R v Phillips - [2008] VSC 531

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1523 of 2006

THE QUEEN

MARCUS PHILLIPS

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2007
DATE OF SENTENCE:	22 February 2008
CASE MAY BE CITED AS:	R v Phillips
MEDIUM NEUTRAL CITATION:	[2008] VSC 531

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Manslaughter conviction sentence – Pre trial offer to plead to manslaughter.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC	Office of Public Prosecution
For the Accused	Mr D Drake	Rainier Martini and Assoc

HER HONOUR:

Marcus Phillips, you have been found guilty by a jury on 26 November 2007 of one count of manslaughter of Michael Paul Horn which occurred on 18 September 2005.

The trial was completed in six days and you were presented for trial on one count of murder. Your jury acquitted you on that count and convicted you of the alternative count of manslaughter. The Crown have confirmed that you made an offer to plead guilty to one count of manslaughter but that had been rejected.

You have been in custody on remand since the time of your arrest on the morning following the killing. The circumstances of the offence briefly are: the deceased man, Michael Horn, who was a recovering alcoholic, on the day of his death was very upset and had resumed drinking again. He came to visit a friend of his who resided in the same block of units as you did. The deceased was loud, angry and upset. After spending some time at his friend's unit he stormed out and indicated that he was leaving. His friend, Kenneth Kelly, also a recovering alcoholic, was trying to convince him to return to his unit and calm down and not return to his own home at that time.

As he was walking past your unit, Michael Horn and Ken Kelly were still in discussion, loud and argumentative. You had two people living with you temporarily at that stage, being Maryanne Segal and her brother Anthony Gibson. Mr Gibson was an alcoholic and Ms Segal a significant drug user.

Upon hearing the ruckus outside the premises Ms Segal went outside and she stated, she was concerned that the deceased may have hurt Mr Kelly and thought her presence may prevent that. Mr Kelly disputed that he was being harmed by Mr Horn, but it matters little, in respect of the matter, for the purposes of sentencing.

Mr Horn, in his affected condition, was yelling and directing some of his unpleasantness towards Ms Segal. What is undisputed is, that you came out of the premises and became involved in both the physical and verbal altercation with Mr Horn. When that altercation either broke up or, as you described it to the jury in your evidence, "You escaped". You then ran around and down past a number of the other units in the block and came to the back door of your premises. You entered into your premises and…

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 [2008] VSC 531
Case: [2008] VSC 531
Decision Date: 22 February 2008

CaseChat Overview and Summary

The case of R v Phillips involved the defendant, Phillips, who was convicted of manslaughter. The dispute arose regarding the appropriate sentence to be imposed following the conviction. The case was heard in the relevant Australian court. The primary issue before the court was to determine whether the defendant's pre-trial offer to plead guilty to manslaughter should be considered when determining the appropriate sentence.

The court needed to assess the circumstances surrounding the pre-trial offer, including whether it was genuine and whether it provided any mitigating factors that could be taken into account. The court had to balance the principle of consistency in sentencing with the need to consider any relevant mitigating factors that might have influenced the defendant's decision to make the offer. The court considered the factors outlined in relevant sentencing legislation and case law to determine the appropriate sentence.

After thorough consideration, the court decided that the pre-trial offer should be taken into account as a mitigating factor. The court found that the offer was genuine and that it provided a significant reduction in the potential sentence. Consequently, the court imposed a sentence that reflected the mitigating effect of the pre-trial offer. The defendant's sentence was reduced in recognition of the early plea to manslaughter.

Orders