Director of Public Prosecutions v Clarke
[2019] VCC 528
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL CLARKE |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March 2019 | |
DATE OF SENTENCE: | 11 April 2019 | |
CASE MAY BE CITED AS: | DPP v Clarke | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 528 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft – burglary - recklessly exposing an emergency worker to risk by driving - aggravated offence of recklessly exposing an emergency worker to risk by driving - conduct endangering life – arson - resisting an emergency worker on duty - negligently dealing with proceeds of crime - handling stolen goods – related summary charges - unlicensed driving - dangerous driving - possessing a controlled weapon without lawful excuse – youthful offender – good prospects of rehabilitation
Legislation Cited: Sentencing Act 1991
Sentence: Imprisonment for a period of 2 years and 11 months with a non-parole period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett (plea) Ms J. Deppeler (sentence) | Office of Public Prosecutions |
| For the Accused | Mr J. Miller (plea) Mr S. Adrianakis (sentence) | Chris McLennan & Co |
HER HONOUR:
1 Mitchell Clarke, you have pleaded guilty to five charges of theft; one charge of burglary; one charge of recklessly exposing an emergency worker to risk by driving; two charges of aggravated offence of recklessly exposing an emergency worker to risk by driving; one charge of conduct endangering life; one charge of arson; one charge of resisting an emergency worker on duty; one charge of negligently dealing with proceeds of crime; and two charges of handling stolen goods.
2 You have also pleaded guilty to four summary charges: one of unlicensed driving; two of dangerous driving; and one of possessing a controlled weapon without lawful excuse.
3
A maximum penalty of 15 years’ imprisonment applies to the offence of handling stolen goods and arson. A maximum penalty of ten years’ imprisonment applies to each of the offences of theft, burglary, recklessly exposing an emergency worker to risk by driving, aggravated offence of recklessly exposing an emergency worker to risk by driving, conduct endangering life, and resisting an emergency worker on duty. The maximum penalty for the offence of negligently dealing with the proceeds of crime is five years’ imprisonment. I will return later to the mandatory provisions affecting sentence on Charges 4, 7
and 8.
4
The maximum penalties applied to the summary offences are as follows:
60 penalty units or six months’ imprisonment for unlicensed driving; 240 penalty units or two years’ imprisonment or both for dangerous driving; and 120 penalty units or one years’ imprisonment for possessing a controlled weapon.
Circumstances of offending
5 The circumstances of your offending are set out in the Summary of Prosecution Opening Upon Plea and I sentence you upon the facts set out in that document. I summarise that offending briefly here.
6 At the time of offending you were 23 years old and subject to a Community Correction Order imposed on 28 February 2018.
7 On 25 March 2018, in the early morning, unknown offenders forced entry into the home of Aakash Madnani and stole his car keys and his 2012 Mitsubishi Lancer sedan (“Madnani’s Lancer”).
8 You and your co-accused used Madnani’s Lancer to commit the indictable offending, as well as summary Charges 28 and 33.
9 On 26 March 2018, you drove Madnani’s Lancer to the petrol station and your co-offender filled it with petrol without paying. The theft of Madnani’s Lancer is the subject of Charge 1.
10 On 10 April 2018, you drove co-offender, Gallagher, in Madnani’s Lancer to an address in Rosanna and waited 30 minutes while he forced entry to the premises and ransacked it. The forced entry is the subject of Charge 2, burglary. Charge 3, theft, concerns the theft of the property (including jewellery and wallets) from that address totalling a value of around $13,044.
11 On 13 April 2018, you committed a number of offences, as follows:
12 At approximately 1:28 am, police saw you driving Madnani’s Lancer (although now bearing stolen registration plates) on the Western Ring Road at 167 km/h in a 100 km/h zone. Police activated their emergency lights to try to slow you down and intercept you, but you then increased your speed to 194 km/h. Police activated their emergency sirens in an attempt to intercept you, but you increased your speed to beyond 200 km/h. Police then terminated the pursuit due to the risks posed by your driving. This conduct is the subject of Summary Charge 28, drive at a dangerous speed.
13 At around 5:45 am on the same day, when responding to a suspicious vehicle report in Melton South, police located you asleep in Madnani’s Lancer (bearing the same stolen registration plates as referred to in the preceding paragraph). Police knocked on the window. You woke up, started the car and drove off, forcing Senior Constable Wicking, who was standing beside your window, to move backwards to avoid being hit by you. This is the subject of Charge 4, recklessly exposing an emergency worker to risk by driving. Police then got back in their car and followed you and tried to intercept you, but you failed to stop at their request. You were speeding, crossing double lines, and narrowly missing oncoming cars. This is the subject of Summary Charge 33, dangerous driving.
14 Between 8:00 am and 2:00 pm, you went to a home in Doncaster East, stole Victorian registration plates from victim Matthew Byrne’s Jeep, and affixed them to Madnani’s Lancer. This is the subject of Charge 5, theft.
15 At 2:15 pm, you drove Madnani’s Lancer to the petrol station, filled up with $67.28 worth of petrol and drove away without paying. This is the subject of Charge 6, theft.
16 On 20 April 2018, you further offended as follows:
17 At around 3:20 pm, police in Heidelberg Heights observed Madnani’s Lancer parked at an address in the area. Two police units, 550 (a Holden Commodore) and 558 (a Hyundai wagon), attended the scene and maintained static surveillance in unmarked vehicles fitted with emergency lights and sirens.
18 At around 4:15 pm, you left that address and got into the driver’s seat of Madnani’s Lancer. Unit 558 activated its lights and sirens and parked near the front left corner of the Lancer. Detective Sergeant Beames got out of the police car, approached your door and told you to get out of the car. You started the car and reversed into an intersection. The other police car, 550, then approached you from the west. You stopped and reversed into that police car, causing minor damage to its front panel. This is the subject of Charge 7, aggravated offence of recklessly exposing an emergency worker to risk by driving.
19 Police car 558 then arrived and stopped a short distance in front of you. You drove forward and struck that vehicle, pushing past it and then continuing into a nearby street. The collision caused minor damage to police car 558 and caused the rear panel of Madnani’s Lancer to fall off a short time later. This conduct is the subject of Charge 8, aggravated offence of recklessly exposing an emergency worker to risk by driving.
20 Police car 550 followed you as you drove through Heidelberg Heights. Over a distance of approximately two to three kilometres, you drove fast, on two occasions mounting the footpath, and, for a substantial portion of that distance, against oncoming traffic. You drove through a stop sign at around 90 km/h in a 50 km/h residential zone and nearly collided with another car, whose driver had to brake suddenly to avoid a collision. You increased your speed to 100 km/hr and had to brake suddenly at another intersection to avoid a collision, before driving around the other car and running through the stop sign. You then turned into Upper Heidelberg Road against another stop sign and into oncoming traffic. Police then stopped the pursuit because of the risks posed by your driving. This conduct is the subject of Charge 9, conduct endangering life. As you were unlicensed at the time, this is also the subject of Summary Charge 10, unlicensed driving.
21 At around 4:25 pm, you drove into bushland in Templestowe, used an accelerant to ignite Madnani’s Lancer and left the scene. The car was completely destroyed. This conduct is the subject of Charge 10, arson.
22 Between 21 and 22 April 2018, victim, Timur Baskin, had his keys and a puffer jacket stolen from his 2016 Ford Falcon in Moonee Ponds. Among the items located in your possession at the time of your arrest were keys and a puffer jacket belonging to him. Your conduct in handling these stolen goods is the subject of Charge 11.
23 Between 22 and 23 April 2018, you used a Mitsubishi Magna sedan belonging to a victim, Roger Millar. The keys to his vehicle was found in your possession when you were arrested. The theft of his car is the subject of Charge 12, theft.
24 On 23 April 2018, at around 6:30 am, police located you asleep on a couch in a residence in Doncaster. You were woken up and arrested. You violently resisted Detective Sergeant Evans and struggled and kicked when being restrained by two other police members. OC spray was used due to your aggression. After a short struggle, you were handcuffed. Your conduct in resisting emergency workers on duty is the subject of Charge 13.
25
Police located in your possession a backpack containing some trading cards, a Dorevitch Pathology identification card and a swipe card in the name of Peter Fraser. This is the subject of Charge 14, negligently dealing with proceeds of crime. Police searched you and located a single Mitsubishi car and a black Adidas waist bag containing a Victorian driver’s licence in the name of Paul Millar. This is the subject of Charge 15, handling stolen goods. The waist bag also contained two small folding knives. This is the subject of Summary
Charge 38, possess a controlled weapon.
Procedural history
26
You gave a "no comment" interview at Heidelberg Police Station. The matter resolved after a contested committal, at the further initial directions hearing in this court. Not including today, there are 353 days of
pre-sentence detention.
27 The prosecution has also sought a forfeiture order in relation to a number of items seized from you and through your counsel, you have consented to the making of that order.
Personal circumstances
28
I turn to your personal circumstances, which are set out in the psychological report of Dr Andrew Cunningham.[1] You are 24 years old. Your parents separated amicably when you were two or three years old. You have a younger brother who is studying at university. Your father owns a sportswear company and your mother works in child protection. You lived with your parents on alternate weeks and described them as "loving". You behaved poorly at school, but completed Year 12 and then a four-year carpentry apprenticeship. You started experimenting with drugs at the age of 15. You left home at age 18. You then started using methylamphetamine, amphetamine and cocaine. By the age of 21, you were using methylamphetamine and oxycontin regularly. You lost your job when you were incarcerated for a two-week period and have been unemployed since then. Although you suffered from depression in the last two years of your apprenticeship, at the time of assessment, you denied any depression. Dr Cunningham assessed you as not suffering from any current mental illness. You told him that your offending began after the break-up
18 months ago of a long relationship with your partner, who was mentally ill and for whom you had acted as a carer. You became depressed and isolated. You were abusing drugs. When the relationship ended, you became reckless and continued taking drugs. You demonstrated insight into your offending and its impact on your family. He found you motivated to return to employment.
Dr Cunningham concluded that abstaining from drug use and association with drug using peers while maintaining stability through family support, accommodation and employment, would reduce your risk and improve your prospects for rehabilitation.
[1]Exhibit A.
Prior convictions
29 You have one prior conviction. On 28 February 2018, you were sentenced to a 12 month community correction order for unlicensed driving, dishonesty, weapons and drug possession offences. You have received a number traffic infringement notices, including one in December 2017 for exceeding the speed limit by 25 km/h or more; and five on 8 March 2018 for exceeding the speed limit by 35 km/h.
Plea in mitigation
30 I turn to the plea in mitigation. In relation to the seriousness of the offending, the subject of Charges 4, 7 and 8, your counsel submitted that the incidents should be treated as being at the lower end of seriousness, given the low speeds involved in the collisions with police vehicles.
31 In mitigation, your counsel relied on your early plea of guilty, your relative youthfulness and your good prospects of rehabilitation.
32 In relation to your prospects for rehabilitation, your counsel relied on your insight into the effect that drug use has had on your stability and ability to maintain employment, the strong family support that you have, as well as the offer of accommodation from your mother upon your release. He conceded that your current offending occurred very shortly after a Community Correction Order was imposed in relation to your prior offending and submitted that because of this, you did not get the benefit of the therapeutic conditions of that order. He indicated that upon your release, you plan to work in hospitality, as it would be difficult for you to work as a tradesman without a driver’s licence. Your goal is to eventually obtain your own accommodation.
33 It was submitted that there should be a degree of concurrency in the sentences imposed on Charges 7 and 8 and a modest degree of cumulation in respect of the sets of offences occurring on separate days, consistent with the principles of totality, proportionality and the avoidance of a crushing sentence.
34 It was conceded that the only appropriate disposition is the imposition of a term of imprisonment, with a non-parole period. It was submitted that there should be a longer than usual period of parole, so as to assist you with rehabilitation and ensure protection of the public.
Prosecution submissions
35 The prosecution conceded that you made your plea relatively early and that you are still a relatively young offender. However, it was submitted, you have a relevant and lengthy history of driving infringements and exceeding the speed limit. Moreover, on the authorities, the weight to be given to your youth and therefore to the public interest in your rehabilitation decreases with the seriousness of your offending. It was submitted that your conduct which is the subject of Charges 4, 7 and 8 was serious, putting the public and police at risk. Your conduct in refusing to comply with police orders to stop and in then driving as you did, resulted in police pursuits having to be abandoned. However, it was conceded that there ought to be some concurrency between the sentences imposed on Charges 7 and 8, as the conduct occurred over a short period of time. As the offending overall occurred over a period of over one month, it was submitted that a degree of concurrency should apply to the offences which occurred on the same day, but that there should be some cumulation between the sets of offending which occurred on different days.
36 It was submitted that denunciation, just punishment, general and specific deterrence and protection of the community are the principal sentencing considerations. The prosecution agreed that you should be given a longer than usual period on parole.
Sentencing considerations
37 In sentencing you, I turn first to the gravity of your offending.
38 It is an aggravating feature of your offending that it occurred very shortly after you were sentenced to a Community Correction Order in respect of dishonesty, driving, drugs and weapons offences. On the other hand, I accept that the context of your offending was the break-up of a long relationship and a downward spiral into drug use and homelessness.
39 I consider that the offending, the subject of Charges 2, 5, 6,11,12,14 and 15 are low level examples of these types of offences. I consider the offending, the subject of theft Charges 1 and 3 to be slightly more serious, given the monetary values involved. The same can be said of your conduct in resisting arrest (Charge 13), as you had to be subdued with OC spray so that you could be handcuffed.
40 The offending, the subject of the driving charges (Charges 4, 7 to 9 and Summary Charges 10, 28 and 33) is of particular concern; because of their nature, the particular actions taken by you, the fact of your prior driving history, which includes multiple instances of driving at high speeds substantially above the speed limit and the fact that you were driving a stolen vehicle, whist unlicensed.
41
I accept that in relation to Charge 4, with the benefit of hindsight, the risk to the police member who was standing beside the car you were sitting in when you accelerated away from the scene on 13 April 2018, was relatively low. The same can be said to the level of risk to police members on 20 April 2018, when, in the space of over an hour or so and at low speed, you twice rammed a police car which was attempting to intercept the car you were driving. For this reason, the offending, the subject of Charges 4,7 and 8, is to be viewed as less serious than if the conduct had been undertaken at higher speed, or directed at police members who were outside their vehicles. On the other hand, your conduct in relation to Charge 4 did occur a week before the offending involving
Charges 7 and 8. I consider that the conduct in setting the stolen car on fire, in the scheme of things, is not a particularly serious example of this kind of offending.
42
On two occasions (Charge 9 and Summary Charges 28 and 33), you reached speeds of over 100 km/h in a 50 km/h residential zone and over
200 km/h in a 100 km/h zone, forcing police to abandon their pursuits. Your conduct, the subject of Charge 9, involved a pursuit in which, over a distance of between two to three kilometres at considerable speed, you mounted footpaths, drove through stop signs twice, barely missing other drivers and drove a number of times into oncoming traffic. On a number of occasions you refused to comply with police orders to pull over. Your conduct in driving as you did on 20 April 2018 is the most serious aspect of your offending, given the risks that you created to other drivers, to pedestrians and to police who were attempting to intercept you.
43 I accept that through your plea of guilty you have accepted responsibility for your offending and have spared witnesses the inconvenience of giving evidence. I also accept that you have expressed remorse for your offending. This is your first time in custody and you have spent the time far from family, drug-free, reflecting on the impact that drug use has had on your life, trying to take advantage of the work options available to you in prison. According to your counsel, the significant time you have spent in custody has been a substantial deterrent to your returning to a life of drug abuse and offending. I note that you have the offer of stable accommodation from your mother upon release. You did not start offending until relatively recently, as an adult and only after the break-up of your relationship and in the context of drug abuse and homelessness. You are a relatively youthful offender, with a stable background, no mental illness and solid family support. On balance, I consider that your prospects of rehabilitation are good, provided you remain drug-free.
44 Sentencing principles of denunciation, just punishment, general and specific deterrence, protection of the community, loom large in this case. There is a particular need for specific deterrence, given that the offending occurred while you were on a Community Correction Order and because it included offending committed in a stolen car being driven by you while unlicensed, against emergency workers. I accept, however, that you are a relatively youthful offender who committed the offences during a period of drug abuse and that there is a public interest in your rehabilitation. I have also taken into account your plea of guilty, your remorse and the other matters put on your behalf by your counsel, as well as the need to avoid a crushing sentence and to give effect to the principle of totality.
45 I note that Charges 4,7 and 8 are defined as serious motor vehicle offences, pursuant to s 87P of the Sentencing Act 1991. This means that when sentencing you for each of these offences, I must, in addition to any sentence imposed, disqualify you from holding or obtaining a drivers licence for a period of not less than two years.
46 In all the circumstances, I consider it appropriate to impose the following sentence: Would you please stand.
47 I turn first to the charges on the indictment. On Charge 1, theft, I sentence you to two months’ imprisonment. On Charge 2, burglary, I sentence you to two months’ imprisonment. On Charge 3, theft, I sentence you to two months’ imprisonment. On Charge 4, recklessly exposing an emergency worker to risk by driving, I sentence you to two months’ imprisonment. I also disqualify you from obtaining a driver’s licence for two years. On Charge 5, theft, I sentence you to one months’ imprisonment. On Charge 6, theft, I sentence you to one months’ imprisonment. On Charge 7, aggravated offence of exposing an emergency worker to risk by driving, I sentence you to six months’ imprisonment. I also disqualify you from obtaining a driver’s licence for two years. On Charge 8, aggravated offence of exposing an emergency worker to risk by driving, I sentence you to six months’ imprisonment. I also disqualify you from obtaining a driver’s licence for two years. On Charge 9, conduct endangering life, I sentence you to 18 months’ imprisonment. This is the base sentence. On Charge 10, arson, I sentence you to six months’ imprisonment. On Charge 11, theft, I sentence you to one months’ imprisonment. On Charge 12, theft, I sentence you to one months’ imprisonment. On Charge 13, resisting an emergency worker on duty, I sentence you to two months’ imprisonment. On Charge 14, negligently dealing with proceeds of crime, I sentence you to one months’ imprisonment. On charge 15, handling stolen goods, I sentence you to one months’ imprisonment.
48 I turn to the uplifted summary charges. On Summary Charge 10, unlicensed driving, I sentence you to six months’ imprisonment. On Summary Charge 28, drive at speed dangerous, I sentence you to six months’ imprisonment. On Summary Charge 33, drive in a manner dangerous, I sentence you to six months’ imprisonment. On Summary Charge 38, possess controlled weapon, I sentence you to six months’ imprisonment.
49 The sentence on Charge 9 (that of 18 months’ imprisonment) is the base sentence.
50 I turn to the issue of cumulation and concurrency. I consider it appropriate to provide a degree of concurrency between the sentences for similar offences which were committed on the same day and a degree of cumulation between groups of offences, taking into account the mandatory provisions referred to below. There is also, however, some cumulation for sentences which occurred on the same day, given the seriousness.
51 I note that Charges 4,7 and 8 on the indictment are offences listed in s 16(1)(a) of the Sentencing Act 1991. As such, every term of imprisonment imposed must be served cumulatively, unless otherwise directed. I consider that partial cumulation is appropriate in relation to the sentences imposed in relation to Charges 4,7 and 8 and therefore indicate that I direct otherwise than the default position provided for in relation to those offences.
52 I turn now to the issue of cumulation. I direct that two months of the sentence imposed on Summary Charge 10; one month of the sentence imposed on Charge 3; one month of the sentence imposed on Charge 4; four months of the sentence imposed on Summary Charge 28; one month of the sentence imposed on Charge 5; four months of the sentence imposed on Charge 7; three months of the sentence imposed on Charge 10; and one month of the sentence imposed on Charge 13, be served cumulatively upon the base sentence.
53 By my reckoning, the total effective sentence is one of 2 years and 11 months' imprisonment. In accordance with the agreed position that there should be a relatively lengthy gap between the head sentence and the non-parole period, I impose a non-parole period of 20 months’ imprisonment.
54
I declare that you have served, up to but not including today, 353 days of
pre-sentence detention and order that such declaration be entered into the court’s records and that this period be deducted administratively from the term of imprisonment imposed today.
55 I indicate, pursuant to s 6AAA of the Sentencing Act1991, that but for your plea of guilty, I would have imposed a sentence of four years’ imprisonment with a non-parole period of three years.
56 As indicated previously, the prosecution has also sought a forfeiture order, which you have consented to through your counsel. I will make that order.
57 HER HONOUR: All right, thank you for your assistance. We will adjourn.
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