The Queen v Philp [2016] VSC 486

2 Your co-accused, Daniel O'Donnell and Dean Brooks, have also pleaded guilty to the manslaughter of Mr Parker.

3 At the time of the offending, you were 44 years old. You were living in Pakenham in a house that you owned. A number of other persons were staying or living there, including O'Donnell. You were in a relationship with Brooks' mother, Jodie. Brooks was 23 years old, had a partner and two young children, but still spent a lot of time with his mother and, I infer, with you.

4 You were a regular user of cannabis and methamphetamine or 'ice'. You used ice with both Jodie Brooks and Dean Brooks.

5 O'Donnell was a very old friend of yours. He was staying with you in order to help you deal with what he believed to be your alcohol problem. He did not use ice and strongly disapproved of its use. However, he was also regular user of cannabis.

6 The victim, Raymond Parker, had been known to you since around 2007 and to O'Donnell since about 2009.

7 Mr Parker was a long-time cultivator of cannabis. He had been growing cannabis for about 30 years without being detected by authorities. He regularly sold cannabis to you. You told O'Donnell that you were selling three pounds of cannabis a week for Mr Parker, for about $3,000 per pound.

8 Mr Parker was living alone in a large rented house outside of Bayles, a small township approximately 76 kilometres south-east of Melbourne. The house is on a 20 acre block set well back from the road, at the end of a long gravel driveway. The house is a two-storey house with a double garage. All of the habitable areas, including the kitchen, dining room, lounge room, the five bedrooms and bathrooms were on the upper level. The ground floor rooms were largely unfurnished as Mr Parker used the ground floor to grow cannabis hydroponically.

9 Mr Parker had moved to the Bayles address in 2009. Prior to that, he had cultivated cannabis from another house in Narre Warren.

10 You had been to the Bayles address on at least 20 occasions to take delivery of cannabis or to assist in the manicuring of cannabis plants. You had assisted Mr Parker to bypass the electrical mains for his hydroponic set-up. Mr Parker referred to you as 'the Electrician'.

11 You believed that Mr Parker kept large amounts of cash at the Bayles address and you often talked about this to others.

12 A man named Martin Tunstall rented a room at your house in Pakenham from early 2014. In June 2014, you took him to the Bayles address, where Mr Parker showed him the cannabis crop. You and Tunstall returned to the Bayles address a month later to manicure the cannabis plants. Tunstall told the police that you believed Mr Parker had $250,000 in cash buried at the Bayles address and that you were 'hell bent' on finding it. When Mr Parker asked Tunstall to travel to South Australia with him to install a jetty and pontoon at his holiday home, you told Tunstall that Mr Parker would be taking $40,000 with him in cash and you urged Tunstall to find it. You also told Tunstall that while Mr Parker was away, you were going to search the Bayles address for hidden money. You phoned Tunstall regularly while he was away with Mr Parker wanting to know if he had located Mr Parker's money.

13 Both you and Tunstall used ice and were constantly concerned about money. Tunstall had not being paying his rent. You suggested 'roughing up' or 'slapping around' Mr Parker to get the money you believed he had 'stashed' at the Bayles property. O'Donnell made it clear to you that he did not want any part of that as he had been given a lengthy gaol term for aggravated burglary years earlier and he was not interested in going back to gaol for assaulting Mr Parker.

14 In September and October 2014, you and O'Donnell went to the Bayles address in Mr Parker's absence with a view to stealing cannabis and money. On the first occasion, in September 2014, you and O'Donnell broke into the house together but ascertained that the cannabis crop was too young to steal. You took a look around the house but did not take anything. On the second occasion, in October 2014, you informed O'Donnell that you were meeting with Mr Parker in Pakenham and told him to go to the Bayles address while Mr Parker was with you to steal cannabis and money. O'Donnell went to the Bayles address alone while you met with Mr Parker. On that occasion, O'Donnell succeeded in stealing approximately $7,400 and five pounds of cannabis that he found on the property. This was divided between you and O'Donnell.

15 On the evening of 6 January 2015, you, Brooks and O'Donnell went to the Cardinia Club, returning home at around 9.00pm. O'Donnell went to bed. In the early hours of the morning, you knocked on O'Donnell's door and suggested going to 'Ray's', being the Bayles address. Before leaving, O'Donnell observed you and Brooks smoking ice with Brooks' mother, Jodie. You, Brooks and O'Donnell then drove to the Bayles address intending to steal money, valuables and cannabis from Mr Parker. You believed that Mr Parker would not report matters to the police because that would expose his own illegal activities.

16 On the way to the Bayles address, you told Brooks that if Mr Parker was there, 'it would be good to give him a bit of shake, rattle and roll'.

17 When you arrived at the front gate of the Bayles address, you told Brooks and O'Donnell to go in, while you waited a minute or two before bringing the car up the driveway. When O'Donnell asked you why, you said, 'In case Ray's there'. This was the first O'Donnell knew of the possibility that Mr Parker would be at home.

18 Brooks jumped out of the car as soon as it stopped and headed up the driveway. You told O'Donnell to go with him, and he did. Brooks entered the house first through the open garage door and started to go up the stairs. O'Donnell followed. When they got to the top of the stairs, they heard a voice say, 'Who's there? Who's that in my house?'. Instead of retreating, Brooks and O'Donnell went in the direction of the voice. They were both now well aware that Mr Parker was at home and must have known that some form of assault would be necessary in order to subdue him.

19 Mr Parker's bedroom was in complete darkness when Brooks and O'Donnell entered. O'Donnell says that he bumped into Mr Parker, pushed him and could hear Brooks to his right going at Mr Parker, who fell to the ground. O'Donnell could hear a lot of shuffling and movement and believed from the sounds that were being made that Brooks was kicking Mr Parker.

20 At this point, O'Donnell left the bedroom because he had been cut on the hand. He went into the lounge area, where there was some light. He could hear Brooks yelling and lots of commotion coming from the bedroom. He says that he yelled out to Brooks to stop, but realised that, given the distance between him and the commotion in the bedroom, Brooks would not have heard him.

21 O'Donnell rang you to find out where you were and to ask you to intervene. He found you sitting outside downstairs, smoking a cigarette. Brooks could be heard thrashing around upstairs and O'Donnell told you to go upstairs and stop him, as things were getting out of hand. As you went upstairs, O'Donnell could hear Brooks yelling, 'Where's the fucking money?' and 'Tell me where it is'.

22 You did not intervene. O'Donnell went upstairs and found you sitting on a dining chair close to the entrance to Mr Parker's bedroom, but out of sight of Brooks and Mr Parker. The light was now on in the bedroom.

23 O'Donnell entered the bedroom and saw that Brooks had a knife in his hand, and that Mr Parker was lying on the floor with a large cut on his arm. Brooks was tying a cord around Mr Parker's neck and yelling at him. O'Donnell told Brooks to stop, but Brooks took no notice. O'Donnell left the bedroom to speak to you, but you ignored him as well. O'Donnell returned to the bedroom and confronted Brooks, who let go of Mr Parker. Brooks then went out into the lounge room and slashed the bottom of a chair before returning to the bedroom and yelling at Mr Parker again. O'Donnell again told you to stop Brooks. This time, you called to Brooks to come out and he did.

25 Mr Parker was found dead in his bedroom a week later, on 13 January 2015, by a friend who had been asked to check on him. He was face-down on the floor at the foot of the bed and all but naked. Bruising and lividity marks were present on his side, back, left arm, face and neck. A length of yellow rope was tied to the bedhead, and smears and drops of what appeared to be blood were found on the walls, floor, bedding and on medication in the master bedroom. The contents of the house had been turned upside down, with drawers removed from cabinets, furniture overturned, the under-side of a couch cut open and the cistern lids removed from the toilets. Fingerprints were found throughout the house, including an impression in blood on the right hand side door of the vanity in the master bedroom en suite which belonged to Brooks. Blood was found in the lounge room belonging to O'Donnell.

26 Following a post-mortem carried out on the following day, the cause of Mr Parker's death was identified as 'Complications of chest injuries in the setting of ischaemic heart disease'. The post-mortem revealed multiple blunt force injuries to Mr Parker's head, upper limbs, torso, back and lower limbs, resulting in extensive subcutaneous haemorrhage and multiple fractures. At least ten separate impacts to his body were identified, along with a sharp force injury to his upper arm. Mr Parker also had significant natural heart disease and cirrhosis of the liver.

27 Three days after the assault on Mr Parker, on 9 January 2015, you approached an associate, John Smith, telling him you had credit cards and a laptop belonging to 'some old bloke who grows a bit of weed', and asking him what could be done with the cards. You told him you had sent your boys 'to see the old bloke to rough him up a bit and get his wallet and laptop'. You told him that the old guy lived on a property in Cardinia, that the laptop was encrypted and that you believed he had $300,000 in an account. You offered to split the proceeds of the cards and the computer. The following day, you went to Smith's address and gave him credit cards belonging to Mr Parker, a battery from an Asus brand laptop, Mr Parker's Victorian driver licence, a Westpac withdrawal slip showing a balance of $34,000 and a Medicare card.

28 On 26 January 2015, CCTV images of Smith's associates using Mr Parker's credit cards at various petrol stations were released to the media.

29 Brooks and O'Donnell were arrested on 22 February and 25 February 2015, respectively. You were arrested on 4 March 2015 at your home in Pakenham. When you were interviewed by police you denied knowing anything about Mr Parker's death. You told police that you owed Mr Parker $5,000 for a car that you had bought from him and that you sometimes bought cannabis from him. You were charged with the murder of Mr Parker and remanded in custody.

30 On 7 March 2015, you provided a signed statement to the police in relation to the circumstances surrounding the death of Mr Parker, which included the acknowledgment that you went to the Bayles address with O'Donnell and Brooks on the night in question. You stated that you had agreed that all of you would go to the Bayles address to get 'pot'. However, you stated that you dropped O'Donnell and Brooks at the gate and then went and parked near the Bayles general store and waited for them there for ten to fifteen minutes. You called O'Donnell a couple of times, but there was no answer. When you drove back to the Bayles address, O'Donnell and Brooks were near the front porch and they were hysterical and erratic. They threw some stuff into the car. O'Donnell was going off his head, saying that Brooks was 'fucking crazy'. You saw that O'Donnell had injured his thumb and that there was blood on Brooks' clothing. O'Donnell wanted to kill Brooks, and you were trying to 'save Brooks' arse'. They assured you that Mr Parker was 'okay'. You later found out from the news that Mr Parker was dead and you thought it was a police set-up. You regretted not going back to check on Mr Parker.

31 You indicated at an early stage a willingness to plead to a charge of manslaughter, but based on the factual premise that you were not in the house at the time Mr Parker was assaulted.

32 You have now pleaded guilty to manslaughter on the factual basis outlined in the Prosecution Opening.

33 The objective seriousness of your offending must be assessed in the following context.

34 You were complicit in a serious assault on a frail old man. The assault on Mr Parker was vicious and protracted. Brooks carried a knife and used it on Mr Parker. He cut Mr Parker with the knife, and tied a rope around Mr Parker's neck. Mr Parker suffered multiple fractures and extensive bruising in the attack.

35 The assault took place in Mr Parker's own home, in the dead of night. He was alone and there were three of you. He was near naked and extremely vulnerable. It must have been a terrifying experience for him.

36 Your counsel submitted that the physical assault that took place was very much the action of Brooks and that it went way beyond what was ever contemplated by you. He told the Court that you did not appreciate of the extent of the assault that was taking place and submitted that it was not able to be determined whether you were in the house when the significant blows were struck. You were not in the house when the assault commenced, and when O'Donnell told you to go upstairs to stop Brooks, you did not go into the bedroom where the assault was taking place. You remained seated outside the bedroom, out of sight of Brooks and Mr Parker. Your counsel submitted that there was no evidence that you knew Brooks had a knife or that he used it.

37 Although you were not present in the bedroom at any time during the assault, you must have appreciated that a serious assault was taking place in the bedroom. The assault went on for some time when you were in the house; it involved an elderly man being assaulted by a fit young man who was high on ice and who wanted the victim to reveal the location of a secret stash of money; there was lots of yelling and thrashing about or, as O'Donnell described it, 'commotion'. O'Donnell told you that things were getting out of hand and demanded repeatedly that you to stop Brooks. Even if you did not know Brooks had a knife or that he was using a rope to tie up Mr Parker, you knew enough to reach the inevitable conclusion that Mr Parker was at risk of being seriously harmed by a young man, high on ice, who you had set upon him and that he was not able to be controlled by your co-offender, O'Donnell.

38 I am satisfied beyond reasonable doubt that you knew the assault being carried out on Mr Parker was a ferocious one. Even if you did not see what was going on, you could hear what was happening in the bedroom. O'Donnell's demands that you intervene to stop Brooks could have left you in no doubt that Brooks was doing much more damage than merely engaging in 'a bit of shake, rattle and roll' with Mr Parker.

39 Moreover, although you did not physically assault Mr Parker, I am satisfied beyond reasonable doubt that you instigated the events that culminated in the assault on him and that you implicitly, if not expressly, orchestrated the assault. It was you who planned to rob Mr Parker and search for the money that you believed he had hidden in his house. You were 'hell bent' on finding it. You went to the house on a previous occasion to rob Mr Parker of drugs and money and tried to get both O'Donnell and Tunstall to rob him separately. On the night of the offending, you woke O'Donnell and suggested going to 'Ray's'; before leaving, you shared ice with Brooks that made you both high; and on the way you told him that it would be good to give Mr Parker 'a bit of shake, rattle and roll'. On arrival at the Bayles address, you sent Brooks and O'Donnell into the house, knowing that Mr Parker might be there and would have to be subdued. In effect, you used Brooks, in particular, as an instrument to do your work.

40 You must have known Mr Parker to be seriously injured after the assault, given his age and the intensity of the assault. However, when Brooks finally stopped assaulting him, he was left injured on the floor unattended. You did not call 000 or give him any assistance at all.

41 In my view, this is a serious example of manslaughter. The moral culpability that attaches to such conduct is high.

42 There is little, if anything, in your personal history that reduces your moral culpability. Your personal history is set out in a psychiatric assessment report prepared by Dr Maria Triglia, a consultant psychiatrist with Forensicare, who assessed you by video link to the Melbourne Remand Centre on 27 June 2016. You gave a history to Dr Triglia. You did not give evidence on the plea yourself.

43 Dr Triglia's report records you telling her that you disputed the account of events in the Prosecution Opening and maintaining that you only acted as a driver and did not enter the house on the night in question. However, your counsel told the Court that there must have been a misunderstanding on the part of Dr Triglia. You do not dispute the account of events in the Prosecution Opening.

44 The Crown submitted that none of the history that you gave to Dr Triglia and that was in her report could be relied upon as a consequence.

45 In fact, I have concluded that little turns on the history reported by Dr Triglia. Your family life growing up was unremarkable. There was no significant disadvantage or abuse. Your family supported you and has continued to do so.

46 You attended a number of schools, leaving at the age of 14 to take up an apprenticeship to become an electrician, which you completed four years later. You worked as an electrician for 30 years, mostly as a sub-contractor on building sites. You also worked for BHP and the Australian Navy. Most recently, so your counsel told the Court, you worked for a company called '415 Electrical'. You worked for this company for 12 years up until June 2014, when it went into liquidation. You held a responsible position, and you were in charge of a number of other employees.

47 You told Dr Triglia of three long-term, intimate relationships. You have an 18 year old son with your first ex-partner. The most recent of the three relationships, which produced two further children, ended ten years ago.

48 You have a long history of substance abuse. You told Dr Triglia that you began drinking and using cannabis in your mid-teens. You began using heroin at 20 and used it daily until you were 30. You underwent detoxification and rehabilitation and trialled methadone before getting off heroin at the age of 30.

49 You have a relevant criminal history. It begins in 1989, when you were nearly 19, with an attempted armed robbery for which you received a 12 month suspended sentence. In 1991, you were convicted of a number of relatively minor offences, including possessing and cultivating cannabis. By this stage, on your own account, you were using heroin. In 1995, 1996, 2000 and 2004, you were convicted of theft related matters. In 2006 and 2008, you received suspended sentences for intentionally damaging property and unlawful assault respectively. You also failed to answer bail. By this stage, you were well into your 30s and, again on your account, had ceased to use heroin.

50 Your counsel submitted that despite your 'not unimpressive' criminal history, most offending was not of a serious nature. You had never been in gaol before you were arrested for this offence. However, he conceded that you have a drug history going back quite some time. He submitted that while the picture that might be painted is of a man who has a history of being involved in drugs, and who ultimately gets caught up in a very serious offence, there is also a completely different side to you that is incompatible with this picture. He submitted that if you can stay off and away from drugs, then you can be a useful and responsible member of the community.

51 A neighbour and friend, Mr Lee Clague, gave evidence on your behalf. He said that he got to know you while participating in a housing project organised by the Department of Human Services that provided loans for materials and grouped tradesmen and labourers to build houses for one another. You and Mr Clague worked in a group together. The meetings started about eight years ago and building commenced seven years ago. The houses, 12 of them, took about a year and a half to complete. You were an electrician and he had been a builders' labourer, and you teamed up and worked very well together because of your shared work ethic. The house that was built for you and the house that was built for Mr Clague were in the same neighbourhood and you continued your friendship as neighbours. He said that you had become like family to him. He has three children with severe disabilities, and you have provided him with a lot of support, including, in particular, in relation to the most severely disabled of his children, with whom you have a special bond. Mr Clague said that you were like a father-figure to him. He said that you were always employed and that you had a good work ethic. You were up and gone before the sun got up, and you were always there for your children as well.

52 Mr Clague believed that you started using ice when you became involved with Jodie Brooks. He knew that in the few months prior to your arrest you were using drugs on a regular basis and he noticed that you were showing quite disturbing signs. He and his partner were worried about you and made efforts to call some of your close friends to try to get help, as you were seeing strange numbers in rocks and you were getting quite upset about it. He also knew that you were not sleeping.

53 Ms Wendy Adhofer, your former partner and the mother of your two youngest children, also gave character evidence on your behalf.

54 Ms Adhofer told the Court that she had known you for 13 years and that you had lived as husband and wife for a period of time. You separated ten years ago. You have two children together, now aged 11 and 12. I infer that you only lived together as husband and wife for a short period of time and that your children were very young when you separated.

55 However, Ms Adhofer told the Court that you continued to support her emotionally, and that this support had enabled her to study and to be involved in activities other than parenting. She said you had been a good father.

56 When asked whether she was aware of your drug habit, she said, 'We received knowledge from Garren, and I guess it was a cry for help. I wasn't able to provide Garren with enough support. I wasn't educated. I did seek help'. She said she advised you to go into rehabilitation. A few months before your offending, she told you that she and the children would stay away to reduce the pressure on you so that you could focus on your health. She said that she believed that you did try to get into rehabilitation several times. According to Ms Adhofer, you made the wrong choice, but she did not believe you were in the right state of mind to be making any choices.

57 Lastly, your sister, Ms Lisa Ann Philp, told the Court that you can live with her when you are released from prison and that she will supervise you. She stated that she hates drugs and that she will supervise you closely. She said that you were not proud of what you had done and you knew that you had let the family down. However, you have all the support that you need from your family and they will do anything to help you. She confirmed that you have always been a hard worker, even from a young age. You had done very well in your job and you were proud of what you could be.

58 In cross-examination, Ms Philp said that she had heard something about your drug use, but that she did not speak to you about it prior to matters coming to a head. She said that she was not aware of the extent of your drug use.

59 Each of these witnesses endeavoured to paint a picture of you as an honest, hard- working and compassionate man who went off the rails essentially when he started using 'ice' in the months leading up to the offending. Your counsel pointed to the loss of your employment in June 2014 as the moment when things started to go seriously wrong for you. Your relationship with Jodie Brooks was also identified as a reason for your decline, as it was associated with your use of ice.

60 I accept that things went very badly for you in the second half of 2014, that your use of drugs ran out of control and, indeed, that you suffered psychotic symptoms associated with the use of drugs, in particular, methamphetamine. You were unstable and your judgement was affected. I also accept that your employment history was strong up until then. However, your criminal history, as well as your personal history as reported to Dr Triglia, makes it clear that you had long-standing and very serious issues with substance abuse. Well before you encountered 'ice', you had a long period of heroin addiction and you continue to take methadone. You have also been a prolific user of cannabis. Your relationship with Mr Parker went back to 2007, and he used you to sell his drugs as well as to set up his illegal hydroponic operation.

61 These are hardly the activities of an upstanding member of the community. It is consistent with you having a criminal history covering a lot of your adult life.

62 Your personal circumstances, including your criminal history, are relevant to your prospects of rehabilitation and the extent to which specific deterrence must play a part in your sentence.

63 Your counsel also submitted that your prospects of rehabilitation are strengthened by your work history and the strong family support that you enjoy. I accept that you have a solid work history, which enhances your prospects of rehabilitation. You have a valuable qualification that should assist you to obtain employment upon release. I also accept that you have good family support and the steady support of friends such as Mr Clague, although I observe that this support has not stopped you from getting into trouble with drugs and petty crime in the past.

64 As is common in these situations, you prospects of rehabilitation depend on your ability to stay off drugs, both in gaol and upon release. According to Dr Triglia, you should be given the opportunity to participate in substance abuse treatment, specifically addressing relapse prevention. You will also need what she describes as 'assertive' community follow up once you are released.

65 As to remorse, Dr Triglia reported that you think every day about how sorry you are that the offence occurred. You also think about the things you have lost since the offence, including your house and all your possessions. You now have nothing to show for 30 years of work. You have lost access to your children, and they have been hurt by your being taken into custody.

66 I accept that you are remorseful. I consider that this to be a positive sign for your prospects of rehabilitation.

67 Overall, I consider you prospects of rehabilitation to be fair.

68 Your plea of guilty is also relevant to your prospects of rehabilitation.

69 You offered to plead guilty to manslaughter at an early stage. However, that offer was made on the basis that you did not enter Mr Parker's house at all and that you merely dropped off O'Donnell and Brooks so they could get some 'pot'. You told the police, in effect, that you were nowhere near the assault on Mr Parker and that you did not know it was taking place. You now concede that you were in the house at the time, that you had previously suggested to Brooks that Mr Parker should be subjected to 'some shake, rattle and roll', and that O'Donnell repeatedly asked you to call off Brooks, and you did not.

70 Nonetheless, I give your plea its full weight for its utilitarian value, as well as for the expression of remorse that it demonstrates. Your plea saves the community the expense and the family the ordeal of a trial.

71 I turn now to the impact of your offending upon victims.

72 The prosecution filed victim impact statements from Mr Parker's five adult children and from his friend Trevor Wilson. It is clear that Mr Parker was a much loved father and friend. The manner of Mr Parker's death has shocked and traumatised his friends and family.

73 I have had regard to the victim impact statements in sentencing you.

74 The offence of manslaughter carries a maximum penalty of 20 years' imprisonment. This recognises that killing a person strikes at the sanctity of life, which is a core value in our community.

75 Manslaughter throws up a great variety of circumstances concerning culpability. In sentencing you, I must have regard to the nature and gravity of the offence, and to your culpability and degree of responsibility.

76 I have found your offending to be a serious example of manslaughter. Your moral culpability is high. Just punishment, denunciation of your conduct and general and specific deterrence are important sentencing considerations in this case.

77 I have had regard to your prospects of rehabilitation, including the family support that you enjoy and the prospect that you will again be gainfully employed when you are released. I have also had regard to your plea of guilty.

79 You have pleaded guilty to killing Raymond Parker. You stand convicted of manslaughter.

80 Balancing the relevant factors as best I can, and having regard to current sentencing practices, I sentence you to a term of imprisonment of nine years for the manslaughter of Raymond Parker. I fix a non-parole period of six years.

81 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 11 years, with a non-parole period of eight years.

82 I declare that you have served 532 days by way of pre-sentence detention, up to but not including today.