges:  attempted armed robbery, causing injury recklessly and two charges of possession of a drug of dependence.  The circumstances giving rise to these offences were outlined in a prosecution opening which was exhibited.  The indictment also contained an offence of committing those offences whilst on bail.

8I will summarise the offending.  You were 30 years old by the time of this offending.  Your victim was a 72-year-old man.  Your co-offender was your de facto partner at the time, Ms Niblett, who was also involved in the offending of 11 December 2020.  On 21 January 2021 you and Niblett went to a club in Bell Park.  At about 12.09 am the victim left the club to walk to a nearby ATM.  You followed a minute later and followed him.  Shortly after Niblett then followed you out.

9The victim walked some 50 metres to an ATM and there withdrew $20.  As he turned to return to the club you confronted him.  You were holding a small torch and had in your hand a home-made taser device.  You demanded all his money in no uncertain times and aggressively pointing the taser at him.  You tried to activate it against the victim and the taser made a noise and generated an electrical current, accompanied by blue light. 

10The victim was not to be taken lightly and defended himself.  He grabbed your arm and swung you to the ground.  You both fell to the ground in a scuffle ensued and he punched you a few times.  Ms Niblett then came over to help you, yelling at the victim to let you go and grabbed at him.  The gentleman stood up and as he did so, was struck from behind with an object to the head.  Although injured, the victim grabbed a small bag you had dropped on the ground and started to walk back to the club.  You begged him not to take the bag.  A security guard at the club saw the victim and noticed he was bleeding from a head wound.  The victim handed him the bag and a cap which also belonged to you and which you had also dropped earlier during the scuffle.

11The guard recognised it as the one worn by a man he had noticed earlier at the club premises.  When he walked outside the club, the security guard saw two people trying to hide near the ATM.  Once you saw him, you ran in the opposite direction.  Police arrived and took the items which the guard had kept.  Inside the bag a number of cards identified you by name.  A small quantity of methylamphetamine was found.  Police obtained CCTV footage which showed you and Niblett leaving the club, the last moments of the altercation and the victim returning to the club.

12The victim the next day went to see a doctor about his sore head and right shoulder.  He had an abrasion on his head which was healing.  The shoulder was diagnosed as soft tissue injury.  He did not require further medical attention.  On 4 February 2021 police arrested you at your Norlane address.  They found the clothes and shoes you had worn at the time of the offending and a small quantity of methylamphetamine and a knife, the subject of charge 5, and related summary charge of possession of a controlled weapon.

13They seized your mobile phone and stored on it found a photograph of the home-made taser device, which was not recovered from the scene of the attempted armed robbery.  At the time of the offending you were on bail on charges of recklessly causing injury and assault arising out of events on 23 July 2020, the first matter which I have outlined, being the charges subject to the Magistrate's orders, which you appealed.

14This was a related summary charge 6, of committing an indictable offence whilst on bail.  During the interview you told police you had seen the victim, who according to you, 'looked shifty'.  You admitted assaulting him with the taser near the NAB ATM.  You denied making a demand for money and wanting to steal his money.  You claimed to have acted in self-defence because the victim was mouthing off at you when you attacked him.  You said you were angry and intoxicated.  You admitted scuffling and that Niblett had intervened, but you had no recollection of hitting the victim from behind.

15You admitted possession of the knife and the methylamphetamine and that you had made the taser yourself.  Ms Niblett, I understand, was also charged with recklessly causing injury and assault by kicking and unlawful assault and the matter was listed to be mentioned in the Magistrates' Court of Geelong on 22 October of this year but I have not been told anything else beyond that.  The victim has declined to make a statement.  Although he resisted and fought off the assault and demand made upon him, he was nevertheless injured.

16Photographs taken of his scalp attest to the injury and the blood which the injury caused to spill from his head.  It is reasonable to infer without speculating as to any long-term effects, which appear unlikely, that the injury would have caused pain and discomfort and that the attempt to rob him by force would have caused him fear and consternation, despite his sanguine response.  I take this impact into account.

17The summary notes that the injury to his skull was healing when examined later by the doctor and did not require further medical attention. The maximum penalties applicable are 20 years' imprisonment for attempted armed robbery and five years for recklessly causing injury.  The drug possession charges and weapons possession carried 12-month imprisonment maximum and the bail offence, three month maximum.  The attempted armed robbery in particular is a serious offence as indicated by the legislature's maximum penalty.

18It reflects the concern for community protection which is incumbent on the court to effect when considering these types of violent offences committed against a victim of a certain age who was caught unawares and by surprise at night by force.  The court must seek to denounce this behaviour as totally unacceptable and impose just punishment and seek to deter those who are likeminded to commit such crimes of violence with a weapon, even if this particular example was ineffectual and ill-planned.

19These latter aspects place this attempted armed robbery towards the lower end of such offending in my view. However, the violence that followed make the totality of the offending serious. By this I do not mean to aggravate the attempted armed robbery by the violence which caused the injury.  I am conscious of not double-punishing you in respect to these matters.  I will deal separately with the recklessly cause injury and not as an aggravation of the armed robbery - sorry, the attempted armed robbery as it occurred sometime thereafter but by cumulating a part of that particular sentence for the sentence on charge 1. 

20I shall deal with the appeal first and proceed to deal with the indictment matters later.  You pleaded guilty at the Magistrates' Court.  The prosecution accepts the utilitarian value of that plea and that the plea ought to attract an actual and pulpable amelioration of sentence, particularly in the context of the delays occasioned to the court processes by the pandemic.  I agree with that concession.  The plea to the indictment was entered at the earliest opportunity at committal mention in May 2021.  The plea was heard in early October. 

21In this case too there is a utilitarian value of having avoided a criminal trial, the offer having been made at a time of delays occasioned to the criminal justice system by the pandemic.  Finalisation upon your plea in such time is clearly valuable.  In relation to both appeal and plea, the circumstances of the plea of guilty were made with the likely prospect of incarceration and therefore I take that into consideration.  Given the conditions of lockdown and quarantine or restrictions which gaols as well as the community have been experiencing.

22Not only is the prospect of infection ever present in such closed environments as we've seen recently in Victoria and New South Wales, with breakouts in prison, but also the unavailability of visits in person, the restriction or cancellation of work vocational study and offender programs together with long hours of confinement must be taken into account and I do so.  Your plea will reduce your sentence in relation to the indictable offences and in relation to a determination of the appeal.

23As to the appeals where Kemp and Brain are the informants for the assault on the young 16-year-old boy at Kmart, the assault on your neighbour and possession of the controlled weapon the objective gravity of the offending is serious.  First was an unprovoked assault on a young man doing his job at his place of work in the evening.  Second involved about 12 punches to the face with both fists and was therefore a serious type of assault.

24The first assault, subject of the appeal, where the victim was Martin, was also by punching in the face causing nose bleeding and eye injury for some perceived slight.  In relation to the plea on the indictment, the victim was an older gentleman, at night, alone.  The offence was committed in company.  The weapon was produced and activated and you struck him from behind to the top of his head.  Although this is low-level offending it is accompanied by violence soon after, which is totally unacceptable.

25The defence admitted that the defending before the court is objectively serious, with the older gentleman at the ATM a potentially more vulnerable victim chosen for the attack.  However, relying on reports in relation to your mental health it is submitted that these factors ought to significantly moderate the sentence.  The material tendered to the court outlined some salient matters. Your mother, Narelle Jensen, was separated from her own mother at a very young age and had little contact with her adopted parents after age 16.  She first married Gary Jensen, a violent, abusive and drunken man, in 1983.  Her husband shot her in the face and assaulted her.

26The domestic violence had a deep effect on her by undergoing very long hospitalisation and plastic surgery, after which she kept moving to avoid Mr Jensen for about five years.  Subsequently she had a relationship with your father, Rodney, but the impact upon her of the previous violence stayed with her, her two stepbrothers and yourself.  However, when aged two - your age - they separated.  Apart from a holiday in Sydney, you didn't spend time with your father who then was convicted and sentenced with the sexual abuse of his de facto's young daughters.

27Your mother started a relationship with one Underwood, who grew and trafficked marijuana. This relationship too became violent and abusive.  She fled again to a refuge with you and your two stepbrothers.  You were eight years old.  You had attended school in New South Wales.  You tended to be sickly and fragile.  You required speech pathology and occupational therapy and you attended under a special needs program at the school

28You had severe reticulation and phonological disorder and a language disorder requiring speech therapy.  At primary school you had difficulty which Bob Ives, the psychologist, noted for his November 2007 report, which was tendered to the court.  This difficulty continued in high school, not only in terms of language and social skills but particularly with anger management.

29You were expelled for hitting a teacher in Year 10 in 2006.  You began to use alcohol and committed some delinquent acts.  Your stepbrothers were heavy-handed in keeping discipline and that year you went to live with your father in New South Wales, who was sentenced soon after your arrival.  You were placed with your uncle.  He was an intimidating and over-controlling person.  You tried to escape twice whilst he attempted to engage in sexual practices with you.

30Ultimately you came to Melbourne.  However, eventually you were returned to his care but you were transferred from New South Wales to Victoria by the authorities and you stayed with a friend at first and then with your mother again.  Mr Ives conducted some tests.  On the Wexler scale you achieved a full-scale IQ of 76 in the lower area.  You scored very highly in the trauma sentence check list, particularly anger, depression and disassociation.  Mr Ives opines that you were a person of limited intelligence with dyslexia, experiencing frustrations and anger, traumatic domestic violence and instability experiences, limited social maturity, which could be addressed by conditions of supervision, he thought at that time.

31Emily Zu, a clinical neuropsychologist with Forensicare, the mobile forensic mental health service, provided a report dated 6 July 2021 which related to an assessment conducted of you whilst in custody on referral to identify limitations in cognitive functioning and recommend strategies of support.  The report identified certain areas of difficulty:  general verbal abilities, thinking speed, planning and organisation and verbal memory. 

32The main report relied upon is that of Mr Ian McKinnon, dated 29 September 2021. Mr McKinnon confirmed the details of the background contained in Bob Ives' report and provided other information as well.  You again gave an account of an unstable and dysfunctional past.  Your mother now resides in Geelong, while your stepbrothers are elsewhere.  You now have two children born of different mothers.  One of these children, now aged 8, is in an aunt's care and you have not had direct contact since 2016 with him.

33You have a three-year-old daughter in the care of her mother with whom you have an amicable relationship and you do have contact with your daughter.  In the last two or three years you have been homeless a lot, squatting most of that time.  You had however secured a unit in Norlane, in which you lived for some three months before being remanded.  Although you told Mr McKinnon the lease would expire in February 2022, I was told during the plea that was not the case and your mother keeps an eye on it.

34There was the potential for your brother, who currently resides interstate, to reside there.  This accommodation is suitable to have overnight access to your daughter and is important to your future reclamation.  Your mother is supportive of you and via Zoom she has had contact with you regularly.  You recounted your difficulties at school, frustration and anger leading to expulsion but you are able to read and write at a limited level.

35You have effectively no history of employment in recent years and before that worked short stints casually, mostly as a labourer on poultry farms.  Mr McKinnon was told by you that you had been tested for a suspected bowel cancer but I was not told any further about the results on the plea.  You have made attempts on your own life using drugs.  When you were remitted to the Geelong Acute Psychiatric Unit you discharged yourself.  You are currently on Zoloft medication.  You have a long history of substance abuse from adolescence leading to the use of ice and alcohol in combination for at least two years leading up to your remand.

36At the time of the report you were working in the nuts and bolts industry and you had completed a food-handling course and furniture-making program which had to be curtailed because of COVID-19. You signed up for a parenting course.  These efforts are to your credit and will be taken into account.  Mr McKinnon opines that at the assessment you were suffering with clinical criteria for complex post-traumatic stress disorder and poly-substance abuse disorder.  Your functional intelligence fell at a lower end of the normal adult range but with good non-verbal reasoning ability.  He outlined distressing events recounted by you making your post-traumatic stress disorder chronic at a mild-to-moderate level.      

37This disorder encompasses anxiety, depression, intrusive thoughts, flashbacks, rumination, nightmares and other described symptoms.  Yours in particular includes low self-esteem and confidence, fear of abandonment, chronic relationship difficulties, poor emotional intelligence and chronic suspicions of others as well as intermittent self-destructive episodes.  The substance abuse, he opines, is a means of self-medicating chronic distress but you are currently in remission.

38The criminal history which is extensive suggests that you have entrenched antisocial and criminal traits, concomitant to some desire to make changes.  This of course requires a plan and resources.  He writes that at the time of the offences you were suffering symptoms of the disorders described, apart from being highly affected by drugs and half a slab of Bundaberg rum.  This combination contributed to the offending by degrading your ability to reason and make sound judgments.

39The prosecution fairly accepted that just punishment and general deterrence may be moderated by these diagnoses as 'in play at the time'.  It also conceded the application of Verdins limb 1 in reduction of moral culpability, limb 3, moderation of general deterrence and limb 5, the burden of time in custody.  However, it is submitted you were aware of the wrongfulness of your conduct.  I agree with these fair concessions.  The defence submitted in relation to the appeal matters that there appear to be neither drug nor alcohol involved in distinguishing those from the indictment offences.  However, in all cases the offending was said to have the complexion of interpersonal relationship and anger management issues.

40I accept that you present as an emotionally and psychologically scarred individual and I accept the disorders diagnosed must reduce your moral culpability in the offending across the two sets before the court.  The level of disadvantage and dysfunction experienced by you in childhood and onward must be given full weight in amelioration of sentence in application of the Bugmy principles on which the defence seeks to rely.  I accept that as expressed to Mr McKinnon you are remorseful for your actions, that there are some protective factors; positives like your engagement in courses and work whilst in custody and the support of your mother and the secured accommodation.

41I accept that Verdins principles apply to your case and particularly should be given weight in moderation of punishment and general deterrence when moral culpability is less.  This is slightly less the case in relation to specific deterrents, which in my view is still highly relevant, given your extensive criminal history both in Victoria and New South Wales, which requires that preclusion deter you specifically and protects the community. 

42I note Mr McKinnon wrote that you should you be imprisoned for a significant term you appear likely to cope satisfactorily with the prison environment.  You do however require psychological therapy for several years to come and in this sense, although denunciation and just punishment remain relevant, I'm conscious of the dangers of institutionalisation which for someone of your age - only 31 - must be looming, especially due to your record.

43I note that I was told you had been undergoing tests for bowel cancer as I said before, having previously been diagnosed with hemochromatosis in 2018, a condition related to iron overload levels.  In my view your prospects are guarded but nevertheless not extinguished if some of these positive protective factors coalesce to assist you.  As I said at the beginning, I will not need to warn you as to penalty increases in relation to the appeal. I consider the sentence appropriate and will in effect reimpose it without resorting to an aggregate sentence.

44On the recklessly cause injury and the assault where the informant is Evans, you are convicted and sentenced to five months' imprisonment on the recklessly cause injury and two months' imprisonment on the assault.  Where the informer is Brain, charges 7 and 8 on the assault, you are convicted and sentenced to two months' imprisonment and one month on the possession of a controlled weapon, which will be concurrent and where the informant is Kemp, on the assault, you are convicted and sentenced to two months' imprisonment.

45I order that one month on charge 4 and one month on charge 7 and one month on charge 5 be cumulative on charge 1, making a total effective sentence of eight months.  The sentence on charge 8 I repeat is concurrent.  On the indictment on the attempted armed robbery you are convicted and sentenced to one year and 8 months' imprisonment.  On the recklessly cause injury you are convicted and sentenced to 12 months' imprisonment. 

46On the remainder of all the charges each of these sentences will be concurrent:  that is on the possession of a drug of dependence, two months; possession of a controlled weapon, two months; and commit offence whilst on bail, one month.  So those latter three sentences are concurrent.  I order that six months on the sentence on the recklessly cause injury be cumulative on the attempted armed robbery, making a total of 26 months; five months of the sentence on the appeal will be cumulated upon that sentence, making a total effective sentence of 31 months or two years and seven months.

47I order a non-parole period of 1 year, eight months or 20 months in total.  I declare that you have served 277 days excluding today by way of pre-sentence detention.  I will have that number noted in the records of the court.  I have signed the disposal order which was made available to me before and but for your plea on the indictment matter I would have sentenced you to three years and three months with a two year and three-month non-parole period. 

48HIS HONOUR:  Ms Jones and Mr Paul, are the calculations in relation to that sentence clear enough to you?

49MR PAUL:  Yes, Your Honour.

50MS JONES:  Yes, Your Honour - as Your Honour pleases.

51HIS HONOUR:  Thank you.  I'll have that order signed and my associate will deal with it.  Mr Paul, I don't know whether you wish to avail yourself of an opportunity to speak to your client.  But I'm happy for you to do so.  I'll adjourn and have everyone else taken off the link if you wish a few moments to speak with him.  But it's a matter entirely for you.

52MR PAUL:  I'd be very thankful for that opportunity, Your Honour.

53HIS HONOUR:  Thank you.  Sine die, Mr Schornikoff. Just allow Mr Paul and Mr Phipps some time for a brief discussion, please.

‑ ‑ ‑