DPP v Phillips [2018] VCC 210 (2 March 2018)

Last Updated: 18 May 2018

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -16-02149

DIRECTOR OF PUBLIC PROSECUTIONS
v
HAYDYN PHILLIPS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2018
DATE OF SENTENCE:	2 March 2018
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2018] VCC 210

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Fallar	OPP
For the Accused	Mr T Schocker	Stary Norton Halphen

Pages 1 - 9

HIS HONOUR:

Introduction

1. Haydyn Phillips, you have pleaded guilty to one charge of Blackmail contrary to s 87(1) of the Crimes Act 1958 and one charge of Theft contrary to s 74(1) of the Crimes Act 1958. The maximum penalties are 15 years and 10 years imprisonment respectively.
2. You have no prior criminal history.

Circumstances of the offence

3. The prosecution tendered an opening on the plea which may be summarised as follows:
4. In February 2015, the victim in this matter, Christian Van Vegten noticed a Facebook chat room application called ‘Whisper’ which he downloaded onto his mobile phone. Mr Van Vegten began receiving and sending messages to random people. After a couple of weeks he started sending SMS messages to a person called Bianca. Bianca said she was 15 years old. The two exchanged mobile phone numbers however the phone number that Bianca gave Mr Van Vegten was in fact the phone number of the co-accused in this case, Nicholas Milner.
5. Mr Van Vegten asked Bianca for a photo. Mr Milner sent Mr Van Vegten a photo of a girl he had found on the internet having searched for ‘15 year old girl’. Mr Van Vegten sent a picture of his face to Mr Milner. Mr Milner then sent a picture of female genitalia he had found on the internet and Mr Van Vegten sent a picture of his penis. The two continued to exchange salacious messages and ultimately agreed to meet on 20 March 2015.
6. On Friday, 20 March 2015, Mr Van Vegten left his home at about 9.15 pm in his Holden Commodore station wagon. He drove to the McDonald's car park at the corner of Springvale Road and High Street, Glen Waverley. Thinking it might be a set up, he texted Bianca and asked if she was the police. Mr Milner arranged for one of his friends sister to call Mr Van Vegten and pretend to be Bianca. Mr Van Vegten received a call at about 9.45 pm from a young woman who pretended to be Bianca saying that she was leaving work. Mr Van Vegten drove to the Mountain View Hotel across the road and parked in one of the parking bays.
7. Mr Milner, who was driving a blue Honda Accord with you as his passenger, saw Mr Van Vegten's car. Approximately 5 to 10 minutes later you had taken over the driving of the Honda Accord and drove the car in front of Mr Van Vegten's car. Mr Milner got out of the front passenger side of the car and ran towards Mr Van Vegten yelling ‘get the fuck out of the car’. Mr Van Vegten was frightened and got out of his car. Mr Milner walked him towards the back of the car and directed him to put his hands behind his back. Mr Milner proceeded to handcuff Mr Van Vegten. Mr Milner indicated to Mr Van Vegten that you were not police, however he asked Mr Van Vegten why he had been talking to his 15-year-old sister. He then indicated that Mr Van Vegten had in fact been talking to him, that is Mr Milner, and not his sister.
8. Mr Milner took Mr Van Vegten's mobile phone from his pocket and asked for his car keys. You took the car keys. Mr Van Vegten who was still handcuffed, was scared about what you and Mr Milner would do next. Mr Milner asked you to go to the pub and get a piece of paper. When you returned, Mr Milner wrote something on the piece of paper and said to Mr Van Vegten ‘I will make you a deal, we'll take your car and you'll say that we have given you $1200 cash’. Mr Milner then showed him the piece of paper indicating that Mr Van Vegten had sold his car to a certain Louise Milner for $1200 on 19 March 2015.

   Mr Milner said ‘we won't go to the cops if you don't go’. Once Mr Van Vegten agreed to this proposition, Mr Milner removed the handcuffs so that the contract transferring his car could be signed. You looked on as this occurred.

9. Ultimately, Mr Van Vegten left the scene in a taxi that Mr Milner had ordered. Mr Milner then drove Mr Van Vegten's car while you followed in Mr Milner's car.
10. On Monday, 23 March 2015, Mr Milner was arrested driving Mr Van Vegten's car after it had been reported stolen. During the following investigation police attended at Mr Milner's address and located the blue Honda Accord where the handcuffs and keys were located. Police also located the contract that was signed by Mr Van Vegten. Mr Milner was interviewed, essentially made full admissions and provided details in relation to the text messaging and the events in the car park.
11. On 9 June 2015, following further investigation and review of Mr Milner's phone records, the informant in this matter called you and you attended the Oakleigh police station where you were arrested and interviewed. You also provided details as to what occurred on the evening consistent with the facts as they were known.

Objective seriousness of the offence

12. The prosecution put the case against you on the basis that you were complicit with Mr Milner who is properly described as the principal offender. It was put, and I accept that your assistance was instrumental in the successful operation of Mr Milner's plan but that you only knew of the plan on that day. It was also put that the idea to blackmail Mr Van Vegten occurred only after he was handcuffed.
13. Despite the fact that you are not the principal offender, in my view you were an active participant in the plan. You changed driving positions with Mr Milner and drove the car in front of Mr Van Vegten's car presumably in order to block his car and allow Mr Milner to be able to quickly get out of the passenger side of the car and confront Mr Van Vegten. Further, you were active in obtaining a piece of paper from the nearby pub in order to write up the false contract which ultimately was instrumental in obtaining the car and thus the subject of the theft. You also said in your record of interview that you and Mr Milner were going to share the car if one of your cars was unable to be used.
14. Despite the part you did play, in my view, while the offence may be viewed as a serious one, your limited role makes you much less culpable than Mr Milner. In fact Mr Van Vegten stated at the committal in relation to your role that

    ‘whilst this was all happening the thinner guy just stood there and watched what was going on’.

15. Notwithstanding the fact that the victim in this matter was himself committing offences for which he was ultimately charged and pleaded guilty to, your actions together with Mr Milner still constitute the serious offence of blackmail. It would have been a frightening experience for the victim to see you and Mr Milner pull up in front of his car followed by the aggressive approach by Mr Milner and then ultimately, being handcuffed and forced to give up his car.
16. Blackmail can take many forms and while this is not a case where for example the threat or ‘menace’ was an ongoing one, it still had the typical nasty aspect of a threat to expose the victim if he did not comply with your demands to hand over his car. This is serious offending however as already noted, your specific role was that of an assistant to the principal offender Mr Milner and, as such your moral culpability is lower.

Personal circumstances

17. You are now 22 years of age and were 19 at the time of the offence. You had a relatively uneventful childhood and grew up in a supportive household. You completed year 11 and commenced an apprenticeship as a brick layer at age 17. You completed that apprenticeship and you have been qualified now for about two years. You currently live with a housemate in Armstrong Creek, south of Geelong. You work six days a week and have been in a stable relationship for about a year.
18. You have no medical issues although as a child you suffered from ADHD and when first employed you had a problem with gambling. Both of these issues are in your past and do not present a problem now. Further, they were not in any way linked to the offence.
19. Three references were tendered on your behalf on the plea.

    Cinta Wischmann-Baker, Stephanie Baker (your girlfriend), and Ebon Jake Schoneville all speak of your good character and that your involvement in events such as this is contrary to that good character. Stephanie Baker speaks about you having told her the details of your offending behaviour. You conveyed to her that you have expressed remorse and demonstrated insight in relation to your offending. She states that in her view you have learnt from the incident and understand the seriousness of what occurred. I accept that that is the case.

Matters in mitigation

20. Mr Schocker who appeared on your behalf, highlighted a number of matters in mitigation. The first of these is your plea of guilty. Although your plea could not be considered as an early plea, it facilitates the course of justice as it has saved the expense and time of a trial and the trauma of the witness in having to give evidence before a jury.
21. You cooperated with the police and made admissions in your record of interview in circumstances where the case against you was not particularly strong.
22. It is almost 3 years since the date of the offending which includes a period of approximately 11 months between when the offence occurred and the first filing hearing. You ran a contested committal and the matter was then adjourned for a trial causing significant further delay. I accept that some of the delay is not attributable to you and I take that into account. However, the benefit of the delay demonstrates a further period of time where you have remained trouble-free which is consistent with your history of having had no involvement in the criminal justice system.
23. At 22, you are of course a young offender. More significantly, you were only 19 at the time of the offence. It is well-established that the youth of an offender, particularly a first offender should be a primary consideration for a sentencing court. As such rehabilitation is far more important than general deterrence. Further, there is little need in all the circumstances in this instance for specific deterrence to have any weight in the sentence.
24. You are working full-time and in a stable relationship. You have no prior criminal history and are not struggling with any issues such as alcohol or drug abuse nor do you suffer any mental health issues. As such in my view your prospects of rehabilitation are excellent.

Sentencing considerations

25. Ms Fallar, who appeared on behalf of the DPP submitted that this was serious offending. She submitted that the victim was vulnerable and that the offence occurred in an isolated environment. She highlighted the small excerpt of a video taken by a mobile phone and played in court, that identifies Mr Milner's voice and your voice at the time that the handcuffs had been placed on Mr Van Vegten. She also highlighted the fact that this would have been a frightening experience for the victim. I accept that all of these matters are relevant considerations.
26. Mr Van Vegten completed a victim impact statement which was tendered on the plea. Not surprisingly he says that he has suffered stress, anxiety and insomnia as a result of the crime.
27. General deterrence in the circumstances of this type of offending must be a primary sentencing consideration together with denunciation and just punishment. However, for the reasons mentioned above, you are a young offender and in my view in your specific circumstances and in all the circumstances of your role in the offence, general deterrence need not be given the weight it ordinarily would be given.

Sentence

28. Mr Phillips, please stand.
29. Haydyn Phillips in relation to both charges on the indictment, that is blackmail and theft, you will be convicted and placed on a Community Correction Order. The order will be for a period of two years and you will be required to complete 150 hours of unpaid community work as part of that order.
30. In relation to Charge 2, theft of the motor vehicle, because I have recorded a conviction, pursuant to s 89(4)(b) of the Sentencing Act 1991 I am required to make an order in respect of your licence. As such, you will be disqualified from driving a motor vehicle in Victoria for a period of one month.
31. Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to 14 months imprisonment with a non-parole period of 8 months.