Director of Public Prosecutions v Clark
[2014] VCC 2099
•28 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00810
Indictment No. D12231475.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM CLARK |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2014 | |
DATE OF SENTENCE: | 28 November 2014 | |
CASE MAY BE CITED AS: | DPP v Clark | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2099 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Armed robbery – Burglary - Theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | The Office of Public Prosecutions |
| For the Accused (Plea) | Mr P. Kilduff (Plea) Ms C. Blakeney (Sentence) | Greg Thomas |
HIS HONOUR:
1 Kim Clark, you have pleaded guilty to seven counts of burglary, six counts of theft and one count of armed robbery.
2 The offences relate to seven events involving supermarkets or like businesses which I summarise as follows:
(a) On 1 February 2013 you committed a burglary and theft from FoodWorks Supermarket at Altona of cigarettes to the value of approximately $35,000;
(b) On 6 February 2013 you committed a burglary and theft from Coles Supermarket at Wallan of cigarettes to the value of approximately $23,749;
(c) On 15 February 2013 you committed a burglary and theft from Western Cellars Convenience Store at Braybrook of cigarettes to the value of approximately $8000;
(d) On 4 March 2013 you committed a burglary and theft from Coles Supermarket at Burnside of cigarettes to the value of approximately $4289;
(e) On 5 March 2013 you committed a burglary and theft from FoodWorks Supermarket at Altona of cigarettes to the value of approximately $17,000;
(f) On 20 March 2013 you committed a burglary and armed robbery at Boundy’s Supa IGA at Aberfeldie of $34,170 in cash;
(g) On 16 April 2013 you committed a burglary and theft from IGA Supermarket at Sunshine West of $38,500 in cash and cigarettes to the value of approximately $2500.
3 The features of most of those offences involved the forcing of locks, interference with alarms and power supply, theft of cigarettes and/or cash and the identification of targets being supermarkets or like stores.
4 The most serious charge is that of armed robbery at the IGA supermarket at Aberfeldie. There entry was obtained into the premises, resulting in alarms being activated and the owner of the store, Mr Brett Smith, being notified that a likely burglary was occurring. Mr Smith attended at the store and observed that the padlocks at the front roller door had been cut. He went inside the store to turn the alarm off. Shortly afterwards he returned to the front of the store to try and close the doors of the premises, a vehicle approached, you and another person and approached him. One of you had an imitation hand gun which was brandished. At the same time, you or your colleague told Mr Smith to go back into the premises and that if he did what he was told he would not get hurt. Mr Smith was told that you wanted money. A cash cupboard was unlocked and a bundle of notes totalling some $34,000 was obtained by you.
5 Mr Smith read a victim impact statement to the court wherein he stated he had required counselling following the armed robbery and had suffered post‑traumatic stress disorder, felt vulnerable, sad, depressed and moody. Currently, he said he struggled in many situations at work and had lost trust in people.
6 I further note the circumstances of the burglary of 16 April 2013 where an ATM machine containing some $38,000 was stolen from a store.
7 I have concluded that the offences each demonstrate a relatively sophisticated and professional approach reflecting considerable planning and organisation. Each contained one or more features of interference with alarms, forcing of locks, and the use of high-visibility clothing and vehicle hazard lights, presumably in order to create an impression of innocuous behaviour. You appear to have been assisted by others in each of the offences.
8 You do have a number of prior convictions -
· In April 2008, you were convicted of the importation of prohibited substances, possession of a drug of dependence and possession of ecstasy;
· In August 2012 you were convicted of recklessly causing injury and sentenced to imprisonment for 12 months, wholly suspended. Your counsel advised me that this conviction related to a nightclub incident.
9 It follows that at the time of each of these 14 offences for which you are currently before this court, you were in the midst of serving a 12‑month suspended sentence in relation to earlier offences.
10 On 7 March 2013, very soon after the five events constituting Charges 1 to 10 before me were committed, you were convicted of:
(i) Dishonestly assisting in the retention of stolen goods and the possession of cartridge ammunition without a licence or permit;
(ii) Possession of methylamphetamine or ice and trafficking of cannabis, and
(iii) Possession of an unregistered general category hand gun.
11 In the course of the plea hearing I was advised that the hand gun was in fact a sawn-off .22 rifle which I consider would have no legitimate use.
12 On 7 March 2013, you were sentenced to a community correction order in respect of those offences. It follows that on the dates you committed each of offences constituting Charges 11, 12, 13 and 14, you had just been sentenced to and had commenced a community correction order, the terms of which included that you must not commit, during the period of that order, any offence punishable by imprisonment.
13 Further, for the period 29 June 2012 to 7 March 2013, you were on bail in relation to those charges that were heard on the latter date. It follows that at the time you committed the offences relating to Charges 1 to 10 inclusive you were on bail in relation to those other pending charges.
14 The armed robbery committed at Aberfeldie was committed by you just 13 days after the community correction order was made. I consider this to be a clear indication of the contempt with which you viewed that order
15 You are 32 years of age. At the time of each of the offences you were aged 31.
16 A report of Ms Gina Cidoni, psychologist, dated 5 November 2014 was tendered. She saw you on one occasion early in November of this year. In her report she states that she was advised by you that you were raised in Albury and that your parents separated when you were relatively young. There was apparently a family history of violence and alcoholism. You recalled that there was some uncertainty as to the existence of an Aboriginal heritage.
17 You lived with your mother until the age of 14 and then with friends. You have maintained contact with your mother and, to a lesser extent, with your father.
18 You were married at the age of 21 but this was only a brief marriage. You have a son who is now aged approximately 11. You have shared custody of him.
19 In 2009 you remarried and have, since that time, lived in Melbourne. You advised Ms Cidoni that your wife has remained supportive of you and had been visiting you regularly whilst you have been on remand.
20 You reported a history of substance abuse involving the use of ecstasy and ice. You attended a clinical psychologist for counselling on three occasions in 2012. At that time it seems that a generalised anxiety disorder was diagnosed. You have reported abstinence from drugs for the past 18 months.
21 You left school after year 10 and worked as a locksmith in Albury and later in Darwin. At one stage opened your own business in Deer Park. There was apparently financial strain compounded by your abuse of Ice. That business closed in 2012. You have briefly undertaken some painting work since.
22 Ms Cidoni reports that you are of average intelligence. Testing revealed mild anxiety which she thought most likely reflected a stabilisation in the absence of ice. She found no signs of psychiatric illness. She concluded that your offending is directly linked to drug abuse resulting in disinhibited and erratic behaviour.
23 I consider that there is really no hard evidence before me that these offences were committed as a consequence of any drug addiction. Even if that was the case, I do not consider that it would be appropriate to discount your sentence by reason of such addiction.
24 Your counsel referred to a number of matters which he submitted I should take into account when assessing penalty for you.
25 Firstly, he submitted that your prior convictions were of no relevance to the offences for which you are to be sentenced. With regard to a number of those convictions, I agree. However, I am troubled by the possession of a sawn-off .22 rifle without licence or permit which would not appear to have any legitimate use.
26 Secondly, your counsel submitted that a discount should be made to reflect your plea of guilty to these offences, even though it could not be said that such plea was made at an early stage. There was indeed a contested committal hearing. The matter was listed for trial and a number of preliminary evidentiary matters were argued and became the subject of a ruling by me. It was only after that ruling was delivered that you pleaded guilty to these 14 charges; other charges were discontinued. Whilst I am not satisfied that you have demonstrated any genuine remorse for your offending, I accept your counsel’s submission that your plea does have utilitarian value. Witnesses were not put to the trouble of giving evidence at this trial, and the time occupied by the court was far shorter than would otherwise have been the case with a resultant saving of court resources.
27 Thirdly, your counsel submitted that it appeared that your behaviour had deteriorated as your drug use took its course. It was put that your use of ice was, at least in part, intended to help you to stay up late. Ironically, it would seem that it may have assisted in enabling you to commit these offences in the early hours of the morning. As previously stated, I do not consider that it would be appropriate to discount your sentence by reason of such addiction.
28 Fourthly, your counsel submitted that your family history, including a history of parental violence and alcoholism, and your relatively itinerant lifestyle as a child should be taken into account. I agree that it would appear that you have experienced a reasonably unsettled and possibly unhappy childhood. I take your disadvantaged background generally into account in sentencing you.
29 Finally, it was submitted that, given your age and background, I should not impose a crushing sentence. It was submitted that my sentence should provide you with some hope to work towards rehabilitation for which he described you as having reasonably good prospects. I do not consider that the sentence that I intend to impose could accurately be described as a crushing one.
30 I am not convinced about your prospects for rehabilitation. Your offending appears to reflect a professional approach to crime and there was little evidence before me concerning rehabilitation prospects. The fact that you offended so soon after being sentenced to a community correction order for other unrelated offences indicates poor prospects of rehabilitation in my opinion.
31 I have taken into account the matters required to be considered by the court by reason of s.5 of the Sentencing Act 1991. In your case I consider the most important of these is to manifest the court’s denunciation of your conduct, specific deterrence, that is, a penalty to deter you from behaving in this manner again and general deterrence, that is, a sentence to deter others in the community from behaving in this manner.
32 In relation to the armed robbery, it is a serious offence. On the evidence before me, you had an imitation hand gun with you on a planned and organised burglary of those premises. No doubt the purpose of taking that item with you was to use it in the event you were interrupted in the course of that activity. In the event, it would appear that you obtained entry to the premises but later left without committing any theft or at least no theft that was identified at that point. When you observed the owner of the premises arrive, you specifically approached him, brandished the imitation hand gun, and demanded money from him. He, of course, had no appreciation that the hand gun was an imitation. He suffered significant post-traumatic stress as a consequence. He was, on any view, a soft target. It was the middle of the night or the early hours of the morning, he was alone, you were in company and you purported to have a firearm with you.
33 I take into account that the total value of the goods stolen by you in terms of cigarettes and cash was in excess of $160,000.
34 Taking all of the circumstances into account, I have come to the conclusion that your offending does require an immediate period of incarceration. I have had regard to the principles of totality and proportionality and the need to avoid a crushing sentence, particularly noting that you have not been previously sentenced to prison.
35 Stand up please, Mr Clark. I sentence you as follows:
(a) In relation to Charge 1, that is, burglary on 1 February 2013, you are sentenced to a term of imprisonment of two years.
(b) Secondly, in relation to Charge 2, that is, theft on the same occasion as Charge 1, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the sentence imposed in relation to Charge 1.
(c) In relation to Charge 3, that is, burglary on 6 February 2013, you are sentenced to a term of imprisonment of two years.
(d) In relation to Charge 4, that is, theft on the same occasion as Charge 3, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the term imposed in relation to Charge 3.
(e) In relation to Charge 5, that is, burglary on 15 February 2013, you are sentenced to a term of imprisonment of two years.
(f) In relation to Charge 6, that is, theft on the same occasion as Charge 5, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the sentence imposed in relation to Charge 5.
(g) In relation to Charge 7, that is, burglary on 4 March 2013, you are sentenced to a term of imprisonment of two years.
(h) In relation to Charge 8, that is, theft on the same occasion as Charge 7, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the term imposed in relation to Charge 7.
(i) In relation to Charge 9, that is, burglary on 5 March 2013, you are sentenced to a term of imprisonment of two years.
(j) In relation to Charge 10, that is, theft on the same occasion as Charge 9, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the sentence imposed in relation to Charge 9.
(k) In relation to Charge 12, that is, armed robbery on 20 March 2013, you are sentenced to a term of imprisonment of four years, which term shall be the base sentence.
(l) In relation to Charge 11, that is, burglary on the same occasion as Charge 12, you are sentenced to a term of imprisonment of two years, to be served concurrently with the sentence imposed in relation to Charge 12.
(m) In relation to Charge 13, that is, burglary on 16 April 2013, you are sentenced to a term of imprisonment of two years.
(n) In relation to Charge 14, that is, theft on the same occasion as Charge 13, you are sentenced to a term of imprisonment of one year, such term to be served concurrently with the term imposed in relation to Charge 13.
36 I direct that six months of each of the sentences imposed in respect of Charges 1, 3, 5, 7, 9 and 13 be served cumulatively with the sentence imposed in relation to Charge 12 and upon each other, making a total effective sentence of seven years.
37 I direct that you serve a minimum period of five years’ imprisonment before becoming eligible for parole.
38 It might be argued that the sentence I have imposed in relation to each of the theft charges should be varied so as to reflect the different values of goods or cash stolen in each case. I have imposed the same sentence for each because in each case the target was the same sort of business, the modus operandi was similar, and your intention was likely to have been to steal substantial quantities of cigarettes and/or cash or as much as possible as could be located. The fact is on some occasions the proceeds of the theft were somewhat less than on other occasions, but I consider the degree of culpability was the same in relation to each event.
39 Pursuant to s.6AAA of the Sentencing Act, I declare that were it not for your plea of guilty to these offences referred to, I would have imposed a total effective sentence of eight years imprisonment with a minimum non-parole period of six years.
40 Pursuant to s.18 of the Sentencing Act, I declare that your pre-sentence period of detention has been 29 days and I declare that it be reckoned as a period of imprisonment or detention already served under the sentence.
41 HIS HONOUR: Are there other ancillary orders sought of any sort?
42 MS CHAMPION: Yes, Your Honour, the compensation order.
43 HIS HONOUR: Be seated, if you would, Mr Clark. There are a series of orders here. Have you seen these orders that are sought?
44 MS BLAKENEY: No, I have not, Your Honour.
45 HIS HONOUR: Have you got a copy there?
46 MS CHAMPION: No, Your Honour.
47 HIS HONOUR: Just let me read them for the moment - not read them in full. The first compensation order relates to LG Dragon, that is a name that means nothing to me. I take it they own some or a number of these businesses, do they, Ms Champion?
48 MS CHAMPION: Yes, Your Honour.
49 HIS HONOUR: The amount of $52,000 is, what, a total of various amounts, is it?
50 MS CHAMPION: Yes, Your Honour. That's in relation to two sets of offending and two lots of cigarettes stolen, Charges 2 and 10.
51 HIS HONOUR: So 2 and 10 are ‑ ‑ ‑
52 MS CHAMPION: Altona FoodWorks, Your Honour.
53 HIS HONOUR: I have just listed them in a different order, that's all. I see, yes, FoodWorks at Altona.
54 MS CHAMPION: Yes, Your Honour.
55 HIS HONOUR: $35,000 plus $17,000 would equal exactly 52. Yes, I see. the first of the compensation orders is in favour of LG Dragon Pty Ltd in the sum of $52,000 - being in each case the value of the cigarettes stolen in relation to Charges 2 and 10. The second order relates to Coles Supermarkets Australia Pty Ltd, the sum of $28,038 which will be, I take it, Charges 4 and 8?
56 MS CHAMPION: Yes, Your Honour.
57 HIS HONOUR: The Coles Supermarket at Wallan and later the Coles Supermarket at Burnside. The third compensation order is in favour of Hai Tang in the some of $8000 which, I take it, relates to the Western Cellars Convenience Store at Braybrook, Charge 6.
58 MS CHAMPION: Yes, Your Honour.
59 HIS HONOUR: The fourth compensation order is in favour of Brett Smith in the sum of $34,170, he being the owner of Boundy's Supermarket IGA at Aberfeldie, Charges 11 and 12. The fifth is in favour of Jenny Hee in the sum of $41,000 and I take it that Ms Hee - does that relate to the IGA at ‑ ‑ ‑
60 MS CHAMPION: Sunshine West.
61 HIS HONOUR: - - - Sunshine West involving cash and cigarettes. Yes, $41,000. Do you want to say anything about those compensation orders?
62 MS BLAKENEY: No, Your Honour.
63 HIS HONOUR: Thank you. I make those orders in the form requested. Are there any other matters that I should be aware of?
64 MS CHAMPION: No, Your Honour.
65 HIS HONOUR: Yes, thank you. Mr Clark can be taken downstairs, thank you.
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