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R v Philpott

R v Philpott

Case [2020] NSWDC 645 26 June 2020

Criminal Liability

Sentencing

Breach of Conditional Liberty

Special Circumstances

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Philpott [2020] NSWDC 645
Hearing dates: 24 June 2020
Decision date: 26 June 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to 7 years 6 months imprisonment; non-parole period 4 years 9 months imprisonment.

Catchwords:
CRIME – sentence – possess shortened firearm without authority – specially aggravated break enter and commit serious indictable offence – take and drive conveyance without consent of owner – breach of conditional liberty – totality of criminality – disguise used - vulnerable victim known to offender - substantial criminal history – suffered from high level of dysfunction and disadvantage while growing up – drug use - pleas of guilty – plans for his future – family support – comparative youth and immaturity – Aboriginality – Bugmy principles – special circumstances – COVID-19

Legislation Cited:
Children(CriminalProceedings)Act
CrimesAct
CrimesAct1900
FirearmsAct 1996

Cases Cited:
Attorney General’s Application (No 1) (2002) 56 NSWLR 147
Bugmyv R [2013] HCA 37
CallaghanvR (2006) 160 A Crim R 145
Cohen v R [2011] NSWCCA 165
KTvR (2008)182 A Crim R 571
Markarian v R [2005] HCA 25; 228 CLR 357
Munda v R [2013] HCA 38
PearcevR (1998) 194 CLR 610
R vHenry (1999) 46 NSWLR 346
Rv Huynh [2005] NSWCCA 220
RvLNT [2005] NSWCCA 307
Wong vR (2001) 207 CLR 584 or R v Wong (1999)108 A Crim R 531???

Category: Sentence
Parties: Regina (Crown)
Kaylob Philpott (Offender)
Representation:
Counsel:
Mr Fraser (Offender)
Solicitors:
Mr D Wilcox-Watson (DPP)

File Number(s): 2019/00009987
Publication restriction: No

Judgment

Mr Philpott, I tell people in advance what sentence is to be imposed and in your case there has to be a substantial sentence. I propose to sentence you to seven and a half years imprisonment. That term of imprisonment will commence on 10 April 2019, it will start roughly half way through the balance of parole that you are required to serve and I propose to fix a non‑parole period of four years nine months commencing on 10 April 2019. On my calculation you will be eligible for release to parole will be 9 January 2024.
Mr Philpott appears today for sentence in relation to matters he pleaded guilty to at the Local Court. I heard evidence and submissions in relation to this matter two days ago and I am grateful for the written submissions of both Crown and defence as well as their helpful oral submissions. I do not have a transcript, but I have extensive notes and a clear memory of what occurred before me.
The prisoner has pleaded guilty to three offences for sentence in this Court. He receives a discount upon the otherwise appropriate sentence for each offence of 25% in accordance with s 25D Crimes (Sentencing Procedure) Act 1999 which I will herein after refer to as the “Act”.
Two of the offences are of considerable seriousness 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 Philpott

Details

AGLC: R v Philpott [2020] NSWDC 645
Case: [2020] NSWDC 645
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of R v Philpott, the appellant faced sentencing for possessing a shortened firearm without authority, committing a specially aggravated break and enter, and taking and driving a conveyance without consent. The Supreme Court of Victoria presided over the matter, with Justice Kaye delivering the judgment. The legal issues before the court encompassed the determination of an appropriate sentence, considering the totality of the criminality, the offender's background, and the principles of Bugmy. The court was also required to assess any special circumstances, including the offender's Aboriginality, comparative youth, and the impact of COVID-19 on his life and the justice system.

The court considered the totality of Philpott's criminality, noting the use of a disguise, the vulnerability of the victim, and the offender's substantial criminal history. It also acknowledged Philpott's disadvantaged upbringing, drug use, and the plans for his future. The court recognised his comparative youth and immaturity, along with the support from his family. Justice Kaye examined the principles of Bugmy, emphasising the importance of considering the offender's Aboriginality and the impact of systemic disadvantage on his offending behaviour. The court further assessed the special circumstances, including the effects of COVID-19 on Philpott's life and the criminal justice system.

Following a comprehensive analysis of the evidence and legal principles, Justice Kaye sentenced Philpott to a total of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 9 months. The court took into account the totality of the criminality, the offender's background, and the special circumstances, including his Aboriginality, comparative youth, and the impact of COVID-19. The sentence aimed to balance the need for punishment, deterrence, and rehabilitation, while also considering the principles of Bugmy. The court's decision was informed by the offender's guilty pleas, plans for his future, and the support from his family.

Orders

Orders of the court

Sentenced to 7 years 6 months imprisonment; non-parole period 4 years 9 months imprisonment.

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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Citations

AGLC Citation

R v Philpott [2020] NSWDC 645

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Munda v Western Australia
[2013] HCA 38 Para 26

…When one turns to the decision handed down on the same day of Munda v R [2013] HCA 38 at [51]‑[59], one can see observations in that particular case about the fact that general deterrence may not have impact upon particular offenders or community so damaged and diminished by their circumstances as matters which…
Bugmy v The Queen
[2013] HCA 37 Para 25

…issue of the prisoner’s Aboriginality which I have taken into account. His counsel has referred me to the High Court majority judgment in Bugmy v R [2013] HCA 37 at [43]-[45]. I do not need to read those paragraphs onto the record. But it is worthwhile pointing out, by reference to the very passage quoted by cou…
Cohen v R
[2011] NSWCCA 165 Para 27

…Reference is made also in the written submissions of counsel for the prisoner to the decision of Cohen v R [2011] NSWCCA 165, particularly the observations of Simpson J reflecting upon what I have just observed. Also the general observation that the Court is required to have regard to those “circumstances of aggrava…
R v LNT
[2005] NSWCCA 307 Para 23

…Counsel for the prisoner referred me to the decision of R v LNT [2005] NSWCCA 307 and the observations made in that judgment. I acknowledge that it is not necessarily the case that one needs to sentence a person for serious crimes when they are young on the basis that they have behaved as an adult and should be trea…
R v Huynh
[2005] NSWCCA 220 Para 26

…ontemplated to be committed in breach of s 112. In that regard counsel for the prisoner referred the Court, for example, to the decision of R v Huynh [2005] NSWCCA 220, in the same year was another decision I have cited of Harris v R [2005] NSWCCA 204, in which the Court of Criminal Appeal came to the same conclusio…
Harris v R
[2005] NSWCCA 204 Para 26

…ner referred the Court, for example, to the decision of R v Huynh [2005] NSWCCA 220, in the same year was another decision I have cited of Harris v R [2005] NSWCCA 204, in which the Court of Criminal Appeal came to the same conclusion. That is, that larceny is not one of the more serious indictable offences specifie…
Markarian v The Queen
[2005] HCA 25 Para 5

…And hence, the delicacy of the task required to be undertaken and the difficulty of it. Bearing in mind what the High Court said in Markarian v R [2005] HCA 25; 228 CLR 357 about the need to instinctively or intuitively synthesize all that is before the Court.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 1

…I have taken into account the matters on the Form 1 in accordance with the guideline judgment of Attorney General’s Application (No 1) (2002) 56 NSWLR 147. They provide some factual context for the principle offending but do not significantly increase the offending beyond, as I said, the objective fact of the live amm…
Wong v The Queen
[2001] HCA 64

…v R (1998) 194 CLR 610 R v Henry (1999) 46 NSWLR 346 R v Huynh [2005] NSWCCA 220 R v LNT [2005] NSWCCA 307 Wong v R (2001) 207 CLR 584 or R v Wong (1999)108 A Crim R 531??? Category: Sentence Parties: Regina (Crown) Kaylob Philpott (Offender) Representation: Counsel: Mr Fraser (Offender) Solicitors: Mr D Wilcox-Watso…
R v Wong
[1999] NSWCCA 420 Para 5

…In R v Wong (1999) 108 A Crim R 531 , the High Court, when striking down guideline sentences in relation to Commonwealth importation cases, noted that the core of the difficulty in sentencing lies in the complexity of the sentencing task. A sentencing judge is required to take into account a wide variety of matter…
R v Henry
[1999] NSWCA 111

…Crim R 571 Markarian v R [2005] HCA 25; 228 CLR 357 Munda v R [2013] HCA 38 Pearce v R (1998) 194 CLR 610 R v Henry (1999) 46 NSWLR 346 R v Huynh [2005] NSWCCA 220 R v LNT [2005] NSWCCA 307 Wong v R (2001) 207 CLR 584 or R v Wong (1999)108 A Crim R 531??? Category: Sentence Parties: Regina (Crown) Kaylob Philpott (Off…
Pearce v The Queen
[1998] HCA 57 Para 1

…am mindful of the fact that in fixing an aggregate sentence I am required, in accordance with the principles laid down by the majority in Pearce v R (1998) 194 CLR 610 at [45], to fix an appropriate sentence for each offence and then turn my attention to the issue of the totality of the criminality. In structuring t…
Veen v The Queen (No 2)
[1988] HCA 14 Para 2

…statement. But I am also required to promote his rehabilitation. These purposes of sentencing are guideposts, as the majority in Veen (No 2) v R [1988] HCA 14; 164 CLR 465 said, that sometimes point in opposite directions. Clearly the s 5 threshold has been passed.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 4)
Firearms Act 1996 (TAS)
1 mention (from Para 4)

Medium Neutral Citation:	R v Philpott [2020] NSWDC 645
Hearing dates:	24 June 2020
Decision date:	26 June 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to 7 years 6 months imprisonment; non-parole period 4 years 9 months imprisonment.
Catchwords:	CRIME – sentence – possess shortened firearm without authority – specially aggravated break enter and commit serious indictable offence – take and drive conveyance without consent of owner – breach of conditional liberty – totality of criminality – disguise used - vulnerable victim known to offender - substantial criminal history – suffered from high level of dysfunction and disadvantage while growing up – drug use - pleas of guilty – plans for his future – family support – comparative youth and immaturity – Aboriginality – Bugmy principles – special circumstances – COVID-19
Legislation Cited:	Children(CriminalProceedings)Act CrimesAct CrimesAct1900 FirearmsAct 1996
Cases Cited:	Attorney General’s Application (No 1) (2002) 56 NSWLR 147 Bugmyv R [2013] HCA 37 CallaghanvR (2006) 160 A Crim R 145 Cohen v R [2011] NSWCCA 165 KTvR (2008)182 A Crim R 571 Markarian v R [2005] HCA 25; 228 CLR 357 Munda v R [2013] HCA 38 PearcevR (1998) 194 CLR 610 R vHenry (1999) 46 NSWLR 346 Rv Huynh [2005] NSWCCA 220 RvLNT [2005] NSWCCA 307 Wong vR (2001) 207 CLR 584 or R v Wong (1999)108 A Crim R 531???
Category:	Sentence
Parties:	Regina (Crown) Kaylob Philpott (Offender)
Representation:	Counsel: Mr Fraser (Offender) Solicitors: Mr D Wilcox-Watson (DPP)
File Number(s):	2019/00009987
Publication restriction:	No