Director of Public Prosecutions v Clark

[2019] VCC 104

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01620
CR-18-01752

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHASE CLARK
JESSICA MAY

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2019
DATE OF SENTENCE:	1 February 2019
CASE MAY BE CITED AS:	DPP v Clark
MEDIUM NEUTRAL CITATION:	[2019] VCC 104

REASONS FOR SENTENCE
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Subject:  Criminal law – Sentence

Catchwords:  Home invasion – guilty plea – male offender armed with shotgun threatened occupants upstairs – female offender remained downstairs and stole a number of items – parity

Legislation Cited:

Cases Cited:Guden [2010] VSCA 196; Nei Lima Da Costa Junior [2016] VSCA 49; Daniel Yoannidis [2018] VSCA 109

Sentence:Clarke – Total effective sentence of 6 years with a non-parole period of 3 years and 9 months

May – Total effective sentence of 3 years and 9 months with a non-parole period of 1 year and 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Mr L Harrison
For Accused Clark	Mr J. Hoffman	Emma Turnbull Lawyers
For Accused May	Mr B. Johnston	Haines and Polites

HIS HONOUR: 

1Chase Clark and Jessica May, you have each pleaded guilty to one count of home invasion, one count of intentionally damage property and two counts of theft.  Mr Clark, in addition you have pleaded guilty to one count of possession of drugs of dependence and to the following up-lifted summary charges: resist police; possess dangerous articles, which were two knives; unlicensed driving, dealing with property suspected of being the proceeds of crime.  The charges arise out of events which occurred in May 2018.  The circumstances of the offending of the two of you are set out in the summary of prosecution opening which was Exhibit A.

2On 14 May 2018, Mr Clark, you borrowed a friend's car and drove away in it.  That is the charge of unlicensed driving.  Around 6.15 in the morning of Thursday 17 May 2018, the two of you with an unknown third person, a man, climbed the side fence into a property at 354 Mitcham Road, Mitcham.  You, Mr Clark, were carrying a loaded sawn-off shotgun.  You, Ms May, concealed your face and hair and were wearing a backpack.  You, Mr Clark, did not have your face covered.

3Mr Clark, you turned off the power to the automated gates leading into the property and forced open a gate leading to the rear deck.  You picked up a spade in the rear yard and used it to force open the rear glass sliding door.  The two of you then entered the house.  That conduct constitutes Charge 1, the home invasion.

4The two of you entered the house with intent to steal property within it.  You entered the house together.  Ms May, you became aware of the firearm only after climbing the fence into the property, but nevertheless proceeded to enter it.  Neither of you knew whether anyone else was present, but were reckless as to that circumstance.  Inside the home you, Ms May, picked up various items and placed them in your backpack.  The occupants, a man and a woman, heard you break into their home.  They barricaded themselves inside the bedroom and hid in a walk-in robe. 

5You, Mr Clark, forced your way into the bedroom and banged on the door of the walk-in robe.  As the door opened, the woman saw the barrels of the shotgun.  The man pushed the wardrobe shut and you said words to the effect, "We saw you on the news.  Tell me where everything is or we'll start popping shots".  While hiding in the wardrobe, the woman called 000.  The third offender, who had kept a lookout at the front of the property, jumped the fence, broke a lock to a shed and removed various items including power tools. 

6Ms May, after removing various items from the home and putting them in your backpack, you left the house with some keys.  You tried unsuccessfully to open the automatic gates.  You got into a red Volkswagen parked in the carport and tried to start the engine.  The third offender put power tools into the back seat and with you, Mr Clark, forced the automatic gates open, damaging the hydraulic arms, and that damage constitutes Charge 2, intentionally damage property.

7The third offender then fled.  You, Mr Clark, got into the front passenger seat with the shotgun.  You, Ms May, unsuccessfully tried to reverse the Volkswagen out of the carport.  You, Mr Clark, then got into the driver's seat and also tried, without success, to get the car into reverse gear.  That conduct constitutes Charge 4, theft of a motor car.

8While the two of you were in the car police arrived.  You both tried to run away.  You, Ms May, were arrested in the carpark.  You, Mr Clark, ran off and hid in a nearby bush.  Police found you, you were told to put your hands out and not to move.  When you started to stand up, a police officer moved toward you to restrain you.  The police officer and you fell to the ground and you continued to resist arrest.  That conduct constitutes the summary charge of resist arrest.

9Other police assisted to arrest you, Mr Clark, and you were found with five mobile phones, jewellery, a bankcard and a healthcare card not in your name, a remote gate opener and $300 in cash.  Your possession of those items constitutes the charge of dealing with property suspected of being proceeds of crime.  You also had a small bottle of 1,4-Butanediol, a Ziploc bag containing methyl amphetamine and another Ziploc bag containing a portion of a Xanax tablet.  Your possession of those drugs constitutes Charge 5, possession of drugs of dependence.

10Ms May, when police arrested you, in your backpack you had a laptop, a soldering iron, a plastic container, a watch, an Apple iPhone, a tablet, three power banks, cigarettes and some cash.  These items, together with the power tools and other items the third offender had taken from the shed and put into the red motor car, constitute the property the subject of Charge 3, theft.

11Police found the car which you, Mr Clark, had borrowed nearby.  Inside the car were two knives and your possession of those knives constitutes the summary charge of possessive dangerous articles.  The home occupiers had CCTV cameras operating outside their home.  I have viewed the file footage, which is Exhibit C.  The female occupier at 6.18 had called 000 when she heard you enter her home. 

12The footage shows you, Ms May, putting your backpack into the red car in the carpark, the third offender placing items in the rear seat and then you, Mr Clark, and the third offender forcing open the driveway gates and the two of you getting into the red car.  It shows each of you attempting unsuccessfully to get the car into reverse gear to drive out of the property until the police arrived at 6.25, when you both ran from the car.  It shows police apprehending you, Ms May, in the carport while you, Mr Clark, fled through a side gate.

13I have read the woman occupier's victim impact statement, which was Exhibit B.  Understandably, she no longer feels safe in her own home.  She stated that your actions frightened her so profoundly, that she often feels like she is in prison in her own home.  I must take into account the frightening impact of your crimes upon her and her partner. 

14You, Mr Clark, have admitted 61 criminal convictions from 12 court appearances between 18 September 2007 and 15 February 2018.  Your counsel, Mr Pearson, informed me you have a number of juvenile convictions between 2004 and 2006 and in respect of some of those convictions, periods of detention in youth training centre were imposed.  In adult courts, you were sentenced to terms of imprisonment for robbery in 2007 for 12 months; in 2009 for five months, which sentence was wholly suspended; and in 2010 for six months. 

15You have also served sentences of imprisonment for unlawful assault and other offences in 2010; six months for possession of heroin and other offences in 2012; three months for handling stolen goods and other offences in 2012; and for theft and burglary and other offences in 2012, also two years and three months.  You managed not to offend for a period of time in 2015 and 2016, until in June 2016 you were sentenced to six months' imprisonment for burglary and other charges.  And in July 2016, you were sentenced to four months' imprisonment for shop stealing.  At the time of this offending you were the subject of two community correction orders, imposed largely for driving offences.

16I turn now to your personal circumstances, which are set out in the psychological report of Ian McKinnon, which is Exhibit C1 and which your counsel, Mr Pearson, elaborated upon in written and oral submissions.  You are 29 years of age, you were born in New Zealand.  Your mother is of Maori ancestry, your father is of Anglo-New Zealand background.  You have two brothers and one sister.  In your early years, you were looked after by relatives.  When you were seven years old you moved from relatives care to your father’s care.  When you were ten years old, your father brought your siblings and you to Australia.  To Mr McKinnon you described your father as very violent toward you. 

17You told him that after a year or two, you started running away from home and you were made a ward of the State and lived in foster homes and group homes.  When you were 15 you started offending and spent time in youth training centres at Parkville and Malmsbury.  You said your schooling in New Zealand and Australia had been disrupted and you said you got more education at YTC than outside.  You have had a deprived and disadvantaged upbringing. 

18Nonetheless, you managed to complete most of a bricklaying apprenticeship and you were working in the construction industry shortly prior to this offending.  You told Mr McKinnon that at age 13 you started using alcohol and amphetamine and cannabis, and you said for about four years prior to this offending ice was your main drug and you used up to two grams a day, if you could get it.  Mr McKinnon has diagnosed you with post- traumatic stress disorder which he attributes to the development traumas you suffered during an unstable childhood and adolescence and poly-substance disorder, which is in remission while you are in prison.

19In prison, you are prescribed Avanza for anxiety and depression.  In his opinion, you are intelligent and have the potential for rehabilitation.  In that regard, he noted that you are genuinely remorseful, that you have succeeded in employment and personal relationships with your siblings, your partner and a friend, Heather Haire, who has offered you accommodation upon your release from gaol. 

20In relation to your offending, you told Mr McKinnon you were brought in to help collect a drug debt.  You said that if you had been sober, it would never have happened.  You expressed remorse for the fear that you had caused and which you saw in the woman's face, when you opened the built-in wardrobe.  You acknowledge she was an innocent victim, which you regret daily.

21Mr Pearson told me, you were not told that anyone would necessarily be present when you went there and you were promised a share of the proceeds of your crimes for your involvement.  Following your arrest, you were remanded in custody.  In prison you have been held in a mainstream unit where you have worked as a billet.  You have had no behavioural issues and you have undertaken the courses made available to you.  Various prison certificates certifying your completion of programs and courses were Exhibit C4.

22You told Mr McKinnon, that at the time of this offending you had lost the plot as you were using drugs.  You had been living with your partner, Julia Smart, but when the lease on your rental property expired, she went home to her parents and you were effectively homeless.  I have read a reference Ms Smart wrote.  It is Exhibit C2.  She met you in 2015.  She described you as talented and smart, genuine and generous.  Despite ups and downs during your relationship, particularly when you were incarcerated, she has stuck by you. 

23Not long after you were arrested she discovered she was pregnant with your child.  Separated from you and fearing the unknown, she chose reluctantly to terminate the pregnancy.  The loss is something that you have both found difficult to deal with.  She has supported you with her presence in court.

24I also read the reference of a friend, Kirsty Kelk, which is Exhibit C3, who has known you for 18 years.  She wrote she met you when she was stranded on the side of the road after a car accident and you pulled over to assist her.  You have been friends ever since.  She wrote you have a fantastic relationship with her two daughters.  She said, "When Chase is good, he is great.  When he gets stuck in his depression, he finds it hard to keep a positive outlook and stumbles back into old habits and friendships that are a detriment to him". 

25She believes you want to change, not only for the people you love but for yourself, and she said in her opinion, if you were given the right tools, you could turn your life around.  Knowing you have been in trouble with the law a number of times, she nevertheless believes you are not beyond help. 

26You are a New Zealand citizen and face the risk of deportation upon your release from gaol.  You have made your life in Australia and have few family or friends in New Zealand.  Mr Pearson, on your behalf, relied on the following matters in mitigation of penalty: your plea of guilty, made at the earliest opportunity, for its facilitation of the course of justice, remorse, and your acceptance of responsibility for your actions. 

27He relied also on your expressions of remorse; your disadvantaged background which, in my opinion, engages the Bugmy principles; and the risk of deportation, the uncertainty of which will increase the burden of imprisonment upon you and may deny you the opportunity to make your future life in Australia.  And in that regard, he referred me to the Court of Appeal decisions in Guden [2010] VSCA 196 and Nei Lima Da Costa Junior [2016] VSCA 49 and I have regard to the principles set out in those cases.

28He also relied on your prospects of rehabilitation which, although guarded, are nonetheless real because of your demonstrated insight into your offending, your past achievements in work and relationships and the support of your partner and friends.  I accept the force of his submissions. 

29Ms May, I now turn to your circumstances.  You have admitted a criminal record of five court appearances between December 2013 and February 2018.  You have convictions for possession of methyl amphetamine and cannabis and minor convictions for possession of a weapon.  You were subject to a community correction order, which had only an unpaid community work component for driving offences, when you participated in the home invasion.  Your arrest and remand on 17 May 2018 was your first time in custody.

30You are aged 25 years.  You were born into a caring and supportive family.  Your parents are hard-working and law abiding.  You are an only child.  Your parents separated when you were six years old.  You remained with your mother and attended local schools, where you completed Year 10.  When you left school, you obtained certificates in hospitality at Box Hill TAFE.  You trained and worked as a barista for two years.  During school years you were a very good sprinter.  Your counsel, Mr Johnston, described you as a pocket rocket.  You trained daily after school and competed at State level at events around Victoria until you were 20 years old, when you suffered a serious foot injury in a motorbike accident. 

31While you were recuperating from that injury, you reconnected with people you had known at TAFE who introduced you to methamphetamine.  Ever since, you have used methamphetamine intermittently, however at the time of your offending you were using methamphetamine daily.  When police interviewed you, after your arrest, you told them you had been to the Mitcham house once or twice before, to obtain drugs from the man who lived there.  You said you were told the man owed money to someone else.  You said you, "Stupidly", agreed to help the people who were to collect the debt, by meeting them at the house and giving them details of its interior layout. 

32You said you were to get a share of the proceeds of the property to be taken from the house, to satisfy the debt.  You said you were dropped off at the house, where you met someone you knew as, "A friend of a friend", and the two of you jumped the side fence onto the property.  You said you were not aware the other person had a firearm until you had jumped the fence.  You wore a disguise because you did not want to risk being recognised.  You said you got inside the house and went into the kitchen and the study, where you grabbed some items and put them in your backpack. 

33You said you also looked for keys to open the driveway gates.  You said you did not hear or see anyone while you were in the house.  You said you found keys, left the house and tried unsuccessfully to open the gates.  You said you then got in the red car and started it.  Shortly after police arrived and arrested you.

34The prosecution accepts you only became aware of the firearm which Mr Clark had, after you climbed over the fence and that you did not know whether the firearm he was carrying was imitation or real.  I accept you gave police a truthful account of your involvement in the offending.  Your counsel, Mr Johnston, told me by your offending you hoped to get money to buy drugs.  He said you had no stable accommodation and were in an unsatisfactory relationship with someone, who was now in gaol. 

35You have a son, Vin, who is aged five years.  Your mother looks after him.  You are allowed weekly inter-prison contact with Vin's father, who is gaoled in Barwon prison.  You have this contact so Vin can connect with his father in gaol and upon his release from custody.  You have spent your own time in custody productively.  Prison certificates, Exhibit M1, and drug screening results, Exhibit M3, demonstrate you have taken advantage of the education and vocation programs made available to you and have been drug free. 

36You have also attended regular Narcotics Anonymous and Alcoholics Anonymous meetings and I was provided with documents confirming that, which are Exhibit M2 and you attend these meetings to assist you to address your substance abuse.  You work in the prison café, where you are entrusted with responsibility for handling money.  Your mother visits you each Thursday.  Your father brings your son to see you, each weekend.  I received references from your mother, Exhibit M4, and a family friend, Jacqueline Smith, Exhibit M5. 

37Your mother wrote that prior to your arrest, you were assisting with your son's care.  You were staying at your mother's home one to two nights a week, to look after him and taking him to swimming lessons.   She said that since your incarceration she has struggled to look after your son on her own.  She stated that you have broken up with your partner and that your mother, herself, has been able to retrieve all your possessions.  You have told your mother that imprisonment is the wake-up call you needed and your focus now is to become a full-time mother and get a job as soon as possible. 

38Your mother intends that you will live with her on your release.  She has told you that there will be strict rules that will apply.  She has arranged voluntary work for you at an animal rescue shelter and she will support you financially, while you look for paid work.

39Ms Smith has known you for more than 20 years.  When you were younger you stayed with her family during school holidays and as a teenager, you would babysit her children.  She described you as a kind, funny, active, responsible and caring girl.  She was devastated to learn of your involvement in this offending.  She speaks to you regularly and believes you are making the most of your time in prison.  She sees your son as a powerful incentive for you to be a positive and productive member of the community.  She also will support you when you are released from gaol. 

40I also received a letter you had written to the court, Exhibit M6.  You wrote you felt you had to offend as you did to prove that you were someone.  You now ask yourself how you could have done such a thing.  You stated you were deeply sorry for the trauma that you have brought to everyone involved and that when you get out of prison, you intend to continue to attend Narcotics Anonymous meetings and to become a mentor for young offenders.  You look forward to becoming more involved with your son and his schooling.

41In mitigation of penalty, Mr Johnston relied on the following matters: your plea of guilty, made at the earliest opportunity; your remorse evidenced by your plea; your truthful answers at police interview; your letter of contrition; your relative youth; your lesser role in the offending; and your good prospects of rehabilitation, supported by protective factors including your desire to be reunited with your son, your supportive parents and friends, your positive response to your incarceration and your skills for employment.

42He submitted, applying the parity principle, I should impose a lesser total effective sentence upon you than Mr Clark.  He also submitted I should impose a shorter than usual minimum non-parole period to enable you to return to the community, to be reunited with your son and to advance your rehabilitation.  I accept the force of his submissions. 

43Mr Raimondo, on behalf of the prosecution, submitted the offence of home invasion is a serious one.  The maximum penalty of 25 years' imprisonment makes this self-evident.  As he submitted, the sentencing objectives of general and specific deterrence, as well as just punishment, are significant.  He submitted there was a degree of planning and pre-meditation to your offending.  He also submitted that the fact you were both on community corrections orders at the time of your offending and that you, Mr Clark, were armed with a loaded firearm, are aggravating circumstances of the offending.  I accept those submissions.

44Mr Raimondo further submitted the duration of the home invasion was an aggravating circumstance, however prosecution and defence agree it was approximately 12 minutes from the time when you, Mr Clark, jumped over the fence, slightly less for you for, Ms May, until police arrived.  It is agreed that you, Ms May, spent approximately three and a half minutes inside the house and you, Mr Clark, were inside the house for approximately seven minutes.

45Additionally, Mr Raimondo submitted the two of you played equal roles and referred me to the Court of Appeal judgement in Daniel Yoannidis [2018] VSCA 109, to support his submission I should impose the same total effective sentence for both of you. He submitted I should distinguish between the two of you, by imposing a shorter minimum non-parole period upon you, Ms May. He provided me with a consideration of parity principle table, which is Exhibit D, which sets out the similarities and dissimilarities between you, which are factually agreed. I do not accept his submissions, in relation to roles and parity.

46Mr Clark was carrying the loaded firearm.  Ms May did not know that he had any firearm until the two of you jumped over the fence.  Mr Clark spent twice as long inside the house and went into the bedroom, where the occupants were hiding and threatened them.  Ms May went only into the kitchen and study when she entered the house.  Applying the parity principle, recognising the similarities and dissimilarities between your roles and also your personal circumstances, I will impose a lower total effective sentence and non-parole period on you, Ms May.

47By the sentences I impose, I must denounce the conduct of each of you.  I must punish you and deter you and others from committing crimes of the same or a similar kind.  I must look to the protection of the community and as well, your rehabilitation.  Taking into account the circumstances of the offending of each of you and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing, an amount appropriate to each of you, I impose the following sentences.  Mr Clark, would you stand please?

48On the charge of home invasion, you are sentenced to imprisonment for five years and six months;

49On the charge of intentionally damaging property, you are sentenced to six months' imprisonment, two months of which is to be served cumulatively on the base sentence of five years and six months for the home invasion;

50On the charge of theft of the power tools and other items, you are sentenced to four months' imprisonment, two months of which is to be served cumulatively on Charges 1 and 2;

51On the charge of theft of a motor car, you are sentenced to three months' imprisonment, one month of which is to be served cumulatively on Charges 1, 2 and 3;

52On the charge of possession of drugs of dependence, you are sentenced to one months' imprisonment, which is to be served concurrently with all other sentences;

53On the up-lifted summary charges of unlicensed driving, you are fined $500;

54On the charge of resist arrest, you are sentenced to three months' imprisonment, one month of which is to be served cumulatively on all other sentences;

55On the charge of dealing with property, suspected of being proceeds of crime, you are sentenced to one months' imprisonment, which is to be served concurrently with all other sentences; and

56On the charge of possess dangerous articles, you are sentenced to one months' imprisonment, which is to be served concurrently with all other sentences.

57Your total effective sentence is six years imprisonment and I fix a non-parole period of three years and nine months.  I fix that non-parole period having some confidence that at 29 years of age, you may well have realised that it is time to change and I recognise that you have used your time in remand productively, having no behavioural issues, obtaining responsible work, and by fixing that minimum non-parole period it is my hope and expectation that that will advance your rehabilitation. 

58Pursuant to 6AAA I declare that but for your plea of guilty, I would have imposed a total effective sentence of eight years and fixed a minimum non-parole period of six years. Pursuant to s.98(4) of the Sentencing Act, I order all driver licences and permits held by you be cancelled and you are disqualified from obtaining any future licence or permit for a period of 12 months.  Have a seat, please.

59Ms May, on Charge 1, the count of home invasion, you are sentenced to three years and six months imprisonment;

60On Charge 2, intentionally damage property, you are sentenced to two months' imprisonment, which is to be served concurrently with the sentence on Charge 1, home invasion;

61On the charge of theft of items from the property, Count 3, you are sentenced to two months' imprisonment, two months of which is to be served cumulatively on the base sentence of three years and six months, the home invasion charge;

62On the charge of theft of a motor car you are sentenced to three months' imprisonment, one month of which is to be served cumulatively on the other sentences.

63Your total effective sentence is three years and nine months and I fix a minimum non-parole period of one year and nine months. Pursuant to s.98(4) of the Sentencing Act, I order all driver licences and permits held by you be cancelled and you are disqualified from obtaining any future licence or permit for a period of 12 months. 

64Pursuant to 6AAA I declare but for your plea of guilty, I would have imposed a total effective sentence of five years and six months and fixed a non-parole period of three years. 

65I declare each of you have already served 260 days by way of pre-sentence detention.  Ms May, I make an order for the taking of a forensic sample, by way of a buccal swab.  I must inform you, Ms May, if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  You may have a seat.

66Mr Roper, the prosecution had sought a forfeiture order and a disposal order which are unopposed.

67MR ROPER:  Yes, Your Honour, that is in relation to the firearms and the forfeiture, the firearm and two knives and a disposal order in relation to the drugs of dependence.

68HIS HONOUR:  All right.  I will make the forfeiture order in the terms of the order that the prosecution has filed, or will file.

69MR ROPER:  I believe my instructor has filed drafts of those with the court.

70HIS HONOUR:  All right.  Very well.  I make a forfeiture order in the terms of the order the prosecution has filed.  I make a disposal order in the terms also of the order that the prosecution has filed.  Mr Roper, are there any other matters?

71MR ROPER:  No, Your Honour.  That covers it all.

72HIS HONOUR:  All right.  Mr Hoffman?

73MR HOFFMAN:  No, thank you, Your Honour.

74HIS HONOUR:  Mr Johnston?

75MR JOHNSTON:  No, Your Honour.

76HIS HONOUR:  All right.  Remove Mr Clark and Ms May, please.

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