Director of Public Prosecutions v Clarke
[2022] VCC 49
•1 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01352
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEVI CLARKE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2021; 16 April 2021; 19 October 2021; 27 January 2022 | |
DATE OF SENTENCE: | 1 February 2022 | |
CASE MAY BE CITED AS: | DPP v Clarke | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 49 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130; R v Mills [1998] 4 VR 235; R v Verdins & Ors (2007) 16 VR 269; Akoka v R [2017] VSCA 214; R v Renzella [1997] 2 VR 88.
Sentence: Total Effective Sentence of 2 years and 10 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Harrison | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G. Thomas | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
Introduction
1Levi Clarke, you have pleaded guilty on indictment to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, and to a related summary offence of committing an offence whilst on bail, which carries a maximum penalty of three months’ imprisonment.
2You have also admitted your criminal history.
Circumstances of the Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 8 January 2021, Exhibit 1 at your plea hearing on 30 March 2021. That document sets out the factual basis of the offending upon which you will be sentenced.
4Your offending can be briefly summarised. On 15 April 2020, you were 20 years of age. Less than two months earlier, you had been released from custody, having served a 90-day sentence for dishonesty and driving offences. You were also on bail with regard to an allegation that you were involved in an aggravated burglary dating from February 2019.
5At approximately 4.00 pm on 15 April 2020, your 14-year-old victim, who I will refer to as ‘J’, was walking along Hawthorn Road in Caulfield North with two of his friends. He observed a white Holden Cruze drive past him and then brake suddenly and pull over approximately 20 metres further down the road. J had unfortunately been robbed by knifepoint approximately one month earlier. Having previously made eye contact with the male driver and the female passenger as the vehicle passed him, J became immediately anxious and started walking away from the vehicle. He looked back to see the car do a U-turn and start driving towards him, at which point J began running in the direction he had originally been walking. The vehicle again did another U-turn and followed J once again. J turned off Hawthorn Road and up Northcote Avenue, before running into a driveway behind a surgery practice at the rear of 187 Hawthorn Road, where he hid behind some bins located in a narrow walkway between the boundary fence and the building. J’s two friends left the area, with J now hiding by himself.
6Shortly afterwards, the vehicle drove past the driveway and up Northcote Avenue, and then J heard footsteps and saw you come around the corner. You positioned yourself between the bins and the fence so that J could not escape.
7You asked J why he had run, and J said that he thought you were going to rob him. You then pulled out a flick knife and said 'give me all of your shit'. When J asked what you wanted, you said 'shoes, bag, everything'. J gave you his black bum-bag, which contained his speakers and a charger. You demanded his phone. Initially, J lied and said it was in the bag, but you stepped towards him and held the blade of your flick knife approximately one metre from his chest and said again 'give me your phone'. J then handed over his iPhone, which was inside a blue case with a clear centre. You then asked J to enter his password, and whilst J was doing this, he heard a car honking its horn. You turned around and ran with J’s bag and phone.
8Your conduct in this regard forms the basis of the charge on the indictment, armed robbery. As you were on bail, as I have outlined, at the time of this offence, your conduct also forms the basis of the related summary offence of committing an indictable offence whilst on bail.
9J followed you and saw you get into the driver’s seat of the vehicle that he had earlier seen. He also saw the female in the passenger seat of the vehicle, and he took note of the registration and told his friends to call the police. Police subsequently attended and took J to the Caulfield Police Station where he made a statement.
10You were subsequently identified through a combination of CCTV footage provided to Crimestoppers, and information provided by the female in the vehicle, Lola Anderson. She provided a police statement with regard to the day in question, where she stated, amongst other things, that you were on Ice, quite aggressive, and started to pursue the victim after he went into a driveway. After she saw you running out of the driveway carrying a knife, phone and speakers, she then saw J following you, crying.
11You were subsequently arrested by police on 30 May 2020 with regard to unrelated matters, and you were interviewed and remanded in custody.
Victim Impact
12A Victim Impact Statement from J made on 28 March 2021 was tendered at your plea hearing and marked Exhibit 3. Whilst J and his mother were present at your plea hearing on 30 March 2021, this statement was read to the Court by Mr Harrison, who appeared on behalf of the prosecution.
13In his statement, J refers to feeling helpless with regard to being unable to do anything to protect himself or his belongings. He felt confused in the face of your demands, and felt that he needed to let you have his belongings so that he possibly would not end up injured or dead in an alleyway. He has been constantly thinking about what happened and still feels shocked that this could happen to him. Since the day of the crime, he has felt really unsafe when left at home and has become very watchful in public and does not want to be alone. He still has to check in more frequently with his family so that they know that he is okay. J refers to it taking weeks before things got back to near normal and he could be with his extended friendship group, which really upset and frustrated him.
14Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often substantial and long-lasting effects of crimes upon them. In formulating an appropriate sentence in your case, I have had regard to the Victim Impact Statement made by J.
Nature and Gravity of the Offending
15Armed robbery is clearly a serious offence, as reflected in the maximum term of imprisonment available, 25 years. It is also inherently a violent offence, given that it involves a robbery whilst armed with an offensive weapon. Particularly given that it is also a prevalent offence, subject to considerations which are personal to you, the sentencing purposes of just punishment, denunciation, general deterrence and community protection are significant in this case.
16I agree with the prosecution that this represents a serious example of an armed robbery. Whilst you were on your own at the time of committing the offence, you did not wear a disguise, there was a lack of sophistication to your criminal endeavour, there was no actual violence, and this crime was committed in the middle of the day in a public place. Your victim was only 14 years of age and therefore was young and vulnerable. You followed your victim as he tried to evade you, showing a degree of persistence and determination as you tracked him into an alleyway where was he was hiding in fear. Overall, while the circumstances of your offending make this more serious than a low-level armed robbery, given the absence of the more concerning indicia that I have referred to, such as the use of a disguise, acting in company, and actual violence, your offending in my view does not amount to a mid-level example of the offence of armed robbery.
Personal Circumstances
17You are now 22 years of age. You identify as an Aboriginal man with your cultural heritage from your mother’s side of the family. You are the oldest of three siblings, though it seems you have not maintained contact with your two younger sisters aged eight and 16.
18Your complicated history is documented in the various psychological, neuropsychological and psychiatric reports that have been tendered and referred to in your case. What is clear is that you have endured an extremely difficult and dislocated upbringing, marked by exposure to significant substance use, instability, neglect and trauma. Both of your parents were apparently drug users, with neuropsychologist, Dr Loretta Evans, in her report referring to Warrnambool hospital records describing your possible predisposition to developmental difficulty as a result of reported exposure to heroin and Methadone in utero, and subsequent withdrawal symptoms at birth.[1] In her pre-sentence report dated 21 January 2022, consultant psychiatrist Dr Katherine Tan refers to you being born Methadone addicted and commenced on phenobarbitone from birth to assist with withdrawal.[2]
[1]Neuropsychological Report of Dr Loretta Evans dated 28 September 2021 at [10], Exhibit H.
[2]Psychiatric Report of Dr Katherine Tan at [75].
19You have reported to Dr Tan having no good memories from your childhood, indicating that both of your parents used drugs whilst you were growing up, that there were always needles around the house, and that you would be sent to pick up drugs for your parents. You have reported to Dr Tan that you had witnessed your mother overdose on more than one occasion and that your father introduced you to crime. You initially lived in Warrnambool and then Altona and Werribee. Unsurprisingly, DHHS became involved with your family when you were aged seven, with concerns relating to your parents’ substance use and failing to ensure your safety from physical harm. You were subsequently placed by DHHS with various family members including your Aunt Leanne and maternal grandfather, Lenny Clarke, who has been involved in these hearings, in Warrnambool.
20You apparently first came into custody at Parkville Youth Justice at the age of 12. Indeed, your criminal history commences at the Warrnambool Children’s Court in February 2014, when you were aged fourteen. Your criminal history is extensive and concerning. You have previously been dealt with for an array of offending, including driving offending, dishonesty offending, and violent offending. At the age of 15 on 15 October 2015, you received a Youth Justice Centre Order in the Children's’ Court for offending which included attempted armed robbery and armed robbery. In September 2016, you again received a Youth Justice Centre Order in the Children’s Court jurisdiction for offending which included aggravated burglary, reckless conduct endangering life, recklessly cause injury, and attempted arson. In September 2017, again in the Children’s Court jurisdiction, you received a significant Youth Justice Centre Order of 26 months, for offending which included carjacking, attempted carjacking, affray, escape and riot with regards to the Parkville Youth Justice Centre, and robbery. You were released on youth parole in relation to that matter on 4 February 2019. Your first appearance in the adult jurisdiction occurred only four months prior to the commission of the armed robbery for which you now fall to be sentenced. In February 2020, two months prior to the armed robbery, you received a 90-day sentence of imprisonment, incorporating 90 days pre‑sentence detention, for largely dishonesty offending. Clearly, previous significant criminal sanctions have not deterred you from offending in a serious manner.
21Largely corresponding with the commencement of your significant criminal history, you apparently started 'hitting drugs', to use your words, shortly after the death of your mother when you were 15 years of age, from a drug overdose. You apparently found your mother unconscious on the bathroom floor. She later died. You were apparently asked to assist in digging her grave as part of the funeral ceremony, these events unsurprisingly causing you considerable distress, with your mental health deteriorating significantly as a result.
22Unsurprisingly, you have limited education, having been expelled in Year 9. It is a sad fact that you have spent a significant portion of your older teenage and young adult life in custody, where you have attended further educational pursuits and obtained various qualifications in that custodial setting.
23You have reported to psychiatrist Dr Tan hearing voices since your childhood, from about the age of 12 or 13, and much of the psychological and psychiatric material provided in this case has focussed on your psychological fragilities and mental health challenges during your young life. In her initial report dated 31 December 2020, tendered and marked Exhibit B at your plea hearing, psychologist Gina Cidoni concluded that you suffer from Post-traumatic Stress Disorder given your extremely difficult personal history, with comorbid anxiety and depression. Furthermore, given your significant drug use history, which has included Ice use from the age of 13, and the use of heroin, ecstasy, MDMA and GHB, you have a stimulant use disorder. You have, according to Ms Cidoni, turned to substances to assist you in dealing with the internal pain you experience as a result of your history of trauma. You were using substances in the context of the armed robbery. According to Ms Cidoni,[3] your conditions are a significant contributor to your offending, as your intoxication contributes to the intensity of your responses and your loss of control. In a subsequent report by Ms Cidoni dated 28 August 2021, Exhibit I at your plea hearing, Ms Cidoni noted concerning presentation on your part and a decline in working memory function, suggestive of cerebral changes, such as to warrant a neuropsychological assessment. Such an assessment was subsequently undertaken by Dr Loretta Evans, with her findings set out in her report dated 28 September 2021, Exhibit H at your plea hearing. According to Dr Evans, you presented as acutely thought disordered and behaved in a manner which was consistent with responding to auditory and visual hallucinations, and Dr Evans opined that you were presenting with overt behavioural evidence to suggest the presence of a significant underlying psychiatric illness.[4] Based upon these concerns, I ordered that you be psychiatrically assessed by Forensicare, and the findings of psychiatrist Dr Tan were set out in her Pre-Sentence Report dated 21 January 2022. In summary, Dr Tan concluded that there was insufficient evidence to warrant a diagnosis of an enduring psychotic illness.[5] Rather, according to Dr Tan, it is possible that you have experienced episodes of drug-induced psychosis whilst using illicit substances, and it is possible 'that his offending may have occurred in the context of drug use and the disinhibitory effects of substance abuse’.[6]
[3]Psychological Report dated 31 December 2020 at [59].
[4]Neuropsychological Report of Dr Loretta Evans at [29].
[5]Psychiatric Report of Dr Katherine Tan at [100].
[6]Ibid at [104].
Sentencing Factors
24The Sentencing Act1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the impact of your offending on your victim, and the nature and gravity of your offending.
25Having regard to your personal history, I am satisfied in accordance with the Bugmy[7] principles that your moral culpability is reduced due to your deprived and disadvantaged background, which has clearly marred your formative years, and has compromised your capacity to mature and learn from experience. As Bugmy makes clear, the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. It is clear in your case that you have endured a most difficult upbringing, and that you suffer from the effects of Post-Traumatic Stress Disorder. Your criminality in my view is emmeshed in your dysfunctional attempts to deal with your trauma, which includes a recourse to substance use and antisocial behaviour. Particularly given your psychological functioning and your youth and immaturity, I am satisfied that your moral culpability for the offending is reduced.
[7] Bugmy v R (2013) 249 CLR 571.
26As conceded by the prosecution, your plea of guilty in this matter was indicated at an early stage in proceedings, at the committal case conference stage, warranting a sentencing discount based upon the utilitarian value of that early plea. Your plea of guilty was entered in the context of the COVID‑19 pandemic and its unprecedented challenges to the administration of criminal justice in this State, and pursuant to the decision of Worboyes,[8] the utilitarian benefit of your plea of guilty is enhanced in the context of those challenges and the unprecedented delays being experienced within this jurisdiction. People who are guilty should be encouraged to so plead, and in the current circumstances, those that do should receive a clear recognition in sentencing, being an ‘actual and palpable’ amelioration of their sentence.[9]
[8] Worboyes v R [2021] VSCA 169.
[9] Ibid.
27I am satisfied that a further sentencing discount is warranted due to your genuine remorse for your offending. Your plea of guilty, entered in the circumstances that I have described, is of itself capable of evidencing remorse. Furthermore, on 30 March 2021, you participated in a Sentencing Conversation in the presence of two Aboriginal Elders, as part of the Koori Court plea hearing procedure. As is often the case, that Sentencing Conversation was substantial, direct and at times confronting for you. In addition to the Elders and family representatives on your part, your victim, J, and his mother, Maxine, also participated in the hearing. Of particular note, J’s mother, Maxine, spoke directly to you with regards to your offending and its impacts upon her son, and spoke of forgiveness towards you given your difficult and traumatic upbringing. As I commented at the time, the sentiments expressed by Maxine very much stand to her credit, and in my view highlight the immense power of the Koori Court Sentencing Conversation. Importantly, I observed real emotion on your part during this conversation, and it was clear to me that you were remorseful in relation to your offending; at one point stating that the victim and his family did not deserve to be put through this. Your remorse is very much a matter standing to your credit, warranting a significant mitigatory allowance.
28More broadly, part of the Sentencing Conversation to which I have referred involves a shaming aspect, which in my view you genuinely embraced. I have little doubt that this would have been particularly confronting for you, and your willingness to expose yourself in this way is to your credit. As has been acknowledged,[10] meaningful engagement in the Koori Court Sentencing Conversation may operate as a mitigating circumstance. You faced a shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending. Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative.
[10]Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130 at [66] – [69].
29You are now aged 22, and you were only 20 at the time of your offending. You fall to be sentenced as a youthful offender. As conceded by the prosecution, there should be a moderation in the application of the sentencing purposes of general deterrence and denunciation in favour of rehabilitation due to your youth.[11]
[11]R v Mills [1998] 4 VR 235.
30On a related issue, particularly given your youth and immaturity and psychological fragilities as I have described them, the considerable delays associated with the finalisation of your case have no doubt caused anxiety to you, as this matter has been hanging over your head for some time. Your offending occurred in April 2020. The commencement of your plea hearing and the Koori Court Sentencing Conversation took place on 30 March 2021. Since then, there have been considerable delays associated with your case, and whilst some of that delay is attributed to your behaviour in absconding whilst on bail, there have nevertheless been subsequent adjournments to enable the provision of appropriate psychological and psychiatric assessments and subsequent reports. I have made a mitigatory allowance for the delays associated with this case.
31A further mitigatory allowance is warranted by virtue of the conditions of custody in the COVID‑19 context. As is now well known, COVID-19 has significantly impacted upon the custodial setting, with significant restrictions regarding lockdowns, prison visits, access to employment, and access to programs, services and therapies. Quarantining and isolation have become features of the custodial setting. All prisoners and their families have had to live with the ongoing stress and anxiety associated with the risks of COVID-19 entering the custodial environment, with its compromised demographic. I accept that all of this has caused your time on remand to be more onerous. Furthermore, according to psychologist Ms Cidoni, your mental illness means that you experience prison as a greater burden than a person with normal faculties.[12] As conceded by the prosecution in this regard, a mitigatory allowance is warranted pursuant to Verdins[13] principle 5.
[12]Psychological Report of Gina Cidoni dated 31 December 2020 at [62].
[13] R v Verdins & Ors (2007) 16 VR 269.
32I now turn to the difficult issue of your prospects of rehabilitation. You fall to be sentenced as a young man with an extremely difficult history, which includes significant prior criminality. You have spent a great deal of your young life in custody or detention. On 16 April 2021, I deferred sentence to allow you to be bailed to the Bunjilwarra Koori Youth Alcohol and Drug Healing Services in Hastings from 19 April 2021. You remained there for 29 days, before being removed from the program and asked to leave the premises on 18 May 2021. However, before appropriate arrangements could be made, you absconded and remained at large in the community until you were arrested on 28 May 2021 with regards to further offending in Grovedale near Geelong. Your progress at Bunjilwarra, complimented by your participation in the County Court CISP supported bail program, whilst showing early signs of progress, was very much short lived. As is made clear in the most recent amended chronology dated 25 January 2022 from the prosecution, your progress whilst subject to a deferral of sentence was problematic. You currently face Magistrates’ Court proceedings with regards to alleged offending whilst subject to the sentence deferral, next listed in February this year. Furthermore, you are awaiting trial with regards to an alleged aggravated burglary from 28 February 2019, allegedly committed 24 days after your release on youth parole, and in relation to which you were subject to bail at the time of the armed robbery. In these circumstances, I agree with the prosecution that your prospects of rehabilitation are very much guarded. However, as is clear from the supplementary plea material, and involvement of your grandfather in these proceedings, you retain the love and support of family members. Given your difficult history, this is a matter of considerable significance. At your further plea hearing on 27 January 2022, I was informed by your counsel that your grandfather, Lenny, would continue to offer support and accommodation to you upon your release. You have a three-year-old son with your partner of some five years, Lola. You apparently maintain regular contact with your partner and in direct discussion with me at your further plea hearing, you indicated a desire eventually to live with your young family. In that discussion with me, I found you to be alert and appropriately contemplative with regards to your future. You spoke of having recently applied for work in the kitchen, and you spoke of your conversations with Aboriginal liaison officers within the prison network with regards to future employment. In the circumstances of your case, it would be unrealistic to find your prospects of rehabilitation to be anything other than guarded. However, given the matters to which I have referred, you are in my view not without hope of redemption, provided appropriate supports are in place. Indeed, it is my strong view that you will require significant, culturally appropriate, and comprehensive supports to assist in your reintegration into the community following your release from prison.
33As I have detailed, you have spent a considerable period of time in custody prior to sentencing. There are 415 days attributable to this matter, which will be declared as pre‑sentence detention pursuant to s18 of the Sentencing Act1991. As referred to by your counsel in further written submissions dated 26 January 2022, Exhibit J, following your remand in custody on this matter on 30 May 2020, aside from your time at Bunjilwarra and your period at large in the community, you have been in custody for some 20 months. You received a sentence of 150 days’ imprisonment in the Geelong Magistrates’ Court on 4 March 2021 for offences that occurred prior to you arrest on this matter. Whilst not directly referable to this offending, I accept that some moderation of your sentence is warranted by virtue of the sentencing principle of totality. Furthermore, your counsel submitted that an allowance should be made with regards to the 29 days spent at Bunjilwarra, in accordance with the decision of Akoka v R.[14] Of course, this time does not represent pre‑sentence detention, and cannot be the subject of a Renzella[15] allowance. However, given the considerably restrictive nature of the residential rehabilitation, and the fact that it was mandated through a condition of bail, I accept that some modest allowance is warranted for this brief period of time, as part of the instinctive synthesis in sentencing.
[14] [2017] VSCA 214.
[15] R v Renzella [1997] 2 VR 88.
Sentencing Purposes, Submissions and Sentence to be Imposed
34Given the serious nature of your offending, and notwithstanding the mitigatory allowances to which I have referred, general deterrence and denunciation remain significant sentencing purposes. Again, acknowledging the mitigatory allowances, given your significant criminal history, specific deterrence also remains significant. Whilst your history of childhood deprivation and trauma reduces your moral culpability, the need for community protection is enhanced. Ultimately, the prosecution submitted notwithstanding your youth and mitigatory matters, that a sentence of imprisonment with a head sentence and parole component was warranted. Your counsel did not submit otherwise. In terms of the length and nature of such a sentence, I have considered the issue of current sentencing practices, acknowledging that previous sentencing decisions can be no more than a guide, and that each case is necessarily fact specific.
35Ultimately, I have determined that a sentence of imprisonment of some length is warranted. However, given the matters to which I have referred, it is my view that the sentence should incorporate a significant parole eligibility component – larger than usual, in recognition of the mitigatory factors to which I have referred. Such a component will hopefully facilitate your reintegration into the community, and your ultimate rehabilitation, which in my view ultimately advances community protection whilst avoiding the real risk in your case of institutionalisation in the prison setting.
36Mr Clarke, you are sentenced as follows.
37On the charge of armed robbery, you are convicted and sentenced to two years and 10 months’ imprisonment.
38On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to one month’s imprisonment. This period is to be served concurrently with the sentence imposed on the armed robbery offence.
39I order that you serve a period of one year and eight months before becoming eligible for parole.
40Pursuant to s18(4) of the Sentencing Act1991, I declare a period of 415 days as being served by way of pre‑sentence detention. This amount will be administratively deducted from your sentence, meaning that you will be eligible, on my calculation, for parole, not counting any emergency day allowances, in approximately six months.
41Pursuant to s6AAA of the Sentencing Act1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of four years’ imprisonment with a non‑parole period of three years.
42HIS HONOUR: Mr Thomas, any ambiguities with regards to the sentence, is it clear?
43MR THOMAS: Yes, Your Honour, it's clear. There's no ambiguities.
44HIS HONOUR: Thanks. Any issues, ambiguities with the sentence?
45MR HARRISON: None at all, Your Honour, thank you.
46HIS HONOUR: Thanks. Mr Clarke, you understand what has just happened?
47OFFENDER: Yes, Your Honour.
48HIS HONOUR: All right, well I will allow you to speak with my Thomas if you like just to ensure that you do understand what has happened. He will explain to you what that means in terms of parole, it is not a matter for me, but taking into account what I understand to be allowances in terms of lockdowns and the like I calculate you are eligible for parole in approximately six months' time.
49Yes, thanks, adjourn the Court.
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