Phillips v The Queen

Case [2017] VSCA 313


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0061

RODNEY PHILLIPS Applicant

v

THE QUEEN

Respondent

S APCR 2017 0075
SAM LISZCZAK Applicant

v

THE QUEEN

Respondent

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JUDGES: WEINBERG, OSBORN and PRIEST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 18 October 2017
DATE OF JUDGMENT: 31 October 2017
MEDIUM NEUTRAL CITATION: [2017] VSCA 313
JUDGMENT APPEALED FROM: R v Liszczak & Phillips [2017] VSC 103 (Croucher J)

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CRIMINAL LAW — Appeal — Sentence — Co-offenders — Shooting at occupied police vehicle at close range — Charge of recklessly causing injury with respect to one police officer and reckless conduct endangering serious injury with respect to another — Both charges based on single gunshot — Whether double punishment in circumstances where cumulation of two years ordered between the sentences of imprisonment on each charge —  No error — Further charges of criminal damage, being prohibited person in possession of firearm, attempted arson, arson and theft of motor car — Whether sentences manifestly excessive — Objective seriousness of offending high — Extensive criminal histories — Poor prospects of rehabilitation — Sentence of 12 months’ imprisonment for possession of firearm inadequate — Leave to appeal refused — Pearce v The Queen (1998) 194 CLR 610; Lecornu v The Queen (2012) 36 VR 382 applied.

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APPEARANCES: Counsel Solicitors
For the Applicant Phillips Mr S Bayles Pica Criminal Lawyers
For the Applicant Liszczak Mr J Hannebery with
Ms E Clark
Paul Vale Criminal Law
For the Respondent  Mr B F Kissane QC with
Ms E H Ruddle
Mr John Cain, Solicitor for Public Prosecutions

WEINBERG JA:

  1. I have had the advantage of reading in draft the reasons for judgment prepared by Osborn and Priest JJA.  I agree with those reasons, and with the orders proposed. 

  1. I would add only this.  Even making due allowance for the negotiations that often take place between the Crown and an accused, which will sometimes result in charges being reduced to a level significantly below what the objective facts seem to warrant, the decision in this case to allow these applicants to plead guilty merely to recklessly causing injury, rather than causing serious injury, is a complete mystery.

  1. I would have thought that, on any view, the firing of a shotgun in the direction of Constable Ashmole, resulting in his being struck by 14 shotgun pellets to the head, and leading to the ongoing consequences identified by Osborn and Priest JJA, could not be described as anything other than the infliction of ‘serious injury’, even within the narrow meaning of that expression now contained in s 15 of the Crimes Act 1958.  An injury of that gravity is obviously ‘substantial and protracted’.  It would be extraordinary if a jury were to find otherwise.

OSBORN JA

PRIEST JA:

Introduction

  1. Carl Williams, a notorious murderer and drug trafficker, was murdered in Barwon Prison by another inmate, Matthew Johnson, on 19 April 2010.  The applicant Sam Liszczak[1] (for convenience, ‘Liszczak’) was a friend of Carl Williams’…

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Phillips v The Queen [2017] VSCA 313
Case
[2017] VSCA 313
Decision Date

CaseChat Overview and Summary

In the case of Phillips v The Queen, the appellant was convicted and sentenced for multiple criminal offences, including recklessly causing injury and reckless conduct endangering serious injury by shooting at a police vehicle, criminal damage, possession of a firearm as a prohibited person, attempted arson, arson, and theft of a motor vehicle. The appeal focused on the sentences imposed, particularly whether the sentences for multiple charges stemming from a single act constituted double punishment and whether the overall sentence was manifestly excessive.

The central legal issue in the appeal was whether the imposition of separate sentences for multiple charges, which were based on the same act, amounted to double punishment. Additionally, the court had to consider if the cumulative sentence was manifestly excessive given the objective seriousness of the offending, the extensive criminal history of the offender, and the poor prospects for rehabilitation.

The court found no error in the trial judge’s decision to impose separate sentences for the charges, rejecting the argument of double punishment. It was held that each charge had distinct elements and that the trial judge had properly considered the principles of cumulative sentencing. Regarding the overall sentence, the court concluded that the objective seriousness of the offending, the appellant's extensive criminal history, and the poor prospects for rehabilitation justified the cumulative sentence. The court deemed the 12-month imprisonment sentence for possession of a firearm inadequate, and thus the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the trial judge was upheld. The court found that the trial judge had exercised his discretion appropriately in considering all relevant factors, and the sentence was neither manifestly excessive nor an error of law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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