R v Phillips [2010] VSC 359

3 At the time of your fatal assault on your father you were under the influence of alcohol and, at least, illegally obtained prescription medication.

4 You are now 37 years of age. You have a history of substance abuse which begins before you were even a teenager. You have abused alcohol, cannabis, amphetamines, prescription drugs, and, for certain periods of your life, magic mushrooms and heroin, and you did for a period engage in chemical sniffing.

5 The prior convictions I have referred to concerning your father are not your only convictions for offences of violence. You also have prior convictions for intentionally or recklessly causing injury in 1994 for which you received a suspended sentence, for intentionally or recklessly causing injury in 1997 for which you were sentenced to 4 months' imprisonment, assault with a weapon and other offences in 1997 for which you were sentenced to 2 months' imprisonment, robbery and other offences in 1999 for which you were sentenced to 2 months' imprisonment, and recklessly causing injury and other offences in 2006 for which you were sentenced to 2 years' imprisonment with a non-parole period of 12 months. You have many prior convictions for breach of intervention orders. You have prior convictions for making threats to kill. You have prior convictions for criminal damage and for resisting police.

6 After murdering your father you proceeded to smash windows and damage the letterbox of his home. You then walked into a shop located on the opposite side of the street and demanded that an ambulance be called because your father had been stabbed. While in this shop you threw an object at the shopkeeper and damaged other property. You entered the shop next-door and stole alcohol, smashing some of the bottles in the street. You then walked to the homes of three friends in the area, telling the third that you thought you had killed your father. That friend took you to Frankston Police Station where you surrendered yourself. You were too intoxicated to be interviewed at any length that day.

7 What you eventually told police was that you were upset by the way your father and your brother Clifford had behaved towards you earlier that day over your father's impending sale of his house, where you were living at the time. You told police that you were under the influence of drugs and alcohol when you attacked your father and that while attacking him you were recalling childhood beatings he had inflicted upon you and violence he had directed towards your mother.

8 I heard a plea on your behalf on 13 August 2010 and reports from psychiatrist Dr Danny Sullivan and psychologist Ms Carla Lechner were tendered. I have had regard to those reports. Those reports record you describing an unhappy childhood characterised by alcohol abuse and violence by your father directed at you and your mother. The reports describe your drug and alcohol abuse beginning at the age of 12, and the difficulties you had at school. You ceased attending school half way through Year 11. The reports describe your intermittent work history. You were last employed about five years ago.

9 Dr Sullivan concludes that you have significant problems with polysubstance abuse or dependence. He says there is no clear history of psychotic illness, mood disorder or significant cognitive impairment. There is evidence of personality disorder. Dr Sullivan's opinion is that the murder of your father was "causally associated" with your intoxication and personality vulnerabilities. He says you told him you had drunk alcohol, smoked cannabis, injected heroin and morphine, and taken Xanax prior to the fatal attack. Dr Sullivan concludes that with increasing maturity and a protracted period of abstinence your prospects of rehabilitation are "reasonable" and says he does not believe incarceration will be more burdensome for you than others.

10 Ms Lechner records a similar history to that given to Dr Sullivan, expressed in more emphatic terms. She describes you as growing up in a dysfunctional family characterised by chronic domestic violence. She assesses you as performing at a low intellectual level and suggests that it is likely you suffer a degree of brain injury. She considers that you have a significant polysubstance abuse/dependency problem, that you are currently exhibiting symptoms consistent with a diagnosis of clinical depression, and that you have residual symptoms of post traumatic stress disorder related to your childhood.

11 Your mother died in 1997. When your father married your mother she already had three children. One of those children, Richard, was killed in a motor car collision when you were nine. The other two are Ramon, now aged 52, and Robyn, now aged 51. Your parents had one other child together, your brother Clifford who is now aged 43.

12 Ramon, Robyn and Clifford have each made victim impact statements, as have their children Richard, Shanon, Ryan, Sinead, Mitchell, Flynn, Simone and Wayden. Those statements present a very different picture of your father to that which you presented to Dr Sullivan and Ms Lechner. They portray him as a kind and generous man, who was never violent, and who was a loving and much loved father and grandfather. Excerpts from each of those statements were read out by the prosecutor on the plea. I will not repeat that exercise. I have read and re-read those statements. They make compelling and moving reading. The children and grandchildren of the deceased can feel confident that I have heard what they have said.

13 I cannot determine the truth about your childhood, and it is true, as was submitted on your behalf, that very different experiences can occur within the one family. Some things are clear, however. The first is that whatever your experiences may have been as a child, your father went to extraordinary lengths to assist you as an adult. He took you in when you were released from jail notwithstanding your repeated relapses into drug abuse and violent offending and notwithstanding your numerous violent attacks upon him. The second is that your violent history is not confined to attacks on your father. Others, and it seems from what I was told on your plea particularly women you have formed relationships with, have also been your victims. Finally, drug and alcohol abuse is a very significant cause of your violence and this has been the case for many years.

14 Dr Sullivan records that you have done many programs in prison, including drug and alcohol programs and a high intensity violence program. I have considered whether I should conclude that your intoxication on the fatal day is an aggravating feature of this offence.[1] I do not consider that on the material I have I can reach factual findings beyond reasonable doubt which would enable me to reach that conclusion.

15 In the circumstances here your intoxication on the fatal day cannot be treated as a mitigating feature, and your counsel on the plea expressly disavowed intoxication as a mitigating feature.

16 The matters which were put in mitigation were your plea of guilty, which was proffered as soon as the issue of mental impairment had been addressed and excluded by Dr Sullivan, your expressions of remorse and regret soon after the incident and the admissions you made from the outset, the absence of pre-meditation or planning, and the burden which your imprisonment will impose on you given your family's rejection of you for what you have done. I accept that all of those matters are to be taken into account in your favour.

17 Your counsel also relied upon the family history you gave to Dr Sullivan and Ms Lechner. I accept that your own experience of your childhood was a very unhappy one and that you turned to drug and alcohol abuse at a young age as a consequence.

18 You are a serious violent offender within the meaning of the Sentencing Act 1991. As such, I must regard protection of the community as the principal purpose for which the sentence is imposed. The prosecution did not seek a disproportionate sentence, and such a sentence is not necessary here.

19 Both general and specific deterrence are important in this case, as is denunciation. The maximum penalty for the offence of murder is life imprisonment. I have had regard to sentencing practices in relation to the offence of murder, as I am bound to do under the Sentencing Act.

20 This was a shockingly violent attack on a basically defenceless old man who had, at least in recent years, shown generosity and indulgence towards you. The attack was the culmination of a history of violence by you towards him. Your past violence had also been directed towards others. Imprisonment has not altered your violent behaviour.

21 You have pleaded guilty, but the significance of that circumstance must be tempered by the fact that once mental impairment was excluded the case against you was overwhelming. I will nevertheless discount your sentence and the non-parole period for your guilty plea.

22 You have shown some remorse but your prospects of rehabilitation are, in my view, not great. There is a pressing need to protect the community from you.

23 For the crime of murder, I sentence you to 23 years' imprisonment and I fix a non-parole period of 19 years. If you had not pleaded guilty I would have sentenced you to 26 years' imprisonment with a non-parole period of 23 years. I declare that the period of pre-sentence detention is 440 days and I direct that the fact that you are sentenced as a serious violent offender be recorded in the records of the Court.

[1] See R v Martin [2007] VSCA 291.