Director of Public Prosecutions v Clark
[2020] VCC 1906
•27 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00644
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE CLARK |
---
| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 July and 22 October 2020 |
| DATE OF SENTENCE: | 27 November 2020 |
| CASE MAY BE CITED AS: | DPP v Clark |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1906 |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Common law assault - threat to kill - aggravated intentionally exposing an emergency worker to risk by driving - possess a drug of dependence - drive in a manner dangerous
Legislation Cited: Mental Health Act 2014, Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571
R v Verdins (2007) 16 VR 269
Brown v The Queen [2020] VSCA 212Sentence:5 years and 3 months’ imprisonment, 3 years non-parole
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearings For the DPP at sentence | Mr D. Brown Ms D. Dickson | Office of Public Prosecutions |
| For the Accused | Mr C. Morgan | Kerry Clancy Solicitors |
HIS HONOUR:
1Shane Clark, you have pleaded guilty to one charge of common law assault, one charge of threat to kill, two charges of aggravated intentionally exposing an emergency worker to risk by driving, one charge of possess a drug of dependence and one uplifted summary charge of drive in a manner dangerous.
- Common law assault carries a maximum penalty of 5 years' imprisonment;
- Make a threat to kill carries a maximum penalty of 10 years' imprisonment;
- Aggravated intentionally exposing an emergency worker to risk by driving carries a maximum penalty of 20 years' imprisonment;
- Possess a drug of dependence carries, in this instance, a maximum penalty of 1 year's imprisonment;
- Drive in a manner dangerous carries a maximum penalty of 2 years' imprisonment or 240 penalty units.
2I note that aggravated intentionally exposing an emergency worker to risk by driving is what is known as a Category 2 offence, which means that I must impose a custodial sentence alone for this offence, unless certain criteria apply.
3You were born on 20 May 1988 and are now 32 years old. You were aged 31 at the time of the offending in November last year.
4You have a prior criminal history about which I will go into more detail shortly.
5The victim in relation to Charges 1 and 2 in this matter was aged 30 at the time of the offending.
6At the time of the offending you were residing in a Victorian country town with your sister. The victim was residing in a nearby town with her two young children.
7By way of background, you had been in a de facto relationship with the victim for approximately nine years. The victim's older child was from a previous relationship and her younger child is from her relationship with you. You are close to the children.
8On Thursday 21 November 2019, you told the victim that you did not love her anymore and stated you were leaving the relationship. This was unexpected. You moved in with your sister.
9In the following days, the victim did not see you; however she received frequent calls and text messages from you which varied in content. Some messages were nice, while others demanded a DNA test for her younger child and accused her of seeing other men.
10The circumstances of your offending are as follows.
11On Monday 25 November 2019, the victim was at her residence. She had spent the evening with her neighbour. She had invited the neighbour to her house as she was upset by the text messages that you had been sending her since you moved out. At approximately 10.30 pm the neighbour returned to her home next door.
12You had borrowed a Volkswagen Golf hatch from a friend and drove to the victim's house.
13At approximately 11.30 pm, the victim was sitting on a chair in her lounge room watching TV. She heard the back wire door slam shut and before she knew what was happening, you had entered the back door and stormed into the living room and started screaming at her.
14You called the victim a “slut” and accused her of never loving you. You made accusations that the victim had men at the house since you had moved out, and that she had slept with a male who you named. The victim does not know this person and denied the accusations.
15You placed your hand on the victim's chest but without too much pressure. This caused the victim to cringe in her chair. This conduct forms part of Charge 1, common law assault. The victim told you that she was going to call police.
16You walked to the kitchen and grabbed a fork from the kitchen bench and used the fork to scratch your neck, chest and face. You told the victim that you would tell the police that she had done it and that she would be arrested and you would get the children.
17During the confrontation you told the victim that you wished you had never met her and you were going to “slit her throat”. You told the victim that if she took the children, you would kill yourself.
18The victim told you that you “would never get your hands on the children”. You told the victim that you would take the older child from school and you started to walk towards the younger child's bedroom door. The victim felt she couldn't get to the bedroom door before you so she yelled at you to get your attention. You walked back to the victim and grabbed her by the throat with your hands. This conduct is also part of Charge 1, common law assault.
19You then said, “I'm just going to kill you, you fucking cunt.” This conduct gives rise to Charge 2, threat to kill. The victim moved backwards which loosened your grip. You walked away and removed the house key from the back door. You told the victim, “Enjoy your sleep tonight, I'll be back and when I see you I'm gunna slit your fucking throat.”
20The victim believed that you were going to return and slit her throat. The victim ran to her neighbour's house for assistance and then returned to her home. The neighbour noted that she was crying hysterically. Emergency services were contacted.
21At approximately 2.23 am on now 26 November 2019, you sent text messages to the victim stating:
“I would like to start off with “I’m sorry I’m sorry for the last 9 years that I didn’t treat you right or do the right thing by you so can you please promise me you will look after [the children] but make sure they’re safe maybe in the next life time we would have been perfect but for now I love you [and the children] please make shore the 3 of u look after each other I’m sorry.”
22You also posted a message on Facebook:
“So this is it I have be fighting with mental health for a long time and I can’t do it anymore so to any 1 I hurt or did anything to My family will all ways love yous to the moon and back ok my friends it’s been a joy till next time.”
23The victim was extremely distressed by these messages.
24After the victim had been removed for her safety from her home town, at approximately 2.40 am Senior Constable Lincoln and Leading Senior Constable Browne from Wangaratta Police drove into the local recreation reserve searching for you.
25Senior Constable Lincoln and Leading Senior Constable Browne observed the Volkswagen Golf hatch near the football clubroom building. You had the headlights switched off. You attempted to drive away from them and Senior Constable Lincoln positioned the police divisional van in an attempt to block your vehicle and prevent you from avoiding arrest.
26You immediately reversed the vehicle backwards and forwards, then accelerated straight at the divisional van, colliding into the left passenger side of the bull bar before reversing back again and accelerating a second time, colliding with the police vehicle again, causing further damage to the front number plate, the LED light bar and bumper bar. This conduct gives rise to Charge 3, aggravated intentionally exposing an emergency worker to risk by driving.
27The police car was extensively damaged.
28You managed to evade police and exited the sports ground.
29Senior Constable Lincoln and Leading Senior Constable Browne returned to the victim's address and were informed by her neighbour that you had driven past the house again.
30At approximately 2.59 am Senior Constable Lincoln observed your vehicle parked in the vicinity of the victim's house. Leading Senior Constable Browne observed a hose hanging from the driver's side window.
31You have sighted police and accelerated towards their vehicle and veered past the driver's side door and back onto the victim's street, travelling in a westerly direction. You approached the intersection of her street and Beaconsfield Parade. Your car was observed driving in Beaconsfield Parade at approximately 60 km/hr without headlights and veering over the road.
32Sergeant McGuffie, working with First Constable Marsh, positioned their police vehicle at the intersection of Beaconsfield Parade and Gladstone Street. Sergeant McGuffie formed the opinion that your behaviour was extreme and your driving had become aggressive and dangerous to other road users, including police.
33First Constable Marsh was instructed to set up 'stop sticks' in an attempt to disable your vehicle. As First Constable Marsh opened the passenger door to exit, you were observed driving towards the police station wagon at an estimated speed of 55 to 60 kilometres per hour. As First Constable Marsh was about to get out of the police car, Sergeant McGuffie yelled at him to get back into the police vehicle stating, “Get in, he's going to fucking ram us”.
34Sergeant McGuffie attempted to take evasive action by moving the police vehicle to the left, but as he did so you turned slightly right in the same direction and then quickly turned left and collided with the right rear driver side end of the police vehicle. The impact was severe and caused such force that Sergeant McGuffie's body was shifted forward and his right shoulder struck the ‘B’ pillar. The impact of the collision with the police vehicle caused your front right tyre to deflate. This conduct is represented by Charge 4, aggravated intentionally exposing an emergency worker to risk by driving.
35You continued to drive with no regard to the safety of others, and sparks were observed flying from the right side of your vehicle by Sergeant McGuffie.
36You failed to stop your vehicle and continued driving north along Gladstone Street, Glenrowan. Sergeant McGuffie completed a U-turn and pursued your vehicle. He used his police vehicle to nudge your vehicle in an attempt to stop you.
37You drove your vehicle erratically and suddenly turned left towards the Glenrowan CFA building. Sergeant McGuffie continued to follow behind, nudging your vehicle a second time. This did not impact your driving and you continued to drive along a gravel pathway.
38Your vehicle hit a culvert and became airborne, scrapped two trees and landed heavily with the vehicle becoming disabled. Both air bags were deployed. Your vehicle sustained major damage and was later towed from the scene.
39The police car was extensively damaged.
40As a result of the collision, Sergeant McGuffie felt stiffness and neck and lower back pain, but did not require medical treatment. First Constable Marsh suffered mild back pain following you ramming the police vehicle in which he was a passenger, but did not require medical treatment.
41Excluding the above-mentioned driving that directly involved your colliding with the two police cars, your overall driving was erratic and involved swerving and driving without headlights. This conduct is represented by the transferred summary charge of dangerous driving.
42Through the entire time that you were driving erratically, your pet dog was confined to the front passenger well of the vehicle. The animal was tied to the gear stick by her lead and unable to escape. Police freed the animal from the vehicle.
43At the time of intercept, you made threats of self-harm, stating, 'I want to die, kill me.' You were arrested under the Mental Health Act 2014 and conveyed to North East Health Wangaratta under s.351 by ambulance with First Constable Marsh.
44Police located a shopping bag in the rear passenger side of your vehicle. The shopping bag contained green vegetable matter, suspected to be cannabis, in a zip lock plastic bag. Further green vegetable matter, also cannabis, was located inside a pink plastic container in the driver's side door. The total amount of cannabis was approximately 7.8 grams. A bong was also located in the car.
45You were arrested and conveyed to the police station for interview. During the interview you made partial admissions, were remorseful and in part stated:
a. that you have been struggling for ten years with not wanting to be alive. You stated you have been trying to receive help and had attended the GP in the week prior to the incident and were prescribed medication for your mental health, depression and anxiety.
b. that you were trying to be admitted to a mental health facility but you needed private health insurance.
c. that since you separated from the victim, the victim had joined Tinder and had been sending you messages about men she wanted to see and this made you snap. You said that you told her she could send them but you thought you saw a male in Benalla who the victim had sent you a picture of and he had laughed at you and you had lost it because of this.
d. that you went to the victim's residence and told her everything she had done wrong, that you never touched her, just pointed at her, but admitted yelling.
e. When asked about putting your hand on the victim's chest, you could not remember touching the victim but stated that she would not lie. You stated you would never hurt your kids.
f. In regard to harming yourself in front of the victim, you stated that you were, “fucking with [her] with the fork, it was just a cat scratch, I wanted to freak her out like she freaks me out. I was giving a little bit back. I was probably going nuts yelling at her probably saying you’re making me do this.”
g. You detailed yelling and pointing at the victim, stating that you took a house key and said, “sweet dreams sweetheart.”
h. You said that you drove back to Benalla and returned to Glenrowan because you wanted to die and to be with your Nan. You denied wanting to hurt people.
i. In regard to ramming the police van you stated that police caught you and you freaked out and ran. You explained that you just wanted to get away so you could finish what you were doing, you did not want the police to stop you (committing suicide).
j. When police located you the second time, you stated that you had driven down the victim's street near a silo to gas yourself, but police found you again. You explained that you drove away hoping police would shoot you.
k. In regard to ramming the police station wagon, you admitted to driving over the bridge and hitting another police car, stating that you were coming down too fast, maybe 40-50 km/hr and were trying to get through a gap but misjudged and completely took the police vehicle backend out.
l. You said you did not see any police officers outside the cars.
m. You said that you were trying to find somewhere quiet to gas yourself and the dog.
n. You admitted that you had smoked marijuana for a long time but it was not doing anything anymore. You admitted to having smoked ‘ice’ the previous four days straight before the incident and that you had not slept. You stated that you smoked 3 points over four days which cost about $150.
o. You also admitted possessing the cannabis located in your vehicle stating it was your personal bong.
p. You admitted making the victim feel terrified.
46The following is a short chronology of this matter:
Ø On 26 November 2019, the offending took place and you were arrested and remanded in custody.
Ø On 27 November 2019, you participated in a record of interview.
Ø On 13 February 2020, you were granted bail.
Ø On 17 February 2020, you were recommended for the Court Integrated Services Program. Progress reports were provided on 3 March 2020 and 31 March 2020.
Ø On 5 March 2020, the first committal mention was held and adjourned for discussions.
Ø On 2 April 2020, the second committal mention was heard and adjourned for further discussions.
Ø On 7 May 2020, the committal mention was adjourned but the matter resolved and was listed for a plea in the County Court.
Ø On 9 July, 2020, your plea hearing commenced before me, and adjourned at that stage due to a perceived absence of mental health reports. The court requested a Forensicare psychiatric report into your mental health.
Ø On 22 October 2020, the further plea was heard before me.
47I now refer to your previous history before the courts.
48As noted earlier, you are now 32 years old and you were 31 at the time of the offending and you do have a short criminal record.
49Your criminal record commences in the Benalla Magistrates' Court in August 2011 when, at the age of 23, you were convicted and placed on a 12-month community-based order for drink, drug and dangerous driving offences.
50In April 2012 you re-appeared at the Benalla Magistrates' Court for breaching that community-based order - for which the order was confirmed - and also for driving an unregistered motor car whilst disqualified and failing to wear a motor bike helmet - for which you were fined.
51In May 2015 you appeared in the Wangaratta Magistrates' Court and were convicted and fined $750 for criminal damage and ordered to pay compensation of $490.
52I now turn to your personal circumstances.
53Your personal history is described in detail within the psychological and psychiatric reports which were tendered on your plea.
54In summary, you have reported an adverse childhood environment where you were exposed to, and the victim of, considerable physical violence and substance use. You also report having been sexually abused at around the age of six. Your father died suddenly when he was aged 26, possibly of alcohol poisoning or suffocation after he attended a party and became intoxicated. You were again only six when that event occurred.
55After your father died, your mother had a series of partners and was generally neglectful of you and your sister. Child Protection was involved at some stage. You constantly moved residences and attended approximately 15 different schools. You felt constantly bullied in primary school and were involved in many altercations and fights.
56You moved into secondary school, found the academic component difficult and left in Year 10. You still have difficulties with literacy.
57After leaving school, you have worked in a variety of positions including briefly in retail, as a roustabout in a shearing shed and constructing and building trusses. You have had difficulty persisting in work and have been on unemployment benefits for most of the past few years. You had not worked for three months prior to the offending.
58Following your arrest, you served 80 days in remand custody before being bailed on 13 February this year. Since then you have participated in the Court Integrated Support Program and as a result, have been medicated within a Mental Health Care Plan from a local general practitioner and have participated in psychological counselling sessions on at least five occasions with Mr Christopher Kelly, consultant psychologist.
59You were originally bailed to reside with your sister, but over the past months have reconciled with the victim. You have her support and you have progressively spent more time with her and the children.
60You have a long history of illicit drug use. You commenced using cannabis at age 15 and have continued to use daily. You also have described problematic drinking of alcohol, at times drinking a carton of cans at one time with consequent problems of mood and aggression. Unfortunately, you progressed to methamphetamine in 2019 - on your account to improve your mood. You have reported that for approximately 12 months prior to the offence, you were using 3 to 4 points per day. You were aware that methamphetamine was 'extremely dangerous' for you and that you believed it caused you to become ‘manic, angry and depressed’ and to develop psychotic symptoms. There are court reports, in particular, the CISP program reports tendered on your plea, that indicate that you have had infrequent use of MDMA and cocaine in the past.
61You have also experienced a range of mental health difficulties, particularly mood changes, since your teen years in the context of your experience of abuse and trauma, but had never seen health professionals. Your first contact with psychiatric services was at the age of 20 when you confronted a cousin who had sexually abused you as a child. You had become highly distressed and attended the Emergency Department of a hospital. You were admitted to the Kerferd Inpatient Psychiatric Unit in Wangaratta for a week, but do not recall having any specific treatment or follow-up arranged.
62Shortly after, your mood deteriorated again. You were admitted to the same unit after having suicidal ideation in April 2011 and remained in hospital for four days and again did not commence treatment or have follow-up.
63The psychiatric data base shows that you were admitted to the Kerferd Unit again in January and in May of 2011. The diagnosis listed on 10 January is 'Acute stress reaction' and on 2 May 2011 as 'Acute stress reaction and depression, together with mental and behavioural disorder due to cannabis and alcohol use.'
64In the months preceding this offending, the victim witnessed a deterioration in your mental health, and on 11 November you attended your local GP. You reported a recent suicide attempt and possible bipolar disorder with anxiety. Your medical practitioner attempted but was unsuccessful in having you admitted into an in-patient mental health program. You were ‘wait-listed’ whilst your practitioner was assisting you with admission into a private health clinic. The offending occurred whilst this was taking place.
65For the purposes of your plea, the court requested a psychiatric report through the services of Forensicare and a report from Dr Maria Triglia, Consultant Forensic Psychiatrist, has been tendered. Dr Triglia's opinion may be summarised briefly as follows:
· The offence occurred in the context of the use of methamphetamine, alcohol and cannabis where you became irritable, labile and impulsive, and in a background of chronic difficulties with mood regulation and underlying personality traits, short of diagnosable personality disorder.
· Your history of difficulties with mood and regulation of emotion since your teen years would suggest that illicit substance use and alcohol would have contributed significantly to fluctuations and instability of mood and likely exacerbated underlying heightened interpersonal sensitivity to the point where you may have had brief substance-induced psychotic episodes in the past.
· You meet criteria for substance use disorder involving methamphetamine, cannabis and alcohol. It is likely that you also have significant cluster B personality traits which are in keeping with your history of abuse and trauma.
· It would appear that your personality difficulties have led to considerable distress and problems with social and occupational functioning. Much of your anxiety and interpersonal sensitivity relates to your difficult childhood experiences. A diagnosis of bipolar disorder is not likely, as mood instability seems to be closely associated with substance use.
66Your offending is obviously very serious and it falls into a number of categories.
67First, your assault upon your partner, although not associated with actual physical injury, involved a shocking tirade of vulgar abuse against a long-term partner including grabbing her by the throat and threatening to kill her by slitting her throat. The circumstances can only be described as terrifying for the victim - she believed that you were going to return and slit her throat and was noted by a neighbour to be crying hysterically after the incident. The offending was a nasty example of family violence that is regularly seen and deprecated by the courts. Domestic partners need to be able to feel safe in their homes and the courts must be seen to denounce such behaviour. The scourge that is family violence has been well-documented in the press over recent years. Victims are entitled to feel that they have been respected and protected by the courts and offenders should expect appropriate and stern punishment.
68Secondly, the driving of a motor vehicle into police, as you did on successive occasions, is also considered very seriously by the courts. So much is reflected in part by the high maximum penalty imposed by Parliament. Emergency workers such as police regularly put their lives at risk in service to the community and are also entitled to receive community acknowledgment for that, and the admonition by the courts for the type of behaviour in which you engaged.
69The second incident of driving at high speed towards the police vehicle when one of the officers was either out of, or in the process of exiting, the vehicle is particularly alarming. Despite the police driver taking evasive action, you collided with severe impact. The police involved were fortunate not to have been more badly injured.
70It should also be observed that this type of behaviour can have a lasting emotional impact on victims beyond any physical injury.
71Thirdly, your overall driving - being erratic, swerving and without headlights late at night - was inherently dangerous and capable of causing great harm to other road users.
72On each of the charges, principles of general deterrence and denunciation by the court are prominent in sentencing considerations. Specific deterrence also remains relevant.
73In mitigation, I have considered all the matters urged by your counsel, and in particular take into account:
· Your plea of guilty and the time it was made. You have spared the cost and the victims the anxiety and stress associated with a contested trial, and you have advanced the administration of justice by avoiding the necessity of what may have been a long and expensive trial.
· That you have shown remorse.
· That despite your difficult circumstances, your prior offending is moderate and you have not previously offended by any acts of personal violence.
· Your very disadvantaged early life and underlying personality traits, which possibly made you vulnerable to resorting to dangerous substance abuse. I accept that full weight should be given to your disadvantaged early life.
· That since being released on bail you have applied yourself conscientiously to rehabilitative courses and psychological counselling and have sought and maintained prescription medical treatment for your underlying personality traits. According to Dr Kelly, you have proceeded well from almost the first time that you had counselling with him. I note with some concern there is nothing in his report which addresses anything to do with your severe long-term drug issues.
· That you seem to have managed to significantly reduce your dependence on illicit drugs according, in particular, to Mr Kelly's report.
· That you have reconciled with and have the support of your partner and your family.
74Based on the absence of any previous serious criminal activity, the supports you have and your progress in rehabilitation to date since the offending, I accept that your prospects of rehabilitation are good if you apply yourself conscientiously to addressing your serious drug use and get professional help for any underlying personality issues. I have reflected those prospects in the period I have determined you serve before eligibility for parole.
75At the plea hearing your counsel placed significant emphasis on a submission that your moral culpability for the offending was substantially reduced because you were suffering impaired mental functioning at the time of the offending other than as a result of being affected by illicit substance abuse. Furthermore, it was submitted that this finding would constitute an exception to the presumption of a custodial sentence alone for offences 3 and 4 pursuant to s.5(2H)(c) of the Sentencing Act 1991. This submission was based in essence on the following evidence:
· that your partner had noticed that your mental health and behaviour had deteriorated for some three to four months before the incident and that you had been prescribed anti-depressants that seemed to have had no effect;
· that you were suicidal on the night;
· that you have a history of previous admissions in response to suicide ideation;
· that you had a history of difficulties with mood and regulation of emotion since your early teens, probably as a result of historic abuse and trauma;
· that those personal difficulties have led to considerable distress and problems with social and occupational functioning;
· that 17 days before the offending you had attended Dr Hawkins at the Green Street Medical Clinic, where mental health issues were recognised and attempts were made to obtain admission for you within an inpatient program;
· that Dr Triglia's report is silent on the attendance to Dr Hawkins and the documented material of the visit (Exhibit 4);
· that Dr Triglia accepted your behaviours leading to, and at the time of, the offending 'are likely due to the effects of his substance use at the time of the offences, but they occurred on the background of his chronic difficulties with mood regulation.'
76I do not accept your counsel's submission.
77The overwhelming evidence is that you have a long history of illicit drug and alcohol use since you were 15, escalating to daily use of methamphetamine for approximately 12 months prior to the offending. You were aware that methamphetamine was extremely dangerous for you and that you believed it caused you to become manic, angry and depressed and to develop psychotic symptoms.
78Dr Triglia noted that you told her that in the months before the offences you had 'lost the plot.' You had been using methamphetamine in increasing amounts, together with large amounts of alcohol and cannabis. You said that this created additional problems including unstable and fluctuating mood, intense irritability and anger - often directed at your partner - and persecutory beliefs that people were in the house.
79In your record of interview you told police that you had been smoking three points of ‘ice’ the four days straight before the incident and that you had not slept. You also admitted to possessing the cannabis and bong located in your vehicle at the time of your arrest.
80Notwithstanding that Dr Triglia did not specifically refer to the medical attendance before Dr Hawkins on 8 November 2019, Dr Triglia did refer to the circumstances relating to that attendance.
81In paragraph 26 of her report, Dr Triglia refers to your 'thought' that you had been diagnosed with bipolar affective disorder in late 2019 when you were commenced on the anti-depressant Escitalopram. This reference mirrors Exhibit 4, the medical attendance report from Dr Hawkins's clinic on 8 November 2019. Dr Triglia then addresses the issue of possible bipolar disorder in paragraphs 49 and 50 of her report. Dr Triglia determined that a diagnosis of bipolar disorder is unlikely as mood instability seems to be closely associated with substance abuse. Dr Triglia also discounted a diagnosis of Personality Disorder and opined that you had a difficult and disadvantaged childhood with underlying personality traits which are in keeping with your history of abuse and trauma.
82Whilst mental illness for the purposes of establishing a reduction in moral culpability is not determinant on any particular label, there must be cogent evidence that a particular mental state is causally linked to the commission of the offence, and that is, directly causally linked.
83The evidence before me does not establish such a causal link. The overwhelming evidence is that the offences were committed whilst you voluntarily engaged in taking illegal substances which you knew to be dangerous by the effect they had on you. The best, in my view, that could be said on the evidence is that your disadvantaged early life, with its abuse and trauma, may be linked to your underlying personality traits which has possibly made you more vulnerable to seeking support in substance abuse rather than appropriate treatment.
84Whilst this might fairly be taken into account in the context of the effects of a 'profound childhood deprivation'[1] the diagnosis of ‘background of chronic difficulties with mood regulation’ on the present evidence, is insufficient to establish cogent and direct evidence of reduced moral culpability.[2] It is insufficient, in the absence of clear evidence, to speculate that any underlying condition is a direct causal feature of chronic serious substance abuse, and thus a direct causal feature going to the moral culpability of a crime.
[1] Bugmy v The Queen (2013) 249 CLR 571
[2]R v Verdins (2007) 16 VR 269; Brown v The Queen [2020] VSCA 212
85It is notable that the admission into mental health services in May 2011 returned a diagnosis of ‘acute stress reaction and depression, together with mental and behavioural disorder due to cannabis and alcohol use.’ (referred to in paragragh 28 of Dr Triglia’s report).
86It is also illuminating to note that despite any long-term underlying traits, you have never before acted out in the violent manner as you did on the occasions represented by the present charges. Your prior offending history is modest. The instant behaviour is quite consistent with the evidence that from a period of approximately 12 months prior to the offending, you had started taking methamphetamines and began using increasing amounts in the months leading to the offences to the point where you had been smoking ice for the previous four days prior to the incident and had not slept.
87The voluntary ingestion of illicit substances, particularly when their destructive effects are known, is incapable of reducing culpability for a crime. Axiomatically, it increases it.
88Accordingly, I do not accept that you were suffering from an impaired mental functioning causally connected to the offending which would reduce your moral culpability and, for the same reasons, the conditions of exception within s.5(2H)(c) of the Sentencing Act 1991 do not apply for Charges 3 and 4.
89The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to deter you and general to deter other like-minded individuals from committing similar offending), rehabilitation, denunciation and protection of the community.
90In sentencing I have regard to a range of matters such as the maximum penalties for the offence, the nature and gravity of the offence, your culpability and degree of responsibility for it, your personal circumstances, those of the victims and the context of current sentencing practices. Each factor must be balanced in order to impose a sentence that is just in all the circumstances. I am required to balance the interests of the community in denouncing and punishing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
91Mr Clark, I will now deliver the particulars of the sentence. Could you now stand.
92On Charge 1 of common law assault, you are convicted and sentenced to six months' imprisonment.
93On Charge 2 of making a threat to kill, you are convicted and sentenced to four months' imprisonment.
94On Charge 3 of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to three years' imprisonment.
95On Charge 4 of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to four years' imprisonment.
96On Charge 5 of possessing a drug of dependence you are convicted and sentenced to one month's imprisonment.
97On Summary Charge 18 of driving in a manner dangerous you are convicted and sentenced to three months' imprisonment.
98Charge 4 is the base sentence. I direct that one year of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 4 and upon each other. The sentences are otherwise concurrent.
99The total effective sentence is five years and three months' imprisonment.
100I direct that you serve a minimum period of three years of imprisonment before being eligible for parole.
101Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 80 days be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
102Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that would have been imposed is seven years' imprisonment with a minimum period of five years to be served before eligibility for parole.
103In relation to Charges 3 and 4 the prosecution case is that the offending was committed under the influence of drugs. The offences are a ‘serious motor vehicle offence’ within the meaning of s.87P of the Sentencing Act 1991 and this has enlivened s.89 of that Act under which I am required, pursuant to sub-s.89(2)(b), to cancel any licence you hold and disqualify you from obtaining a further one for a period of not less than 24 months.
104In relation to the relevant summary offence of drive in a manner dangerous, there is a minimum mandatory cancellation period of six months.
105Accordingly and pursuant to those sections, on each of those charges I further order that any driver's licence that you hold is cancelled and that you are disqualified from obtaining any such licence for a period of three years effective from today.
106I also make today the order that has been requested for the disposal of the marijuana seized.
107I note that in light of the material that has been presented on the plea, particularly with respect to the history of previous attempts at self-harm, it may be appropriate, notwithstanding the fact that Mr Clark seems to have been proceeding reasonably well at the present stage, to make a note on the order for custody management issues. Mr Morgan, do you seek such an order?
108MR MORGAN: Yes, Your Honour.
109HIS HONOUR: It strikes me, Mr Clark, in light of the sentence and your past history, that it is important that any help that you need, you get immediately if you do find yourself in difficulties emotionally and psychologically.
110So because of that, I will list custody management issues for the purposes of the custodial personnel as risk of self-harm, suicide risk, medical assessment and attention required.
111That means that you will be able to obtain pharmacological prescription medicine; if you need to you will be assessed, and you can be managed so that you can get that help if you need to.
112OFFENDER: Yep.
113HIS HONOUR: All right. Well, you've got a lot of support. You understand your condition perhaps because of the process that you have been through following this matter, much better now, perhaps, than you did at another time.
114OFFENDER: Yes.
115HIS HONOUR: And it is quite clear to me, just seeing you today and reading the report from Mr Kelly, that once you apply yourself to the issues you have in your life and get full professional help, with the support that you have from your partner and family, and the care and love you have for your children, you can work through this next phase. You might find that it itself changes your life.
116OFFENDER: Yep.
117HIS HONOUR: Do you have anything else, Mr Morgan?
118MR MORGAN: No, Your Honour.
119HIS HONOUR: I ask that the court be adjourned until Monday.
‑ ‑ ‑
0
4
0