R v Phillips - [2000] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 292 of 1999

THE QUEEN

ROBERT IAN PHILLIPS

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JUDGES:	PHILLIPS, C.J., BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2000
DATE OF JUDGMENT:	23 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 225

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Criminal law – Appeal against sentence – Relationship between non-parole period and head sentence “less than conventional or orthodox expectations would produce” – No reason given for length of non-parole period - Appeal allowed – Lesser non-parole period fixed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.,	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	In person

PHILLIPS, C.J. (delivering the judgment of the Court):

Robert Ian Phillips, you are aged nearly 46, and in October 1999 you were convicted by a jury in the County Court at Melbourne on one count of indecent assault on a woman and two counts of raping her. The first count was committed by introducing your fingers into her vagina and the second by introducing your penis. The jury acquitted you of another count of making a threat to kill.

These offences were committed at a property at Carrum Downs on 28 September 1997 on a married woman. They carried maximum penalties of ten years, 25 years and 25 years respectively. You admitted some 30 prior convictions from 13 court appearances between 1973 and 1988. These included street offences, various assaults including some on the police and including an assault by kicking and two charges of burglary and two of theft in 1988 for which you received a wholly suspended sentence of six months' imprisonment. You had no prior convictions for sexual offences on women.

After hearing a plea for leniency in which a former employer was called on your behalf, the judge sentenced you to be imprisoned for two years and six months for the indecent assault, five years for the digital rape and six years for the rape with your penis. His Honour ordered that nine months of the first sentence and one year of the second be served cumulatively upon each other and the sentence on the third, making for a total effective sentence of seven years and nine months. He fixed a non-parole period of six years.

You later lodged notice of application for leave to appeal against conviction, which you have abandoned, and notice of application for leave to appeal against sentence, wherein you pleaded the following grounds:

"1.That in all the circumstances the sentence is manifestly excessive.
2.That the judge ought not to have ordered cumulation as he did."

Sunday 28 September 1997 found you at the house of a friend in Carrum Downs. You were staying for the weekend. Other people were present and a deal of beer was consumed. By the early evening, as the judge found, you and some of the other men were drunk or substantially so. The judge also found your victim was not drunk but was seated with you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Phillips

Details

AGLC: R v Phillips [2000] VSCA 225
Case: [2000] VSCA 225
Decision Date: 23 November 2000

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against the sentence imposed by the Supreme Court of Queensland. The respondent, Mr Phillips, had been convicted of various criminal offences, including dangerous driving occasioning death. The central issue in this appeal was the determination of the appropriate non-parole period for the head sentence, which was held to be less than what would be expected under conventional or orthodox circumstances. The respondent argued that the original non-parole period was excessive and that the sentencing judge had not adequately justified the length of the non-parole period. The appeal court was required to decide whether the original sentence was manifestly excessive and, if so, to what extent it should be altered.

The court examined the principles guiding the determination of non-parole periods, particularly the need for consistency with conventional or orthodox expectations. The court found that the original sentence did not align with these expectations and that the sentencing judge had not provided a sufficient rationale for the length of the non-parole period. The appeal court held that the original sentence was manifestly excessive and that the non-parole period should be reduced to better reflect conventional sentencing practices. The court considered the gravity of the offence and the need for general and specific deterrence but ultimately concluded that a lesser non-parole period was warranted.

In light of the above findings, the appeal was allowed, and the non-parole period for the head sentence was fixed at a lower term. The court provided detailed reasoning for the reduction, ensuring that the new sentence remained within the bounds of conventional expectations while still addressing the objectives of sentencing. The court's decision underscored the importance of clear justification for non-parole periods and the need for alignment with orthodox sentencing principles.

Orders