Director of Public Prosecutions v Clarke

[2020] VCC 1750

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01300

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART CLARKE

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2020
DATE OF SENTENCE:	4 November 2020
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2020] VCC 1750

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Dr M. Fitzgerald	Doogue & George

HIS HONOUR:

1Stuart Clarke, you are to be sentenced for one charge of aggravated burglary, which carries a maximum sentence of 25 years imprisonment;  one charge of threatening to kill, maximum sentence 10 years imprisonment;  one charge of being a prohibited person in possession of an imitation firearm, maximum sentence two years imprisonment;  one charge of criminal damage, maximum of 10 years imprisonment; and one charge of assault, maximum five years imprisonment.

2You first pleaded guilty to these offences in this court on 22 July 2020.  You did so again before me on 28 October.  You declined a police interview soon after your arrest in December 2018.  Committal went by hand-up brief on 2 July 2019 and you entered pleas of guilty to the majority of the offending.  You joined issue as to the circumstances and timing of your possession of a firearm and whether you threatened to kill your victims.  At one point, there was to be a trial.  However, these matters resolved.  This included that the Crown did not persist in the allegation that you had possession of the imitation firearm when you committed the offence of aggravated burglary.  In July, you pleaded guilty to this indictment, including threatening to kill. 

3You receive the benefit of your plea of guilty and that level of cooperation in the proceedings.  The timing of your plea must be seen in the developing circumstances I have described.  The Crown accepts that it is an early plea.  That plea has facilitated the interests of justice and has accepted  responsibility.  It is an expression of remorse.

4At your plea hearing, also on 28 October, Mr Malik for the Crown tendered a written prosecution opening and the victim impact statements of Adam Gill and Suzanne Huyton.  He provided a written outline of plea submissions. 
Dr Fitzgerald, for you, tendered the forensic psychological report of
Sandra Cokorilo, dated 17 October 2020;  the letter of Caraniche prison clinician, Tracey Winson, dated 25 September 2020; certificates related to rehabilitation programs undertaken in remand custody; and the letter of prospective employer Henri Dagher, dated 16 October 2020.  Dr Fitzgerald also provided a written outline of submissions on plea.

5The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put to me on your behalf, not challenged by the Crown. 

6In December 2018,  victim Suzanne Huyton was your next door neighbour in Hardiman Street, Kensington.  Adam Gill was her friend.  You had lived there with your partner since the early part of that year.  Relations between them, you and your partner had broken down badly.  Dr Fitzgerald describes, 'an escalating neighbourhood dispute'.  I accept that you felt protective of your partner who suffers a disability and felt grievance about certain events which led to your anger and extreme loss of control on the day of offending.

7Whether such feelings were justified is not a matter I can decide.  Your action and these offences were clearly and emphatically not. 

8On that day, 19 December 2018, at about 9 pm, you went to their front door, knocked and when answered presented through the fly screen door an imitation handgun,  at Adam Gill.  You threatened to shoot and kill him and continued to threaten them both, yelling, enraged and out of control at the front of the house.  You smashed the front windows with a golf club.  Ms Huyton retreated to the lounge room of the house.  You then walked through your home to the rear of theirs.  It is evident that there was shared communal space between the premises.  At the back, you smashed windows leading to the lounge.  Both Adam Gill and Suzanne Huyton locked themselves into a bedroom.  Suzanne Huyton rang 000. 

9You committed the aggravated burglary by forcing entry to the back door.  You have pleaded guilty to doing so,  intending to assault them.  That can include assault by intimidation.  It is not put that you still possessed the handgun.  You must have left not long after, although you overturned a coffee table before that.  There seems no attempt to enter the bedroom where they were.  Police attended shortly after 9 pm, when Adam Gill and Suzanne Huyton safely left the premises. 

10Another approximate two hours passed before you were arrested.  It is not put that there was a siege situation in the true or typical sense.  However, there was some negotiation between you and police by texting on a mobile phone.  It is not clear where you were.  I accept that your purpose over this time was evasion of police and your imminent arrest.  Assisted by the Dog Squad and a blood trail, given a cutting injury suffered by you when breaking into the premises, you were ultimately located in a storage space underneath your own home.  The handgun was found nearby.  You are a prohibited person because of prior offending.

11Unsurprisingly, the tendered victim impact statements state substantial effect upon Suzanne Huyton and Adam Gill.  There is ongoing fear and anxiety.  Social and community life is affected.  Both suffer mental health conditions, aggravated by what you did.  Suzanne Huyton has experienced a prior serious trauma when she was shot.  There are problems sleeping and hypervigilance.  Ms Huyton's small dog died on the night of your offending.

12There is significant victim impact consistent with the traumatic nature of your offences.  This must be taken into account in my sentence of you. 

13You are now 44 years of age and await this sentence in remand custody.  You were 42 at the time of offending, now almost two years ago.  Your upbringing was deprived and traumatic.  You are the youngest of four children and were raised in the Deer Park area.  Both of your parents drank.  There was violence between them and upon you.  You left home at 14, alleging you had been sexually abused by a maternal uncle.  Your accommodation was unstable for some years after that.  In this context, schooling failed.  You left in Year 9. 

14In this period, you did not have consistent employment and abused alcohol.  Your criminal record reflects this. Dr Fitzgerald noted that you had been in prison three times by the age of 28.  That criminal record is extensive.    Between November 1994, when you were 18 and October 2018,  there are multiple court appearances and a number of sentences of imprisonment.  I bear in mind, in saying this, that some duplication exists, given breach of some earlier sentencing orders.   Offences of dishonesty are predominant.  There are also many driving offences, often reflecting alcohol abuse.  In the proportion of things, there is little violence.  You were sentenced for recklessly causing injury in October 2018, for using a carriage service to menace in 2016 and for armed robbery and attempted armed robbery in February 2000.  That is now over 20 years ago.

15At the time of these offences, that is those before me, you had been recently placed on a community corrections order which is factor adverse to you.  You had been released onto that order after a short three month sentence in late 2018,  what seems less than two months prior. 

16There have been attempts by you at rehabilitation, which I see as of some significance.  There is no offending between 2004 and 2011.  During this time, there was relatively consistent employment and a stable relationship with the mother of your son.  You worked, for example, as a forklift driver and in the construction industry.  In 2013, you began to abstain from alcohol; however, were introduced to methamphetamine use.  The relationship ended in 2016, during a period of further imprisonment.  You have lost contact with your son.  In 2017, his mother opposed your access to him.  There were periods of homelessness and you lived for a time at Ozanam House.  There were also further attempts at rehabilitation, drug and alcohol counselling, a course in drug and alcohol counselling and another in driver education.  You were able to regain your licence to drive.

17In mid or late 2017, you began a relationship with your partner at time of offending and began to live with her in Hardiman Street.  I was told that the situation of your remand custody, including COVID-19 restriction, placed pressure on the relationship.  It now seems ended. 

18Psychologist Sandra Cokorilo diagnoses post-traumatic stress disorder, caused by your early life experiences.  There have also been stimulant and alcohol use disorders.  There is reference to symptoms of borderline personality disorder.

19Ms Cokorilo seeks to describe a connection between your post-traumatic stress disorder symptoms and this offending.  That is, in the way of compromised ability 'to make calm and rational choices and appreciate the consequences of your behaviour', in the situation that existed for you.  It is not put that the Verdins principles apply.  However, I see your early life and psychological conditions you suffer to have played a role at least giving some explanation to the extreme loss of control lying within your offences.

20This offending was very serious.  Aggravated burglary attracts a high maximum sentence.  Your victims were placed in danger and great fear in their home.  You produced at one stage a sinister and intimidating weapon.  The period of your offending, at least in terms of its beginning to your arrest was prolonged.  At 44, you have an extensive criminal record, albeit much of it not specific to this kind of violent offending.  Such circumstances require emphasis upon relevant sentencing considerations such as your moral culpability, deterrence, both general and specific, the need to condemn and proportionatelyt punish the offending.  The only appropriate sentence,  as conceded, is one of imprisonment, with a minimum term.  It must be a sentence of some significant length.

21I also take into account relevant moderating factors, they include the following:

1.Your plea of guilty and cooperation.  Your plea, as I have stated, is a formal expression of remorse.  This is a case in which I could not find beyond that.  There is no evidence of particular remorse and insight into the impact of your offending. 

2.Your personal history and circumstances,  as I have described.  I find that your background and its trauma, leading to the diagnosed mental health conditions has greatly compromised your opportunity for a more productive, functional and prosocial life. 

3.To some extent, the circumstances of offending.  Although serious in the ways I have identified, this was not offending committed with sophisticated preplanning, in an otherwise criminal context and it had a level of perceived provocation to it.

4.One cannot regard your prospects for rehabilitation optimistically.  They should not be utterly discounted.  In the past, you have shown at least a desire to live a law abiding, stable life.  You have conducted yourself in remand  custody consistent with this.  This has included forensic and psychological counselling.  Much will depend upon what assistance and support you will receive, if and when paroled.  I imagine that stable accommodation will be one issue.

5.Imprisonment has been and will be more difficult because of COVID-19.  There is for all or most prisoners added anxiety and also necessary restriction to movement, supports and rehabilitation programs.  I agree with Dr Fitzgerald that your remand has included a period of heavy restriction in these ways.

6.I also consider the matter of delay.  There has now been a period of almost two years in the situation of that remand.

22Having considered what I see to be the relevant matters, I sentence you as follows. On Charge 1, four years imprisonment. On Charge 2, two years imprisonment. On Charge 3, nine months imprisonment. On Charge 4, 18 months' imprisonment. On Charge 5, 12 months' imprisonment. I direct that eight months of the sentence for Charge 2, two months of the sentence for Charge 3, and six months of the sentence for Charge 4 be served cumulatively upon the sentence for Charge 1 and upon each other. That is a total effective sentence of five years and four months. I set a minimum term for eligibility for parole of three years. Under s.18 Mr Malik is 669 days correct?

23MR MALIK:  Yes, Your Honour that's my calculation.

24HIS HONOUR: I declare under s.18 of the Sentencing Act, pre-sentence detention of 669 days.  Under s.6AAA, had you not pleaded guilty, I would have imposed a sentence of seven years, with a minimum term of five years.  Are there other matters I need to deal with Mr Malik?

25MR MALIK:  Your Honour, it's just the forfeiture order of the imitation firearm.

26HIS HONOUR:  All right, well I make that order and if it is not before me now, it might be filed electronically.  I will sign it in chambers.  Yes, now is there anything else I need to do beyond that?

27MR MALK:  No, thank you Your Honour.

28HIS HONOUR:  All right thank you Mr Malik.  Thank you Dr Fitzgerald, I will stand down.  I am under some time pressure to move on to the next matter.  So we will turn you off.  Thank you.

29MR MALIK:  As Your Honour pleases.

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