Director of Public Prosecutions v Rogers, Phillip
[2012] VCC 1918
•27 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02295
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP ROGERS |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 November 2012 | |
CASE MAY BE CITED AS: | DPP v Rogers, Phillip | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1918 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Todorov | |
| For the Accused | Ms M. Vinton |
HIS HONOUR:
1 Phillip Rogers, you have pleaded guilty to two charges of armed robbery.
2 These offences took place on 15 August 2007 in the eastern suburbs. At the time you lived with your brother and mother.
3 As to the first offence, you entered a post office in Blackburn, jumped the counter and threatened staff with a large bladed kitchen knife. You asked staff to open the drawer and give you the money. You took $3,630 on that occasion. You jumped back over the counter and left the area in a car. CCTV camera footage captured the event in the post office and was used to identify you, with police finding the top that you were wearing in a search of your home when you were arrested.
4 Six hours later you entered a Video Ezy store in Montrose, went behind the counter and threatened a staff member with the same large bladed knife, saying, "Get the money, I'm going to stab you"; $676 was stolen. You attempted to open the safe unsuccessfully and you ran from the store thereafter. On both occasions on that day you wore a balaclava over your head.
5 When police apprehended you near your home, you had $575 in notes and 31 in gold coin. You were interviewed and denied involvement in these armed robberies.
6 The court received three victim impact statements from victims. I have read them and taken their contents into account. One woman writes that years after the event she still has bad dreams and flashbacks. She was naturally traumatised by your criminality and her sense of security and safety at being put in jeopardy. A second statement, from a man involved in another armed robbery, also mentions loss of sleep and emotional distress long after these events. His dealings with the public are guarded, his work performance has been affected negatively. The third lady quit her job and has experienced depression and anxiety. She, too, suffers from insomnia and nightmares. She has been on antidepressants and has seen the effect on her family and at work.
7 These reports are typical of the effect which such violent crimes engender and the court must denounce your behaviour as totally unacceptable. The rights which you shattered so wantonly, that of living and working in peace and safety, just be vindicated.
8 Armed robbery is a very serious offence which carries a 25 year maximum penalty and by that penalty the law wishes to indicate its gravity.
9 The principle of general deterrence must be a primary component of this sentence so as to indicate to like minded persons that this behaviour will be met by punishment.
10 This matter came for trial before in 2009 and a retrial was ordered by a judgment in early December 2011. The trial came before me in October of this year and at that point you indicated your intention to plead to these offences, which was followed by a plea in late November. You did not plead early in proceedings, but your plea has the utilitarian aspect, it saved the court and the community added expense. It was said that the Court of Appeal decision enabled you to understand the evidence against you in a more digestible and clear form. However, the plea came at a time much later in time and closer to the trial date.
11 In any event, I will take the plea into account to accord you a sentence discount. It is difficult to determine whether the plea is accompanied by remorse. It may be that given the issues existing currently in your life, this course was a commonsense resolution, devoid of sentiment about your behaviour. Equally, you may have come to a point of resolution by way of some regret or remorse given the years which the matter has taken up and you may have a better appreciation now of the consequences of your behaviour in 2007, now five years ago.
12 I take into account the fact of the delay. The first trial was held in 2009 and it is true that the matters have remained in limbo for that time. The upshot of that delay is that you have spent pre-trial and post trial periods of imprisonment, many days on remand, although you have been on bail since December of last year. I take this delay into account in the context of what has happened since in your life.
13 Firstly, I must note that you have an extensive criminal record from 1998, which covers dishonesty, drug offences, including robbery, burglary, theft, handling stolen goods and two armed robbery priors. One in 2000, for which you received a period of incarceration of two and a half years with a 12 month non parole period; and in 2002, when you faced three counts of armed robbery, for which you were sentenced, amongst other offences, to a total of four and a half years with a non parole period of two and a half years.
14 I was told that you owe the Parole Board a lengthy period of time, but that is a matter which is not determined and does not concern my disposition.
15 Your priors indicate that you have often led a life outside the law and in contrast with it. It does not augur well for any prospects of rehabilitation, which must be guarded.
16 I received a series of reports from Mr Jeffrey Cummins and they begin in December 2008 and follow up in November '09 and culminate in a report of October of this year.
17 By way of background, your parents separated when you were around three years old. Your father was a violent alcoholic and spent time in Pentridge. He is not now part of your life. Your mother and stepfather have a good relationship with you and you were raised in a caring family. When young, you were sexually abused and this is cause for psychological crisis at about 16 when you gave evidence against the perpetrator and it has continued to dog you in years to follow. This matter also disrupted your secondary schooling when you dropped out of school. By age 18 you were an intravenous heroin user. You have had intermittent work as a labourer and your work history was disrupted significantly by drug use, which is also reflected in your priors. At this stage you attempted suicide a number of times, but you did not receive ongoing counselling or therapy. You have never married, nor have you ever undergone residential detoxification.
18 In 2008, you were on an anti psychotic medication and antidepressants and you had expressed the desire to undergo residential rehabilitation at Granya House, in Wodonga. You undertook this program in 2009. In that year, Mr Cummins stated that in his opinion the sexual offending against you had probably played a causative role in your drug dependence. In the period you developed an adjustment disorder which has abated with time. You were still taking significant mood stabilising medication at the time of that report.
19 You are now 32 years of age and over the last year you have resided with your mother and stepfather. In early 2012, you returned to Granya House, but that facility closed in March 2012 and did not allow you to continue the program. You have a reasonable close relationship with your siblings and, earlier to your attempted admission to Granya House, you had relapsed into amphetamine and crystal meth use, as well as heroin and benzodiazepines. You returned to Melbourne in April and a general practitioner prescribed Xanax for you.
20 You have been given some options to return to Wodonga and work on a farm, or to go to your sister in Queensland, where I was told your brother-in-law works in a mine and may have some prospects of employment for you. It appears that your own priority is moving away from Melbourne and it may well be that that is the best opportunity that you have to make a new life for yourself, if you so wish.
21 When interviewed in October 2012, you readily admitted to Mr Cummins a susceptibility to heroin and other drug use. This is most unfortunate when coupled with what appears to be a chronic lack of purpose and direction in your life. The depressive disorder about which Mr Cummins writes, means you have a long way to go before both true insight into your psychological functioning and any ability to really make decisions favourable to you. The recurrent symptoms of a borderline personality disorder means that you will require ongoing and intensive psychotherapy.
22 It was said your motivation is fragile and you are in danger of becoming dependent on medication. In Mr Cummins' opinion your mental health issues were relevant when committing the armed robberies, in the sense that they were committed to buy drugs with which you were self medicating.
23 Mr Cummins candidly agrees the Verdins principles are not applicable in this case, except that your mental state would deteriorate if returned to custody for a long period. I concur with this assessment and agree that you are in danger of institutionalisation. However, in my opinion, imprisonment is the only option available to the court. It is fortuitous that you have spent already a substantial period in pre-sentence detention, in fact you have spent some three years and nine months in reclusion for these offences.
24 The Crown submission agreed that this period is adequate for purposes of a non parole period. In my view, that period, given your plea and the delay which has occurred since the offences, in view of your background and the matters reported upon by Mr Cummins, is a period which largely and adequately reflects the gravity of the offences. My sentence will mean that you are not required to serve any more time.
25 On Charge 1, of armed robbery, you are convicted and sentenced to five years' imprisonment.
26 On Charge 2, of armed robbery, you are convicted and sentenced to five years' imprisonment.
27 Charge 1, I am referring to Charge 2 on the indictment, Charge 2 will refer to Count 4.
28 I order 18 months on Count 4 to be cumulative on Count 2, making a total of six and half years. I fix a non parole period, in respect of that total effective sentence of 78 months, of 45 months. I understand you have served slightly longer than that by a few days.
29 But for your plea, I would have sentenced you to seven and a half years with a six year non parole period.
30 I declare that you have spent 1,363 days in pre-sentence detention.
31 I have signed disposal orders in relation to the items in the schedule attached to those orders. I will hand them down. Thank you.
32 (Disposal orders signed and acknowledged.)
33 Mr Rogers, it has taken a long time for this matter to resolve and you are a long way from out of the woods, but whether you remain there or not is really a matter for you. If you want to go and find work, get your head right and stop using drugs, perhaps do something better with your life, that is just a matter for you, but if you want to come back, courts like these will simply oblige you and send you back to prison if that is where you want to spend most of your life. I would have thought at 32 you would probably have had enough now, it is time to grow up.
34 I think you should see this as a chance, because I could have imposed a longer sentence for you, given your priors. I think it is just time to stop. You are intelligent enough to make something of your life. I know that you have a disadvantaged background and the last 20 years have not been the happiest for you, but I think you can make an effort with a bit of help.
35 PRISONER: Yeah, thanks for that.
36 HIS HONOUR: Are there any other orders that are required.
37 MS TODOROV: Nothing further, Your Honour.
38 MS VINTON: No, Your Honour.
39 HIS HONOUR: I think Mr Rogers, that once the authorities sort you out in terms of the paperwork, you will be released. I will stand down.
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