Re Philpott
[2006] TASSC 78
•16 October 2006
[2006] TASSC 78
CITATION: Re Philpott [2006] TASSC 78
PARTIES: PHILPOTT, Troy Matthew, Re
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 187/1994
DELIVERED ON: 16 October 2006
DELIVERED AT: Hobart
HEARING DATE: 6 October 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Other matters – Tasmania – Application to re-sentence life prisoner – Applicability of parity principles.
Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 (Tas), s9.
Re Jamie Lee Smith 34/1998, referred to.
Lowe v R (1984) 154 CLR 606, applied.
Aust Dig Criminal Law [911]
REPRESENTATION:
Counsel:
Applicant: S J N Brown
Respondent: L A Mason
Solicitors:
Applicant: Simon Brown
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 78
Number of paragraphs: 16
Serial No 78/2006
File No 187/1994
RE TROY MATTHEW PHILPOTT
REASONS FOR JUDGMENT UNDERWOOD CJ
16 October 2006
On 2 April 1994, the applicant and one Jamie Smith murdered a 17 year old youth. Smith pleaded guilty. The applicant pleaded not guilty, but after a trial was found guilty. Both were convicted of murder and, in accordance with the law as it then provided, both were sentenced to prison for the term of their natural life.
On 24 April 1998, in accordance with the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 ("the Act"), Cox CJ re-sentenced Smith to imprisonment for the term of his natural life and ordered that he not be eligible for release on parole until the expiration of 15 years from 6 April 1994, the day on which he was taken into custody.
The applicant has now filed an application to be re-sentenced in accordance with the Act. Upon the hearing, I was handed an agreed statement of facts. It reads as follows:
"1On 22nd November 1994, Troy Matthew Philpott, the applicant was sentenced to imprisonment for the term of his natural life for the murder of Wayne Trevor Hodgens.
2On the 2nd April 1994, Jamie Leigh Smith, the applicant and the deceased, Wayne Trevor Hodgens were residing at the Anglicare Shelter in Campbell Street Hobart.
3Earlier on the evening of the 2nd April Smith and the applicant had agreed between them that they would kill Mr Hodgens having known him for only a few days, but having taken a dislike to him because of his general behaviour and attitude.
4Later that evening Smith, the applicant, Wayne Hodgens and two other youths went to St Andrews Park in North Hobart. On route they purchased two casks of wine and some beer. This, along with some marijuana, was consumed at the park.
5During their time at the park the group talked amongst themselves and involved each other in 'play fighting'.
6Later on the other youth's [sic] returned to the Shelter. The applicant, Smith and Mr Hodgens remained at the Park.
7Shortly before 9.30pm Smith and the applicant went to a nearby shop to by some tally-ho papers so that they could roll some cigarettes. Hodgens remained at the park. During the trip to and from the shop Smith and the applicant confirmed their intention to kill Hodgens as he was annoying them by his behaviour.
8Upon their return to the park the applicant grabbed Mr Hodgens by the front of his shirt. Smith produced a knife and attempted to cut the throat of Mr Hodgens using a sawing motion. Smith was unsuccessful and so kicked the wooden arm off a park bench and hit Mr Hodgens over the head with it a number of times. The applicant then used the same piece of wood and struck Mr Hodgens a number of times to the head. The blows had sufficient impact to fracture the skull and cause a severe injury to the brain causing death either immediately or shortly thereafter.
9Smith and the applicant then left Mr Hodgens at the park and returned to the shelter where they packed their bags and check out. They caught a taxi to Kempton where they stayed overnight. The next day Smith and the applicant hitched a ride to Burnie.
10On the 6th April, 1994 Smith and the applicant were located by police at Rocky Cape. They were arrested and taken to Burnie Headquarters.
11On the 26th October, 1994 an indictment was filed jointly charging Smith and the applicant with murder contrary to Section 158 Criminal Code. Smith pleaded guilty to the charge on the eve of the trial. The applicant pleaded not guilty but was found guilty by a jury on 22nd November, 1994.
12The Crown case was presented on the basis that the applicant and Smith were jointly responsible for the killing of Mr Hodgens. That the crime was a premeditated joint enterprise and that the blows were struck to the head of Mr Hodgens with the intention of killing him. (See Section 157(1)(a) Criminal Code)."
The facts upon which the former Chief Justice sentenced Smith are set out in his Honour's reasons for judgment. See Re Jamie Leigh Smith 24/1998. Apart from the fact that when Smith was re-sentenced the learned judge was given an added piece of information that at one stage, the applicant tried to strangle the victim, the factual circumstances surrounding the commission of the crime upon which Smith was re-sentenced are identical to those upon which the applicant is to be re-sentenced.
At the time the crime was committed, Smith was 18 and the applicant 23 years of age. Both then had prior convictions, principally for crimes of dishonesty. Smith had a few more such convictions than the applicant.
As the former Chief Justice noted when re-sentencing Smith, the crime was premeditated, albeit for only a short period, and death was intended. No effort was made to resuscitate the victim or summon help. There was no provocation, other than that the victim's attitude and behaviour towards his killers were not to their liking. There was no remorse. Cox CJ said, at 3:
"It is, of course, possible to imagine worse cases of murder, but this involved a brutal, senseless, unprovoked, premeditated beating to death of a defenceless 17 year old victim, the worse for liquor, by two young men acting in concert. In my opinion it clearly falls within the worst category of this type of crime."
Before concluding his comments on re-sentence, his Honour said, also at 3:
"I have not been given any psychiatric assessment of the applicant. I am at a loss to understand how a youth of 18, even if his sensibilities were blunted by alcohol and/or drugs, could deliberately take the life of another a few months younger than himself for so paltry a reason as that advanced by him. Such irrationality immediately raises concern for others in the community who might cross him upon his release. In my opinion the protection of society requires that if such an offender is released on parole, it should be a conditional release revocable for the rest of his life should he not observe the conditions of his parole."
Counsel for the applicant told me that on 29 March 2006, the applicant had been assessed by a psychiatrist. Curiously, and without explanation, the psychiatrist's written opinion was not made available to me, but I was informed that the following matters had been agreed between counsel for the applicant and counsel for the Crown, namely, the psychiatrist has reached the following conclusions:
(1)The applicant had no psychiatric history prior to the commission of the crime.
(2)At the date of the assessment:
· the applicant's thought processes were normal and intact as to structure and flow; and he
· suffered no thought disorder;
· suffered from no delusions or abnormal thoughts;
· had adequate social judgment;
· had no abnormality of cognition, memory or orientation;
· had no pre-existing personality disorder; and that
· there was no evidence of psychiatric illness at the time of the murder.
Counsel for the applicant submitted that there was a point of distinction between the circumstances surrounding Smith and the circumstances surrounding the applicant. On this re-sentence there was a psychiatric assessment. Upon the re-sentence of Smith, there was no psychiatric assessment. That is factually correct. As I understand counsel's submission, it was that the life sentence was imposed upon Smith because Cox CJ had no psychiatric explanation for the irrational conduct, and therefore the appropriate course was to fix a life sentence so that the Parole Board would have the power to impose a conditional release, revocable if necessary, for the protection of the public, during the rest of Smith's lifetime. The argument ran that in the present case the Court did have a psychiatric assessment which demonstrated that conditional parole revocable during the rest of the applicant's life is not necessary. The submission is rejected.
The applicant's psychiatric assessment provides no clue at all as to why the applicant acted as he did. His conduct was just as irrational as that of his co-offender. There is no evidence that the applicant committed this crime as a result of some mental illness or abnormality. His irrationality was equal to that of Smith. Both murdered a youth for what the former Chief Justice described as a paltry reason. In my opinion that circumstance raises exactly the same concern about the protection of the community as was apparent to Cox CJ at the time he re-sentenced Smith.
I see nothing to distinguish the applicant from his co-offender Smith, except perhaps that Smith had the benefit of a plea of guilty in his favour, although it was not entered until the day the trial was to be begin. It is a well established principle of the criminal justice system that like offenders should be treated alike. See Lowe v R (1984) 154 CLR 606. There is no point of distinction to be drawn between the applicant and Smith for the purpose of imposing sentence and he, too, should be sentenced to life imprisonment.
However, there is another matter. On 4 May 2000, while serving his life sentence, the applicant and another prisoner, Terry Woods, escaped from custody. The two men remained at large for about two and a half months and during that time the applicant committed five aggravated burglaries, one burglary, six crimes of stealing, and one aggravated armed robbery. Upon his recapture, the applicant pleaded guilty to the crime of escape and was sentenced to three years' imprisonment to commence on 24 July 2000. I interpolate that at that time, the applicant had not been convicted of any of the other crimes, and indeed, the learned sentencing judge noted that to his credit the applicant had committed no crimes whilst he was at large. The sentence was reduced on appeal to two years and ordered to be served concurrently with the life sentence of imprisonment that the applicant was still serving. In this respect it may be noted that the Sentencing Act 1997, s15(2), provides, in effect, that a sentence of imprisonment for escape must be served cumulatively on any uncompleted sentence of imprisonment "other than a sentence of life imprisonment". A non-parole period was not set.
On 26 September 2003, I imposed a sentence of 10 years' imprisonment and fixed an eight year non-parole period for five counts of aggravated burglary, one count of burglary, six counts of stealing, and one count of aggravated armed robbery. As the applicant was already in prison for the term of his natural life, that sentence took effect concurrently with the sentence of life imprisonment.
Upon the re-sentencing of a life prisoner, the Act, s9(3), confers on the Court the "same powers and duties as the Court would have had if the applicant had been convicted by that Court of the crime [of murder] after the commencement of this Act". Section 9(4), directs the re-sentencer not to take into account the applicant's conduct as a life prisoner under the original sentence. However, by Act No44/2004, the following was added to that direction:
"… but;
(b)the court may take into account the term of any other sentence of imprisonment that the applicant, since becoming a life prisoner, has been subject to.
(5) If the court exercises its discretion under subsection (4)(b), it may order that the sentence it imposes under subsection (1) is to commence at a date later than the date on which the original sentence was imposed.
(6) Subsection (5) applies despite anything to the contrary in the Sentencing Act 1997."
But for the added provision, the re-sentence of the applicant would have to be backdated to the date he went into custody as the Act, s16, requires the Court to take into account any time spent in custody with respect to the offence, and thus the sentence of ten years' imprisonment imposed on the 26 September 2003 would be served concurrently with the sentence that I am about to impose. In order to apply the provisions of the Act, s9(4) and (5) regard should be had to the following table:
6 April 1994 – 3 May 2000
(6 years - rounded off)
Serving life sentence imposed on 22 November 1994 (backdated to 6 April 1994) 3 May 2000 – 24 July 2000
(at large)
24 July 2000 – 24 July 2002
(2 years)
Serving sentence imposed on 26 September for escape (as varied by the CCA) and life sentence imposed on 22 November 1994. 24 July 2002 – 26 September 2003
(11/2 years – rounded off)
Serving life sentence imposed on 22 November 1994 26 September 2003 – to-date
(3 years – rounded off)
Serving non-parole period of sentence imposed on 26 September 2003 and life sentence imposed on 22 November 1994
It is appropriate that the applicant not be eligible for release on parole until he has served the non-parole period attached to the sentence imposed on 26 September 2003 and the non-parole period that I am about to fix upon the re-sentence for murder. For the reasons I have already given, the sentence for murder should be the same as that imposed upon his co-offender namely, imprisonment for the term of his natural life with a non-parole period of 15 years. With the non-parole period fixed with respect to the sentence imposed on 26 September 2003, the non-parole period should total 23 years, but regard should be hard to the totality principle and that period reduced on that account. Accordingly, the following orders are made upon the application for re-sentence:
·A conviction for murder.
·A sentence for the term of the natural life of the prisoner to commence on 6 April 2000.
·That he not be eligible for release on parole until he has served 15 years of that sentence.
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