R v Phillips [2008] VSC 531

3 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.

4 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.

5 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.

6 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 initially took possession of a piece of wood, to defend yourself if necessary. If you had stayed in your premises, prepared to defend yourself or call the police if necessary, you would not be before this court today, to be sentenced.

7 However, what you did next was, instead that of remaining in your premises, you left via the front door, went to an area under one of the units that you used as a storage area and removed from that storage area a .22-calibre rifle, which was unregistered, and for which you had no licence.

8 The deceased and Ken Kelly had left the premises by this stage and were walking away from the units on the footpath on the street outside. You then left the area of your unit and walked up to the street area. You had the rifle behind your back as you did so. The next thing that occurred was that you shot the deceased man, in the chest from a distance of approximately 27 metres.

9 In evidence to the jury you said that the deceased man, Michael Horn, had turned around and was facing in your direction, that you had yelled to him to "piss off" and he started running at you. Ken Kelly said, however, that he had caught up with Michael Horn in Campbell Street, near the intersection of Bedford Road, and that they had stopped to talk when they heard a yell, turned around and it was at this point that you shot Michael Horn.

10 The jury clearly rejected that you were acting in self-defence, and equally rejected that you had a murderous intent, but they did accept that your act was an unlawful and dangerous act, that resulted in the death of Michael Horn.

11 There are factors that are relevant to that decision, that weigh in your favour in sentencing, clearly the jury must have accepted, that it was one shot only, that it was from some distance, and that all the other shots in the firearm were, in fact, what was referred to as rat shot, which would not have caused harm in any way similar to a .22 cartridge.

12 After this had occurred, you went back into your premises and thereafter refused to help Ken Kelly when he came seeking assistance for Michael Horn. Ultimately you left, taking the rifle with you hiding it at the premises of a friend, without that friend's knowledge.

13 You then wandered the streets, in a motor vehicle belonging to someone else until you were found early the next morning and arrested.

14 Accordingly, I sentence you on the basis that the firing of the rifle was a clearly unlawful and dangerous act. I do not accept that the deceased man was running towards you in an aggressive manner, but I do accept that when you fired the shot you did not intend to kill or cause really serious injury to the deceased.

15 You are aged 37, having been born on 10 September 1970. You have a number of prior convictions, commencing in June of 1988 and continuing through until 1997. There are a total of 67 offences resulting from 22 court appearances. A large number of those offences indicate, quite clearly, that you have had a drug and alcohol problem. Offences such as possession and use of drugs of dependence, being drunk in public places, exceeding .05, driving whilst disqualified. Equally it is clear that, for a lengthy period, you were consistently involved in dishonesty offences such as thefts, burglaries, theft of motor vehicles and similar. They tend to go hand-in-hand with someone who is abusing drugs.

16 The prior convictions that you have that are significant and of concern to me are the prior convictions that relate to violence. The first one, being armed with an offensive weapon, 12 December 1988 at Ringwood Magistrates' Court. You were fined $200.

17 Secondly, assault in company, 18 July 1991, Ringwood Magistrates' Court for which you received six months Youth Training Centre.

18 Thirdly, causing injury intentionally, 19 March 1992, Kyneton Magistrates' Court for which you were sentenced to 28 days' imprisonment.

19 Finally, reckless conduct endangering life, causing injury intentionally, using a firearm to resist arrest, assaulting a police officer in the lawful execution of duty, 30 June 1994,= at Melbourne Magistrates' Court. You were sentenced to 12 months' imprisonment and nine months' imprisonment, to be served concurrently, together with other orders. That was wholly suspended for 24 months, with the requirement that you attend Odyssey House and for the first six months you had to be an inpatient.

20 In relation to the matter I have just mentioned the final matter, the court was informed that it occurred in the following circumstances. You, then aged 23, had gone out to steal a trailer with an engine on it, and in preparation for that theft, you had stolen a car to enable you to steal the trailer. You were seen by the police and followed by them into a street, which then gave into a dead-end court. You left the car and an officer gave chase, over fences around the area. He caught and tried to restrain you. You were placed under arrest and a struggle ensued. Whilst the struggle was going on, you said to the officer, "I have a knife" and when the constable tried to search you, you then reached for and grabbed his gun, struck him to the head with the firearm, and whilst wrestling over the gun, the chamber opened, bullets fell to the ground, one was still in the breach, which discharged whilst you had possession of the gun. You then ran away, dropping the gun at that time.

21 On any version of events, the taking of a firearm from a police officer and discharging that firearm, ought to have convinced you of the risks and dangers associated with firearms.

22 I note that your offences were earlier in your life, whilst you were much younger and that you have not been prosecuted for any significant further criminal activity, although there has been some minor drug matters. But equally, your admissions as to your involvement in illegal drug usage, indicate that, whilst you have not been convicted of matters for a long time, you have not become, as yet, a citizen in full compliance with the law of this country. Equally, though, I do take into account that you have been able to support your drug usage by means other than the normal means, which is criminal activity. In this case, you have been able to afford it.

23 There are three victim impact statements that have been tendered to the court. Ken Kelly, the friend of the deceased, who was with him at the time he was killed, and one from the daughter and the son of the deceased. The letter attached to Ben Horn's was signed, on his behalf, by his sister Julia as Ben was away on "schoolies" at the time it was required, to be signed. I accept that it has been written on his behalf and with his consent. I want to say that both of his children showed great restraint in what they wrote in respect of their father.

24 They were letters indicating their quite genuine love and affection for him and what he did with them and for them, rather than any vindictive diatribe against you.

25 I have no doubt he was a much loved man, both by his family and his friends.

26 The killing also has had a profound effect on Mr Kelly, who would have been described as a relatively fragile person, prior to this incident.

27 The fact that Mr Horn's death was so pointless, so senseless and so avoidable, undoubtedly makes this all the more difficult for them.

28 As I said, I will take into account the contents of those victim impact statements.

29 I also have to consider your personal circumstances. You are, as I said, 37 years of age. You were put up for adoption when only a few months old and adopted by Mr and Mrs Phillips. Your father is now 71, a retired engineer. He now has some health problems relating to his vision. Your mother died when you were 16. You have two siblings, one who is married with two children, a bank clerk who was also adopted by your parents. There is also a natural child of your parents who is, as I understand it, 39, also married with two children.

30 Your siblings and your father attended at court every day of your trial and are incredibly supportive of you. Your former partner attended court to support you also. You are most fortunate to have the support of such decent, caring people. I hope you understand that you are in a remarkably fortunate position to have that. Many people attend court with no-one to support them.

31 Your father remarried quite some time ago and there is a 34 year old step-child. You had a very good relationship with both of your parents and you regarded them as your parents. You have never sought to identify your natural parents as you consider your adoptive parents your only parents.

32 You attended Burwood Heights Primary School. During your years there you were diagnosed with ADD and medicated for it. When you were aged about 10 or 11 your mother was diagnosed with lung cancer, and she was from that point on, in and out of hospital, as she underwent multiple surgeries. She lost one lung and then half of another.

33 It was submitted that from that time you were always frightened she would die and, this placed you under great stress. Because of your youth, on the day your mother died, whilst the eldest siblings went to say goodbye, you did not. You say now, that you regret that you did not get a chance to say goodbye. It appears that it was around the same time that you were informed by some cousins that you were not in fact the natural child of your parents and your maternal grandmother, in her anger and grief about your mother's death, blamed you and the stress of your ADD problems, for her death.

34 You spoke to your father about the adoption and fortunately nothing about being adopted changed the closeness of your relationship with him.

35 At school you were good at sport and basketball, graphics and English. You moved from primary school to Mitcham Technical College but you were not happy there and you ultimately moved to Nunawading High School in Year 8.

36 As your mother's health problems intensified you were spending more time at the home of your uncles. Despite this, I am told that you performed reasonably well at school, ultimately passing Year 10 at age of 16, and at the end of that year your mother had died.

37 You then enrolled in a pre-carpentry course at Holmesglen TAFE. You moved in a with group of youths at the time of the TAFE course, you had a girlfriend and I understand you moved in with her. I do not know if that was part of the group, but certainly at some stage, at an early age, you were living in those conditions.

38 Not surprisingly the TAFE course was never completed. You became involved in drugs and alcohol, commencing with weekend use of marijuana rather than alcohol. Then you progressed from weekend use to daily use, from one gram to three grams, then on to amphetamines, and that continued up until about 1994.

39 I was informed that ultimately you gave that away, because it interfered with your work. But you then became involved in heroin usage. As I indicated earlier, your criminal history tracks alongside such usage of firstly cannabis, then amphetamines, followed by heroin.

40 At the time that you were arrested you were taking methadone and trying to cut back on your use of methadone. At that stage you were still able to work and your habit had decreased, from using heroin seven days a week, to using it three days a week on average, to top up your methadone, however, at the time of this offending, you had people staying with you and you were using, not only methadone, but heroin and ice.

41 You had a lengthy relationship of some 16 years with your ex-girlfriend Alana. You had lived in the unit in Campbell Street for approximately seven years, prior to this offence occurring. Your relationship with Alana had been over for about 18 months. She had moved out and later told you that she had been pregnant, but had lost the child. As I said, Maryanne Segal had moved into the premises, but only on a temporary basis, whilst she sought new accommodation.

42 Your salvation has been, apart from your family, your employment. You have worked for De Fazio Commercial Tilers as a waterproofer for nine years, and in that time you have managed predominantly not to re-offend, with the exception of drink driving offences. It is a job that you have enjoyed and from which, you have been able to earn considerable money, approximately $1,300 a week. This has been what has helped arrest your spiral down into crime, which your earlier drug history would have indicated, with continued drug use, is where you would have ended.

43 You have been able to pay for the drugs that you required with this level of income, and no longer have to be involved in dishonesty offences, to ensure a supply of money. You are very fortunate that your employers, according to the evidence given by your father, are willing to re-employ you when you are released from prison.

44 Your father and your sister gave evidence before me on the plea. They are impressive people. They talked about the continuing family support, that they have given you over the years and the support, that they intend to continue to provide.

45 I have a report from Pamela Matthews, a forensic psychologist, which really confirms the material put on your behalf by counsel. She also confirms that, in her view, you do not suffer from an anti-social personality disorder, but it is clear that you have poor impulse control and that should never be combined with the poly-substance abuse in which you have been indulging.

46 I am informed that since you have been on remand, and particularly in more recent times, you have finally ceased using methadone, which is a substance that you had been on for 13 plus years, whilst at the same time topping up that methadone with illegal substances, such as heroin or ice, as demonstrated in this case.

47 It is a process of time to see whether you will be able to maintain your progress of the cessation of the use of illegal drugs, but that is something for the Parole Board to consider in the future, rather than this court at the present.

48 One can only hope for you, your family and the community at large, that you continue not being involved in substance abuse.

49 As I said, you are exceedingly fortunate to have the support of such a good decent family and friends. I hope, that you will come to appreciate how important such people are in your life.

50 It has been submitted, that you are depressed over the consequences of your wrong-doing and that you may well have been suffering adolescent depression. You also meet the diagnostic criteria for opiate dependence, cannabis dependence and amphetamine abuse.

51 I have no doubt that you are regretful about what has occurred and have a degree of depression, but one would doubt that it would match the depression and sadness that your wrong-doing has caused to others, such as the family and friends of Mr Michael Horn.

52 In relation to this case I have to consider the issue of general and specific deterrence. The community has a right to expect that people will not keep guns in their homes, particularly with a preparedness to use them, if that individual thinks it is appropriate. Our society is rightly intolerant of persons who keep loaded guns in their premises, for precisely the reasons that have caused you to end up being convicted for the manslaughter of Mr Michael Horn. If you had had no access to a gun, if there was not one there, then this offence may well not have occurred.

53 It is important that the message is clear: it is not permissible to keep firearms at your premises, or to use them in a dangerous manner.

54 Thus I consider the issue of general deterrence has some significance in this case.

55 Whilst I accept that you are remorseful of this matter, you have a prior conviction relating to your use of a gun carried by a police officer and other convictions for violence, and that must be weighed in the issue of specific deterrence.

56 If you maintain your lifestyle drug-free, then you have a very good chance of your rehabilitation being successful, with the support of your family and your employer. As I said, it is a matter for you, but I do think that the issue of personal deterrence has a part to play in your sentencing process and I will take that into account when imposing sentence.

57 Whilst, as I said, I have to consider you and your future, I equally have to remember Mr Horn and his life, that was so carelessly and needlessly, taken from him and his family. I have to consider those matters, together with a number of other matters, to which I have earlier referred, such as your prior convictions, the circumstances surrounding the killing and things of that nature. Consideration must also be given to the community's need and right to ensure that the sentence imposed, is a sentence, that reflects the gravity of the crime. Above all, I have to impose a sentence that is just and appropriate, in all of the circumstances.

58 It has been submitted that your crime falls within the lowest level of the crime of manslaughter. I do not agree. I believe that it falls in what may be described as , the middle category, but towards the lower end of that category. The maximum penalty for the offence of manslaughter is 20 years and I bear that in mind when imposing an appropriate sentence in your case.

59 In imposing the sentence that I do, I wish to make it clear that I am acceding to your counsel's submission, that I should give you the benefit of the offer of a plea to the crime of manslaughter, prior to the trial.

60 Accordingly, I order that in respect of the manslaughter of Michael Horn you are convicted and sentenced to be imprisoned for a period of 6 years.

61 I direct that you are to serve a minimum of 4 years before becoming eligible for parole.

62 I declare that you have served 886 days if pre-sentence detention that and that such is to be noted in the records of the court.

63 I have made a disposal order, order for retention of forensic sample and the forfeiture orders previously. I confirm those.