Director of Public Prosecutions v Clark

[2024] VCC 281

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

KOORI COURT DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00246

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY WAYNE CLARK

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Warrnambool
DATE OF HEARING:	30 January 2024
DATE OF SENTENCE:	8 February 2024
CASE MAY BE CITED AS:	DPP v Clark
MEDIUM NEUTRAL CITATION:	[2024] VCC 281

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentence

Catchwords:              Guilty plea – assault, intentionally causing injury, damaging property and conduct endangering persons – related summary offences of dangerous driving and committing an indictable offence on bail –– genuine engagement in Koori Court sentencing conversation – Bugmy principles enlivened – time spent in residential treatment taken into account.

Legislation Cited:      Crimes Act 1958; Road Safety Act 1986; Sentencing Act 1991

Cases Cited:Bugmy v. The Queen (2013) 249 CLR 571; Akoka v. The Queen [2017] VSCA 214

Sentence:                  Five months’ imprisonment on the charge of conduct endangering persons; two-year community correction order, subject to conditions,  on remaining charges.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A.J. Moore	Office of Public Prosecutions
Victoria
For the Accused	Mr D. McGlone	Kurnai Legal Practice

HER HONOUR:

1Geoffrey Clark, you are a 44-year old Gunditjmara man, known in the community as 'Possum'. You have lived on Framlingham Mission all your life, and are a shareholder in the Framlingham Aboriginal Trust. You live at Framlingham with your partner of twenty years, Kyeema and your three children, aged 17, 16 and 9.

2You have pleaded guilty to two charges of common assault, one charge of intentionally causing injury, three charges of damaging property, and one charge of conduct endangering persons. You have also pleaded guilty to related summary offences of dangerous driving and committing an indictable offence whilst on bail. All of these charges arise from an incident at Framlingham on 18 August 2022.

3Your plea was heard in the Koori Court on 30 January 2024, in the presence of Gunditjmara Elder, Aunty Denise Lovett, who spoke with you directly and at length during the Sentencing Conversation. I will return to your participation in the Koori Court process shorty, but first I will briefly summarise the offending for which you are to be sentenced.

Circumstances of offending

4In 2018, the Victorian Government placed the Framlingham Aboriginal Trust into administration due to allegations of mismanagement. The former chair of the Trust was charged with fraud. In 2019, the administrator appointed Mr Ian (Roy) Baker as Site Manager. You had previously worked for Mr Baker at Framlingham but your employment was terminated in May 2022.

5At around 9.30 am on Thursday, 18 August 2022, you went into the office and asked Mr Baker for the keys to the Holden Rodeo Ute. Mr Baker refused on the basis you were no longer employed by the Trust and were not covered by insurance. You became agitated and repeated your request for the keys, explaining that you needed to attend the cemetery to dig a grave. You were intending to do so following the death of Uncle Archie Roach, to whom you had been close, and who was a person of particular significance to the community at Framlingham, where he was to be buried.

6When Mr Baker refused to give you the keys, you yelled at him, ‘Why the fuck can’t I have them? I am trying to do the right thing by fixing up the cemetery’. Mr Baker again refused to give you the keys to the Ute. In response, you kicked the reception desk. A contractor who worked for the trust, Jessie Carter, was in the office leaning on the desk. You grabbed Jessie Carter by his hoodie and threw him across the room but he managed to stay on his feet. This is the basis of Charge 1 – common assault.

7With your fists raised, you then approached Mr Baker and asked for the keys, saying words to the effect, ‘Gimme the keys you white fucking peasants’.

8You then punched Mr Baker to the face twice, forcing him back a couple of steps. Mr Baker was wearing glasses and the assault caused a cut to the bridge of his nose. This conduct is the basis of Charge 2 – intentionally causing injury.

9You then proceeded to punch a hole through the plaster of the wall, before kicking the wooden panelling off a desk and kicking a window three times, causing the glass to shatter. This conduct gives rise to Charges 3, 4 and 5 – damaging property.

10You yelled at Jessie Carter to leave the office, which he did.

11You rummaged through Mr Baker's desk looking for the keys but could not find them. You then picked up a Bundi stick and banged it hard on the desk. You lifted the Bundi stick above your head and turned to face Mr Baker. You again demanded the keys to the Ute, saying you would hit him with the stick otherwise. This conduct is the basis of Charge 6 – common assault. Mr Baker was in fear for his safety and handed you the keys. You then took the keys and left the office.

12You entered the Ute and drove at speed on the front lawn in a circular motion a few times, before driving off to the Framlingham forest.

13The police arrived at Framlingham at 10.20 am and saw you return in the Ute three times. You were baiting and taunting the police. On one occasion, you drove quickly around the corner of a dirt road at speed and stopped adjacent to the driver's side of the police car, yelling ‘You looking for me?’ before speeding off north on Kirrae Avenue. This conduct gives rise to summary Charge 9 – dangerous driving.

14Just after 11 am, you stopped on Kirrae Avenue and got out of the car. You waved the Bundi stick at police from a distance, yelling expletives at them before driving off again. You returned at 11.15 am, stopped and waved the Bundi stick at police again.

15At 12.19 pm, the police saw you drive through vacant land and come out onto Kirrae Avenue, approaching the police in your Ute. Detective Sergeant Danny Wright stepped out towards the middle of the road, and attempted to stop you using hand signals. The Ute was about 50 metres away when the police heard you accelerate and veer the car in the direction of Detective Sergeant Wright and other police. This conduct is the basis of Charge 7 – conduct endangering persons.

16When you were about 20 metres away, the right tyre of the Ute entered the soft shoulder of the road, and then swerved onto the other side of the road. Detective Sergeant Wright was worried you would hit him or another police officer when you swerved.

17The police then used an immobilising device, which you partially drove over before driving back into the forest. The police were then unable to locate you. Other members of the Framlingham community found the Ute in the forest at 8 pm that night.

18At the time of this offending, you were on bail for other alleged offending, giving rise to summary Charge 11 – committing an indictable offence whilst on bail.

19Following Archie Roach's funeral, you attended in person at the police station in Warrnambool on 30 August 2022 where you were arrested. In accordance with your rights you made no comment when interviewed. You were remanded in custody on 30 August 2022 until you were granted bail on 23 February 2023.

Nature and gravity of offending

20I am now going to make some comments about the nature of your offending.

21In the submissions made on your behalf, Mr McGlone explained that your offending took place in the context of emotional distress and grief associated not only with the death of  Archie Roach, but also the anniversary of the death of your mother, who passed away in 2020. Your mother had been a significant source of support in your life. Nonetheless, your response to being refused the keys to the Ute was a violent and aggressive one. You were unable to control your anger.

22Significant damage was done to the property, requiring repairs. Although no victim impact statement was provided by the victims, this must have been a frightening experience for them. Mr Baker sustained a nasty cut to his nose, requiring dressing. Intentionally causing injury carries a maximum penalty of ten years' imprisonment, although I assess this as a lower mid-range example of this offence.

23The most serious offending relates to your manner of driving; veering in the direction of Detective Sergeant Wright and other police members, reckless as to their safety. The offence of conduct endangering persons carries a maximum penalty of five years' imprisonment, which is an indication of the seriousness of the offence.

24It is an aggravating feature of your offending on this day that you were on bail for other matters, including a charge of criminal damage, at the time.

25I accept that your offending in the office was unplanned and impulsive. However, once in the Ute, you had time to calm down but rather, you continued to drive erratically and dangerously in the presence of the police over the next few hours.

26Ultimately, and to your credit, you took responsibility for your conduct by attending in person at the police station to be arrested on 30 August 2022.

Personal circumstances

27I turn now to discuss your background and personal circumstances as these are also relevant to the sentence to be imposed.

28You were born in July 1979 and are now 44 years old. You were born and raised on Framlingham and have continued to live there most of your life.

29You are the second youngest of eight siblings; two of whom are now deceased. You remain in contact with your other siblings. Your parents had a positive relationship, and other than being smacked by your father as a child, you were not exposed to family violence in the home. Your father passed away when you were only eight years old, after which  your mother raised you and your siblings as a sole parent. You enjoyed an extremely close and supportive relationship with your mother. Sadly, your mother passed away in 2020 after a long illness.

30During the sentencing conversation, Aunty Denise Lovett explained what life was like for you on Framlingham as you grew up. Aunty Denise said that outside your home, you grew up in an environment where violence and alcohol abuse was the norm. Succinctly, she said that you would 'step out outside, and violence was all around you'. During your formative years, you saw disputes being resolved by adults using aggression and violence. In some respects your confrontational response to what you perceived as an injustice in being refused access to the Ute is a legacy of that early exposure to violence.

31

You had literacy problems in primary school and needed in-class support in Grades 4 and 5. Nonetheless, you completed Year 10 before completing a

pre-apprenticeship in carpentry. However, you did not complete your apprenticeship.

32Since that time, you have engaged in sporadic employment as a maintenance worker and labourer in Aboriginal organisations. Your most recent employment as a maintenance worker at Framlingham continued until, as I mentioned, your employment was terminated prior to this incident.

33Your most significant intimate relationship has been with your long-term partner, Kyeema, with whom you have two daughters and a son. While you were remanded in custody on these matters, your partner was diagnosed with throat and lymph node cancer; a diagnosis you only became aware of at the hearing of your bail application.

34You began drinking alcohol at the age of 15. However, when your mother passed away in 2020, you began to abuse alcohol, consuming an average of ten alcoholic drinks a week at that time and in the lead up to this incident, which was close to the anniversary of your mother's death. However, you were not intoxicated at the time of the incident.

35I received a psychological report from Sandra Cokorilo dated 28 January 2024.[1] Ms Cokorilo found that you have certain intellectual deficits in your verbal comprehension and working memory which impact on your reasoning, problem solving skills and emotional regulation, which she concludes were a key factors in your offending. In Ms Cokorilo's opinion you would benefit from specific interventions to address your problems with anger, stating that this issue is connected to your history of unresolved depression and anxiety.

[1]Exhibit 2.

36You have a relevant prior criminal history that dates back to 1995, including sentences imposed for violent offending, dangerous driving and criminal damage. In both 2004 and 2017 you were sentenced to community correction orders with conditions to engage in men's behavioural change programs, including the program at Wulgunggo Ngalu Learning Place, which you report completing in 2017. It is notable that there was a lengthy absence of offending between 2004 and 2015, which you attribute to the positive influence of your partner, children and family. 

37You were remanded following your arrest on these matters until being granted bail on 23 February 2023. It was a condition of your bail, as varied on 19 July 2023, that you undertake the Dardi Munwurro Men's Healing and Behavioural Change Program. You attended four face-to-face sessions at Dardi Munwurro and were reported to engage consistently and well during that period. You were not permitted to reside on Framlingham under your bail conditions.

38You then attended a 12-week residential rehabilitation program run by Wiimpatja Healing Centre at Warrakoo Station in Rufus, New South Wales. The program manager, Uncle Mark Bland, has written a positive letter about your participation in the culturally based rehabilitation program at Warrakoo,[2] stating your knowledge of culture is 'second to none' and that you made a significant contribution to the program by sharing your skills and cultural knowledge with the younger men. Uncle Mark Bland describes you as a 'natural leader'. As to your offending, he states:

”Geoffrey is fully aware and takes full responsibility for his actions, he has also come to the realisation [of] how his actions have impacted and affected not only himself but his close family, friends and the community.”

[2]Exhibit 1

Participation in the Sentencing Conversation

39You participated fully in the sentencing conversation that is at the heart of the Koori Court hearing. Aunty Denise Lovett challenged you about your offending and your plans for the future, urging you to engage in therapy to deal with past trauma. Listening to this respected Elder, I learnt a lot about your life on Framlingham, and your role in supporting your mother to challenge the way Framlingham has been run in the past. I also had an opportunity to observe the way in which you responded during the Sentencing Conversation. There is no doubt this was a confronting experience for you at times, bringing you to tears.

40I have taken your genuine engagement in the Koori Court process into account in sentencing you.

Guilty plea

41You entered a guilty plea to the charges before the Koori Court following negotiations with the prosecution. After an application for discontinuance of the charges was made on your behalf, the prosecution discontinued more serious charges. You then entered a plea to the charges before the Court. In the circumstances, the prosecution did not challenge the defence submission that yours was a plea entered at the earliest opportunity to the charges for which you are now to be sentenced. There is utility in that plea, by which you saved the court and the community the time and cost associated with a trial and spared the victims from giving evidence. In addition to the remorse inherent in your plea, you have also indicated remorse for your conduct to Ms Cokorilo and to Uncle Mark Bland. I have taken your early plea into account in your sentence.

Sentencing principles and factors

42Other factors operate in further mitigation of your sentence. These arise from the matters aired during the Sentencing Conversation, as well as the materials provided on your plea.

43You are an Aboriginal man descended from and belonging to the Gunditjmara people. You and your family strongly identify with that heritage and always have. Although you were raised by a loving and supportive mother, you were exposed to violence within the community on Framlingham in your formative years. You have also suffered significant trauma in your life, including the loss of your father at the age of eight, and the death of two of your siblings. After one of your brothers went missing, he was later found dead by you and your younger brother lying in a ditch within the boundaries of Framlingham Trust. The cause of his death was never determined. This was a significantly traumatising experience for you.

44In the landmark case of Bugmy v R[3], the High Court described the manner in which childhood disadvantage and trauma is relevant to an assessment of an offender's moral culpability. This decision has application to your sentence. I am satisfied that your aggressive response to being denied access to the Ute was, in many respects, shaped by the trauma, dysfunction and violence you were exposed to while growing up at Framlingham. While these matters do not excuse your conduct on this day, they remain relevant in reducing your moral culpability for your confrontational response.

[3]Bugmy v. The Queen (2013) 249 CLR 571

45I have also had regard to the opinion of Ms Cokorilo that the intellectual deficits she identified impact on your ability to control and manage your emotional responses, although I note that your counsel accepted there is no evidentiary basis to apply any of the principles in Verdins[4] in further moderation of your sentence.

[4]R. v. Verdins (2007) 16 VR 269

46You were remanded in custody at the height of the COVID-19 pandemic, where you were placed in isolation for 14 days as a form of quarantine. Conditions in custody were restricted at the time, with no face-to-face contact with family or friends and only limited access to programs and education. This was undoubtedly a difficult time for you, being the longest period you had ever spent in custody, removed from family and other supports. I have taken the added burden of your time on remand at that time into account in your sentence.

47The time you spent at Warrakoo in New South Wales is also relevant to your sentence. The Wiimpatja Healing Centre is in remote New South Wales, far from family or your community in Framlingham. During the 145 days you were at this residential rehabilitation program you engaged in alcohol counselling, cultural programs and completed short courses through New South Wales TAFE in chainsaw and tractor operations to assist you in obtaining future employment.

48The time you spent at Warrakoo is relevant to your sentence for two reasons.

49Firstly, it demonstrates your motivation to engage in culturally focused rehabilitation programs, and to do so in a positive way. Uncle Mark Bland says you took responsibility for your actions and developed a better understanding of the impact of your offending on the victims, your family and the community. This is reflected in the report of Ms Cokorilo where you told her you had 'probably overreacted' on the day.

50Secondly, the law acknowledges that time in a residential rehabilitation program, such as that at Warrakoo, also has a punitive component.[5] Warrakoo is on the Murray River, 80 kilometres from Wentworth in New South Wales and 110 kilometres from Mildura. No mobile phones or visitors are allowed. Clients are only permitted to attend Mildura with the Manager's approval for vocational training or medical emergencies. I have had regard to the period you spent at Warrakoo in further moderating your sentence.

[5]Akoka v The Queen [2017] VSCA 214, at [111]-[112]

51Assessing your prospects of rehabilitation is more complex. As was apparent from the Sentencing Conversation, you are a proud, strong and creative Gunditjmara man, with real leadership ability. You want to give back to your community and be together with your family, particularly given your partner's recent diagnosis. The absence of any offending between 2004 and 2015 demonstrates the positive influence your partner and family can have on you. You engaged well at Warrakoo and are willing to participate in further Men's Behavioural Change programs through Dardi Munwurro.

52Against that, you have a relevant criminal history for violent offending, where you have previously received sentences aimed at your rehabilitation including counselling for anger-management.  Given your prior history, Ms Cokorilo assessed that you are at a moderate to high risk of reoffending, and recommends you engage in specific interventions to address your anger problems so you can develop strategies to regulate your emotions. As Aunty Denise Lovett observed during the Sentencing Conversation, you still need to understand the impact of past trauma and grief; she said that 'something needs to change'. Aunty Denise was at pains to tell you that your community at Framlingham need you.

53I note that you were sentenced by the Magistrates’ Court on 26 October 2023 to a community correction order with work hours for the offence of criminal damage to property, which you are completing at Framlingham. That offending pre-dated this incident and you have no subsequent or pending matters.

54The fact you accepted responsibility for your offending, not only by handing yourself into police but through your engagement at Warrakoo and through your participation in Koori Court, all speak in favour of your rehabilitation. However, your future prospects very much depend on your ongoing engagement in counselling to address the links between your past trauma, grief and depression and your propensity for anger-fuelled violence. If you do so, you have reasonably good prospects of rehabilitation, an outcome which would benefit not only you and your family but would overwhelmingly be in the interests of your community.

55On your behalf, Mr McGlone submitted that a community correction order could meet all relevant sentencing considerations while best promoting your prospects of rehabilitation.

56The sentencing submissions of the prosecution highlighted the serious nature of the offence of engaging in conduct endangering the police by your manner of driving. Ultimately however, the prosecution submitted that a sentence that resulted in no further time in custody would be within range. The prosecution submissions support you receiving a therapeutic disposition aimed at your further rehabilitation.

57In cases such as these, the sentence I impose must operate to deter others from engaging in similar conduct. This is known as general deterrence. I must also impose a sentence that is no more severe than is appropriate. Given your prior criminal history, I consider the sentence also needs to operate as a specific deterrence which continues to have a role to play.  I consider the offending that is the basis of the charge of conduct endangering persons is sufficiently serious to warrant the imposition of a sentence of imprisonment, but not exceeding the time you have already served in custody on remand. Having regard to the time you spent at Warrakoo, I do not consider the sentence I impose on the other charges warrants a sentence with any additional punitive component.

58You have been assessed as suitable for a community correction order and have consented to that order being made.

Sentence

59In balancing the matters to which I have referred, while having regard to the maximum penalties for each offence[6], I now sentence you as follows.  Would you please stand.

[6]The maximum penalty for the offence of common assault is 5 years; 10 years for the offence of intentionally causing injury and damaging property; five years for the offence of conduct endangering persons, two years or 240 penalty units for dangerous driving and 3 months imprisonment or 30 penalty units for committing an indictable offence whilst on bail.

60On Charge 7, conduct endangering persons, you are convicted and sentenced to five months' imprisonment.

61Pursuant to s18 of the Sentencing Act 2009, I declare 178 days of pre-sentence detention to be reckoned as served under the sentence I have imposed. This means no further imprisonment is to be served.

62The remaining charges arise from the same facts and circumstances. Accordingly, I am able to impose a single community correction order for all charges.

63On Charge 1, common assault and Charge 6, common assault, on Charge 2, intentionally causing injury, on Charges 3, 4 and 5, damaging property and on related summary offence 9, dangerous driving and 11, committing an indictable offence on bail, you are convicted and sentenced to a two-year community correction order, subject to supervision, to engage in alcohol treatment and assessment, mental health treatment and assessment and to complete any other programs to address your offending behaviour, for instance the Men's Behavioural Change program at Dardi Munwurro.

64I agree with the assessment of Community Corrections that your level of compliance should, at least initially, be reviewed through judicial monitoring. It is a further condition of the order that you appear before me for judicial monitoring on a date to be fixed within three months of the order commencing.

65Section 64(2) of the Road Safety Act 1986 mandates a six-month loss of licence for the offence of dangerous driving. The charge of conduct endangering persons also related to your manner of driving. On Charge 7 and summary Charge 9, I order that your licence be cancelled and that you are disqualified from driving for a period of six months from today's date. Given you live at Framlingham, I consider that any further period of disqualification has the potential to undermine your engagement in the therapeutic order I have imposed, noting Dardi Munwurro is based in Warrnambool. Further, being re-licenced may be of assistance in making use of the new skills you obtained at Warrakoo to find gainful employment.

66Section 6AAA of the Sentencing Act 2009 requires that I indicate the sentence I would have imposed had you not pleaded guilty these offences. The sentence I would otherwise have imposed is a sentence of two years' imprisonment with a non-parole period of fifteen months.  

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