Director of Public Prosecutions v Clarke

[2016] VCC 481

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00409

DIRECTOR OF PUBLIC PROSECUTIONS

v

DION GARRY CLARKE

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2016] VCC 481

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Cescato
For the Offender	Mr H. Moodie

HIS HONOUR: 

1Dion Garry Clarke, you have pleaded guilty to an indictment charging you with causing injury recklessly and being a prohibited person in possession of a firearm.

2You have admitted a number of prior court appearances and convictions.

3The prosecution has tendered and relied upon a summary of facts on plea, which is Exhibit A.  I incorporate that into these reasons for sentence in its entirety. 

4In short summary, it shows that on 27 August last year you became embroiled in a dispute that was not directly your own and went to provide assistance in the form of "muscle" and/or firearms for the purposes of meeting any violence, or at least dealing with a person who was engaged directly in the dispute, namely the victim and the other party to the dispute.

5You went to an address at Heyington Circle, Narre Warren When the victim arrived you were armed with two sawn off shotguns.  When he saw you in the vicinity of the property he fled and you shot him in the leg with one of the shotguns.  You then decamped and were arrested not long afterwards.

6When you were questioned by police you did not give a true account of your actions.  Indeed you denied shooting the victim.

7The offence of causing injury recklessly carries a maximum term of imprisonment of five years and being a prohibited person in the possession of a firearm carries a maximum term of imprisonment of ten years. 

8I regard the offending in Charge 1, that is the recklessly causing injury, as a serious example of that offence.  Clearly, as parliament has indicated, being a prohibited person in possession of a firearm is always to be regarded as a serious offence.  In your case I note that you have a prior conviction for being a prohibited person in possession of a firearm and, indeed, also an offence of carrying a controlled weapon without excused.

9That said, you are a person who now suffers from significant physical ailments and you are being treated for some serious physical conditions, the nature of which are set out in Exhibits 1 and 2, namely the reports of Dr Vigneswaran, dated 29 February 2016, and that of St Vincent's Hospital, dated 9 March 2016.

10There is no doubt that your offending conduct requires me to impose an immediate custodial sentence.  No other sentence is appropriate.

11You have already been in custody for a total of I think 143 days, is that right?

12MR CESCATO:  That is correct, Your Honour.

13HIS HONOUR:  Obviously that is to be deducted from any sentence that I impose.

14It is necessary for me to impose just punishment, to denounce your conduct, to deter you from conduct of this kind in the future and to deter others from committing offences of this kind, taking the law into their own hands essentially. 

15On the other hand, I am also required to give proper consideration to your rehabilitation and that is to be balanced against the factors that I have just outlined. 

16You have pleaded guilty and that is very much to your credit and you will get a significant reduction for your plea of guilty.

17The sentence that I have in mind is in some respects I think to be regarded as a lenient sentence.  Its leniency is attributable substantially to the fact that you have these quite significant health problems and that it will be, I think, very hard on you to serve your sentence. Certainly it will be much harder for you than for a person who does not suffer from these physical conditions.  For that reason I am prepared to impose a sentence that is significantly lower than that which I would otherwise have imposed for offending of this kind.

18People who take to using shotguns in that way, not only is it a highly dangerous thing to do and you are fortunate you did not cause more harm than you did, but it is outrageous conduct and it is calculated to cause considerable fear and consternation amongst the general population.

19Taking all those matters into account, I am now ready to pass sentence upon you.

20On Charge 1, of recklessly causing injury, I convict you and sentence you to imprisonment for a period of 14 months.

21On Charge 2, of being a prohibited person in possession of a firearm, I convict you and sentence you to imprisonment for a period of nine months.

22I order that two months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, making a total effective sentence of 16 months' imprisonment.  I order that you serve a period of 11 months before you become eligible for parole.

23I declare 143 days of pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deduct it administratively and I order that that be noted in the records of the court. 

24But for your pleas of guilty, I would have sentenced you to 21 months' imprisonment with a non-parole period of 15 months.

25Yes, all right.  Thank you.

26MR CESCATO:  Your Honour, there is just the question of forfeiture orders.

27HIS HONOUR:  Yes, I am sorry, I have got those.  I notice that they were drafted from the conviction of Omar Kahali.  I have altered that.

28MR CESCATO:  Thank you, Your Honour, I apologise for that.

29HIS HONOUR:  I think also the date I see is probably - is that right?

30MR CESCATO:  I think that might be the date that Mr Clarke actually pleaded guilty.

31HIS HONOUR:  That is right, he was arraigned.  Yes, all right.  We will leave that then, but I have signed those orders.

32(Forfeiture order signed and acknowledged.)

33MR CESCATO:  Thank you, Your Honour.

34HIS HONOUR:  With the alterations, so I have made the forfeiture order in terms of the draft that I have set out.  No other orders?

35MR CESCATO:  No, Your Honour..

36MR MOODIE:  No, Your Honour.

37HIS HONOUR:  Yes, all right, thank you.

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