Director of Public Prosecutions v Reynolds
[2012] VCC 1075
•2 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP REYNOLDS |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May & 27 July 2012 | |
DATE OF SENTENCE: | 2 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Reynolds | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1075 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing - aggravated burglary - summary charge of unlawful assault
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APPEARANCES: | Counsel | Solicitors |
| For the Crown at hearing For the Crown at sentence | Ms S. MacDougall Ms S. Denham | Office of Public Prosecutions |
| For the Accused | Mr R. Seifman | Frenkel Partners |
HIS HONOUR:
1 Phillip Reynolds, you have pleaded guilty to one charge of aggravated burglary. This offence carries a maximum penalty of 25 years' imprisonment.
2 You have also pleaded guilty to one uplifted summary charge of unlawful assault. This charge carries a maximum penalty of three months' imprisonment.
3 At the time of the offending you were 26 years old, and you are now 27.
4 You and the victim had been in a relationship for about two years. The relationship ended six to twelve months before the offending but you remained friends.
5 The charges relate to events which took place on Thursday, 17 November 2011 at the victim's home. A summary of the facts has been tendered as Exhibit “A”. Your counsel has accepted it as an accurate summary for sentencing purposes, and I do not intend to recite it all here.
6 In essence, on 17 November 2011 you went to the victim's home and entered through her bedroom window, initially at about 5 am. You were angry and were demanding to know, "Who the fuck's Jarrod? Where is he? I'm going to kill him". You then began searching the room.
7 The victim tried to reassure you that she did not know a “Jarrod” and you eventually calmed down. After asking you to leave several times you eventually did.
8 Within ten minutes you returned. You again entered the victim's bedroom through the window, this time armed with a knife. The victim backed into a corner and was crying. You said, "I'm not going to hurt you. I'm gonna find him and kill him". You started searching the room again and also the surrounding lounge, study and hallway. You returned to the bedroom and again the victim tried to reassure you that no-one was there. She repeatedly asked you to leave and you repeatedly refused.
9 You then attempted to look at her mobile phone and a struggle ensued. You were holding the victim down on the bed, she was pushing you, you grabbed her hair, shook her head from side to side and punched her three times to the side of the head. You resumed searching through the victim's belongings and again held the knife.
10 Eventually the victim's father heard you and told you to leave, which you did. You left without a struggle and as you left you said, "It's caused by my problems and I won't come back".
11 A short time later, however, the victim's father saw you sitting in a car and the police were called.
12 Later that morning the victim received a text message from you, stating, ".. I realise I did wrong it won't happen again you know I love you".
13 You were arrested the next day. During your police interview you told police that you heard voices in your head telling you that the victim was with someone else. You said that you became very jealous and angry and wanted to prove it for yourself. You said that you had been hearing voices for a few days and it started to make you very stressed. You decided to return to the house because the voices in your head told you that “Jarrod” was hiding in the closet. You said that you could not remember the knife, and denied taking a knife into the house with you, and you denied saying you were going to kill somebody. You wanted to look at the victim's phone to see if she knew somebody named Jarrod. You denied hurting anybody but accepted that the victim and others in the house would have been scared.
14
This matter was scheduled for committal on 13 March 2012. A plea offer was accepted by the prosecution and the committal vacated on 9 March 2012. You have not spent any time in remand custody.
15 You have admitted one prior offence for criminal damage, being a graffiti offence dealt with in 2003 by the Frankston Magistrates' Court. You received an adjourned bond to be of good behaviour, without conviction, and that bond was complied with. Accordingly, you have no previous convictions.
16 Your personal history is set out in detail in the various professional reports tendered as exhibits on the plea.
17 In summary, you are now 27 and your parents separated when you were seven. You have not had contact with your natural father since you were 17. Your mother re-partnered and you get on well with your stepfather. You had no history of conduct problems at school and left Year 11 with the intention of gaining an apprenticeship. You began working at your stepfather's nursery business shortly after leaving school. That work continued, with the exception of a period of several years when you entered a TAFE course and an apprenticeship as a chef. You have recently commenced an on-line course in computers and information technology.
18 You have reported a number of romantic relationships with women. You were in a relationship with the victim for approximately two years before she wished to end it with you both remaining just friends. You, however, remained very attached to your girlfriend.
19 A number of reports were tendered on your plea.
20
Your treating general practitioner, Dr Gopathy, reported that you were diagnosed with schizophrenia in 2010. Following the diagnosis of schizophrenia you were treated with the medication Risperidone and in-patient care at the Dandenong Hospital psychiatric wing. Dr Gopathy referred you to a psychiatrist, Dr Kruk, in November 2011 immediately following the offences.
21 Dr Kruk has affirmed a diagnosis of schizophreniform psychosis with symptoms of delusions and hallucinations. You have maintained a treatment program with Dr Kruk since the first referral, and according to Dr Kruk, with some reservation, you have stabilised on medication. That medication, however, needs to be closely monitored. In Dr Kruk's opinion, at the time of the offences you were clearly mentally unwell, experiencing psychotic symptoms, and the offences resulted directly from your condition.
22 At the request of the court, a report was obtained from Dr Wyeth, an independent psychiatrist from the Victorian Institute of Forensic Mental Health.
23 Dr Wyeth also agrees with a diagnosis of schizophrenia and that you have stabilised whilst on current medication. In Dr Wyeth's opinion you were suffering from jealous and persecutory symptoms and auditory hallucinations at the time of the offences, and your ability to respond reasonably and rationally at that time would have been significantly impaired.
24 A report from Southern Health documents your 10-day admission to Dandenong Hospital in late 2010 following a presentation of auditory hallucinations of a derogatory nature and general decline in your mental state over the preceding six months. Again, the diagnosis was schizophrenia and you were treated with appropriate medication.
25 Disturbingly, the report from Southern Health also documents drug abuse with serious illicit narcotics in the period before your admission. None of this is referred to in any of the four reports tendered from Dr Kruk or in the report of your general practitioner, Dr Gopathy. I assume that it was not reported to them. Consequently, it was also not a matter available for consideration by Dr Wyeth.
26 I was also referred to a number of character reports from your relatives, family friends, your girlfriend, people who have worked with you and your mother. These references speak of your courteous and reliable nature, your good work ethic, the change to your personality through mental illness and your constructive attempts to manage your illness.
27 Home invasion is a terrifying experience. The emotional effects can be longstanding. The crime of aggravated burglary in these circumstances undermines the sense of security people are entitled to feel in their own homes. The Court of Appeal has stated that the incidence of home invasions must be discouraged by the courts and that it would only be in a rare case that such conduct would not result in a sentence of imprisonment and for a significant period. Principles of general deterrence and denunciation feature prominently in the sentencing discretion. The maximum penalty of 25 years' imprisonment on the charge of aggravated burglary is an indication of how seriously Parliament views this offence. In your case you entered the victim's bedroom twice, the second time armed with a knife, and your offending was aggravated by the assault to the further terror of your victim.
28 In mitigation, I accept the matters submitted by your counsel, including:
· your plea of guilty and that it was made at the very earliest stage,
· your expressions of remorse indicated both on the day of the event to both the victim and to her father, and later to your mother and also in consultation with your psychiatrist,
· your lack of any previous history of violence or previous conviction for any offence,
· your good work ethic, other personal qualities and capacity for rehabilitation,
· and in particular, your significant mental illness, which I accept reduces your moral culpability for the offending, renders you less appropriate as a vehicle for expressions of general and specific deterrence, and would mean that a sentence of imprisonment would weigh more heavily on you than on a person in normal health.
29 Your counsel submitted that in light of the particular extenuating circumstances of this case an appropriated tailored Community Correction Order would fall within appropriate sentencing range. The prosecution did not urge that I do otherwise, and I do accept your counsel's submission. I do, however, think it appropriate that I act upon the evidence that your mental breakdown was likely to have been influenced, if not precipitated, by serious illicit drug use, and in consequence, impose a further condition that you attend as directed for drug counselling and treatment.
30 I requested an assessment and report as to your suitability for a Community Correction Order as an appropriate sentencing option. I have received a report and it is positive as to your suitability. You have been assessed as having a low risk of re-offending, and in light of your circumstances it is recommended that you participate in programs directed towards mental health treatment and that you are under supervision of a Community Corrections officer. I endorse those recommendations.
31 Mr Reynolds, could you please now stand?
32 On Charge 1 of aggravated burglary you are convicted and ordered to undergo a Community Corrections Order for a period of three years.
33 The Community Corrections Order commences today and ends on 1 August 2015. The Corrections Centre you will attend is the Frankston Community Correctional Service at 431 Nepean Highway, Frankston, and you must attend there within two clear working days after the commencement of the order, and that is by 4 pm this Monday, 6 August 2012.
34 Do you understand that?
35 OFFENDER: Yes, Your Honour.
36 HIS HONOUR: All the mandatory terms of a Community Corrections order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer;
· you perform 150 hours of unpaid community work over a period of 18 months, as directed by the regional manager;
· you undergo mental health assessment and treatment, and that may include psychological, neuropsychological and psychiatric, in a hospital or residential facility if necessary, as directed by the regional manager; and
· you undergo assessment and treatment, including testing, for drug abuse dependency as directed by the regional manager.
37 I believe from the pre-sentence report, Mr Reynolds, that you have had the mandatory terms of the Community Corrections Order explained to you. However, it is appropriate that I briefly summarise them here.
38 The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that order is in force;
· you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. Those regulations effectively mean that you must abstain from being under the influence of alcohol or any drugs, or have possession of such items, at the times when you attend at the Community Corrections treatment, counselling or the Community Correction work orders. Do you understand that?
39 OFFENDER: Yes, I do, Your Honour.
40 HIS HONOUR: Furthermore:
· you must report to, and receive visits from, a Community Corrections officer;
· you must report to the Community Corrections Centre, that is the Frankston Centre, within two clear working days of the order starting, and as I have already indicated, that is next Monday, 6 August;
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
· you must obey all lawful instructions from and directions of Community Corrections officers. Such directions may be given orally or in writing.
41 Do you understand and agree to those conditions, Mr Reynolds?
42 OFFENDER: Yes, Your Honour.
43 HIS HONOUR: You will receive a form shortly which specifies these matters so that you can be reminded of them.
44 If you are sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or a cancellation of the order. In either case you must notify the Community Corrections Centre, that is the centre at Frankston, and I would recommend that you obtain legal advice if any of those things happen.
45 However, I warn you that if you breach any condition of this order you will be brought back before me. One of the options open to me is to cancel the Community Corrections Order and to re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months. So, Mr Reynolds, do you understand the consequences of breaching your Community Corrections Order?
46 OFFENDER: Yes, Your Honour.
47
HIS HONOUR: All right, I will ask you to sign the Community Corrections Order shortly.
48 On the transferred summary charge of unlawful assault you are convicted and you are released on an adjourned undertaking. That is sometimes referred to as a good behaviour bond. The undertaking starts today and goes for a period of 24 months from today. The conditions of that undertaking are that:
· you must be of good behaviour during the period of the undertaking, and
· you must attend before the court if called upon to do so during the period of the adjournment.
49 Do you understand and agree to these conditions, Mr Reynolds?
50 OFFENDER: Yes, Your Honour.
51 HIS HONOUR: Again, if your circumstances materially alter or if it appears that you are no longer willing to comply with the conditions of the adjourned undertaking, then either you, the Director of Public Prosecutions or the police may apply for a variation or cancellation of the undertaking and, again, I recommend that you obtain legal advice if any such application is made.
52 Again, I warn you that if you breach any condition of this undertaking, that is, to be of good behaviour, you will be again brought back before me and re-sentenced on the original charge and dealt with for the breach.
53 Mr Reynolds, do you understand the consequence of breaching an adjourned undertaking?
54 OFFENDER: Yes, Your Honour.
55 HIS HONOUR: I will ask you to sign that undertaking shortly.
56 At the plea the Crown sought a disposal order as to the knife, to which you have consented, and I have made that order today.
57 The Crown also sought an order for the taking of a forensic sample, which you opposed. I have made that order today and I have made it for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order and that the making of the order is in the public interest.
58 I must inform you that if at the time of the request for a forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Reynolds?
59 OFFENDER: Yes, Your Honour.
60 HIS HONOUR: Apart from the signing of the two orders by Mr Reynolds, are there any other matters from either counsel?
61 COUNSEL: No, Your Honour.
62 HIS HONOUR: I ask for those orders to be provided to you now, Mr Reynolds.
63 If you keep appropriately consulting your psychiatrist, and taking the medication that is offered, if you are finding there are difficulties with that medication, speak to him about it. Do not go off on a tangent and try treating yourself with any illicit materials. You can get a re-balance of the medication in consultation with your psychiatrist. If you do that and keep away from the other stuff you are going to be all right.
64 After I rise Mr Reynolds may leave the dock. Thank you.
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