Director of Public Prosecutions v Clark
[2012] VCC 1258
•30 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01313
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM MURRAY CLARK |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Clark | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1258 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Stevenson | |
| For the Accused | Mr G. Traczyk |
HER HONOUR:
1 Kim Murray Clark, you have been found guilty by way of jury verdict on one charge of causing injury recklessly. This was Charge 2 on the indictment. You were found not guilty in relation to Charge 1, causing injury intentionally.
2 The maximum penalty for causing injury recklessly is five years' imprisonment.
3 The circumstances of your offending were, in summary, as follows: On 10 January 2010, you went to a nightclub in South Yarra. You were with a group of friends and you were celebrating your birthday. You got to the nightclub at approximately 8 pm. The complainant, who was not in your group, arrived at the nightclub at approximately midnight.
4 At about 1 am you and the complainant were both on the dance floor of the nightclub. You became annoyed by the complainant. You pushed the complainant and an argument had started. At this time you had a glass beer bottle in your hand. The push that you gave the complainant was forceful. After that the complainant went to hit you back. You then struck the complainant to the head with a bottle. The bottle broke. You followed the complainant across the dance floor, striking at him or towards him with the broken bottle several times. The complainant fell to the floor. Others by this time had intervened and the incident ended.
5 The complainant was taken by ambulance to hospital. He received treatment for the injuries he sustained. He received three lacerations to the head. Those lacerations were four centimetres long, one centimetre long and two centimetres long. They all required sutures. I am satisfied beyond reasonable doubt that all these injuries were caused by you striking the complainant to the head with a bottle.
6 During the morning of 10 January 2010 you took part in an interview with police. You told the police a number of things. You said that the person had come up trying to dance close and that you had pushed him away. You said you told him to chill out, the next thing you knew you had got rapped on the chin and you just retaliated. You said you did not know what you had done. You were not sure if you had punched him once or twice, you did not know. You said that you had been drinking beer. You said that you used the same hand that was holding the beer bottle to hit the complainant and that the bottle broke in the process.
7 On the evidence that was given in the trial, I am satisfied beyond reasonable doubt that you had had a considerable amount of alcohol to drink by the time of this incident, although you had slowed down by this stage. I am satisfied beyond reasonable doubt that you were at the time adversely affected by alcohol.
8 I observed the CCTV footage of the incident. There was footage from two angles. The CCTV footage was shown several times during the course of the trial. I am satisfied that on the basis of that footage, beyond reasonable doubt, that what occurred was an entirely unwarranted attack on the complainant. I do note the jury verdict of guilty in relation to recklessly causing injury and that you were found not guilty in relation to intentionally causing injury.
9 A Victim Impact Statement from the complainant was tendered as Exhibit A. In his Victim Impact Statement the complainant describes the scars which he has which still cause him irritation. He describes his depression after the incident. He also describes the difficulties caused to him by this case and also by the length of time it has taken for the matter to get to trial. He says that he is now more careful when he goes out and, in particular, that he avoids going near that nightclub.
10 I have taken into account your personal circumstances in sentencing you. There is apparently nothing remarkable in your upbringing. You were born and raised in New South Wales. You left school after Year 10 and have worked since that time as a locksmith. For a period of time you had your own business but now work from home. From what your counsel said you have some difficulty in obtaining work. It was not made clear why that is the case.
11 You have been married for four years to your present wife. She works and supports the family. You have an eight year old son from a previous relationship. You look after your son for two weeks out of every four. The rest of the time he spends with his mother.
12 You have a limited prior criminal history. That criminal history involves driving matters and relatively minor drug matters and I do not consider those matters to be relevant to my sentencing task. Relevantly, you have no prior criminal history involving violence.
13 Your counsel submitted that the appropriate sentence would be a suspended sentence or a Community Correction Order. He particularly relied on the short duration of this incident, that what you did was instinctive and reactive and the nature of the injuries suffered. Your counsel submitted that it would be in the interests of the community if you were not required to serve an immediate sentence of imprisonment. Your counsel submitted that a suspended sentence or a Community Correction Order would satisfy the required sentencing objectives.
14 The prosecutor submitted that the appropriate sentence would be a sentence of imprisonment between 12 months and 24 months with a non-parole period of six to 12 months. The prosecutor submitted that a suspended sentence would be open to the court but that a Community Correction Order would not be within the appropriate range.
15 Clearly this incident became a serious one. It occurred because you lost your temper in a situation where you were adversely affected by alcohol and with a bottle in your hand. That is an extremely dangerous situation. It was by good luck that the injuries to the complainant were not worse than they were. It certainly had nothing to do with good management on your behalf.
16 I accept that you did not intentionally cause injury to the complainant. The finding of guilt on the charge of recklessly causing injury means that the jury were satisfied beyond reasonable doubt that you had a foresight of the probability of injury resulting from your actions.
17 I do accept that you hit out with a bottle in your hand when you were angry. I take into account that you did not pick the bottle up deliberately or break it to use it as a weapon.
18 The injuries suffered by the complainant and the harm to him are significant, even though they have been, fortunately, not as serious as they might have been.
19 In my view a sentence of imprisonment is warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence. I take into account that this incident was one of relatively short duration and the nature of the injuries suffered.
20 In the circumstances I consider it desirable to suspend the period of imprisonment to be imposed. I consider that you have good prospects for rehabilitation. You did not plead guilty and as far as I can determine you have not expressed remorse. It does go in your favour that you made admissions to the police immediately that morning. You were co-operative, you said you had been at the nightclub, you admitted your presence and you admitted that you had got involved in the altercation. You have no prior criminal history for violence.
21 Almost two years and eight months has past since this incident. I expect that the court process in itself of going to trial has been some punishment for you. Hopefully that has had some impact on you and will serve to, in part, deter you from any further offending of this nature.
22 Your rehabilitation is in your interests as well as in the community's interests. I can see your rehabilitation would be best achieved by you remaining in the community and trying to obtain work to support your family. Clearly, staying away from illegal activity is also crucial to this. Your counsel says that you have no issues of a drug and alcohol or psychiatric or psychological nature which would prevent you from leading a law-abiding and productive life. It is to be hoped if you are given the opportunity to stay out of gaol that that is what you will do.
23 Could you please stand up Mr Clark.
24 On Charge 2, recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment.
25 That sentence of imprisonment is wholly suspended for a period of 12 months.
26 You must understand the consequences of that. If you commit any offence in the next 12 months for which imprisonment is a potential penalty then you will be brought back to court before me. Unless there are exceptional circumstances you will be required to serve the 12 months. It is very important you stay away from any illegal activity. If you stole a very small item, imprisonment would be a potential penalty and you would breach the suspended sentence. If you get involved in illegal drug activity, generally that will breach the suspended sentence too. There are a number of driving offences for which imprisonment is also a potential penalty. That would also breach the suspended sentence. You must be extremely careful not to do anything illegal. Clearly that should remain the case for the rest of your life but it is particularly important for the next 12 months if you want to avoid having to go to gaol. Do you understand that Mr Clark?
27 OFFENDER: Yes.
28 HER HONOUR: Thank you. Just take your seat please. Is there anything of a procedural nature that I have omitted that anyone can think of? There were no ancillary orders sought, as I understand it, and that seems to be all of the matters that I have dealt with. Thanks Mr Traczyk, thanks Ms Stevenson for your assistance.
- - -
0