Regina v Joseph Phillipe

TUESDAY 3 FEBRUARY 2004 REGINA v JOSEPH PHILLIPE Judgment 1 BUDDIN J: The applicant seeks an extension of time within which to apply for leave to appeal against sentences imposed upon him in the District Court. He was committed for sentence to that Court following his pleas of guilty to various offences committed in August and December 2001 respectively. 2 In respect of each of four offences of armed robbery committed in August 2001, the applicant was sentenced to 2 years' imprisonment to commence on 3 October 2002 and to expire on 2 October 2004 with a non-parole period of 12 months to expire on 2 October 2003. All sentences were ordered to be served concurrently. In respect of each of three further offences of armed robbery committed in December 2001, the applicant was sentenced to 3 years' imprisonment to commence on 3 October 2003 and to expire on 2 October 2006, with a non-parole period of 21 months in each case to expire on 2 July 2005. Those sentences were also ordered to be served concurrently with each other. In respect of a further offence of receiving stolen property in December 2001, the applicant was sentenced to a fixed term of 12 months' imprisonment. The overall effective sentence is thus one of 4 years' imprisonment with a non-parole period of 2 years 9 months. 3 As the applicant was 17 at the time of the commission of the offences, he was dealt with in accordance with the provisions of the Children (Criminal Proceedings) Act 1987. Although the sentencing judge dealt with the applicant according to law, Her Honour nevertheless ordered, pursuant to s 19 of that Act, that the applicant should serve his sentences in a detention centre. 4 Each of the offences of armed robbery attracted a maximum penalty of 20 years' imprisonment, whilst the offence of receiving stolen property attracted a maximum penalty of 10 years' imprisonment. 5 The first group of offences in August were committed by the applicant whilst he was in the company of a number of other young males. They occurred within the space of approximately an hour on a Saturday evening. There were three separate incidents. On the first two occasions, there was a single victim, whilst on the third occasion there were two victims. The victim of the first armed robbery was confronted with a 15 centimetre knife and a silver handgun which was pointed at his head and chest by co-offenders of the applicant. During the course of that robbery, the victim was forced to hand over his wallet and a bag which contained various items of his personal property to the three males who robbed him. 6 The victim of the second offence was confronted by four persons. He also had a silver handgun pointed at his temple. Money, a wallet, a backpack and a mobile phone were taken from that victim who was assaulted twice during the course of the incident. 7 During the course of the third incident, in which an estimated 5 or 6 offenders were involved, a silver handgun was again produced and one of the victims was threatened that he would be shot. Another of the offenders was carrying a long wooden stick. A wallet containing $40 was stolen from one of the victims, whilst the other victim had his mobile phone taken. 8 Shortly afterwards, police, who had been called to the scene, observed four men run to a motor vehicle. The vehicle was followed. It was subsequently stopped and five people, including the applicant, were arrested. The applicant was occupying the driver's seat. Police located a silver replica handgun under the driver's seat together with a wooden baton, which was beside the driver's seat. The various items taken in the various robberies were also located in the vehicle. Police also recovered a knife which had been thrown out of the front passenger's window just prior to the vehicle being stopped. 9 The applicant was interviewed that evening in the presence of an adult. He admitted to owning the vehicle and to having driven it during the course of the night in question. He however denied having participated in, or having any knowledge of, the various offences. 10 The second group of offences occurred in December 2001, whilst the applicant was on bail in respect of the first group of offences. That of itself is a significant matter of aggravation. This group of offences was committed over a period of some 15 days. In relation to each of the first two of these offences, the applicant was in the company of a co-offender named James Stanton. On each occasion, Mr Stanton produced a knife with which he threatened a taxi driver. In relation to the first victim, money and a bag containing his Mastercard and driver's license were taken from him. That victim's life was threatened in the event that he reported the incident to the police. The applicant and the co-offender demanded the PIN number to the victim's Mastercard. The victim was able to make good his escape, having provided the offenders with a false PIN number, before any attempt could be made to access his account. 11 The victim of the second of the December robberies was grabbed by the applicant at the same time as the co-offender produced a knife and threatened him. The applicant stole the victim's mobile phone and his wallet which contained various credit cards. The applicant demanded the balance of the victim's account and said to him, "Do not give us the wrong PIN number or we will kill you." The victim was forced into a stolen vehicle and then taken to an ATM machine where he was forced to withdraw $400 from his account. He was then taken to another branch of the bank where he was forced to withdraw a further $200. The applicant forced the victim to then lie on the ground and said to him, "We have your address, phone number and photo of you. If you go to the police or tell anything about this, we will attack you at your home." 12 The third of the December offences occurred when the applicant confronted two employees of a pharmacy who were walking to the bank to deposit the weekend takings. The applicant was in the presence of an unidentified young male who pressed a pistol into the back of the one of the victims. The applicant removed $37,302 in cash from the bank bags which the victims were carrying. 13 Later that evening police searched the applicant's bedroom and recovered the clothing which he had worn during the robbery. They also located a mobile phone and other items of property which were taken from the victim of a robbery which had occurred several days earlier. The applicant subsequently provided a somewhat implausible explanation to the police as to the circumstances in which he had acquired the property. In any event, it was this discovery which gave rise to the charge of receiving stolen property. 14 The following day, the applicant attended Burwood Police Station. He declined to be interviewed and refused to participate in an identification parade. He was released without being charged. He was reinterviewed a fortnight later. He made admissions to having been involved in these offences without making reference to specific details of the offences. By this time, however, his co-offender, Mr. Stanton, had implicated the applicant in the earlier of the two offences which they had committed together. The applicant had also been positively identified by two separate victims of the various offences. There was also fingerprint evidence as well as surveillance footage from a security camera depicting the applicant using one of the victim's stolen credit cards which linked him to these offences. 15 The sentencing judge extensively reviewed the material of a subjective nature which was advanced on the applicant's behalf. There were a number of matters which stood to the applicant's credit and which were taken into account so as to ameliorate the otherwise appropriate sentence. They included:

i. his age at the time of the offences ii. his pleas of guilty which attracted a 20% discount on sentence iii. his expressions of remorse iv. his criminal record which was free of any previous convictions v. his otherwise good character which featured excellent school reports, his commitment to productive work as an apprentice plumber and his highly developed skills as a junior rugby league player. 16 There was also evidence before the Court that the applicant had been adversely affected by his father's behaviour at the time of these offences. His father was not only apparently violent in the family setting but was also an inveterate gambler. These factors had had an unsettling influence upon the applicant at a stage of his life when he was particularly vulnerable. The applicant told the police that he was under the influence of ecstasy at the time of the later offences. 17 The sentencing judge appears to have accepted the submission made on the applicant's behalf that his prospects for rehabilitation were excellent. Not only had he returned to work since committing these offences but he had been attending counselling. He also had the on-going support of his girlfriend who seemed to be a positive influence upon him. Her Honour had specific regard to the principles enunciated in s 6 of the Children (Criminal Proceedings) Act 1987 and to the various authorities which concern their application. Her Honour indicated that the sentences which were imposed reflected the principle often applied in respect of young offenders to the effect that "considerations of punishment and general deterrence may be given less weight in favour of individual treatment aimed at the rehabilitation of the offender". 18 The applicant, who appears unrepresented in this Court, has provided written submissions in support of his application. He has also referred in oral submissions before the court today to those matters which he wished to particularly highlight. The first submission which he advances is that all the sentences should have been ordered to be served concurrently. As has been indicated, the latter group of offences committed at various times in December were ordered to be served concurrently with each other. That in itself demonstrates that a considerable degree of leniency was extended to the applicant. It would however have been contrary to principle and proper sentencing practice to have ordered that the sentences for the December offences also run wholly concurrently with the August offences. These were groups of offences well separated in time, involving different victims, different co-offenders and quite different circumstances. Each of them was in their own right a very serious offence. This submission should be rejected. 19 It is next submitted that manifestly excessive sentences were imposed because insufficient weight was given by the sentencing judge to the applicant's favourable subjective features including his youth, his prior good record, his pleas of guilty and his good prospects for rehabilitation. In R v Henry (1999) 46 NSWLR 346, this Court formulated a guideline judgment in respect of offences of armed robbery. In R v SDM (2002) 51 NSWLR 530, this Court also held that it would be inappropriate to construe the judgment in R v Henry as not applying to a juvenile offender. The features identified in Henry closely mirror those which exist in the present case. In Henry the range of sentence identified as being appropriate was in the order of four to five years' imprisonment for a single offence. The present applicant received a head sentence of only four years in respect of no fewer than seven such offences, many of which were of considerable objective gravity. That fact amply demonstrates the point that, far from being manifestly excessive, the sentences imposed were arrived at precisely because considerable leniency had been extended to the applicant on account of his favourable subjective factors. This submission must also fail. 20 Finally, the applicant submits that he entertains a justifiable sense of grievance by reason of the sentences imposed upon his co-offenders. Although the sentencing judge was at pains to consider this aspect of the matter, senior counsel who appeared on behalf of the applicant during the course of the sentence proceedings correctly conceded that "parity was of limited value" in the present circumstances. The most obvious point of departure was that no other offender stood for sentence in respect of the offences committed both in August and December. Furthermore, some at least of those involved in the August offences only, were dealt with in the Children's Court. One of them was two years younger than the applicant, and not all of them were dealt with in respect of all four offences. The person whose circumstances most closely resembled those of the applicant had provided considerable assistance to the authorities. So far as Mr. Stanton, the applicant's co-offender in respect of two of the offences committed in December was concerned, the sentencing judge imposed a sentence upon the applicant which was, notwithstanding their different circumstances, appropriately commensurate with it. This ground must also fail. 21 I propose the following orders: 1 Grant the applicant an extension of time within which to apply for leave to appeal. 2 Grant leave to appeal. 3 Dismiss the appeal. 22 JAMES J: I agree with the judgment of Buddin J and the orders proposed by his Honour. The effect of those orders is that the appeal is dismissed. **********

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