Director of Public Prosecutions v Chalklen

[2013] VCC 1960

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01978
CR-13-01587
CR13-01186
CR-13-01862

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT CHALKLEN

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JUDGE:	Grant
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2013, 1 October 2013
DATE OF SENTENCE:	25 October 2013
CASE MAY BE CITED AS:	DPP v. Chalklen
MEDIUM NEUTRAL CITATION:	[2013] VCC 1960

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G. Hayward	OPP
For the Accused	Mr A. Lavery	Ann Valos Criminal Law

HIS HONOUR:

1       Mr Chalklen, you have been found guilty by jury verdict of two charges of attempted armed robbery and one charge of armed robbery on indictment number C10625337B. You have also pleaded guilty to three charges of theft on indictment number C10625337A and to one charge of recklessly cause serious injury on indictment number D10415115.

2 Further, on 30 September 2013 and upon application made by the Crown under s. 243 Criminal Procedure Act 2009, I directed that a contravention of suspended sentence charge be uplifted as an unrelated summary charge, from the Magistrates’ Court to the County Court. You indicated through your counsel that you consented to the matter being dealt with in this court and that you pleaded guilty to the charge. The suspended sentence order was made at the Sunshine Magistrates’ Court on 13 December 2011 for a charge of trafficking in a drug of dependence. You were sentenced to four months' imprisonment wholly suspended for 12 months. All offences on the three indictments before this court were committed during the operational period of the suspended sentence order. Contravention of a suspended sentence is a discrete charge carrying a maximum penalty of three months' imprisonment. The restoration of the sentence of four months is mandatory unless I find that exceptional circumstances have arisen since the order suspending the sentence was made. The sentence is to be served cumulatively unless the Court otherwise orders.

3       The maximum penalties for the relevant offences on the indictments are as follows:

·    Armed Robbery - 25 years;

·    Attempted armed robbery - 20 years ;

·    Theft - 10 years ; and

·    Recklessly cause serious injury - 15 years. 

4       The circumstances of the offending on indictment number C10625337B were the subject of the trial before me.  I have also heard a summary of the offending for the other two indictments, as well as a summary of the offending for which you received the suspended sentence.  Those summaries will be attached to my sentencing remarks as Exhibit A.

5       Briefly, on 21 February 2012, you were in Hopkins Street near the Footscray markets.  You stole some car keys hanging on a ladder on a building site, you entered the ute to which the keys belonged and drove away.  The ute also contained tools and materials and in addition to stealing the car, you also stole the builder's tools which were valued at $13,575.  The tools have not been recovered.  In a victim impact statement provided to the court, the victim described the significant financial and emotional harm he suffered as a result of your criminal behaviour.  This offending is the subject of Charges 1 and 2 on indictment C10625337A.    

6       On 26 February 2012 you were in Footscray with a female friend.  Together you met with a Ms O’Brien, she drove you and your friend to the Sunshine/ Braybrook area.  Ms O’Brien left the car for a short time and whilst this occurred, you got into the driver’s seat and drove the car away.  This offending constitutes the third charge on indictment C10625337A.

7       It was later in the day on 26 February 2012 that you committed the offences for which you were found guilty at trial. Those offences occurred at a milk bar in Empire Street Footscray.  You entered the milk bar and approached an area where Ms Tan was serving Ms Heljo.  You produced a knife and demanded money from Ms Heljo.  Ms Heljo told you and showed you she had no money and you pushed her aside.  You demanded money from Ms Tan and Mr Li whilst holding the knife.  You stole Ms Tan’s mobile phone from the counter and you unsuccessfully tried to open the cash register.  You ran out of the shop and left the scene in the car you had stolen from Ms O’Brien.  Ms Tan and Mr Li, who are husband and wife and run the small family business at Empire Street Footscray, have provided separate victim impact statements in which they describe their ongoing feelings of anxiety and fear caused by your criminal behaviour.     

8       The offence of recklessly cause serious injury – the offence on indictment D10415115 - was committed on 12 August 2012, whilst you were on remand at the Metropolitan Remand Centre. The victim of this assault was also on remand. You and the victim were known to each other, as you were both apparently obtaining buprenorphine from the same person inside the prison. This other person was “locked down” in his cell on 11 August 2012.  After you and the victim tried speaking with him in his cell, you were “locked down”.  This caused some antagonism between you and the victim.  The following day you and the victim went to the victim’s cell and you proceeded to punch the victim to the face a number of times.  The victim sustained injuries that included a fracture to the right side maxillary sinus and another fracture to the frontal process of the right maxilla.  The injuries did not require surgery.

9       Mr Chalklen, you have pleaded guilty and been found guilty of a number of serious offences.  You have a significant criminal history.  It undoubtedly reflects the fact that you have been a regular user of heroin for many years.

10      Your counsel indicated that you started abusing drugs in your early teens and were addicted to heroin by the time you were 15 years old.  You had two older brothers who were drug users and you followed their lead. Your family circumstances were generally unhappy with your parents separating when you were young and you apparently moved between one parent and the other. You were a troubled secondary student with multiple suspensions and two expulsions.  You left school in year 9 and have a chequered work history.  You have never held a job for a significant period of time.

11      Your criminal history commences with appearances in the Children’s Court.  You have a large number of prior appearances in the Magistrates’ Court.  Since 2003, you have spent many months in gaol on different sentences.  The longest appears to be a sentence of 14 months with an eight-month minimum from the Sunshine Court in 2010. I note that, notwithstanding your prior history, the order of the Sunshine Court in December 2011 was an order that clearly focused on your rehabilitation.  In addition to a suspended sentence you were placed on a 12-month Community Corrections Order that included conditions for drug treatment and participation in programs to reduce re-offending including participation in the Making Choices Program.  In addition to breaching the suspended sentence, you have also breached the Community Corrections Order by further offending. 

12      Many of your prior court appearances are for dishonesty matters.  However, you also have relevant prior convictions for offences of violence including robbery, attempted robbery,  intentionally cause injury, indecent assault, aggravated burglary,  unlawful assault and assault police.  The armed robbery  on the 26 February 2012 and the subsequent serious assault of a fellow prisoner on 12 August 2012 seem to mark an escalation in your violent offending behaviour.

13      In relation to the current matters before me, the Crown is correct in submitting the importance of the principles of deterrence (specific and general), punishment and protection of the community as sentencing considerations.  The armed robbery and attempted armed robberies are serious matters that carry significant maximum penalties.  The offences were on a soft target.  Two of the victims still suffer anxiety and fear as a result of your criminal behaviour.  I do accept that there is little evidence of pre-planning and, on one view of the evidence, you made no attempt to disguise yourself.  The fact that you were a drug user at the time may help explain the offences, it cannot excuse them.  The prison assault resulted in serious injury to the victim and the theft of Mr Nolan’s vehicle caused him significant financial harm.  As I have already said, the offences were committed whilst you were on a Community Corrections Order and a suspended sentence.

14      The sentence I impose must, of course, acknowledge those matters presented by your counsel in mitigation and any order I make must respect the principle of totality.

15      On the first point, you are entitled to appropriate credit for your early plea of guilty on indictment C10625337A.  You are also entitled to credit for your plea of guilty on indictment D10415115. The plea of guilty on the second matter is significant because, in addition to showing your remorse, it saves the victim from the trauma of giving evidence.

16      Your counsel urged me to conclude that there are grounds for optimism as far as your rehabilitation is concerned. This submission was based predominantly on the view that you have developed a relationship with Ms Finlay and that the strength of that relationship will encourage you to reform your life.

17      Ms Finlay gave evidence before me. She said she had known you for about seven and a half months.  Ms Finlay is an artist and a beauty therapist who has never been in trouble with the law. She has had an issue with alcohol abuse and, in an effort to deal with that, entered the Basin Rehabilitation Program in March 2013.  She successfully completed the program.  You had been bailed into that program and that is where you met.  To use Ms Finlay’s expression "you bonded and grew together". She felt that you - to use her expression again - 'opened up to her' and that you seemed forthright.  You did not complete the program and you were returned to prison.  You started writing to Ms Finlay and she commenced visiting you in prison.  You have spoken about living together upon your release and although Ms Finlay concedes that is possible, she did say that you needed to take it slowly and that she envisaged you would live with your father and work on your addiction over a period of time before that could occur.

18      I was impressed by Ms Finlay’s willingness to assist you and it seems clear that you have both developed a romantic friendship.  However, notwithstanding that evidence, I am still very guarded about your prospects for rehabilitation. Ms Finlay has only known you for seven and a half months. The blossoming relationship at the Bridge program was not sufficient to encourage you to complete that program. You have a significant criminal history and, even though orders have been made allowing you at different times to be supported in the community, you have continued to re-offend.  Ms Finlay is correct when she highlights the need for you to work on drug use and anger management.  Efforts in the past to address these issues have been unsuccessful, including the orders made in December 2011 at the Sunshine Court.  For these reasons, I am not optimistic about your prospects of rehabilitation. 

19      Mr Chalklen, will you stand, please.  You will be convicted and sentenced as follows: 

·    On Charge 2 (Armed Robbery) on indictment C10625337B convicted and sentenced to three years' imprisonment. This is the base sentence.  On the remaining two charges convicted and sentenced to 18 months' imprisonment on each charge. Three months of those sentences to be served cumulatively on each other and cumulatively upon the sentence on Charge 2.

·    On indictment number D10415115, convicted of recklessly cause serious injury and sentenced to 20 months' imprisonment. Six months of the sentence to be served cumulatively on the orders made on indictment C10625337B.  Had you been found guilty of this matter after trial I would have imposed a sentence of three years with a much greater period of cumulation.

·    On the charges of theft on indictment number C10625337A you will be convicted and sentenced to 12 months' imprisonment on each charge.  Two months of the sentence on Charge 2 on this indictment is to be served cumulatively on the orders made on the other two indictments.  Had you been found guilty after trial, I would have imposed a sentence of 20 months on each charge with a much greater period of cumulation.

·    The four-month imprisonment term suspended by the Sunshine Magistrates’ Court on 13 December 2011 is restored and ordered to be served cumulatively upon the other sentencing orders made today.

20      Mr Chalklen, you have been convicted and sentenced to a total of four years and six months' imprisonment.  I fix a minimum term of three years before you will be eligible for release on parole.

21      I make a declaration that you have served 557 days by way of pre‑sentence detention.

22      I make disposal orders sought by the prosecution on indictment numbers C10625337B and D10415115.

23      On Charge 2 on indictment number C10625337A I order that you pay an amount of $13,575 compensation. 

24      HIS HONOUR:  You can be seated there for the moment.  Gentlemen, perhaps I just should check with you.  I have made that calculation of 557 days.  I hope it's correct.

25      MR HAYWARD:  We agree with that.

26      HIS HONOUR:  You agree with that.  No other orders that are sought in this matter?

27      MR HAYWARD:  No, Your Honour. 

28      HIS HONOUR:  Thank you.  I will just sign the disposal orders now that have been handed to me.

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Ex A:

IN THE COUNTY COURT OF VICTORIA   Court Ref: CR-13-01186
AT MELBOURNE
CRIMINAL JURISDICTION

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

GRANT CHALKLEN

Date of document:

26^th of September 2013

Filed on behalf of:

The Director of Public Prosecutions

Prepared by:

CRAIG HYLAND

Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne  Vic 3000

Solicitor’s code:   7539
Telephone :   [phone]
Direct:          [phone]

Reference:    1300783/TCR

Recklessly causing serious Injury

1. On the 12^th of August 2012 the accused and the victim were both on remand at the Metropolitan Remand Center in Ravenhall.

2. The victim, Jordan Hall was on remand for the alleged theft of his step-father's car.  The accused was on remand for:

a)    theft of Denis Nolan's Ute and tools on the 21^st of February 2012

b)    theft of Kathleen O'Brien's car on the 26^th of February 2012

c)    armed robbery of the “Empire milk bar” on the 26^th of February 2012

3. During their time on remand, the accused and the victim came to know each other and realised that they both were obtaining buprenophine (an opiate commonly prescribed as an alternative to heroin) from the same person inside the prison.  The “dealer” was giving them both the “bupe” clandestinely.

4. On the 11^th of August their supplier of “bupe” was “locked down” in his cell.  The accused and the victim both went to the cell and tried talking to him.  The prison officers told them both to get away from the cell.  The accused was “locked down” himself.  There was antagonism between the accused and the victim after this.

5. On the 12^th of August 2012 at about 12.30pm the accused and the victim walked to the victim's cell.  The victim opened the door for them both to go in, and the accused closed the door behind them[1].  The accused was inside the cell for about half a minute, during which time he delivered a flurry of punches to the victim's face.  The noise of this altercation caught the attention of other prisoners who gathered outside of the cell.  Mr Chalklen walked out of the cell.  Another prisoner ushered the accused into his cell as the prison officers came to the scene to restore order.

[1]CCTV track 12

6. As a result of being punched by the accused the victim suffered:

a)    a laceration below his right eyebrow

b)    headache and nausea

c)    facial bruising surrounding his eyes and cheeks, particularly to the areas just beneath his eyes

d)     “double vision” due to the inflammation to the bruising

e)    a fracture to the right hand side maxillary sinus (the bones of the cheek below the eye)

f)     another fracture to the frontal process of the right maxilla (the hard bone on the right hand side of the nose next to the cheek)

7. The injuries did not require surgery.

8. Photograph's of the victim's external injuries were taken on the 13^th and 14^th of August 2012.

_____________________________________________________
  G. Hayward               TRIAL PROSECUTOR

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION

IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

GRANT CHALKEN

Date of document:

26^th of July 2013

Filed on behalf of:

The Director of Public Prosecutions

Prepared by:

CRAIG HYLAND

Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne  Vic 3000

G Hayward

Solicitor’s code:   7539
Telephone :   [phone]
Direct:          [phone]

Reference:     T. Crvenkovic

Charge one and two – theft of the ute and tools

9. Denis Nolan. was a tradesman who left his ute parked on Hopkins Street near the Footscray markets on the 21^st of February 2012 while he did some work in a shop.  He put the car keys on a ladder inside that shop[2].  About half an hour later, Michael Pierce, who worked at the markets, saw the accused staring into the shop which Mr Nolan was working in.  Mr Pierce walked to Hopkins Street and about a minute later saw the accused  get into the ute and drive it away[3].

[2]Statement of Nolan depositions page 104

[3]Statement of Pierce depositions page 108

10. The ute was full of tools and materials, including copper, belonging to Mr Nolan. 

Charge three – theft of the Mazda

11. A few days later, on the afternoon of the 26^th of February 2012, the accused was in Footscray  with a female called Melissa Hayes.  He and Ms Hayes walked around a mall and met, for the first time, a woman called Kathleen O'Brien.

12. Kathleen O'Brien drove the accused and Ms Hayes to the Sunshine / Baybrook area in her car. Kathleen O'Brien got out of the car for a short time.  While O'Brien was gone, the accused got into the driver's seat and drove the car away.  The car was a Mazda with number plates A30 NR[4]. 

[4]Statement of K O'Brien depositions page 114;  ROI Hayes Q&A 19; Q&A 24; Q&A 145 - 147

13. At about 11.30pm police found the car abandoned in Kensington.

Arrest

14. On the 2^nd of March 2012, police went to the accused's home in Laverton.  The accused was living with his father there.  The police arrested him.

__________________________________________
  G Hayward     TRIAL PROSECUTOR