R v Flower
[2005] VSC 462
•8 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1406 of 2005
| THE QUEEN |
| v |
| PHILLIP JAMES FLOWER |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2005 | |
DATE OF SENTENCE: | 8 December 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 462 | |
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Criminal law – sentence – unlawful and dangerous act manslaughter - robbery – accused grabbed handbag from elderly female victim – victim fell and hit head – victim later died from head injury – guilty plea - accused heroin addict – no prior convictions for robbery or violence – genuine remorse - accused now suffering from paranoia and psychosis – longer than usual parole period appropriate - sentenced to 8 years imprisonment for manslaughter – sentenced to 12 months for robbery, to be served concurrently – non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Solicitor for Public Prosecutions |
| For the Accused | Mr G Meredith | Victorian Aboriginal Legal Service |
HER HONOUR:
Phillip James Flower, you have pleaded guilty to manslaughter and robbery. It is now my duty to sentence you.
The offences
On the last Wednesday of every month, Beryl Bloomfield and her friend, Anne Reid, would go into Croydon to attend a Probus meeting. On 28 April 2004, their Probus meeting ended around 11:30am. After that they had lunch at a café in the Arndale Shopping Centre and Mrs Bloomfield bought herself a cardigan.
After leaving the shopping centre, the two women walked a short distance to the Main Street shopping strip. Shortly after 1.00pm, Mrs Bloomfield withdrew $2,000 in cash from the Westpac bank. She went to a nearby menswear store and bought a cardigan and a pair of trousers for her husband. Around 2:00pm, she withdrew another $2,000 from the ANZ bank.
Mrs Bloomfield and Mrs Reid started to walk along Main Street, back towards Mrs Reid’s car. Before reaching Mt Dandenong Road, Mrs Bloomfield stopped at a fruit and vegetable shop to buy some tomatoes.
You and your partner, Claudine Davis, were in the vicinity of the shopping centre that day. You had gone to get your daily methadone from a nearby chemist. Ms Davis saw Mrs Bloomfield pay for her purchase in the fruit and vegetable shop; she pointed Mrs Bloomfield out to you as someone carrying a large amount of cash.
After Mrs Bloomfield bought the tomatoes, she and Mrs Reid walked down Mt Dandenong Road, arm in arm, giving each other support. Mrs Bloomfield was standing closest to the road, holding her handbag in her right hand. You approached them from behind. You grabbed Mrs Bloomfield’s handbag fairly hard and, in doing so, caused her to fall to the ground. You took the handbag and ran off. Mrs Bloomfield hit her head on the grassy ground near the footpath and temporarily lost consciousness.
You ran off into a nearby park, pursued by a male witness. During the chase, you dropped the handbag and removed two jumpers in an attempt to disguise yourself. You were eventually arrested after a short chase by a police officer.
Mrs Bloomfield’s money was all recovered. When searched, you were found to have $1,100 cash that you admitted having stolen from Mrs Bloomfield. You had thrown away her handbag containing $2,200. The remaining $700 was found, along with Mrs Bloomfield’s bankbooks, behind a large industrial bin in the area.
You were taken to the Croydon Police Station for interview. At that time, Mrs Bloomfield was still alive. You made full admissions to the police about robbing Mrs Bloomfield for her money. You said you only had $12.05 on you at the time and needed the money to buy cigarettes and food for your family. You said you did not intend to hurt Mrs Bloomfield when you snatched her bag, and you thought she must have fallen over whilst hanging onto her bag. There were no significant differences between the account of events that you gave to police, and the accounts that various eye witnesses gave.
An ambulance attended the scene just before 2.30pm. Mrs Bloomfield had regained consciousness by this time. She had the beginnings of swelling and bruising around her right eye and back. She had had a nose bleed and was complaining of a sore right shoulder. She was taken to the Maroondah Hospital.
During the afternoon, her condition deteriorated rapidly, to the point where she was moved to St Vincent’s Hospital, comatose and in a critical condition. Emergency neurosurgery was conducted to reduce the amount of bleeding to her brain. At about 1:15am on 29 April 2004, a decision was made to turn off the life support machine that was keeping her alive. Mrs Bloomfield died shortly thereafter.
The forensic pathologist who conducted the post-mortem examination concluded that the cause of Mrs Bloomfield’s death was a closed head injury. There was a fracture to the upper jaw and acute subdural haemorrhage, with subsequent brain swelling and intracerebral haemorrhage.
Your personal circumstances
You were born in Echuca in September 1969, the youngest of five children. You are of aboriginal descent on your mother’s side. You lived in Echuca with your family until you were about 7 years old, when you all moved to Barmah. Your father worked for many years on the Murray Shire Council, and your mother was primarily engaged in home duties. Your father died when you were 15 years old, an event which devastated you.
Your mother now lives on her own in Moama, having recently moved there from Barmah. She and your aunt were present in court at the hearing of your plea. Your mother and one of your sisters have been particularly supportive of you in custody.
You left school part way through Year 9 at Echuca Technical School. After that, you worked as a storeman at a supermarket. You then moved to Toowoomba in Queensland and lived for a time with your brother. When you were about 16, you formed a relationship with an older women, which did not last.
When you were about 18, you returned to the Barmah area, where you formed a serious relationship with Giselle McGeary. She is the mother of two of your six children, who are now 10 and 12 years old. After living together for some time in Melbourne, you returned to Barmah when that relationship broke down.
Back in Barmah you formed a relationship with Claudine Davis, which your counsel described as being “on and off” for about 9 years. That relationship is now over. Ms Davis is the mother of four of your children, who are aged between 2 and 7 years old. The oldest child lives with Ms Davis’s parents in Brisbane, and the other three live with Ms Davis in Bribie Island, Queensland. Unfortunately, you have had no contact with those children since Ms Davis moved back to Queensland about 6 months ago.
Ms Davis was a heroin user when you met her. She worked on and off as a prostitute from the age of 15, including for part of the time you were together. Ms Davis introduced you to heroin. You have battled your heroin addiction for about nine years. You were off heroin completely on a couple of occasions during your relationship with Ms Davis, but the circumstances of living with another addict often led you back into temptation.
At one stage you held down a factory job as a fibreglass labourer for around 2½ years. Your counsel tells me that employment ended after you experienced a psychotic episode. You have otherwise been largely unemployed since you started using heroin.
At the time of the offences you were 34 years old and living with Ms Davis and the three youngest children in public housing accommodation found through the Salvation Army. You were both unemployed, living on social security benefits and on the methadone program.
You have four prior convictions imposed by Magistrates’ Courts. They were all for relatively minor matters and none involved an act of personal violence or theft. You have never been in prison before you committed these offences.
Dr Paul Grech, a clinical psychologist, has assessed you on several occasions at the Port Phillip Prison and prepared a report at the request of your lawyers. His report deals amongst other things with your drug usage history. Before becoming addicted to heroin, you were a daily cannabis user from the age of about 20. You have also acknowledged using speed and cocaine, although you stopped using speed at the age of 30 because you said it gave you psychosis and paranoia.
Dr Grech reports that you presented with paranoid ideation and obvious indications of thought disorder and psychosis. You refused to comply with some of the testing which he sought to conduct. You are being treated for psychosis with antipsychotic medication and weekly psychiatric visits. You are also being treated with antidepressant medication. Although you are of average intelligence, Dr Grech believes you have minimal insight into your ongoing psychiatric difficulties.
Dr Grech is unable to conclude whether your psychosis pre-dated your incarceration, or whether it has come about as a result of your actions and subsequent imprisonment. He noted that there is no history of schizophrenia or major mood disorder in your family, nor were any details of your childhood suggestive of an early emergence of a psychiatric disorder, independent of your substance abuse problems. Dr Grech concludes that your long-term pattern of cannabis abuse, combined with a period of frequent amphetamine abuse, precipitated your psychotic illness.
You have not been coping well in prison. Although you denied any suicidal ideation to Dr Grech, it appears that you have in fact attempted suicide 3 times whilst in custody. The first such attempt was within a few weeks of admission and the most recent was in June 2005. These suicide attempts have led to you being placed on suicide watch and subject to increased security. You have been placed in protective custody, apparently as a result both of your suicidal tendencies and also concerns about possible harm at the hands of other prisoners due to the nature of these offences and the publicity which surrounded them.
Communication between Dr Grech and prison staff confirmed that your psychosis has been gradually improving in recent months. However, you still consistently present as difficult to engage, distrustful and often irrationally paranoid. At times you appear antagonistic or even intimidating. Dr Grech hopes that with ongoing professional and family support your psychotic illness could be expected to continue to improve.
Victim impact
At the plea, the Crown tendered a victim impact statement of Walter Bloomfield, Mrs Bloomfield’s elderly husband. The Bloomfields had been married for 56 years.
In his statement, Mr Bloomfield tells of the wonderful relationship he had with his wife, and how much he misses her since her death. He often does not feel like eating and, without his wife there, is inclined to miss meals. He no longer wishes to attend social functions, and rarely leaves the house except to do the weekly shopping and banking with his niece, who has been a tremendous support to him.
There is no doubt that Mrs Bloomfield’s tragic death has deeply affected her husband and the rest of her family.
Seriousness of the offences
The maximum penalty for manslaughter is 20 years. The maximum penalty for robbery is 15 years.
It is common ground that the manslaughter you committed was by an unlawful and dangerous act, namely, snatching Mrs Bloomfield’s handbag.
The Crown argued that the manslaughter was at the higher end of the scale of gravity because Mrs Bloomfield was elderly, vulnerable and frail; she was a soft target and you preyed upon her because of the money you knew she was carrying. The Crown said that the robbery was a serious one for the same reasons.
On the other hand, your counsel argued that the circumstances of the offences put them at the lower end of the range. He pointed out that these offences, unlike most cases involving unlawful and dangerous act manslaughter and robbery, did not involve either a weapon or any assault on the victim. You also told the police that you did not realise Mrs Bloomfield was as old as she was; you thought she might have only been in her 50s.
In your interview with police, you said that during the time that you were following Mrs Bloomfield, you had second thoughts about whether or not to snatch her bag. I accept that the offences you committed were spontaneous and unplanned.
There is no suggestion that you tried to hit or frighten Mrs Bloomfield. I also accept that you did not intend to hurt Mrs Bloomfield and that stealing her money was your only intended outcome. Nevertheless, it is an entirely foreseeable consequence of snatching a person’s bag – particularly from an elderly person and from behind - that they may fall over and seriously injure themselves.
Viewed objectively, Mrs Bloomfield was undoubtedly a soft target. She was 77 years old, 158 cm tall and weighed only 47 kg. You were taller, more than twice her weight and less than half her age. I have no doubt that you targeted her precisely because she was elderly, vulnerable and frail.
In all the circumstances, the offences are both serious ones, albeit not at the top of the respective scales of gravity of the two offences.
Other sentencing considerations
You were initially charged with manslaughter and robbery. Shortly after you were committed to stand trial for those offences, you offered to plead guilty to them. The Director of Public Prosecutions rejected your offer and presented you for trial for murder.
Shortly prior to the commencement of your trial, the charges were reduced to manslaughter and robbery, to both of which you pleaded guilty. In the circumstances, I accept that you have effectively pleaded guilty at the earliest possible opportunity. By pleading when you did, you have spared the victim’s family and the witnesses from the trauma and stresses of a trial, and you have saved the community the time and cost of a trial. Accordingly, you are entitled to some reduction in the sentences to be imposed on you.
You have expressed genuine remorse about what happened to Mrs Bloomfield. During the course of your record of interview, you repeatedly said you were sorry that Mrs Bloomfield had been hurt, that you never intended to hurt her, and wished you could take it all back.
Dr Grech says that it is not possible, due to your unbalanced mental state, to now engage you in any meaningful discussions about your actions. However, your mother and sister were adamant, in their discussions with Dr Grech, that you have expressed deep remorse to them.
It is well-established that serious psychiatric illness not amounting to mental impairment may be relevant to sentencing in a number of ways, including reducing moral culpability and the need for general and specific deterrence. Your counsel argues that those principles apply in this case. The Crown does not appear to dispute that you are currently suffering from a serious psychiatric illness, namely, psychosis. However, the prosecutor argues that the relevant principles do not apply in cases in which the illness has been brought about by the accused’s own conduct – in this case, drug-taking – as opposed to what he described as organic causes.
The distinction sought to be drawn by the Crown does not accord with my understanding of the relevant authorities. I proceed on the basis that, theoretically, the relevant principles may apply to somebody suffering from a serious psychiatric illness which is substantially self-induced. However, before they can apply in any given case, it must be established that the mental illness had one or more of the effects described in the relevant authorities.
Your counsel conceded that there is no evidence that you committed these offences in a state of psychosis or other impaired mental functioning. Accordingly, the moral culpability of your actions is not reduced by your current mental state. Similarly, the need for general deterrence is not removed in this case.
Unfortunately, elderly people are all too often seen as an attractive and easy target by those intent on theft. Their age and physical condition may make them more vulnerable to being targeted and less able to cope with the consequences of a robbery. People must be deterred from robbing those members of the community who are most vulnerable, particularly in circumstances such as these where there is a very real risk that the victim may be hurt in the process.
Specific deterrence is more problematic in this case. You have never previously engaged in acts of theft or violence, notwithstanding years of illegal drug addiction. On the evidence presently before me, it is difficult to predict what impact your mental state will have on the likelihood of your committing such acts again in the future. At the moment, it seems that your current mental state is such that you present some risk of re-offending. The sentences to be imposed must reflect some element of specific deterrence.
Dr Grech believes that it is most important that your gravitation towards substance abuse is curbed via treatment of your psychotic and mood disorders. He suggests you should remain in treatment when eventually released, so that your poor mental health does not continue to impinge on your decision-making in relation to drug use. With continued family and professional support, he believes that your psychotic illness could be expected to continue to ameliorate.
Your counsel and the prosecutor both agree that, in light of your mental condition, your sentence should incorporate a longer than usual period of parole, which should be achieved by a shorter minimum term, rather than a longer head sentence. I agree that there should be a slight reduction in your non-parole period, to enable the Adult Parole Board to supervise your treatment and gradual re-integration into the community. The precise form of support, supervision and monitoring that may be required is up to the Parole Board to determine, but is likely to at least involve some counselling and treatment for substance abuse. Both you and the community would benefit from your being supervised on your release.
Duplication issues
It is well-established that, to the extent to which two offences of which a person is convicted contain common elements, it would be wrong to punish the offender twice for the commission of elements that are common.
In the present case, the use of force is an element of both offences. The force is that used in snatching the bag. The Crown argued that in so far as there is any element of force in the robbery, it should be dealt with as part of your manslaughter sentence, not as part of the robbery sentence. Your counsel did not oppose that approach and I agree that it is the appropriate approach. Accordingly, I will impose a lesser sentence than might otherwise be imposed for a robbery such as this, one which reflects only the theft component of that offence.
In relation to the issue of cumulation, the Crown argued that there should be some cumulation, based on the theft element of the robbery rather than the violence element. On the other hand, your counsel argued that I should view the event as the one transaction and not cumulate any portion of the robbery sentence.
In my view these offences clearly arise from the same course of criminal conduct, indeed, from a single criminal act. In the circumstances, I consider that ordering you to serve the sentence for robbery cumulatively with the sentence for manslaughter would be a double punishment.
Sentence
In respect of the count of manslaughter, I sentence you to imprisonment of 8 years.
In respect of the count of robbery, I sentence you to imprisonment of 12 months, to be served concurrently with the sentence imposed under the first count.
I fix a period of 5 years as the period you must serve before becoming eligible for parole.
I declare that the period to be reckoned as already served under the sentence is 590 days inclusive of today’s date and I direct that there be noted in the court’s records the fact that the declaration has been made and its details.
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