R v Liszczak and Phillips
[2017] VSC 103
•14 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0080, S CR 2016 0081, S CR 2016 0204,
S CR 2016 0205, S CR 2016 0206 & S CR 2016 0207
Between:
| THE QUEEN | |
| and | |
| SAM LISZCZAK & RODNEY PHILLIPS | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2017 | |
DATE OF SENTENCE: | 14 March 2017 | |
CASE MAY BE CITED AS: | R v Liszczak & Phillips | |
MEDIUM NEUTRAL CITATION: | [2017] VSC 103 | First revision (16 March 2017): paras [14], [79], [95], [150] & [166] |
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CRIMINAL LAW – Sentence – Two co-accused charged with same offences – Attempted arson (two charges) by throwing Molotov cocktails at separate premises – Theft of motor car – Prohibited person possess firearm – Criminal damage by shooting fence – Recklessly causing injury by shooting police officer in head – Reckless conduct endangering another police officer by same shot – Arson of stolen motor car – Accused threw Molotov cocktails at two premises mistakenly believing homes belonged to others – Two days later, accused returned to first of target addresses in stolen car and fired gun twice at fence – As accused moved to second target address, police detected, pursued and cornered them – As they fled, accused fired gun at police car at close range, causing pellets to strike driver to head and to endanger passenger – Several pellets remain lodged under policeman’s skin – Accused dumped and burnt stolen car – Unknown which of accused fired gun or drove car – Joint criminal enterprise – Accused just released from long prison sentences – Extensive criminal histories – Pleas of guilty – Relative youth – Only guarded prospects of rehabilitation – Risk of institutionalization – Importance of general deterrence, specific deterrence, denunciation, just punishment, protection of community and rehabilitation – Absent pleas of guilty and other mitigating factors, offences involving shooting at police would attract maximum penalties – Sentenced as serious arson offenders on some counts – Parity – Totality – On one accused, total effective sentence of eight years’ imprisonment with non-parole period of six years and two months – But for pleas of guilty and other mitigating factors, total effective sentence of ten years’ imprisonment with non-parole period of eight years and two months – On other accused, total effective sentence of seven years and ten months’ imprisonment with non-parole period of six years – But for pleas of guilty, total effective sentence of nine years and ten months’ imprisonment with non-parole period of eight years – Sentencing Act 1991 (Vic), ss 5, 6AAA, 6A-6F & 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose QC with Mr N. Hutton | John Cain, Solicitor for Public Prosecutions |
| For Ms Liszczak | Mr D. Hallowes QC with Ms K. McKay | Vale Criminal Law |
| For Mr Phillips | Mr S. Bayles | Pica Criminal Lawyers |
HIS HONOUR:
Overview
Within days of being released from long stints in prison, Sam Liszczak and Rodney Phillips set upon a course of criminality that has landed them right back where they were – again.
Some of their initial conduct upon release was so hopeless that it might be regarded as petty, perhaps even comical in its ineptitude. But it was no laughing matter when they got hold of a shotgun. The gravity of their behaviour then escalated even more alarmingly when faced with capture, which in turn led to grave consequences for two young policemen doing their best to protect the community. In particular, when cornered and caught red-handed with the gun, instead of just putting their hands up in resignation of their fate, Mr Liszczak and Mr Phillips not only fled but also fired the gun at a police car, containing two officers, at close range. That was at once gratuitous and disturbing.
Mercifully, the officer at whom the gun was pointed directly was quick enough to duck just before the blast, and thereby evaded grave physical harm or worse. But, still, he was shot in the head, and, still, he has numerous shotgun pellets embedded under his skin as a result. His partner, who was sitting beside him but lucky to escape any physical injury, was also traumatized. It must have been a terrifying ordeal.
One of the few redeeming features is that both accused have now admitted their guilt by pleading guilty to a series of charges laid against them. Those charges are attempted arson[1] by throwing Molotov cocktails at houses (two counts), theft[2] and arson[3] of the same motor car, possessing a firearm whilst prohibited,[4] criminal damage[5] by shooting at a fence, and recklessly causing injury[6] and reckless conduct endangering a person[7] by shooting at police. Further, the accused are both relatively young, albeit with long and troubling criminal histories and only guarded prospects of rehabilitation.
[1]Contrary to ss 197(1) & (6) and 321M of the Crimes Act 1958 (Vic).
[2]Contrary to s 74(1) of the Crimes Act 1958 (Vic).
[3]Contrary to ss 197(1) & (6) of the Crimes Act 1958 (Vic).
[4]Contrary to s 5(1) of the Firearms Act 1996 (Vic).
[5]Contrary to s 197(1) of the Crimes Act 1958 (Vic).
[6]Contrary to s 18 of the Crimes Act 1958 (Vic).
[7]Contrary to s 23 of the Crimes Act 1958 (Vic). The offence is sometimes described as reckless conduct endangering serious injury, which reflects its elements.
This Court’s task now is to balance the various competing considerations and pass sentence on them for their crimes.
Background and circumstances giving rise to the offences
I turn first to a summary of the offending, which is taken largely from the prosecution opening. That opening, the contents of which are not disputed by the accused, was read to the Court by Mr Rose QC, who appeared with Mr Hutton for the Director.
Background
On 2 July 2015, Rodney Phillips was released from prison. Still only 23, bar a period of about five months, he had been in prison for the past six years. Upon his release, he lived at 8 Pearcey Grove, Pascoe Vale.
Two days later, on 4 July 2015, his friend Sam Liszczak also was released from prison. He had just turned 22. He had been in prison for over three years. Upon his release, he lived at 65 Princes Drive, Morwell.
Mr Liszczak had become friendly in prison with Matthew Charles Johnson. In 2010, Mr Johnson murdered Carl Williams in prison in graphic and brutal circumstances. George Williams (now deceased) was the father of Carl Williams. Roberta Williams is the former wife of Carl Williams.
Attempted arson (of the wrong premises, twice)
On 4 July 2015, Mr Phillips borrowed his brother’s green Hyundai to move some things from his mother’s home in Glenroy to his address in Pascoe Vale. Those things included a slab of Corona beer and two brand new red plastic five-litre fuel containers. Mr Phillips told another tenant at Pascoe Vale that he could drink the beer but that he wanted the empty bottles returned as he had a need for them. As it turns out, that need was for the making of Molotov cocktails to throw at the homes of George Williams and Roberta Williams.
At an unknown time on the next morning, 5 July 2015, Mr Phillips and Mr Liszczak drove to 14 Katandra Crescent, Broadmeadows. They believed this was the home address of George Williams. They were wrong. He lived at No. 18, two doors down. In any event, acting on their mistaken belief, while at No. 14, they made two Molotov cocktails using Corona bottles, petrol and pieces of material torn from a white shirt. They lit the Molotov cocktails and threw them at the house. Little damage was done (just some sooting), which was not discovered until two days later.
At about 6:15 a.m. the same morning, Mr Phillips and Mr Liszczak drove to 72 Primrose Street, Essendon. They believed this to be the home address of Roberta Williams. Again, they were wrong. She lived at No. 82, a few doors along. Nevertheless, acting on their mistaken belief, while at No. 72, they made another nine Molotov cocktails, lit them and threw them at the house. Some of them went off and some failed to ignite. They left a red five-litre fuel container sitting on the roof of a car outside No. 72. The Molotov cocktails were discovered by neighbours before any real damage could be done.
Theft of motor car
On the evening of 6 July 2015, after attending a party in the area, Mr Phillips and Mr Liszczak stole a 2002 Ford Escape belonging to Michael George from his home in Endeavour Hills. They then picked up two female friends – “X” and “Y”[8] – from a McDonald’s restaurant in Endeavour Hills before heading to Pascoe Vale.
[8]I was advised by Mr Rose QC that the Magistrates’ Court has in place an order suppressing the names of these two persons. That order remains in force unless and until lifted by that court.
Mr Hallowes QC, who appeared with Ms McKay for Mr Liszczak on the plea, explained that his instructions are that the purpose of the theft was simply to have a car to drive back to Pascoe Vale. Mr Bayles, who appeared for Mr Phillips, did not disagree. Nor did Mr Rose QC. In those circumstances, I am prepared to act on that basis.
Prohibited person possess firearm
At about 3:00 a.m. the next morning, 7 July 2015, the group arrived at Mr Phillips’s residence in Pascoe Vale. At that time, another man was waiting outside the house for Mr Phillips and Mr Liszczak.
The group of four went inside to Mr Phillips’s bedroom. Soon afterwards, the two men left the room for a short time. When they returned, X noticed a “long firearm” on the desk that had not been there when they first arrived. She described the gun as being between 40 and 100 centimetres long with a single barrel and a wooden stock. The two men each picked up the gun and walked around the bedroom. Ultimately, they said they were “going out for a while”, and left with the gun.
As a result of their recent criminal histories, Mr Phillips and Mr Liszczak are “prohibited persons” for the purposes of s 3 of the Firearms Act 1996 (Vic).
Criminal damage – shooting at George Williams’s fence
Determined, it seems, to make up for their bungling attempts a couple of days earlier, the two accused then drove the stolen Ford Escape to 18 Katandra Crescent, Broadmeadows, arriving at about 3:15 a.m. This time, they got the right address: this was the home of George Williams. They fired two shots at the front fence. The shooting caused damage to the letterbox and a hole in the fence.
Krystal Higgins (who lived opposite Mr Williams) heard a loud “bang” and went out to investigate. She heard a second “bang”. She saw a “big black four-wheel-drive” parked outside Mr Williams’s home, facing east. She went back inside and said to her mother, “They’re shooting at George’s house.”
When Ms Higgins went outside a second time, the car had been turned around and was facing west. She saw the passenger pick up two objects from the ground before getting into the passenger side of the car, which then drove off. She last saw the car turning left at the end of Katandra Crescent. She rang triple-zero and asked for police.
Another neighbour, Kristina Steet, also heard a loud “bang” and went outside. She heard Ms Higgins say, “Call the police because they’re shooting at George’s.”
At about 3:30 a.m., George Williams went to the front of his property with his partner Kathleen Bourke, and noticed the damage to his letterbox and fence.
Accused head towards Roberta Williams’s premises
The police radio system broadcast news about the shooting at George Williams’s house, as well as a description of the four-wheel-drive seen by Ms Higgins.
At about the same time, four police officers in two marked cars were parked in Primrose Street, Essendon, near the home of Roberta Williams.
About ten minutes after the shooting at George Williams’s home, Constable Benjamin Ashmole, who was the driver of one of those two police cars, saw the stolen Ford Escape driving west along Albion Street and past Roberta Williams’s home.
It is plain that Mr Phillips and Mr Liszczak were intent upon similar behaviour at Ms Williams’s home. That said, they are not charged with any offence relating to that behaviour and therefore are not to be sentenced for it.
Lead-up to shooting at police
Having seen the Ford Escape, Constable Ashmole, whose passenger was Constable Thomas Wopsil, decided to follow the stolen car and check the driver. The second police vehicle remained outside the home of Roberta Williams.
Constables Ashmole and Wopsil followed the Ford Escape to the intersection with Pascoe Vale Road, whereupon the driver went through a red light and attempted to evade police. A short chase ensued. Constable Ashmole activated the police flashing lights. The Ford Escape’s lights were turned off and it sped through the back streets of Essendon, before ending up in Robinson Street.
Robinson Street comes to a dead end. At the end of the street, the driver turned the Ford Escape into the carpark at St Monica’s Primary School, where he stopped and waited. Constable Ashmole drove to the carpark entrance. He deliberately parked the police car in such a way as to leave enough room for the Ford Escape to drive back out of the carpark.
Recklessly causing injury and reckless conduct endangering a person
As Constable Ashmole parked, the Ford Escape turned hard right and drove back towards the front of the police car and eventually kept veering further right before straightening slightly. In the result, as the Ford Escape squeezed past, its passenger side window was facing the driver side window of the police car, with the two cars forming an angle of about 90 to 120 degrees.
At that moment, a shotgun was produced and fired directly from the passenger side window of the Ford Escape in Constable Ashmole’s direction while he sat in the driver seat. He saw the gun (before it was fired) and ducked, but was still struck by pellets to the rear right-hand side of his head. (Mr Rose explained, and I accept, that the respective car windows would have been about four-and-a-half metres apart at this point.) For the most part, the pellets from the blast penetrated Constable Ashmole’s head or lodged in the driver side headrest of the police car.
As the Ford Escape drove away, Constable Wopsil rendered first aid to his partner.
Later, Constable Ashmole was taken to the Royal Melbourne Hospital for treatment. His injuries included fourteen shotgun pellets to the head. Surgeons managed to remove only three. The remainder are still there, which is likely to be permanent. He was off work for over six months and continues to suffer headaches.
Following the shooting, the Ford Escape kept driving. The two accused tried to hide from police as they drove away, including by parking in the driveway of a home in Strathmore.
Ultimately, they drove back to Mr Phillips’s place in Pascoe Vale, where they stayed for about five minutes, before heading off again in the Ford Escape.
Arson – burning/destruction of Ford Escape
At about 4:00 a.m., they drove the Ford Escape to an industrial area in Hossack Street, North Coburg. They parked the car at the rear of a factory and set fire to it. Other than its petrol cap, the car was destroyed.
Admissions
At about 6:30 a.m., the accused returned, on foot, to Mr Phillips’s place in Pascoe Vale, where they spoke to X. They discussed shooting at a police car which blocked them in; that they thought they had hit the police car; and that one of them shot at the police car. They were very excited.
Accused head towards Traralgon
After walking to a business premises in North Coburg, the two accused took a taxi back to Mr Phillips’s place, where they picked up X and Y. While there, Mr Liszczak asked Y to hand him a gun with a wooden handle, which was under a mattress. She complied.
The taxi then took all four to Pakenham Railway Station, where they boarded a train headed towards Traralgon. While the two women travelled to Traralgon, Mr Phillips and Mr Liszczak left the train a few stops earlier.
Investigation
I turn briefly to the police investigation.
On the back seat of the car driven by Constable Ashmole, police found a single piece of wadding and some “shot” or pellets. Forensic analysis showed that the pellets were twelve-gauge, ICI brand, and “number 3” in size. Police found wadding and the same brand of pellets outside Mr Williams’s property.
DNA samples taken from the filler cap found near the destroyed Ford Escape matched the DNA profiles of both Mr Phillips and Mr Liszczak.
Mobile telephone records and CCTV footage showed that the accused’s telephones and the vehicles in which they travelled were at locations at times relevant to the allegations.
Arrest of accused
On 21 July 2015, Mr Phillips was arrested by police at his new address at 2/85 Winifred Street, Oak Park. When formally interviewed, he exercised his right to silence.
The same day, Mr Liszczak was arrested too. At that time, he was a passenger in a car in Morwell. When formally interviewed, he too exercised his right to silence.
Each accused has remained in custody since his arrest.
Further investigation
Also on 21 July 2015, police found at Mr Liszczak’s address two home-made posters. The first contains a photograph of Carl Williams, smiling, above which is the heading “Missing” and the subheading “Have you seen this dog”. Below the photograph are the words “Last seen chewing on a bike seat”; and further below that are the words “Please contact owner at VicPol #000”. The second poster contains a photograph of Roberta Williams, smiling, above which is the heading “Should be missing”; and below which are the words “Last seen working for VicPol”. Each poster contains a Victoria Police insignia in each corner. All words are in capital letters.
At 10:33 a.m. on 17 July 2015, police accessed the Facebook account of Mr Liszczak. They noticed that “Matthew Charles Johnson” is listed on the front pages as a “friend”.
The shotgun used in these offences has not been recovered.
Victim impact statements
I turn now to the victim impact statements.
Both Constable Ashmole and Constable Wopsil made victim impact statements, which I have read. They asked that the statements not be shown to the accused and that their contents be described only to a limited extent in my reasons for sentence. Neither the accused nor the Director objected to that course.
It is an unusual request, but an understandable one. Rare would be the case in which it would be appropriate to act on a victim impact statement that was withheld from an accused. In the particular circumstances of this case, I shall honour the victims’ request.
Suffice it to say two things. First, as would be expected, these crimes have had a profound impact on both young police officers.
Secondly, I take that impact into account in sentencing on the offences of recklessly causing injury to Constable Ashmole and reckless conduct endangering serious injury to Constable Wopsil.
Nature and gravity of offences
I turn now to an assessment of the nature and gravity of the offences and each accused’s culpability and degree of responsibility for those offences.
Joint criminal enterprise
The Director cannot say which of the two accused threw the Molotov cocktails, which of them physically stole the car, which of them burnt it or which of the them fired the gun at Mr Williams’s home. In each case, it may have been either or both of them. Nor can the Director say which of them was the driver or the passenger at any stage or which of them shot Constable Ashmole. The case on each charge is put against each of the accused on the basis of joint criminal enterprise. In those circumstances, each is equally responsible for the actions of the other.
Attempted arson, theft and arson
Attempted arson, theft and arson can be quite serious offences. They carry maximum penalties of ten, ten and fifteen years’ imprisonment respectively.[9]
[9]See ss 74(1), 197(7) and 321P(1) of the Crimes Act 1958 (Vic).
The attempts at arson – by throwing Molotov cocktails – were towards the lower end on a scale of seriousness for this type of offending. Neither attempt was ever likely to cause any serious damage. While there was presumably some sort of sinister warning intended by the behaviour, neither offence involved any actual or threatened violence to others.
The car theft strikes me as more serious – if for no other reason than it is likely to have created more inconvenience to another or others – but still is a rather standard example of that offence.
The destruction of the car, by arson, is a more serious offence. It is one thing to steal a car; it is another to destroy it – and for no reason other than to conceal involvement in more serious crimes, which is what motivated the accused here. Whether it be the owner of the car or an insurance company, someone will have suffered a substantial loss as a result of the burning of the car.
Nevertheless, had they not been associated with the more serious offences concerning the shooting at police, the attempts at arson, the theft of the car and the arson might have been dealt with comfortably in the Magistrates’ Court.
Possess firearm as prohibited person and criminal damage
While they too can be serious offences and carry maximum penalties of ten years’ imprisonment,[10] the offences of possessing a firearm as a prohibited person and criminal damage might have been dealt with in the Magistrates’ Court as well.
[10]See s 197(1) the Crimes Act 1958 (Vic) and s 5(1) of the Firearms Act 1996 (Vic).
The criminality involved in possessing the shotgun is subsumed to some extent by the criminality in its use in the shooting first at Mr Williams’s fence and then at police. Thus, the sentence I impose for that offence will be less than otherwise on account of the need to avoid double – or even triple – punishment. It will also be directed to be served wholly concurrently with other sentences.
While the damage done to Mr Williams’s fence appears to be relatively minor, the crime has a more serious element to it than the attempts at arson, for several reasons. First, it showed persistence and determination to send a message to Mr Williams, despite the abject failures with the Molotov cocktails. Secondly, the use of a gun has a more sinister overtone to it in the circumstances. Thirdly, and this is really an extension of the last point, the use of a gun is a more frightening and dangerous way to cause property damage. Nevertheless, as serious as it was, the damaging of Mr Williams’s fence strikes me as a less serious offence than the arson of the car.
Recklessly causing injury and reckless conduct endangering person
Plainly, the most serious offences are those involving the shooting at police. Recklessly causing injury and reckless conduct endangering a person are usually regarded as the less serious forms of injury and endangerment offences, which is reflected in their maximum penalties of only five years’ imprisonment.[11] Thus, perhaps perversely, by far the most serious offences among those to which the accused have pleaded guilty are those which carry the lowest maximum penalties.
[11]See ss 18 and 23 of the Crimes Act 1958 (Vic).
Mr Hallowes accepted that these were “top end” examples of those two offences. Mr Rose made the same submission. Mr Bayles initially cavilled with that classification, submitting that they were “high end” examples. In the end, however, I understood him to agree with Mr Hallowes.
In my view, these offences are so serious that, absent the pleas of guilty and other factors in mitigation, I would have been compelled to impose the maximum penalty in each case. Even allowing for those mitigating matters, and the fact that both offences arise out of the one act of firing the gun, I expect that the sentences I am about to impose will be the highest ever fixed for offences of this nature.[12]
[12]According to Sentencing Snapshots published by the Sentencing Advisory Council, between 2006-07 and 2014-15, the highest sentence imposed on a single count of recklessly causing injury was three years’ imprisonment. (See Sentencing Trends for Causing Injury Recklessly in the Higher Courts of Victoria 2006-07 to 2010-11, Sentencing Snapshot 127; Sentencing Trends for Causing Injury Recklessly in the Higher Courts of Victoria 2008-09 to 2012-13, Sentencing Snapshot 159; and Sentencing Trends for Causing Injury Recklessly in the Higher Courts of Victoria 2010-11 to 2014-15, Sentencing Snapshot 190.) The Sentencing Advisory Council has not published Sentencing Snapshots for the offence of reckless conduct endangering serious injury. However, according to the Council’s SACStat Higher Courts, between July 2010 and June 2015, it seems that there may have been one sentence of four-and-a-half years’ imprisonment on a count of reckless conduct endangering serious injury. I have been unable to find that sentence.
The “injury” caused to Constable Ashmole is about as grave as it gets without being classified as a “serious injury”. He has eleven pellets lodged permanently under his skin, which must be a constant reminder of the ordeal he endured. The pleas of guilty mean that the accused accept that they knew it was probable that injury would be caused by the deliberate firing of the gun. In my view, they must have foreseen a high probability of such an outcome, for the gun was fired at relatively close range. Yet there was simply no conceivable need to do so. Constable Ashmole had left enough room for the accused to drive away, if that was their inclination. To have fired at all in those circumstances was simply gratuitous, nasty and disturbing. But for his quick reaction, Constable Ashmole could have been injured much more seriously, or even killed.
While Constable Wopsil was not physically injured, the same remarks apply, with necessary adaptation, to the offence of reckless conduct endangering serious injury. The pleas of guilty involve an acceptance by the accused that they engaged in conduct which a reasonable person, in the same position, would have realized was placing, or may have placed, Constable Wopsil at an appreciable risk of serious injury, and that they foresaw that an appreciable risk of serious injury was a probable consequence of their conduct. I am satisfied that, in firing at such close range and in the direction of the driver’s window, they must have foreseen that an appreciable risk of serious injury to the passenger was a highly probable consequence of their conduct. Again, it strikes me as only a matter of luck that Constable Wopsil was not shot as well.
In my view, a very significant aggravating feature of both offences is that police were shot at when they were in the course of performing their duty. While I accept that the decision to fire must have been made on the spur of the moment, it nevertheless reflects very poorly on both accused that, instead of just putting their hands up in sensible resignation of their fate, they not only fled but also chose to fire the gun directly at police who were doing no more than performing their sworn duty to protect the community.
Police have a hard enough job as it is. To be subjected to such frightening violence is totally unacceptable. The courts must protect police – and the wider community – from such harmful and dangerous behaviour by denouncing it in the strongest terms and passing sentences that punish the perpetrators justly and stand as a deterrent both to them and any others who might be minded to engage in such behaviour.
Background – Mr Liszczak
Before turning to the factors in mitigation on which each accused is entitled to rely, I shall set out in some detail their respective backgrounds as outlined by counsel on the plea.
Mr Liszczak was born on 7 June 1993. He was just 22 at the time of the offences and is now 23.
His parents were both teenagers when he was born. They separated soon after, and he was raised initially by his mother.
At the age of eight, he was taken into State care. He has not seen his mother since. He has had some contact with his father. He lived in seventeen foster homes between the ages of eight and fourteen. Often, he would abscond from those placements.
He did not attend secondary school at all. He is illiterate but, at least on Mr Hallowes’s observation, appears to be relatively intelligent.
His formal criminal history commences at the age of thirteen. He has several prior appearances for child-like offending – such as shoplifting and stealing a pushbike – but also others for armed robbery, threatening serious injury and burglary. By the age of sixteen, he had incurred convictions for burglary, robbery and intentionally causing injury, which resulted in a total effective sentence of ten months’ detention in a youth justice centre. By the age of seventeen, he had convictions for multiple armed robberies and burglaries, which resulted in a total effective sentence of eighteen months’ detention. All of these appearances were in the Children’s Court.
During the latter sentence, at the age of eighteen, his paternal grandmother made contact with him for the first time. He was released in March 2012 to live with his grandmother and her partner. He obtained employment with a butcher, but that seems to have lasted for only a matter of weeks, as the employer was unable to afford to keep him on.
About a month after his release, in April 2012, he was arrested again, and this time held in adult custody. He ended up receiving, in September 2012, in the Magistrates’ Court, an aggregate sentence of two years’ imprisonment with a non-parole period of one year on numerous charges including thefts of motor vehicles, arson, burglary, reckless conduct endangering life and other driving offences.
While on remand awaiting that hearing, he was involved in a riot and some offences of recklessly causing injury, for which he was ultimately sentenced in the County Court in February 2014 to a total of seven months’ imprisonment, with four months cumulative upon his existing sentence.
Also in consequence of those charges, he was transferred to Barwon Prison in August 2012. He was placed in a management unit and was locked down 23 hours a day. Those conditions were relaxed somewhat in 2014, until he was involved in an altercation between two groups of prisoners, which resulted in his being convicted of possessing a controlled weapon and assault with a weapon, for which he received an additional three months’ imprisonment, half of which was cumulative upon his existing sentence. He was also returned to 23-hour lockdowns. During the same period, about ten months of parole he owed to the Youth Parole Board was reclaimed to be served in adult custody.
While at Barwon Prison, he met Matthew Johnson. That relationship formed the background to the initial offending upon his release.
The net result is that, having gone into custody at the age of 18 in April 2012, Mr Liszczak was not released until 4 July 2015, some three years and three months later, at the age of 22, and having become friendly with Mr Johnson. He was not released on parole at any stage. Rather, he was released into the community without any supervision at all, as he had served all of his parole in custody.
Upon his release, he went to live with his grandparents in Morwell. I received in evidence references from his grandmother and her partner. Both speak of, amongst other things, their concern about Mr Liszczak serving his time in solitary confinement. They also speak of their concern about Mr Liszczak’s father, who has been diagnosed with a terminal cancer. I received a short report from a consultant oncologist, Dr Iddawela, in which he opines that, as at November 2016, Mr Liszczak’s father has a life expectancy of less than two years.
Also upon his release, Mr Liszczak obtained a job as a fencer with a fencing company. That, of course, only lasted a short while, as he was arrested on 21 July 2015. I received in evidence a reference from his employer, which was positive about his traits as a worker.
After his arrest, he was transferred to the Metropolitan Remand Centre, which was in complete lockdown as a result of the recent riots. After about six weeks, the lockdown was lifted for others, but he was still kept in 23-hour lockdown because of his past. That situation obtained until November 2015, when he assaulted a prison officer in frustration, which resulted in further loss of privileges for about a month. He was also handcuffed when being moved and had no contact with other prisoners. (He has been charged with the assault on the prison officer and intends to plead guilty to it.)
In February 2016, he was transferred to Barwon Prison, with similar restrictions. From June 2016, he was allowed two hours out of his cell, the handcuffing was removed and he was allowed some extra telephone calls. That position continued until early this year, when he was allowed three hours out of his cell and also contact with one other prisoner. He still eats on his own.
While he has used illicit drugs in the past, he does not have a drug problem and there is no suggestion that the offending was drug-related.
Background – Mr Phillips
I turn now to Mr Phillips’s background, as outlined by Mr Bayles.
Mr Phillips was born on 19 August 1991. He was 23 at the time of the offending and is now 25.
He grew up in Glenroy. He has a twin brother and three other brothers. His mother and one of his brothers attended court and intend to continue to support him.
He left school during Year 11. Initially, he started a plumbing pre-apprenticeship, but that lasted only six months as a result of logistical and travel difficulties.
He worked casual and part-time at McDonald’s, where he did rather well for two years, and ended up working there five nights a week. His manager at the store gave evidence in this Court back in 2010 concerning a matter to which I shall come shortly. The manager spoke of Mr Phillips’s strong work ethic and good relations with customers and co-workers.
Mr Phillips’s criminal history, however, makes for depressing reading. From the age of 17 until the present day, he has spent all but about five months in custody. Around half of that period has been spent in management units with lockdowns for 22 or 23 hours per day and other strict conditions.
At the age of 17, in May 2009, he was charged with attempted murder and remanded in custody, initially in a youth justice centre and then in adult gaol. Ultimately, that matter settled and, in March 2010, he was sentenced in this Court on one count of intentionally causing serious injury and three counts of intentionally causing injury to a total effective sentence of five years and three months’ imprisonment with a non-parole period of three years. The offending was very serious.
While he had no prior convictions at that time, during that period of incarceration, he was sentenced in September 2009 and May 2010 in the Children’s Court for various offences committed before his arrest, including theft of a motor car, resisting police and possessing controlled weapons.
In January 2011, he was sentenced in the Magistrates’ Court to six months’ imprisonment, with three months cumulative upon his existing sentence, on a charge of recklessly causing serious injury. That offence occurred when he was on remand in a youth justice centre while awaiting trial on the matters ultimately dealt with in this Court in March 2010.
On 4 July 2012, at the age of nearly 21 and having spent the last three years and two months in prison, Mr Phillips was granted parole and then released on 19 July. He went to live with his mother and brothers initially. Then he moved to different accommodation. He completed a drug and alcohol course as part of his parole. He obtained a fork-lift driver’s licence. He also obtained a certificate in warehouse operation. Ultimately, however, on 21 November 2012, his parole was cancelled for non-compliance and he was returned to prison on 5 December 2012. That was one of only two bouts of freedom he has had in the last eight years or so.
Having spent much of his time in the mainstream prison population in his previous stint, he was returned to mainstream initially upon his reception back into prison. From 27 March 2013, however, he was transferred to Charlotte Unit with loss of privileges. He has remained in management units within the prison system from that point onwards.
In June 2013, he was sentenced to four months’ imprisonment, two months cumulative, for recklessly causing injury. The same month, he was sentenced to two months’ imprisonment, one month cumulative, for arson offences. And in November that year, he was sentenced to three months’ imprisonment, concurrent, for offences of affray, recklessly causing injury and assault. All of these offences were committed in prison. The arson offences involved setting fire to his cell in protest at conditions.
On 2 July 2015, he was released from prison, having served the last two years and eight months in custody. Like Mr Liszczak, he was released into the community without any supervision at all, as he had served all of his parole in custody.
On the other hand, Mr Rose submitted that it is apparent from the prison indent that, on 7 March 2014, Mr Phillips was denied parole at his own request. Mr Bayles advised that, on his instructions, the addresses given by Mr Phillips for release were not considered satisfactory by the Adult Parole Board at that time. Further, Mr Phillips instructs that he was asked to do a psychological assessment, which he refused. He accepts that, exasperated, he withdrew his application for parole on that occasion.
On 21 July 2015, Mr Phillips was arrested on the current charges and has remained in custody since that time. Again, he has spent his time in management units. He has only one to two hours per day out of his cell with only one other prisoner, and often is moved wearing handcuffs.
Mr Bayles submitted that history shows it is likely that he will remain in such conditions for the foreseeable future.
Since late-2015, he has been seeing a Buddhist monk, and has become interested in Buddhist practices. He has also sought to occupy his time with TAFE studies in maths and English, as well as in Spanish.
Mitigating factors – both accused
Having set out each man’s background, I turn now to the mitigating factors. It is convenient to deal with both accused at the same time, as the mitigating factors apply equally to each of them.
Pleas of guilty
The first and principal factor in mitigation for both accused is that they have pleaded guilty to all offences charged.
The pleas of guilty to the offences concerning the shooting at police came relatively late in the piece. Initially, the accused were indicted on attempted murder of Constable Ashmole, and the alternatives of intentionally causing serious injury and recklessly causing serious injury to him, as well as a charge of using a firearm to resist arrest. After pre-trial legal argument and just before a jury was to be empanelled, the Director filed a fresh indictment charging recklessly causing injury to Constable Ashmole and reckless conduct endangering serious injury to Constable Wopsil instead. The accused then pleaded guilty immediately.
Most of the other charges were the subject of pleas of guilty, or an indication to do so, at an earlier stage.
The pleas of guilty to all offences have avoided what would have been a significant and difficult trial or trials. In particular, the pleas have avoided the need for the witnesses in general – and Constables Ashmole and Wopsil in particular – to relive their ordeals.
It was not submitted that the pleas of guilty – or any other factors for that matter – were indicative of remorse. In those circumstances, I am not satisfied of any remorse.
Nevertheless, given their utilitarian value, the pleas of guilty remain the most significant mitigating factor in each case. Further, I am prepared to accept that those pleas represent an acknowledgement of responsibility and, accordingly, give some hope for rehabilitation – a matter to which I shall return shortly.
Relative youth
The second factor in mitigation concerns the fact that both accused are still relatively young men. As I have said, Mr Liszczak is still only 23 and Mr Phillips is only 25.
Unfortunately, they have both spent substantial proportions of their formative years in prison. That is hardly the ideal place to be developing good values. Further, the nature and seriousness of the present offences demands that they must spend a good deal more time in prison yet.
But one of the great aims of the criminal law is to protect the community through rehabilitation, and this aim is all the more important when it comes to younger offenders. Thus, despite their poor records and despite the gravity of their crimes, I have sought to place some weight on their relative youth in sentencing.
Rehabilitation
The third matter in mitigation to consider is each accused’s prospects of rehabilitation.
The grave nature of the shooting at police, the absence of remorse, the fact that they committed these offences within days of their release from long stints in prison and their criminal histories point towards poor or even hopeless prospects of rehabilitation.
On the other hand, their pleas of guilty, relative youth and family support, and the fact that they have shown some ability to work in the past, give me some cause for optimism, albeit guarded.
Thus, a balancing of these and other competing considerations leaves me finding that each man’s prospects of rehabilitation are guarded – and at best fair – on a scale of excellent, very good, good, reasonable, fair, guarded, poor and hopeless.
Hardship of imprisonment
The final potential matter in mitigation concerns the conditions of each man’s incarceration.
I accept that each accused has been held in stringent conditions since his arrest and that those conditions are likely to continue for the foreseeable future.
The difficulty, however, is that I am not satisfied that those conditions are imposed as a result of anything other than their own behaviour in prison. While I accept that there is additional hardship in such conditions and that there is a higher risk of institutionalization in keeping prisoners in such conditions, I do not think that that hardship can be called in aid in mitigation when I am not satisfied that it has been caused by anyone but the accused.
Parole
Before turning to other matters, however, I wish to make the following points.
Counsel for both accused emphasized that, in light of their clients’ criminal histories, previous experiences in prison and service of their parole periods in prison, they were unlikely to be released on parole on the sentence I am about to impose. Thus, their point was that it is the total effective sentence – not the non-parole period – that is most important to their clients.
In sentencing, a court must not have regard to any possibility that the length of time actually spent in custody will be affected by executive action of any kind.[13] Indeed, a court must assume that a prisoner may well serve the entirety of any head or total effective sentence imposed. I intend to impose sentence in accordance with those injunctions.
[13] See s 5(2AA)(i) of the Sentencing Act 1991 (Vic).
In my opinion, however, it is important to recognize the interplay between rehabilitation and protection of the community. If, as a community, we give up on the hope of rehabilitation for those who must return to the community at the completion of their total effective sentences, if we just deny them parole and then release them without any supervision or strictures (as must occur on the current state of the law, bar some exceptions), then, while that has the effect of protecting the community for the duration of the potential parole period, it seems to me that that is just deferring to a later time a greater risk of reoffending, and thereby offers the community less protection in the longer run.
While it will be a matter for both the prison authorities and the accused’s own behaviour – past, present and future – as to the conditions in which they serve their sentences, my guess – or at least my hope – is that their chances of reform may well be improved if they are given incentives to behave well. Further, while the decision whether – and, if so, when – they are released on parole will be affected by, among other things, the same or similar considerations, as well as the assessment of the Adult Parole Board, again, it should be a realistic option that they can be released on parole if their performance warrants it. My guess is that such an approach is more likely to redound to the benefit of the community in the longer term.
Sentencing purposes
Introduction
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
Shooting at police
In my view, general deterrence, just punishment, denunciation and protection of the community are very important sentencing purposes in respect of the offences concerning the shooting at police. The community should understand that behaviour of the type engaged in by the accused is denounced by the courts and will result in substantial terms of imprisonment that reflect that police have been shot at and harmed or endangered in the course of performing their lawful duties, and that police in particular and the community in general should be protected from such behaviour.
Given the extensive criminal history of each accused and the fact that these offences were committed only days after being released from long stints in prison, specific deterrence must be given substantial weight as well.
Finally, while their prospects of rehabilitation are guarded, and at best fair, rehabilitation remains an important sentencing purpose for offending of this type. As I said earlier, I think it is important to recognize the interplay between rehabilitation and protection of the community. Each accused will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as they have be maximized, so that, when they do return to the community, their risk of reoffending is as low as it reasonably can be and their chances of successful reintegration into the community are better than they have been.
Other offences
Similar considerations apply to the other offences as well. While those other offences are much less serious, there is still a need for weight to be accorded to principles of general and specific deterrence, denunciation, just punishment, protection of the community and rehabilitation in sentencing for those offences.
“Serious arson offender” provisions
I should also add that, as a result of his conviction and sentence on the first attempted arson offence, Mr Liszczak falls to be sentenced as a “serious arson offender” on the other attempted arson and the arson. As a result of his prior convictions for arson, Mr Phillips falls to be sentenced as a “serious arson offender” on both counts of attempted arson and the count of arson.
Section 6D(a) of the Sentencing Act requires that, if a prison sentence is to be imposed for those relevant offences, in determining the length of any such sentence, the Court must regard protection of the community from the offender as the principal purpose for which the sentence is imposed. Further, s 6E reverses the usual presumption of concurrency for such sentences.
I have applied these provisions when sentencing on the relevant offences.
It will be seen that, because of the applicability of those provisions to the first count of attempted arson in the case of Mr Phillips but their inapplicability in the case of Mr Liszczak, I have imposed a slightly different sentence and order for cumulation on that charge, with a resulting slightly lesser total effective sentence and non-parole period on Mr Liszczak. While the following would not have caused me to distinguish between the two offenders absent the provisions of ss 6D(a) and 6E, this choice also sits comfortably with Mr Liszczak’s slightly less serious criminal history and the fact that he is a little younger than Mr Phillips. Otherwise, it will be seen that all other sentences and orders for cumulation to be imposed are the same.
Parsimony
Section 5(3) of the Sentencing Act provides that “[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for all of the offences.
As I said earlier, however, I recognize that the sentences I am about to impose on the charges of recklessly causing injury and reckless conduct endangering serious injury are higher than any other sentences of which I am aware for such offences.
Totality
I have also sought to have regard to totality in fixing the individual sentences, the orders for cumulation, the resulting total effective sentences and the non-parole periods.
Parity
Finally, other than the distinction I propose to draw on account of the first charge of attempted arson and the “serious arson offender” provisions, I cannot see any basis for distinguishing between the two accused in sentencing.
Ancillary orders
Before announcing sentence, I note that the Director applied for a disposal order and a forfeiture order in respect of the items listed in the schedule to each draft order. Those applications were not opposed. In those circumstances, I shall make the orders sought.
Sentence
I turn now to sentence.
I will sentence Mr Liszczak first. As I have said, there will be a slight difference in his sentence when compared with that to be imposed on Mr Phillips.
Mr Liszczak
So, Mr Liszczak, please stand.
Balancing all factors as best I can, Mr Liszczak is convicted on each charge and sentenced as follows.
On Charge 1 on indictment C1510274.B, the attempted arson at 14 Katandra Crescent, the sentence is five months’ imprisonment, to be served concurrently with the base sentence.
On Charge 2 on the same indictment, the attempted arson at 72 Primrose Street, the sentence is six months’ imprisonment, with two months’ cumulation upon the base sentence. On this charge, pursuant to Part 2A of the Sentencing Act, Mr Liszczak is sentenced as a serious arson offender.
On Charge 3 on the same indictment, the theft of Mr George’s Ford Escape, the sentence is twelve months’ imprisonment, with a further three months’ cumulation upon the base sentence.
On Charge 1 on indictment C1510274.C, possessing a firearm while prohibited, the sentence is twelve months’ imprisonment, with no cumulation.
On Charge 1 on indictment C1510274.A.1, criminal damage to Mr Williams’s fence, the sentence is eighteen months’ imprisonment, with eight months’ cumulation upon the base sentence.
On Charge 2 on the same indictment, reckless conduct endangering serious injury to Constable Wopsil, the sentence is four years’ imprisonment, with two years’ further cumulation upon the base sentence.
On Charge 3 on the same indictment, recklessly causing injury to Constable Ashmole, the sentence is four years’ imprisonment. This is the base sentence upon which the orders for cumulation have been and will be made.
On Charge 4 on the same indictment, arson of Mr George’s Ford Escape, the sentence is two years’ imprisonment, with nine months’ further cumulation upon the base sentence. On this charge, pursuant to Part 2A of the Sentencing Act, Mr Liszczak is sentenced as a serious arson offender.
That makes a total effective sentence of seven years and ten months’ imprisonment.
I fix a non-parole period of six years.
Pursuant to s 18 of the Sentencing Act, I declare that 603 days (including today) be reckoned as served under this sentence.
I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Liszczak’s pleas of guilty, relative youth and other factors in mitigation, I would have imposed a total effective sentence in the order of nine years and ten months’ imprisonment with a non-parole period of eight years.
Pursuant to s 89 of the Sentencing Act, as a result of Mr Liszczak’s conviction of theft of Mr George’s Ford Escape, any driver licence or learner permit held by him is cancelled and he is disqualified from obtaining a further one for a period of two years.
Please be seated now, Mr Liszczak.
Mr Phillips
Now, Mr Phillips, please stand.
Balancing all factors as best I can, Mr Phillips is convicted on each charge and sentenced as follows.
On Charge 1 on indictment C1510274.B, the attempted arson at 14 Katandra Crescent, the sentence is six months’ imprisonment, with two months’ cumulation upon the base sentence. On this charge, pursuant to Part 2A of the Sentencing Act, Mr Phillips is sentenced as a serious arson offender.
On Charge 2 on the same indictment, the attempted arson at 72 Primrose Street, the sentence is six months’ imprisonment, with a further two months’ cumulation upon the base sentence. On this charge, pursuant to Part 2A of the Sentencing Act, Mr Phillips is sentenced as a serious arson offender.
On Charge 3 on the same indictment, the theft of Mr George’s Ford Escape, the sentence is twelve months’ imprisonment, with a further three months’ cumulation upon the base sentence.
On Charge 2 on indictment C1510274.C, possessing a firearm while prohibited, the sentence is twelve months’ imprisonment, with no cumulation.
On Charge 1 on indictment C1510274.A.1, criminal damage to Mr Williams’s fence, the sentence is eighteen months’ imprisonment, with eight months’ cumulation upon the base sentence.
On Charge 2 on the same indictment, reckless conduct endangering serious injury to Constable Wopsil, the sentence is four years’ imprisonment, with two years’ further cumulation upon the base sentence.
On Charge 3 on the same indictment, recklessly causing injury to Constable Ashmole, the sentence is four years’ imprisonment. This is the base sentence upon which the orders for cumulation have been and will be made.
On Charge 4 on the same indictment, arson of Mr George’s Ford Escape, the sentence is two years’ imprisonment, with nine months’ further cumulation upon the base sentence. On this charge, pursuant to Part 2A of the Sentencing Act, Mr Phillips is sentenced as a serious arson offender.
That makes a total effective sentence of eight years’ imprisonment.
I fix a non-parole period of six years and two months.
Pursuant to s 18 of the Sentencing Act, I declare that 603 days (including today) be reckoned as served under this sentence.
I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Phillips’s pleas of guilty, relative youth and other factors in mitigation, I would have imposed a total effective sentence in the order of ten years’ imprisonment with a non-parole period of eight years and two months.
Pursuant to s 89 of the Sentencing Act, as a result of Mr Phillips’s conviction of theft of Mr George’s Ford Escape, any driver licence or learner permit held by him is cancelled and he is disqualified from obtaining a further one for a period of two years.
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