Director of Public Prosecutions v Clarke

[2022] VCC 1516

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00601

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN CLARKE

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2022
DATE OF SENTENCE:	14 September 2022
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2022] VCC 1516

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Causing injury intentionally – Victim offender’s ex-partner – Unknown weapon discharged against victim’s head – Metal projectile penetrated victim’s skull – Offender sentenced on the basis weapon was a taser and he intended to emit an electric shock and cause victim pain – Deprived childhood – Family violence – Offender on a Community Correction Order at time of offending – Relevant criminal history – Early guilty plea – General and specific deterrence – Community protection.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Worboyes v The Queen (2021) 96 MVR 344; DPP v Smeaton [2007] VSCA 256.

Sentence:                  2 years and 6 months’ imprisonment with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Melasecca Kelly & Zayler

HIS HONOUR:

Introduction

1Jordan Clarke, you have pleaded guilty on indictment to one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.

2The case was opened in line with an agreed summary of prosecution opening dated 16 August 2022.[1]       

[1]Exhibit A.

3In about January 2021, you and the victim, Ms Amber Thompson, commenced a relationship. It was a tumultuous relationship, and it ended on 24 April 2021.

4At around 3:30pm on 27 April 2021, Ms Thompson was lying on a blanket on a grassed area near the unit in Wodonga where she was living. Present with her was a 13 year old girl.

5You arrived at Ms Thompson’s residence in a vehicle driven by Sean Devlin. You approached Ms Thompson. She heard you speaking as you approached her. You were wearing a black hooded top with the hood over your face. Ms Thompson noticed that you were holding an unknown weapon. Having seen you, she stood up. You placed the item you were holding – which you say was a Taser –  against Ms Thompson’s forehead. She said ‘Do it’. You discharged the Taser. A metal projectile was discharged which penetrated through Ms Thompson’s skull.

6Ms Thompson felt immediate pain and placed her hand to her head. She was bleeding heavily and started to scream. She did not realise that anything had penetrated her skull until later when she underwent a CT scan.

7You ran away in the same vehicle driven by Sean Devlin.

8A neighbour, who witnessed the incident, ran to Ms Thompson and provided her with assistance. Another neighbour also came to assist. Ms Thompson told them she could not go to hospital as she was concerned that you would kill her.

9Ms Thompson, who was in shock and hyperventilating, was treated at the scene and then taken by ambulance to Wodonga Hospital. A CT scan revealed that a metal projectile had penetrated the frontal bone of Ms Thompson’s head. The object was 1.5mm thick and 12mm long.[2] There was associated laceration and bruising to the forehead.

[2]See photograph, Exhibit C.

10On 28 April 2021, Ms Thompson underwent surgery to remove the projectile from her skull. Thankfully, a matter of good fortune, the injuries were not life-threatening and there was no associated fracture.

11At 5:38am, while Ms Thompson was in hospital, you sent her a message asking, ‘Are you okay?’. Ms Thompson replied, ‘You fucking what ?? You don't love someone and do that. 2mm further and it wouldn’t just be attempted murder. Give my phone to Mitch today before I change my mind Jordan. Please don’t ever contact me again’.

12Ms Thompson was discharged from hospital on the evening of 28 April 2021.

13Nurses who treated Ms Thompson at the hospital noted that she was very emotional and reluctant to tell them how the injury had occurred. Dr Mahoney also spoke to Ms Thompson. She would not tell him who had injured her. She told Dr Mahoney that she planned to leave Victoria as she was trying to get away from the person who had caused the injury to her. She believed that if she disclosed the offender’s name it would ‘only get worse’ for her. Finally, after some prompting, Ms Thompson told Dr Mahoney that the person who had injured her was ‘Jordy’.

14On 29 April 2021, Ms Thompson attended Wodonga Police Station and told officers that she did not want the matter investigated.

15On 30 April 2021, police obtained a Family Violence Intervention Order prohibiting you from committing family violence against Ms Thompson.

16An analysis of your mobile phone revealed that between 26 April 2021 and 7 May 2021, you called Ms Thompson on 34 occasions and sent her 568 SMS messages.

17You were arrested at Albury airport on 9 May 2021. You were extradited to Victoria and remanded in custody where you have remained. You were not interviewed.

18On 15 May 2021, Ms Thompson provided a statement outlining your involvement in the offending.

19Ms Thompson has not made a victim impact statement. However, it is clear that your offending would have been a terrifying experience. She required hospitalisation and surgery to her head.

Personal circumstances

20You grew up with your three siblings within a disturbing and dysfunctional familial environment. You were exposed to violence and substance abuse. Your father worked hard as a concreter, however, he was also violent and a chronic alcoholic. You witnessed your father physically abuse your mother. You were also a victim of his abuse. You recall an occasion when he stood over you with an iron bar and threatened to bash you. You were only eight years of age. You fled your home with your brother, both bare-footed, and stayed overnight at a friend’s house.

21Regrettably, your mother regularly abused illicit substances, and you observed your mother injecting drugs.

22Your family also lacked stability. You moved with your family to a number of housing commission residences. As a consequence, you attended at least five different primary schools.

23Schooling was also difficult. You struggled to learn and would experience frustration. On occasions, this led to aggressive outbursts which included you throwing chairs. An aggressive outburst led you to be expelled from at least one primary school.

24Your father left the family when you were aged approximately 13. Your mother had three further children with different fathers. She continued to abuse drugs.

25You experienced bullying in high school. In Year 8, you retaliated to the bullying by hitting a student in front of your teacher. As a result of this, you were expelled. Thereafter, you attended a community school and completed Year 10.

26You recall smoking cigarettes at the age of five. You experimented with cannabis from the age of 10, and by the time you turned 15, you were smoking cannabis regularly. Your mother invited you to partake in smoking bongs when you were 15 years old.

27You began drinking alcohol from the age of 13. When you requested her to do so, your mother would supply you with alcohol.

28You were aged 16 when your father committed suicide. Around that time,  in addition to alcohol and cannabis use, you also experimented with amphetamines. You began using amphetamines on a weekly basis which your brother supplied to you.

29In response to frustration, you would periodically head-butt, kick and punch walls every few months.

30By the time you were 18, you were immersed in a serious pattern of polysubstance abuse, which included alcohol, cannabis and ICE.

31Prior to meeting the victim in this matter, you had three relationships. The longest lasted three years.   

32You are now 29 years of age. You commenced employment at the age of 21. You worked in a fish and chip shop, and then as a cleaner in motels. You were able to secure stable employment from the age of 24 up until a few months before the offending.

33A psychological report dated 17 August 2022, prepared by Luke Armstrong was tendered on your plea.[3] According to Mr Armstrong, you meet the criterion for a Borderline Personality Disorder. At the time of the offending, you also met the criterion for Stimulant Use Disorder, Alcohol Use Disorder, and Cannabis Use Disorder. Mr Armstrong administered the Spousal Assault Risk Assessment. This is a checklist designed to screen and assess for the risk of future violence in people arrested for spousal assault. According to this assessment, you present as a high-risk for future spousal violence. Mr Armstrong opines that you require intensive drug and alcohol treatment along with intensive psychological intervention over a period of not less than 18 months in order to reduce your risk level.

[3]        Exhibit 2.

Criminal History

34You have a criminal history both in Victoria and New South Wales.

35In Victoria, you have appeared before the courts between 2015 and 2020. Your history includes offences of possessing a prohibited weapon without exemption or approval, theft, burglary, assault with an instrument, assault by kicking, wilfully damaging property, and possess and use cannabis. On 2 February 2015, you were sentenced to a 12 month Community Correction Order (‘CCO’) which included conditions for treatment for mental health, drug abuse, and participating in offending behaviour programs.[4]

[4]This order was successfully completed.

36Your New South Wales criminal history commences in 2012 until 2020. You have convictions for at least three offences of having custody of an offensive weapon (two relating to a knife) in a public place, affray and six offences of destroy or damage property. On 2 November 2018, you were sentenced to a seven month Intensive Correction Order (‘ICO’). On 11 December 2019, you were placed on a 12 month CCO. Your breached both the ICO and the CCO. On 7 October 2020, you were sentenced to a further CCO for 12 months. The offending for which I am to sentence you was committed while you were subject to this second CCO imposed in New South Wales.

37At the plea hearing, I ordered you be assessed for a CCO. I have received an assessment report prepared by Mr Dhillon dated 23 August 2022. Bearing in mind, your history with CCOs in New South Wales, you have been assessed as unsuitable for a further order. According to Mr Dhillon’s assessment report, your current offending before this Court breaches the most recent CCO imposed in New South Wales. However, as the current offending is being dealt with after the expiry of the CCO, a contravention will not be initiated.

Matters in Mitigation

38Your counsel, Mr Rattray, relied upon a number of matters in mitigation.

39He submitted that I should consider your plea of guilty to have been entered at the earliest opportunity. An offer to resolve the matter in the manner it has ultimately resolved was made at an early stage. The prosecution did not reject the offer but took some time, quite understandably, to make further enquiries both as to the nature of the weapon used in the commission of the offending and as to the nature and extent of the injuries suffered by the victim. Your early offer to plead guilty was ultimately accepted in April 2022. Accordingly, I accept that your plea of guilty was entered at the earliest opportunity. Valuable Court time and expense has been saved. The victim has not been required to give evidence in Court. Your plea of guilty has facilitated the administration of justice.

40A plea of guilty entered during a period when this Court is facing a significant backlog of trials entitles you to a further and palpable discount.[5]

[5]Worboyes v The Queen (2021) 96 MVR 344.

41I further accept that your plea of guilty demonstrates remorse. Mr Armstrong states in his report that you were able to articulate genuine regret for your offending.

42I accept that your deprived and traumatic background, involving exposure to violence and drugs from a young age, reduces your moral culpability for the offending. However, on the other side of the coin, your increased levels of frustration and anger, which was apparent from your offending, requires me to give greater emphasis to the protection of the community.

43In Bugmy v The Queen,[6]  the High Court stated:[7]

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

[6](2013) 249 CLR 571.

[7]Ibid 594-5 [43] – [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

44You have remained in custody since your arrest  on 9 May 2021 and have not applied for bail. As a result of COVID-19, you have endured and will continue to endure more onerous conditions in custody. This has involved a period of initial isolation and ongoing lockdowns.

45Having said that, you have attempted to make the most of your time in custody. You have completed a number of courses, including  a  three-hour Alcohol and Drug and Relationships Program, Certificate III in Cleaning Operations, Certificate II in Horticulture, and Certificate II in Kitchen Operations.[8]  You have been working in the gardens at the prison.

[8]Bundle of certificates – Exhibit 3.

46You have been clean of all illicit substances during your time on remand. It cannot be any clearer, you must maintain that abstinence upon your release.

47I have had regard to the character references provided by your sister and brother.[9] I note that your brother has offered you employment in his construction company in Melbourne.

[9]Exhibits 4 and 5.

Gravity of the Offending

48The offence of causing injury  intentionally is an inherently serious offence. That much is clear by the maximum penalty fixed by Parliament, namely 10 years' imprisonment.

49Your state of mind prior to the offending is illuminating. You told Mr Armstrong, that you were not able to accept that the relationship was over. On the day of the offending, you had been drinking a significant quantity of mixed spirits, was intoxicated, and could not stop ruminating about the failed relationship. You felt betrayed and let down by Ms Thompson. Mr Armstrong states in his report:

Mr Clark reports that prior to confronting the victim he oscillated between extremes of idealising and devaluing her, specifically that he loved and yearned to be with the victim, vs a strong sense of anger at being rejected by the victim.

50In circumstances where the prosecution are not able to identify the weapon that you used, I will sentence you on the basis that you armed yourself with a battery powered taser and went to confront Ms Thompson. I note that Dr Gaya in his statement states that he could not exclude that the weapon was a home-made or black market taser-like device.[10] The prosecution have not obtained any further expert evidence as to the nature of the weapon. Further, I sentence you on the basis that at the time you deployed the taser, you intended to emit an electric shock and cause Ms Thompson pain.

[10]Statement dated 12 April 2022, [20].

51Having said that, you deliberately chose to place the taser on Ms Thompson’s head. You used the weapon and caused Ms Thompson a substantial injury. She immediately suffered pain and significant bleeding. Surgery was required to remove the projectile embedded in Ms Thompson’s skull.

52I regard the offending you engaged in as a serious example of the offence. It is an example of serious family violence against a vulnerable ex-partner  involving the use of a weapon. There was a degree of pre-meditation. You sought her out in order to confront her and, at the very least, there was a high likelihood of an altercation of some nature.

53At the time of the offending you were subject to a CCO for a number of offences including an offence of having custody of an offensive implement in a public place.

54You described the incident to Mr Armstrong as ‘horrific’ and ‘savage’. You are not wrong about that.

55In DPP v Smeaton[11], Justice Dodds-Streeton observed the following at [21]:

Violence, and in particular violence by men against women as a mean of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil.

[11] [2007] VSCA 256.

56In sentencing you, I denounce your conduct on behalf of the community in the strongest of terms.

57The sentence I impose must deter others who may be inclined to use violence upon their partners and former partners. The message must go out loud and clear that such cowardly conduct against partners and former partners will not be tolerated. Women are entitled to leave relationships as they choose without fear of violence being perpetrated upon them. Your inability to accept the relationship had ended provides no excuse whatsoever.

58You have relevant prior convictions in Victoria and New South Wales. At the time of this offending, you were subject to a CCO. Accordingly, the sentence I impose must also act to deter you from future offending.

59You must be justly punished and the community must be protected. I note, according to Mr Armstrong, your risk of reoffending in a violent manner is high. Your rehabilitation is important and is very much in your hands. Now that you have enjoyed a significant period of sobriety, you must seek to build upon it when you are ultimately released into the community. At this stage, I regard your prospects of rehabilitation as guarded.

Sentencing

60On behalf of the Director, Mr Grant submitted that this was a serious example of the offence.

61Mr Grant emphasised the fact the offending was committed upon a former partner very shortly after the relationship had ended. The offending involved a plan to, at the very least, scare the victim. You were armed and placed the taser upon the victim’s forehead. While you did not intend to inflict the injury that materialised, the fact is the victim suffered a shocking injury requiring surgery to remove the embedded object from her skull.

62Mr Grant submitted that the important sentencing purposes, including general deterrence, could only be met by the imposition of a head sentence and a non-parole period.

63On your behalf, Mr Rattray made realistic concessions relating to the gravity of the offending. He conceded that this was a serious offence. Bearing in mind the length of time you have spent in custody, Mr Rattray urged the Court to consider a term of imprisonment combined with a CCO. He submitted that a CCO will allow you to engage in rehabilitation in circumstances where you have been abstinent from illicit substances for a significant period.

64I had you assessed for a CCO, but made it plain, it did not follow that I would ultimately impose one. In fact, the assessment has deemed you to be unsuitable for a further CCO.

65I note, you have been given opportunities in the form of a community sentence previously. You were on a CCO at the time of this offending.

66Ultimately, having considered all relevant matters, this offending is so serious that nothing other than a head sentence and a non-parole period will meet the sentencing purposes.

67On the charge of causing injury intentionally, you are convicted and sentenced to a term of 2 years and 6 months’ imprisonment. I set a non-parole period of 20 months’ imprisonment.

Pre-sentence detention

68Pursuant to s 18 of the Sentencing Act 1991, the period of 493 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

69Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 9 months.