Director of Public Prosecutions v Clarke

[2015] VCC 1458

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 15-00462

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD CLARKE

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATEOF HEARING:
DATEOF SENTENCE:	6 July 2015
CASE MAY BE CITEDAS:	DPP v Clarke
MEDIUMNEUTRAL CITATION:	[2015] VCC 1458

Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:

REASONS FOR SENTENCE

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Mr J. Livitsanos

For the Offender  Mr T. Sawyer

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

1HIS HONOUR: Mr Clarke, you have pleaded guilty to one count of causing serious injury recklessly and one count of affray. You have heard the learned prosecutor, Mr Livitsanos, tell this court that the maximum sentence for causing serious injury recklessly is that of 15 years' imprisonment and that the maximum sentence for offences of affray is that of five years' imprisonment. Those sentences are fixed by parliamentarians, not by police officers or prosecutors or judges; that is what the politicians fix the maximum at, and no doubt those maximums would indicate to you and the community that these are serious offences, particularly the recklessly causing serious injury.

2Mr Clarke, for having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed; in other words, you receive a discounted sentence for having pleaded guilty.

3I quote briefly from the prosecutor's opening setting out what the circumstances surrounding the offence were, and it was this: on 27 September 2014, which is AFL Grand Final day, an affray took place between two groups of males at Beretta's Langwarrin Hotel situated at 200 Cranbourne Frankston Road Langwarrin. All of the parties had been drinking during the day. There had been an earlier altercation which had caused the hotel security staff to move the group, of which the victim, Aaron Lloyd was a member, to the inside TAB area of the hotel. That group consisted of Lloyd, the victim, Jefferson Spours, Benjamin Hough, Justin Rowe and Paul and Michael Mulcahy. The other group consisted of Richard Clarke, which of course is yourself, Jake Williams, Scott Blakie, Jason Parry, Troy Williams and Adam Mullen. The two Williams boys apparently were not related despite having similar names.

4At approximately 6 o'clock there was an altercation at the bar in which one of the Williams bumped into Jefferson Spours causing Spours to spill his beer. Williams walked outside. When he returned inside, you and other persons were there and a physical altercation between Spours and Williams commenced.    Spours  pushed  Williams  to  the  chest  causing  him  to  fall

backwards. He was then held by the bar manager, Adrian Thompson. The three duty security guards immediately moved to the area attempting to separate the parties. Others from the groups joined in the fight whilst the guards tried to break it up. The security guard named Andrew Vano, stood between Spours and Williams and Spours remained restrained by the bar manager, Thompson, until he went to the aid of the victim Lloyd in the TAB area.

5You, Mr Clarke, were present when Williams pushed Spours. You intervened attempting to calm Spours. As the affray began, you put Mr Hough in a headlock and both of you fell to the floor within the TAB area. As you fell, others fell with you as was shown on the CCTV, including the victim, Lloyd, who at that time was a bystander to the melee or affray that was going on. Lloyd got to his feet and was pulling at you to pull you out of the affray as observed on the CCTV, and Mr Lloyd himself was being pulled by the security guard, Daniel Brett, so there is Brett behind Lloyd, and Lloyd, and then you; it is not a daisy chain, but it's that effect, a security guard pulling on Lloyd who was pulling on you.   You were involved with others on the floor at that time.

6Brett released his grip and both you and Lloyd then fell to the floor and rolled and you immediately then straddled Lloyd across his waist and punched him eight or nine times in quick succession to the face or head area with your closed fist. Lloyd fell unconscious with the first punch. I understand that to be a judgment made of the man becoming prone and not responding.

7The  entire  incident,  as  you  well  know,  was  captured  on  CCTV  footage.

Mr Clarke, that CCTV footage material indicates a most unpleasant violent scene with a number of young men pushing, shoving and punching and fighting. You, sir, are shown at the end graphically punching the victim, Mr Lloyd, to the head region on eight or nine occasions. True it is that these punches were delivered in a matter of seconds, four or five seconds, but from my observations they were full force punches delivered deliberately and violently to the prone

victim.

8Mr Lloyd has suffered horrific injuries as a result of your violent and deliberate act. These blows can only be described as vicious. Your behaviour was despicable.   The entire event is a frightening event.

9Before turning to the injuries suffered by Mr Lloyd, I note that police attended the scene and ultimately Mr Lloyd was conveyed to the Frankston Hospital, I think by ambulance. Mr Lloyd sustained a fractured eye socket that required surgery, a broken nose, in fact as I understand the medical report there are two separate breaks, chipped tooth, deep facial lacerations requiring 40 stitches to repair his face, double vision, and obviously this means the head and face region had been subjected to considerable force.

10Mr Lloyd underwent surgery on 30 September during which time a steel plate was inserted into his eye socket. He has no memory of the assault and he continued to suffer from double vision and short-term memory loss and pain. He was unable to return to work for three and a half weeks.

11Dr Sanjeev Gaya from the Victorian Institute of Forensic Medicine has prepared a report dated 25 November 2014. This doctor has not physically seen Mr Lloyd. He has depended on statements and materials supplied by police officers, in particular the informant, Detective Senior Constable Baro, seeking some advice as to the injuries suffered.

12Among other things, Dr Gaya says that, "Germane to Senior Constable Baro's request was whether I am able to form an opinion on the seriousness of Mr Lloyd's injuries." He read the statement of Mr Aaron Lloyd and in that statement the doctor observes that Lloyd cannot recall the events relating to the assault. The medical records from the Peninsula Hospital were examined by Dr Gaya.

13He says this:    "The medical records from the Peninsula Health detail the

injuries". The first one he looks at is a comminuted fracture of the right and left nasal bones. He says, "A bone injury that results in more than two separate bone components is known as a comminuted fracture, thus the bony component of Mr Lloyd's nose fractured in more than two separate pieces, and secondly, an undisplaced fracture of the nasal septum". He says this: "An undisplaced fracture is a breakage of a bone in which the bones remain aligned, that is the bone fragments do not separate. The nasal septum as the dividing wall that runs down the middle of the nose separating the two nasal cavities, each which ends in is a nostril. The nasal septum is composed of a bone and cartilage".

14The doctor then addresses the depressed fracture in the right orbital floor. A depressed fracture is one which the fragment is depressed below the normal alignment of its surface. Sometimes the eye is struck in such a way that the force of the blow received by the eyeball and not blocked by the strong bones around the eye, in this instance the pressure of the eyeball, is transmitted to the walls of the orbit. This pressure can fracture the most fragile part of the orbit which is typically the part underneath the eyeball (the orbital floor). This type of injury is also known as a blowout fracture."

15He then observes a haematoma in the right maxillary sinus. He says of this haematoma, "It's a localised collection of blood, usually clotted, that is caused by bleeding from a ruptured blood vessel. The maxilla bone is the irregular shaped bone that with other bones of the face forms the upper jaw. The maxillary sinus is an air cavity in the body of the maxilla bone that opens into the nose, thus the air cavity within the right maxilla filled with blood. As to the facial lacerations  to the forehead, nasal bridge, right orbit (over the right eyebrow) right infraorbital (right cheek) and above upper lip, lower lip and tongue. A laceration is a full thickness wound due to splitting or tearing in the skin resulting from blunt force. Lacerations generally and especially those on the face and skull bleed profusely".   He nominated a number of them, two to

the forehead, the nasal bridge, right orbit (over the right eyebrow) right infraorbital (right cheek) the above upper lip, lower lip and tongue, all lacerated.

16And finally as to injuries, he says, "Traumatic mydriasis to the right eye.

Mydriasis is a dilation of the pupil. A traumatic mydriasis relates to blood injury to the eyeball that causes rupture of the muscle that controls the diameter of the pupil thus preventing it from reacting properly to light. The affected pupil remained larger than that of the other eye at all levels of illumination.  It can be a permanent injury. Individuals with traumatic mydriasis will suffer from photophobia, which is intolerance to light and glare, caused by too much light entering their eye through their dilated pupil. As to the right eye proptosis, proptosis is protrusion of the eyeball resulting in forward displacement of the eye. Bleeding behind the eye can follow an orbital fracture. The collection of blood has nowhere to escape and the increased pressure pushes the eye out of the socket leading to proptosis that can lead to blindness if not treated promptly. Diplopia is the subjective complaint of seeing two images instead of one, and is often referred to as double vision. Diplopia is a common complication of blowout fractures due to entrapment of the muscles that control movement of the eyeball, but also by other factors secondary to trauma to the eye. The degree of diplopia, that is the angle of movement from primary gaze before the patient experiences diplopia is used as a gauge to determine the need for surgical intervention.

17Mr Lloyd underwent surgery, that is open reduction and reconstruction and internal fixation of the right orbital fracture. Risks of orbital surgery include nerve injury, bleeding and potential loss of vision, and also debridement and suturing of the facial lacerations".

18The events of the Grand Final afternoon that are depicted on the CCTV footage, as I have just said earlier, are in evidence in this court. That CCTV footage shows appalling behaviour.

19On this day it might be said that there were two melees or events that occurred.

The first shows brawling participants being restrained by hotel and security staff and all of the participants, including yourself, should have there and then been ejected from the licensed premises. My observation of that sort of behaviour, because I occasionally visit such premises, when that sort of nonsense starts, they should all be thrown out there and then. They were not. To that extent I think - I say that the security did into the behave the way they should have. The management of this hotel have let down the sober responsible patrons in allowing inflamed young men such as these young men shown on the CCTV to remain in the premises. With the continued ingestion of alcohol, together with these brawling testosterone laden young men, the inevitable occurred, that is another drunken brawl.

20I pause for a moment. Your counsel in his eloquent plea did concede that you had far too much liquor on board by this stage of the evening. By this time I also infer that many others involved were in a similar state.

21In this what I have said so-called second event, although it was almost a continuing event, a close analysis of the CCTV films shows you, Mr Clarke, strike Mr Lloyd, as I said earlier, on eight or nine occasions with apparent force all in a matter of three or four seconds, tops maybe five.

22You are obviously a strongly-built young man. The resulting injuries to Lloyd are indeed very serious and severe. This violence, this offending, was of a gross and wholly unacceptable kind. Such violence attracts condign punishment.

23Mr Clarke, you are now aged 31 having been born on 7 April 1984. Mr Joblin, forensic psychologist, in his report of 4 May 2015, among other things, says this, and I quote him. He is of course speaking of you. This is what Joblin said you were saying:

24"He reported that his parents separated when he was three years old.    His

father, aged in his 50s, lives in Maryborough in another relationship. It seems that his father runs a small business from home. Mr Clarke reported that he has never been particularly close to his father, who apparently has some history of the use of the cannabis and alcohol. Mr Clarke reported that he has little if any contact with his father and further details are discussed below".

25Mr Joblin goes on to say this, that you informed him that your mother is aged in her 50s, lives in Gembrook in another relationship.  "Similarly he reported little if any contact with his mother. He indicated, however, that in the past he did have some contact with her husband. He reported that basically no one was particularly concerned about him and his brother when they were younger and on the contrary there were significant difficulties."

26Mr Joblin goes on to say that, "Mr Clarke has a brother aged 27 who lives in Pakenham," and you report no contact with him.

27Joblin further says that you said, "When his parents separated initially he went to live with his mother, but shortly after that went to his father. His father then moved to numerous different addresses in Seaford, The Pines, Frankston North, Kananook and so on. At times he would stay with his paternal grandparents".

28Mr Joblin goes on to say that you did not have a good relationship with your stepmother and that at this time you lost contact with your mother. Some contact with your mother has occurred later on. I again quote directly from Mr Joblin, and he says this: "Mr Clarke acknowledged he hated living with his father. He acknowledged as a young man he had strong suicidal thoughts. From my discussions with him it became apparent that these issues were never addressed and in my opinion remain a serious concern. There is no doubt that his unhappiness, he was also angry and particularly frustrated, the effects of which remain. His father and stepmother separated. He remained with his father for a short time but when he left school he went to live with his mother.

Again he reported that this was far from satisfactory."

29Mr Clarke, you attended Frankston Heights Primary School to Grade 5, and then Kananook Primary School, before then attending Monterey High School to Year 10. You acknowledged to Mr Joblin that you were not a good student at this time, and you were encountering serious problems at home.

30As for employment, Mr Joblin again reports: "When living with his mother he found work with her husband in a factory making steel trusses. He remained there for 18 months. He then went to Robinvale with a friend where they worked on blocks picking. That is obviously fruit picking. "He returned and worked for a refrigeration mechanic as a trades assistant. He worked on wages for five years in the city cladding. That job ended when the work ran out. He worked cutting plaster for a time until he began an apprenticeship as an electrician in March of 2010. Initially he worked with his girlfriend's father who had a contract in the eastern suburbs. However, that work declined and Mr Clarke returned to cladding work in the city. It seems that that company closed and for a time last year he had no work. In January of 2015 he began working again as an electrician, this time with a company in Carrum Downs. At the time of my interview with him he was still working for that company."

31Joblin goes on to say, "It seems that he is now a B-Grade electrician who reported that he has finished his hours but has not completed the course and exams necessary to obtain an A-Grade status. He acknowledged that trade skill was a struggle for him. His courses were conducted at Chisholm. At the time of my last interview with Mr Clarke he was still studying for those exams. Unfortunately he believes that he will not be able to complete the requirements to become an A-Grade electrician before he appears in court. This is a matter of some concern as it would be of some considerable benefit for him to be able to obtain his A-Grade certificate. Further, Mr Clarke reported that he understands that if he is incarcerated, on release he will not be able to resume his studies where he left off but will have to start anew.   He acknowledged that

this might be excessive for him."

32I hope that information is wrong, but still, that is what your information is. I have heard information to the contrary, but that does not mean to say that that information is correct.

33Mr Clarke, when you returned to Melbourne from Robinvale, you then lived with friends in the Cranbourne area. It was at this time you met Michelle, your partner, and the mother of your 18-month-old daughter. Having met Michelle you moved to the Carrum Downs district where ultimately you purchased a home, and I assume you sold that home and purchased the current home where you live in Botanic Ridge. You report to Mr Joblin that you have a good relationship with Michelle.

34Mr Joblin indicates that you have a drug and use of alcohol habit, that is to quote Joblin, of serious concern. I believe he is talking of the use of alcohol when he says "a serious concern". In fairness you indicate that since your involvement with Michelle you no longer use illicit drugs.

35Mr Joblin said, "I am concerned about his use of alcohol and Mr Clarke acknowledges that his drinking has been a serious issue for him over the years, particularly as he can develop a low threshold of tolerance when drinking."

36Mr Clarke, amongst some of the individuals seen on this CCTV footage is an acquaintance of yours named Jake. I infer that of course is Jake Williams. I again quote from Mr Joblin who says in his report: "Importantly Mr Clarke reported he did not bring any other agenda into the situation at the hotel. He was happy and had not argued with anyone prior to this incident. Further, he reported he did not know the victim. He reported that the motive he had for becoming involved in the offending related basically to his friend Jake."

37As you have heard me say to both Mr Livitsanos and Mr Sawyer this morning, I sat in this courtroom and viewed with my staff the CCTV films and replayed it

and replayed it and replayed it a number of occasions. Having watched the CCTV on numerous occasions, you at first apparently acted as the peace keeper. That status changed dramatically at the very end. It seems that Jake's father had telephoned you the night before the incident - this is what Joblin is reporting - it seems that Jake's father telephoned you the night before the incident asking you to take Jake to the hotel. You reported to Joblin that at that point you did not tell Michelle because you are aware that she knows once you begin drinking you cannot stop, which is in fact a major issue. "This does not mean, however, that he will necessarily get into fights. He indicated he usually ends up going home with his drinking friends, not to Michelle. He reported this has occurred on a number of occasions".

38You further told Joblin, "On the morning of these offences he had no breakfast.

He told Michelle that he was taking Jake to the hotel". Joblin reports, "This caused some dispute but he went in any case. He reported that once he arrived at the hotel the disagreement he had with Michelle was forgotten. Joblin says, "I note that he did not initiate the conflict. He reported that his friend Jake can develop a low threshold of tolerance. He acknowledged he was aware that in taking Jake to the hotel, he would have to try to avoid Jake being exposed to any conflict."

39I comment, as to your dispute with Michelle mentioned by Mr Joblin, I do not want to compromise your partner Michelle, but with a degree of certainty I infer - I do not know, I have not been told - but I infer that this lady was making good sense. Obviously you were not persuaded to accept her advice and stay home and keep off the grog. Mr Joblin uses the words, as I said earlier, "Alcohol is a major issue", and I again quote what he wrote. This is with a Joblin wrote:   "Once he begins drinking he cannot stop, which is a major issue."

40Mr Clarke, your fiancee was right. She understood the potential danger of you going to the hotel on that day.   It is now trite to say you should have listened.

41Mr Clarke, your plea of guilty is an indication of your remorse, and your counsel, Mr Sawyer, again on your behalf expresses your remorse to this court. Indeed, you have written a heart-felt apology to Mr Lloyd. That is now on the court file. Not only do you express your remorse, you also express deep regret for your actions. Mr Sawyer has produced seven references from friends and family, all of which are  very supportive of you, all express that you are indeed remorseful. Not only did your partner Michelle give evidence on your behalf, Michelle also provided a written reference. This young lady is not only a vivacious, articulate young woman, she is extremely supportive of you, and you have let her down abysmally.

42In the written reference Michelle says this, and I do not wish to embarrass her by reading too much of it: "My reaction to the details of the circumstances that occurred on that fateful day in September of 2014 and the charges that were laid against Richard was of pure distress and disbelief." Michelle spells out that you are a good hard-working man devoted to your daughter and anxious to progress in your life. As is common with all of the referees, they all speak of your remorse, as I said earlier, that you have learnt your lesson, and that their continued support is assured.

43I again quote from Michelle's reference: "Richard is extremely ashamed and remorseful for his actions, has accepted full responsibilities for his actions and understands he must be punished. He has the full support of his family and friends."

44I am not going to read from all of the other references, but in fairness I will read from one, because they all mirror one another. Mr Jones in his reference, among other things, says: "Richard hasn't been himself since the night in question and expresses great remorse. I know if he could turn back time he would handle himself in a completely different manner. He has demonstrated deep regret and distress for his actions and for the possible consequences he faces.   This entire situation has caused Richard to reassess a few life issues

and reevaluate a possible drinking problem. Maybe some form of alcohol rehabilitation program would assist in this regard." Mr Jones says "maybe", I say for sure it will.

45Would you stand up, please.

46Mr Clarke, I assure you that I have read and re-read all of the references produced by your counsel. As I said a few moments ago, all references mirror the references of Michelle and Mr Jones. I accept all that they say, and I believe that you are indeed remorseful. Your prospect of rehabilitation has to be positive. You have a strong work ethic and a good work record. You have the support of your friends and family and you have voluntarily commenced counselling with Marg Ryan. Mrs Ryan writes confirming that you have attended two counselling sessions.

47Mr Clarke, you have two previous court appearances, one in 2007 and the other in 2009. Your second court appearance was at the Frankston Magistrates' Court on 4 November 2009 where you were sentenced to three months' imprisonment to be served by way of an intensive corrections order. That, unhappily for you, was a similar event to now in that you were charged with an affray. I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Sawyer, by your fiancee Michelle, and all of the written references produced to this court. I have no doubt that you are aware of the community attitude and of the abhorrence of drunken behaviour by young men at clubs, bars, nightclubs, indeed all licensed premises. It is over every media outlet practically every day. Drunken behaviour that results in severe serious injury such as that suffered by Mr Lloyd attracts denunciation by the courts such as this court in the strongest of terms. Specific deterrence and general deterrence are very much to the fore when offences such as these come before the courts.   Again I assure you I have moderated the penalty that I otherwise would have imposed as a result of all that has been said on your behalf by all people.

48Mr Clarke, the victim in this case has filed a victim impact statement. Mr Lloyd expresses the anguish and pain and suffering that he underwent. I quote in part some of what is contained in his statement. Victim impact statements have been very much to the fore recently in the Court of Appeal, and some of the things that were said by Mr Lloyd, I deliberately left out. Unfortunately for Lloyd, as I understand his victim impact statement, he was conscious at some of the time when he was listening to what the doctors were saying and he was terrified by what he was hearing. I do not think it is fair that I repeat that, because he may or may not have understood what was being said. So I do not repeat that.   But I do repeat some of what he has said.

49He says, "For approximately two months after the assault I could not go to the shops. I was fearful. My anxiety was high. My parents need to assist me during this time. I was scared of going out. When I did start to go out I made sure somebody was always with me. Even now I'm always checking over my shoulder because I am fearful of who may be behind me, approaching me. I have had to learn how to control my anxiety and nausea. I have had to attend counselling sessions to assist me in coping with the trauma this assault has created. I am trying to keep myself busy, that way I don't have time to think about what happened. Every time I have to speak to the police it reignites the horrible feelings I had when I was first assaulted. I get a tight stomach, nauseous and sweating. I shouldn't have to experience this, I want my life to be normal again. I needed to use up all my holiday pay and sick pay." He then discusses the money he lost through not being able to conduct his business while he was away from work, and he further says, "I can't remember anything of the assault. I want it to stay like that, but I'm still living with the trauma that the assault has left on me every day."

50In relation to the offences, on Count 1, that is the recklessly causing serious injury, you will be convicted and sentence to 30 months' imprisonment. On Count 2 you will be convicted and sentenced to 12 months' imprisonment.   The

sentence imposed by Count 2 is to be served concurrently with the sentence imposed on Count 1. In respect of the sentence imposed this day I direct a minimum term of 18 months' imprisonment be served before you be eligible for parole.   You will be given credit for the time served.   What is the time served?

51MR LIVITSANOS:    26 days, Your Honour.

52HIS HONOUR:    Do you agree with that, Mr Sawyer?

53MR SAWYER:   Yes, Your Honour, I agree.

54MR LIVITSANOS:    Not including today.

55HIS HONOUR: Pursuant to s.18 of the Sentencing Act the prisoner will be given credit for having served 26 days of imprisonment. Pursuant to s.464ZF of the Crimes Act the prisoner is to provide a forensic sample. That means you have got to provide a swab, a buccal swab. If you refuse or do not comply, reasonable force can be used to take that, and I believe apart from s.6AAA there is no other orders sought, is there?

56MR LIVITSANOS: No, there's not, Your Honour. I have that paperwork for the 464 here, Your Honour.

57HIS HONOUR: Pursuant to s.6AAA, had it not been for a plea of guilty, I believe I would have imposed a penalty highly probably of four years' imprisonment with a minimum term of two and a half years.

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