Director of Public Prosecutions v Clarke
[2014] VCC 1017
•26 June 2014
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID CLARKE |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley | |
DATE OF PLEA: | 2 June 2014 | |
DATE OF SENTENCE: | 26 June 2014 | |
CASE MAY BE CITED AS: | DPP v Clarke | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1017 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – recklessly causing injury; recklessly causing serious injury; summary offence – resisting a member of the police force
Legislation Cited: Crimes Act 1958 s17, s18; Sentencing Act 1991; Criminal Procedure Act 2009
Sentence: 3 years 6 months imprisonment with non parole period of 2 years 6 m months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Hammill | Solicitor for Office Public Prosecutions |
| For the Accused | Ms S. McCrickard | Victoria Legal Aid (Morwell) |
HIS HONOUR:
1 David Clarke, you have pleaded guilty to the following offences:
·Charge 1 – the Director of Public Prosecutions charges that David Clarke at Morwell in Victoria on the 20th day of April 2013, without lawful excuse, recklessly caused injury to Simone Henningsen.
·Charge 2 – the Director of Public Prosecutions charges that David Clarke at Morwell in Victoria on the 20th day of April 2013 without lawful excuse recklessly caused serious injury to Charles Murdoch.
2 The offence of recklessly causing injury is contrary to s18 of the Crimes Act [1958] and carries a maximum penalty of 5 years' imprisonment and the offence of recklessly causing serious injury is contrary to s.17 of the Crimes Act [1958] and carries a maximum penalty of 15 years' imprisonment.
3 You have also been charged with the following offence:
“The accused at Morwell on the 20th day of April 2013 did resist one Constable Word, a member of the police force in the execution of his duty.”
Such offence is a summary offence and pursuant to the Criminal Procedure Act [2009] such offence was transferred to this Court and you have pleaded guilty to that offence. That offence is contrary to s. 52(1) of the Summary Offences Act [1956] and carries a maximum penalty of 6 months' imprisonment.
4 The prosecution have prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. In particular, it is agreed that:
(a)You are presently 38 years old and, at the time of the offending, you were 36 years old.
(b)You and the first complainant, Simone Henningsen, who was 27 years old at the time of the offending, had been in an intimate relationship for approximately eight months prior to the offending.
(c)You and the first complainant had been living in Queensland before moving into a share house at 11 Maryvale Crescent, Morwell, a month or so prior to the offending. During the relationship, you were becoming increasingly violent towards the first complainant.
(d)The second complainant, Charles Murdoch, was aged 65 at the time of the offending and also lived in a unit at the share house situated at Maryvale Crescent, Morwell.
(e)On the morning of Saturday, 20 April 2013, you and the first complainant began arguing in the kitchen of the share house in relation to cigarettes.
(f)You seized a large kitchen knife and held it at the first complainant’s throat and then put down the knife saying, “I'm going to hurt you, you dog”, after which the first complainant fled to your unit at the rear of the house.
(g)You followed the first complainant, caught her in the bedroom on the bed and stomped on her head several times, causing her to suffer sustained injuries, namely bruising to the left eye and swelling to different areas of the head.
(h)Although police attended at the premises, the first complainant told police that someone else other than you were responsible for the injuries and at that time, you were not arrested.
(i)On the evening of Saturday 20 April 2013, the second complainant, Murdoch, was in his unit of the share house with the door locked.
(j)At approximately 9.00pm, you went to the room and after the door was opened, stated:
“I'm going to cut your fucking head off.”
You punched him to the right eye causing him to fall back onto his bed and as a result of this assault, the victim received a ruptured eyeball requiring 12 stitches and difficulties with his right eye.
(l)You then repeated, “I'm going to cut your fucking head off”, turned to leave the unit saying, “I'm going to get my knife”.
(m)Police returned to arrest you in relation to the earlier incident and located you walking out of Murdoch’s unit, and at that time you were arrested and conveyed to the Morwell police station where you refused to be interviewed by police saying:
“Fuck you, I don’t want to be interviewed.”
(n) You have been in custody since your arrest.
5 In relation to the summary charge, it is agreed that once you were in the police jail, Leading Senior Constable McLatchie and Constables Word and Hand attempted to perform a search of you. You resisted, causing a short wrestle during which time you attempted to bite Constable Wird on the hands and arms.
6 The prosecution also tendered a bundle of photos (Exhibit 2) depicting the injuries to both complainants. I do note that although the second complainant, Charles Murdoch, was diagnosed to have suffered a ruptured eye ball, which required emergency surgery, the long term consequences of such injury are not clear.
7 The prosecution also tendered your criminal record. Your record extends back to June 1993 with all of your previous offending occurring in Queensland. Although you have been convicted of a wide range of offences including drug offences, you have been convicted in particular of the following offences:
(a)On 2 August 1995 at the Cunnamulla Magistrates Court, you were convicted amongst other things, of unlawful assault and assaulting police;
(b)On 13 November 1995 at the Charleville District Court, you were convicted of going armed in public in a manner to cause fear;
(c)On 4 July 1996, At the Mackay Magistrates' Court, you were convicted of assaulting police (together with other offences);
(d)On 2 July 1999 at Brisbane Magistrates’ Court, you were convicted of committing assaults occasioning bodily harm;
(e)On 18 January 2000 at Toowoomba District Court, you were convicted of assault occasioning actual bodily harm (together with other offences);
(f)On 1 May 2007 at the Beenleigh District Court, you were convicted of common assault, attempted threatening violence, and two counts of assault occasioning actual bodily harm (together with other offences);
(g)On 29 October 2008 at Cleveland Magistrates’ Court, you were convicted of assault occasioning actual bodily harm (together with other offences).
8 You counsel tendered the following documents:
(a)Report of the psychologist, Mr David Ball, who interviewed you on 7 March 2014 at the Metropolitan Remand Centre;
(b)Metropolitan Remand Centre program completion report dated 27 December 2013;
(c)Reference from your mother, Ms Shirley Rose Lane, dated 13 February 2014 together with a photo of you depicting the physical abuse you received at school in Warwick, Queensland;
(d)Report from Dr Oded Hauptman, consultant ophthalmologist, dated 31 October 2013 in relation to the injury suffered by the second complainant, Charles Murdoch.
9 I have read all these documents.
10 Based on such tendered material and the various submissions made by your counsel, I set out the following details in relation to your circumstances.
11 You are one of two siblings raised in what ultimately Mr Ball described as a “chaotic and dysfunctional family” characterised by your father’s alcoholism and violence. Your parents separated when you were about five years of age and you went on to describe having difficult relationships with your stepmother and in particular you informed Mr Ball:
“I hated her. She sent her kids away and felt dad should do so. She lied to my dad and he hurt me.”
12 You attended school to Year 9 and have described yourself as an “average” student with no significant social problems. However, you have made clear that you found it difficult moving from place to place and attending new schools – such a situation giving rise to loneliness and difficulty making long-term friends. In particular, you describe having significant difficulties with discipline, after an incident in Year 8, at which time you were assaulted and sexually abused by a teacher, which ultimately went to Court.
13 On leaving school you commenced, but did not complete, an apprenticeship as a butcher, and ultimately you left home to work on a cattle station. Over the years you have had an inconsistent employment history, the cause of which you ascribe to alcohol and drug abuse and time spent in prison.
14 You informed Mr Ball that you had been in four significant de facto relationships. You fathered a child with each of your first two partners but do not currently maintain contact. Your third relationship produced two children, currently aged two and four, now living with their mother following intervention by the Department of Human Services in Victoria and the equivalent agency in Queensland.
15 You commenced your relationship with Simone (the first complainant) in 2012 and according to you, that relationship was ongoing. In particular, you informed Mr Ball:
“When we are both on our medications and drug free, it’s the happiest I've ever been.”
16 You started drinking alcohol and using cannabis at age 14 and described dangerous patterns of consumption on an almost daily basis. When you were about 18, you commenced using heroin and amphetamine and Mr Ball noted your comments:
“Every bad decision and problem in my adult life is due to drug abuse and failure to stay medicated.”
17 You explained your significant list of prior convictions as primarily due to substance abuse.
18 In relation to the subject offending, you explained to Mr Ball that you were affected by drugs and alcohol, l and only have a vague recollection of your actions. In particular, you describe that you had consumed a cocktail of various drugs and alcohols for the preceding four or five days and then when you stopped taking your medication, you relapsed to such drug and alcohol abuse, becoming intensely paranoid and violent. In particular, you describe becoming paranoid and abusive hours before the subject assaults. You explained to Mr Ball that when you become violent, you are angry at first and then you act on it and then you become depressed.
19 In particular, you stated:
“I'm so very, very sorry. Even though it seems so, I have no personal hatred or bad feelings about them [the victims]. It is no excuse, but they are only my victims because they were present when I was affected by drugs and alcohol and had not taken my medication.”
20 Although you reported a previous diagnosis of bipolar disorder and schizophrenia made by a psychiatrist in Queensland, Mr Ball could find no evidence to corroborate such diagnoses and rather, considered your symptoms are better accounted for by substance abuse and anti-social personality disorder.
21 In particular, Mr Ball stated:
“Mr Clarke presents with a history of conduct disorder and criminality comorbid with a raft of antisocial personality features which satisfy the DSM5 diagnostic criteria for Antisocial Personality Disorder. Paradoxically, he appears to function well within the prison environment. He presents with a history of failure to cope and thrive in the wider community when at large. He was unable to offer any clear insight into the situation other than to reiterate that he has a history of rapid relapse into drug addiction and association with negative peers in the community.
Mr Clarke’s safe management in the community presents a number of challenges related to the lengthy criminal history and Antisocial Personality Disorder. Prior to his release he will require intensive and structured drug relapse prevention treatment. He will require intensive and structured cognitive behavioural treatment to address the antisocial aspects within his personality. The necessity of treatment cannot be overstated. He may also derive benefit from mood management and anger management programs.”
22 Since being imprisoned, I accept that you have made real attempts to overcome the problems described by Mr Ball. It would appear that you have a real commitment to the various courses offered to you in prison and in particular, focussing on further developing relapse prevention plans.
23 Although your counsel conceded that the nature of the offending did require a custodial sentence, she submitted such sentence should not be crushing, given your commitment to overcome your drug and psychological problems which give rise to some real hope of rehabilitation.
24 Furthermore, you have pleaded guilty to the subject offences, which is of some social utility, saving the cost of a trial and relieving any of the complainants of giving evidence at a trial. Furthermore, I do consider that you have shown some degree of remorse for your offending, as demonstrated by your comments to Mr Ball. I take all these foregoing matters into account. However, I also take into account in determining an appropriate sentence, the following matters: denunciation of such serious offending, in this case in particular, the stomping on your partner and the largely unprovoked attack on a man much older than you will not be tolerated by the community. I also consider specific and general deterrence are important. That is, it is important that you are deterred from performing such violent acts and indeed members of the public are deterred from such violent activities.
25 Furthermore, as I have already noted, you have a poor criminal record, although I do accept that most of the offending has been largely drug-induced.
26 Taking all of these matters into account, I consider the only appropriate sentence is one of immediate imprisonment, given the gravity of the offending.
27 Accordingly, I order as follows, please stand up:
(a) In relation to Charge 2, you are convicted and sentenced to 3 years' imprisonment;
(b) In relation to Charge 1, you are convicted and sentenced to a period of 18 months, 6 months of such sentence to cumulate with the sentence imposed in relation to Charge 2.
(c) In relation to the summary offence, you are convicted and sentenced to a period of one month's imprisonment to be served concurrently with the sentence imposed in relation to Charge 2.
(c) The total effective sentence is 3 years 6 months' imprisonment and you are to serve 2 years 6 months imprisonment before becoming eligible for parole.
(e) I declare that you have served 432 days pre-sentence detention in relation to these offences.
(f) I order pursuant to s86 Sentencing Act 1991 (Vic) that you pay compensation to Mr Michael Baker in the sum of $400.
(g) I order that there be the taking and retention of a forensic sample pursuant to s464ZF(2) of the Crimes Act 1958 (Vic) on the basis of the seriousness of the offending.
(h) I declare that pursuant to s6AAA of the Sentencing Act 1991 (Vic), that save for your pleas of guilty, I would have ordered an effective sentence of 5 years' imprisonment.
28 Now, Mr Clarke, it will be explained to you what is happening. What I can say to you is this: It seems, and I have been impressed by the efforts that you have made in prison to try and overcome these problems, and it sounds like you do recognise that you have to overcome these problems, and if I can give you any advice at all, use the time in prison to do these courses. Keep going with the courses, because once you are released from prison and if you re-offend in a similar way, it will be greater and greater periods in prison. You are still a relatively young man. You have got your life in front of you, so now is the time to really make a big effort, continue with the efforts you are making in prison to try and overcome these problems, and it sounds like you are making progress, but you have to keep on going. Do you understand?
29 PRISONER: Yes.
30 HIS HONOUR: Yes, take the prisoner.
- - -
0
0
0