Director of Public Prosecutions v Clack

[2015] VCC 374

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

AT MELBOURNE
CRIMINAL JURISDICTION

AP-15-0140

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRUCE CLACK

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2015
DATE OF SENTENCE:	24 March 2015
CASE MAY BE CITED AS:	DPP v Clack
MEDIUM NEUTRAL CITATION:	[2015] VCC 374

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Appeal against sentence against 12 months’ imprisonment imposed in the Magistrates’ Court – Fourth drink driving offence - Re-sentenced – Issues of physical and mental health

Sentence:Community Corrections order 12 months duration – Licence disqualification

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Ms D. Mitchell	Solicitor for Public Prosecutions
For the Appellant	Mr S. Norton	Robert Stary & Associates

HER HONOUR: 

1Mr Clack as you would know people who drink drive have created untold misery for many innocent victims in our community.  Their selfish actions have killed or maimed countless people.  It does not seem to matter how many ad campaigns there are about this, how many newspaper articles or TV news items there are, people like you seem to think you know better.  Well Mr Clack, you do not.

2It is by the grace of God and a bit of luck that your drink driving has not caused disaster for others and for you.  You may suffer from depression and anxiety, you may want to drown your sorrows in alcohol from time to time, which is not a good way to deal with your problems in any event, but you know very well that you cannot do this and then drive.  You might be on a self-destruct course, or you may have been, but when you get into your car after drinking to excess, you presumptuously decide to risk the destruction of others.

3You have children Mr Clack who need their father.  They need you to be a positive role model for them, and you have some very fine character traits to offer them.  Even if you don't care about yourself, start caring about them and the other road users including other people's children.  Do you understand

4THE OFFENDER:  Yes, Your Honour.

5HER HONOUR:  I have every sympathy with the magistrate who sentenced you to gaol, as by rights you deserve to go there, this being your fourth drink driving offence.  It is only what you have done since the offending and your otherwise good character, which has saved you.  You have come very close to going to gaol today, but let me be very clear Mr Clack, if  you commit further offences of this nature or any kind which are punishable by imprisonment, or if you breach any of the conditions of the Community Corrections Order which I am about to impose, you will be at very grave risk of going to gaol.  Do you understand that?

6THE OFFENDER:  Yes, Your Honour.

7HER HONOUR:  If ever there was a time to address your mental health issues and your drinking issues, it is now Mr Clack.  It is essential that you do so for your family and for yourself.  Now I know that you have commenced to address those and you would be well advised to continue on that path.  I must say that I also have some sympathy for the magistrate's view that the minimum licence disqualification was not enough, but in circumstances where you will be off the road for a significant period with the mandatory minimum penalty, I regard it as being in everyone's interests that you would be able to transport your children to sporting events, get to work and go about your daily business when you are able to with a use of a car.  So I am persuaded that I ought to impose the minimum period of disqualification.

8Now please do not be tempted to get into your car within the disqualification period, you have not in the past and please do not do it this time.

9I intend to convict you of the charge before me and place you on a Community Corrections Order for a period of 12 months.  In order to do so I must obtain your consent to undergo the Community Corrections Order which I propose, so please listen carefully to the terms and conditions of the proposed order.

10

As I said the duration of the Community Corrections Order will be for 12 months.  The mandatory terms that apply to all Community Corrections Orders are as follows.  You must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011.  You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate.  You must report to the Ringwood Community Corrections Centre before 4pm on

26 March 2015.  You must let a Community Corrections Officer know within two clear working days of you changing your address or job.  You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate.  You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.

11The conditions that apply in addition to the mandatory terms are as follows.  You must undergo 100 hours unpaid community work within the next 12 months.  I have factored in your health concerns and work commitments when arriving at this figure, and I know that the Office of Corrections will also factor these matters in.  You must be under the supervision of the Community Corrections Officer for a period of 12 months.  You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo mental health assessment and treatment which may involve you being treated in a hospital or residential facility as directed by the regional manager.  You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.  In particular you must continue and complete the drink driving program which you have commenced through Associated Drink Driver Services Australia.  Do you consent the terms and conditions of the proposed order?

12THE OFFENDER:  Yes I do, Your Honour.

13HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges.  In which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it would be because of further offending or because of non-compliance with any of the further conditions of the order.  Do you understand this?

14THE OFFENDER:  Yes, Your Honour.

15HER HONOUR:  Do you still maintain your consent to the order?

16THE OFFENDER:  Yes, Your Honour.

17HER HONOUR:  Therefore in relation to the charge, you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out.  All driver's licences are cancelled and you are disqualified from obtaining a license for a period of 28 months which will be backdated to 30 November 2014.  As I understand this was the date from which you were not permitted to drive.

18If not for your plea of guilty I would have sentenced you to six months' imprisonment and I would have cancelled your license for a period of three years. 

19Is there anything further before I ask Mr Clack to sign the documents?

20MR NORTON:  No, Your Honour.

21HER HONOUR:  All right, you can come out of the dock now Mr Clack and I will ask Mr Norton to assist you with the signing of the Community Corrections Order.

22

Thank you, I have signed the documents, a copy will be obtained for

Mr Clack's information.  I hope never to see you again Mr Clack, you are obviously valued in your workplace, you are valued as a father.  We have many people who come before these courts that do not have a father in their life, so please be present for your children and do yourself justice and your children justice.

23THE OFFENDER:  Yes, Your Honour.

24HER HONOUR:  Thank you, we will adjourn.

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