Director of Public Prosecutions v Robertson

[2019] VCC 1990

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-01277

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP PATRICK ROBERTSON

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	2 December 2019
DATE OF SENTENCE:	2 December 2019
CASE MAY BE CITED AS:	DPP v Robertson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1990

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Aggravated burglary – recklessly cause injury – theft.

Sentence:Total effective sentence of six years’ imprisonment with a non-parole period of three years and nine months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Director of Public Prosecutions
For the Accused	Ms J. McGarvie	Stary Norton Halphen

HIS HONOUR: 

1Phillip Patrick Robertson, on 2 December 2019, that is today at the Latrobe Valley County Court you pleaded guilty to the following charges on indictment No.K10161554: 

Charge 1, aggravated burglary, this charge has a maximum penalty of 25 years' imprisonment. 

Charge 2, recklessly cause injury to Peta Helvey.  This charge has a maximum penalty of five years' imprisonment. 

Charge 3, theft, this charge has a maximum penalty of 10 years' imprisonment. 

2You have also consented to related summary charges being heard at the same time as your plea hearing and pursuant to sections 145 and 242 of the Criminal Procedure Act, these charges are before this court. You pleaded guilty to the following related summary charges:

Summary Charge 16, which is unlawful assault of Natalie Gauci.  This charge has a maximum penalty of three months' imprisonment. 

Summary Charge 17, drive while suspended, this charge has a maximum penalty of two years' imprisonment. 

3You have admitted prior criminal history.  Your criminal history commenced with an appearance at the Geelong Magistrates' Court on 8 June 2005, for driving related offences.  Since that date you have had six subsequent court appearances for driving, dishonesty offences including burglary and violence. Whilst past court dispositions have included a suspended prison sentence, you have not served a term of imprisonment. 

The circumstances of your offending

4The prosecutor tendered a summary of prosecution opening of plea dated
28 August 2019.  This was Exhibit “A” on the plea.  The two direct victims of your offending are Peta Helvey and Natalie Gauci.  Peta Helvey is your former de factor partner.  Your relationship ended in March 2018.  Ms Helvey and you have three children aged 13, 10 and eight years old.  At the time of the offending, the children lived with Ms Helvey and Ms Gauci in Moe. 
Ms Gauci was in a relationship with Ms Helvey at the time of the offending.

5The day of your offending was 11 January 2019.  Throughout that day leading up to these events, you telephoned Ms Helvey on numerous occasions but she did not respond or answer your calls.  It was approximately 9.30 pm that night where Ms Helvey answered one of your calls.  You told Ms Helvey that your parents had kicked you out of the home and that they had called the police.  You asked if you could stay with Ms Helvey at the Moe address.  Ms Helvey told you that she did not want you to stay with her and that if you came over she would go to court to get an intervention order.  You then had an argument with her that went for some time.  You eventually calmed down and ended the phone call.

6Ms Helvey the put the children to bed by about 11 pm.  She went to bed with Gauci and closed the bedroom door.  She then heard the front door smash followed by you running up the hallway yelling, that was the aggravated burglary. 

7You got to their bedroom and Ms Helvey attempted to prevent you from opening the door.  Ms Gauci was on the bed begging you to stop while you were yelling at her.  Ms Gauci later stated that you looked like you were going to kill her and she stated, 'I knew he was after me' or 'there for me'. You then attempted to push past Ms Helvey to get Ms Gauci.  As you did this, Ms Helvey managed to drag you to the ground to give Ms Gauci a chance to escape the room.  Ms Gauci then ran out of the room, out of the house and into a nearby park.  She was too scared to move.  That was the unlawful assault on Ms Gauci which is the related summary charge. 

8After Ms Helvey had dragged you to the ground, you grabbed Ms Helvey by the throat and you held her to the ground.  Upon hearing the commotion, your three children entered the bedroom and began yelling at you telling you to stop.  You told Ms Helvey to stop struggling.  She stopped struggling and then you let her go.  You then left the room.  Afterwards, Ms Helvey felt dizzy.  She also sustained bruising and scratches to her neck.  These were photographed by the police.  That was the charge of recklessly cause injury. 

9Upon return to the bedroom a short time later, you were yelling and screaming again.  Ms Helvey asked you to leave because you were scaring the children.  Before leaving, you asked Helvey for $200 but she refused to give it to you.  You then grabbed her bank card and her Optus mobile phone and told her that she could not stop you.  That was the charge of theft.  You then got a drink from the kitchen at which stage Ms Helvey saw the mobile phone in your pocket.  She grabbed it and you lunged at her in response.  She then threw it away but you picked it up telling her that you were going to keep it. 

10Ms Helvey then went into the daughter's room.  You then entered the room and you said 'Bye, you'll never see me again, thank your mother'.  You left the address and Ms Helvey followed you as she wanted her phone back.  When you left the address you drove away in a blue-green BMW sedan.  This vehicle was later located by police on the Princes Freeway Warragul on 12 January 2019.

11VicRoads enquiries revealed that at the time of this offence you were the holder of a suspended Victorian driver's license, that was the drive whilst suspended charge. 

12Police attended at Ms Helvey's address and located her in a shaken and distressed state.  They took photographs of her injuries as I said before and the property and they obtained a statement from her. 

13On 12 January 2019, Ms Helvey was advised by police that your car had been located but her bank card and phone were not located. 

14On 13 January 2019, Ms Helvey contacted you on your mobile phone and asked where her phone was and you replied, ‘I got rid of it with the car’.  You had actually told her where you had left it in the car.  She then went to the car that was still located on the freeway and recovered her own phone.

15Later on Sunday, 13 January 2019, Police members attended at the crime scene and seized a grey T-shirt belonging to you and a grey T-shirt belonging to Helvey. 

16On 15 January 2019, Ms Helvey attended and received medical assessment from a nurse, and on 18 January 2019, you were arrested by police in the Geelong area where you were then living.  You exercised your right to make a no-comment record of interview. 

17You were granted bail and have spent no time in pre-sentence detention for these offences. 

18There was an opportunity given to your victims to make victim impact statements and that has not been taken up.

Personal Circumstances

19At the time of your offending, you were 32 years old.  You are now 33.  You grew up in Mortlake with your parents and three siblings.  Your family background has been described in the written submissions as being violent between your mother and father.  Your father was a heavy drinker.  Both of your parents engaged in the verbal and physical abuse of one another. 

20You were educated to year seven at Colac High School.  You had, prior to that time, been at three separate primary schools in Mortlake, Camperdown and Colac. 

21After school at the age of 15 years old, you commenced an apprenticeship as a roof tiler.  After the apprenticeship you remained in that trade, initially with your first employer and later with another one for a period of 10 years.  You have also had employment in cold storage industry, construction work and also as a roof painter.  Your most recent employment was in 2018 and that was in the occupation of a roof restructurer.  You have not worked since this offending.  You put this down to the strict curfew conditions which apply to your order for bail.

22In 2010, your older brother committed suicide.  At a time shortly after that sad event for your family, you turned to heroin use.  By 2014, you started on methylamphetamine as well.  Your addiction to ice reached a level of one point a day.  It was submitted at the time of your offending you were affected both by ice and heroin.  This factor is not a mitigating matter in your offending. 

23You have been in a relationship with Ms Helvey for 13 years up to March 2018 when you separated.  The two of you, as I have said, have three children now aged 14, 11 and nine.  You were still having access with your children up to the time of the offending. 

24It was put on your behalf that you were unaware that Ms Helvey had commenced a new relationship throughout 2018.  On the night of the offence you became aware that Ms Helvey had begun another relationship that being with  Ms Gauci.  Since the offending you have lived with your parents in Geelong.  You have not been in custody for this or any other offending in the past.  This will be your first term of imprisonment. 

25In July - August 2019, you attended a detox rehabilitation for your drug addiction.  You are currently prescribed 60 milligrams of methadone per day.

26As I have said, to your credit, you have completed the two-stage rehabilitation course including 28 days of residential rehabilitation under the Salvo Connect at Geelong, that was Exhibit “2” on this plea.  This rehabilitation course was completed whilst you were on bail.  You have not offended whilst on bail and you have not been allowed to see your children since your arrest due to the intervention order.  I accept this has been a difficult separation from your children which is a direct result of your own criminal actions.

Sentencing Considerations

27The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. 

28I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

29I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

30Of course, current sentencing practices is only one of the factors I am required to take into account when considering a just sentence for all of your offending on this occasion. 

31You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters. Your plead indicates public confidence in the legal process set up to protect the community. 

32Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your behalf. 

33Your plea of guilty also has avoided the need of your former partner, Ms Helvey and your three children from giving evidence in a committal hearing or in a trial.  Your plea has spared them the traumatic experience of reliving the experience whilst they were giving evidence against you.

34The charge of aggravated burglary is a serious offence.  The maximum penalty set down by Parliament is the clearest indicator of the seriousness which the community attaches to this type of offending.  In your case, the confrontational nature of entering your former partner's home whilst you had children present is a further indicator of the seriousness of this offence.  The offence of aggravated burglary has the following factors which are relevant to assessing the gravity of your offending:  

a) Your intent on entering the property was to assault either Ms Gauci or Ms Helvey. 

b) You smashed in the door of the premises to gain entry to the house. 

c) You entered the house in the night time after all the occupants had been in bed. 

d) You knew full well that Ms Helvey and
Ms Gauci,  and your three children would be in the house. 

e) The victims of your offending were frightened of you and you knew it.

f) You knew there were women and children in the house and you were going to impose your strength on them.

35After you have entered the house you have attempted to physically assault
Ms Gauci but you were prevented from doing so by the intervention of
Ms Helvey.  Ms Gauci escaped the bedroom and then the house in fear of you.  Once Ms Helvey had engaged your attention you have held her down by grabbing her throat and only stopped when your children intervened.  This was a most frightening experience for all of them.  You have then stolen a phone and credit card from your former de facto.  You drove away from the scene at a time when your license to drive was suspended.  All of this offending occurred on the one night in a relatively short time frame.

36You have prior convictions for burglary and theft.  You have a number of court appearances for driving related offences.  You have one prior court appearance for assault.  You have never been sentenced to a term of imprisonment to be served immediately.  At the time of your offending, you were under the influence of methylamphetamine and heroin.  As I have said before, you self-induced intoxication is not a mitigating factor in your offending. 

37The principles of general and specific deterrence are significant sentencing considerations in this case.  Denunciation of your actions and just punishment, protection of the community dictate that the only appropriate sentence is a term of imprisonment with a non-parole period.

38I have also taken into account your prospects of rehabilitation.  You have a limited criminal history in the context of this serious offending.  You have a long-term drug addiction to heroin initially and then methylamphetamine and heroin.  You have completed the detoxification program whilst on bail for these offences.  You are currently prescribed 60 milligrams daily of methadone and I am told you were on risperidone for your auditory hallucinations.  I assess your prospects of rehabilitation as fair.  It will depend on your ability to stay drug-free. 

39Would you stand please?

40On charge one of aggravated burglary, you are convicted and sentenced to five years and three months' imprisonment.  That is the base sentence. 

41On charge two of recklessly cause injury, you are convicted and sentenced to one year imprisonment. 

42On charge three of theft, you are convicted and sentenced to four months' imprisonment. 

43On summary charge 16 of unlawful assault, you are convicted and sentenced to two months' imprisonment. 

44On summary charge 17 of drive while suspended, you are convicted and sentenced to three months' imprisonment. 

45The following cumulation is ordered.  The base sentence is five years and three months.  In Charge 2, six months of that sentence is to be served cumulatively upon the base sentence.  Charge 3, one month of the sentence in that charge is to be served cumulatively.  And, in respect of the unlawful assault, one month of that sentence is to be served cumulatively and the drive while suspended, one month of that sentence is to be served cumulatively.  That is a total effective sentence of six years' imprisonment.  I fix a non-parole period of three years and nine months' imprisonment.

46But for your plea of guilty, I would have sentenced you to eight years of imprisonment with a six-year non-parole period.  There is no pre-sentence detention to declare and I order that s.464ZF order be made.  And what that means, Mr Robertson, is that the prison authorities will take a swab from inside your mouth in order to obtain DNA.  Do you understand what I am saying to you?  Yes.  If you do not allow them to do that, then they can use reasonable force in order to do that, do you understand that?  Thank you.  I have not got that 464 order I do not think.  I have?  All right, I have, I will sign it later.  We will get on to it, yes.  Is there anything further I need to attend to?

47MR BROWN:  Yes.  No, Your Honour.

48HIS HONOUR:  Yes.

49MS McGARVIE:  No, Your Honour.

50HIS HONOUR:  Thank you.  Thanks, you can remove the prisoner.  Thanks, Ms McGarvie for your assistance.

51MS McGARVIE:  Thank you, Your Honour.

52HIS HONOUR:  Difficult case and difficult circumstances.  Thank you.

53MS McGARVIE:  Thank you, Your Honour.

54HIS HONOUR:  You are free to go if you want to.  I have to deal with another matter. 

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