Director of Public Prosecutions v Clarke

[2016] VCC 735

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02057

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN JOHN CLARKE
JAMES ANTHONY LAWTON
JAKE BRUCE MARSH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 May 2016
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2016] VCC 735

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams
For Offender Clarke	Ms A. Hancock
For Offender Lawton	Ms M. Tittensor
For Offender Marsh	Mr J. McQuillan

HIS HONOUR: 

1Nathan John Clarke, Jake Bruce Marsh and James Anthony Lawton, you have each pleaded guilty an indictment charging you in Charge 1 with aggravated burglary, which occurred on 11 April last year and in Charges 2 and 3, you, Nathan John Clarke, have pleaded guilty to offences of causing injury intentionally. The offence of aggravated burglary carries a maximum term of imprisonment of 25 years and causing injury intentionally carries a maximum term of imprisonment of ten years. 

2You have each admitted prior court appearances and convictions, although I note that in none of your cases have you been convicted of offences of the seriousness of the offence of aggravated burglary for which you appear in this court.  The prosecution tendered an amended Crown opening for the plea hearing, which is Exhibit A, and that was read to the court yesterday, I am not going to read it again. It sets out the circumstances in which you all met together at the Quest Apartments complex in Narre Warren on the evening of 10 April last year.  You had a mutual interest in drugs, in particular, it would seem, methamphetamine or ice. I have no doubt that you had all consumed drugs during the course of the evening or during the course of the day prior to the offending conduct. 

3It is clear from the prosecution opening and it is accepted that there were text message transmissions from the mobile phone of you, Marsh, during the course of the evening, which showed that you had engaged in some pre-planning of the offending conduct that occurred in the early hours of 11 April.  During the course of that text messaging an associate was warned not to go to the house where the offending subsequently took place. 

4At about 12.30 am the three of you, along with a Joshua Jell, who was apparently a mutual participant in your drug taking activities, went to the premises where the aggravated burglary took place.  You knew that there would be persons present.  You were expecting to find one of your victims, Dylan Kelly, there at least and as it turned out, both Dylan Kelly and John Kettle, along with a Ms Sherrilee Sykes and her daughter Tamara Maxwell-Sykes were present at the house.  You went in there masked and disguised with two loaded shotguns.  You, Clarke, carried one of those loaded shotguns and Jell carried the other.  One or other of you, Marsh and Lawton, carried the other weapon, a metal bar or baton and you entered the house.  It seems that the front door was unlocked but you went in there as trespassers and you knew you were trespassers. 

5When you arrived inside the house the occupants were threatened with the shotguns and the metal bar and you attempted to corral them into a back room in the house.  They were further threatened.  Amongst you, you were yelling, "Where's your cash?  Where's your drugs?"  Tamara Maxwell-Sykes was lying on her bed in her bedroom. One of you dragged her out of bed by her ankles and she too was corralled towards the rear bedroom.  You, Clarke, assaulted Dylan Kelly by striking him a number of times in the head and face with the butt of the shotgun that you were carrying, causing him injury.  You continued to rain blows upon him, causing him to bleed freely from lacerations to his head and face.  Both you, Clarke, and Jell assaulted Kettle and he was struck by you, Clarke, to the back of the head when he tried to get up after being knocked to the ground by Jell.  You caused him injury. 

6Between you, you smashed a television with the baton and made demands again for cash and drugs.  Your conduct was designed to frighten and intimidate and it is to be assumed that each of the persons present in the house would have been frightened and would have suffered ongoing effects of the confrontation that occurred on that evening, which will no doubt affect them emotionally.  None of them have elected to make victim impact statements, perhaps not surprisingly in all the circumstances, but it is to be assumed that they would have suffered emotionally from the events in much the same way as you claim each of you to have suffered emotionally from the events. 

7As the events unfolded, you, Clarke, dropped your shotgun. Then a wrestling match occurred between you and Dylan Kelly.  He was able to obtain possession of your shotgun and shortly after that, fired it, killing your co-offender, Jell.  No doubt he was fearful for his life at the time that he discharged that firearm.  That was not the end of the matter because the other firearm borne by Jell was also discharged during the course of the events.  Unfortunately Mr Jell was killed by the shot fired by Kelly. The three of you then set about removing Jell from the house, taking him to your car and making good your escape.  He was taken to Casey Hospital where he was pronounced dead shortly afterwards.  You, Clarke and Lawton, left him there.  You, Marsh, had suffered some injury and were treated at the hospital, staying there for three days or thereabouts. 

8You were arrested the following day, Clarke, and told the police a false story.  You, Marsh, were arrested on 17 June and elected to make no comment to the police when interviewed.  You, Lawton, were arrested on 17 August 2015 and you too declined to answer questions put to you by the police. 

9The motor vehicle that you were using was abandoned and found the following day and contained not only bloodstaining, but also a bloodstained glove, five 20 gauge shotgun shells, unfired, one 20 gauge shotgun shell and one 20 gauge Hornady Super Shock Tip (SST) shotgun cartridge of the same type as was loaded in the shotgun that discharged the fatal shot that caused the death of Mr Jell.  The other 20 gauge shells are consistent with the shot that was fired in the vicinity of the laundry of the house from the gun apparently wielded by Jell. 

10You, Clarke, have pleaded guilty to the offence of aggravated burglary on the basis that you entered the premises with intent to commit an assault involving actual application of force to the occupants.  You, Marsh and Lawton, have pleaded guilty to the offence the subject of Charge 1 on the basis that you entered the premises with intent to commit an assault involving inflicting fear and apprehension on the occupants. 

11The offence of aggravated burglary is a serious offence as the maximum term of imprisonment of 25 years makes clear.  This particular offence of aggravated burglary clearly is a very serious example of that serious offence.  Whether you intended to menace or whether you intended to commit an actual assault, the clear intent was to cause extreme fear in the minds of any persons who were present.  You may not have known precisely who was to be present in the home but you knew that there was at least one person to be present in the home.  You forced your way into a private home in the early hours of the morning, masked, armed with two loaded shotguns and a metal bar.  There were four of you making threats of violence and dragging a 15 year old girl out of her bed by the ankles.  It provides a clear indication that this is to be regarded as a very serious example of this type of offence.  As the prosecution submitted, use of loaded firearms in such circumstances gives rise to a serious risk that the unexpected may occur and that the consequences of your conduct may have been tragic, as indeed they turned out to be. 

12You were motivated by confrontation. Apparently you, Clarke, perceived that Dylan Kelly had called you a "dog." It is clear from what was said during the course of the aggravated burglary that you were also motivated by obtaining drugs and cash from within the premises.  Any right thinking member of the public, hearing and understanding the background to and the execution of this particular crime, would be naturally horrified by your conduct on that night.  It is not an excuse that you were fuelled by methamphetamine or a cocktail of methamphetamine and other drugs.  It is no excuse that you were all the subject of a heavy methamphetamine addiction at the time and it is no excuse ultimately that you participated in this offence with the intention only of menacing rather than actually inflicting violence.  However, in your case, Clarke, you have also pleaded guilty to two offences of intentionally causing injury and it seems to me that the violence you actually perpetrated was gratuitous.  It may well have been motivated by the fact that you believed Dylan Kelly had been saying things behind your back that you did not agree with or disapproved of, but that too provides no excuse for that kind of conduct. 

13The prosecution also relied upon a victim impact statement, which was read to the court, by the deceased Mr Jell's mother and I take that into account in assessing the appropriate penalties in the case.  It is of course tragic that anybody should die as the result of an incident like that but it just shows, as the prosecution have indicated, the risks of participating in this sort of conduct with loaded firearms. 

14Turning to matters personal to you, there are various factors which are common.  Firstly, each of you have pleaded guilty and each of you have pleaded guilty at an early or perhaps the earliest reasonable opportunity.  I accept that in these sorts of cases there are need to negotiate pleas of guilty and I give each of you full credit for the pleas of guilty that you have tendered in this case.  That gives rise to a discount of sentence based on what is known as the utilitarian value of the pleas, the desire to accept criminal responsibility, the promotion of the interests of justice, the administration of justice and saving the community the cost of a trial and witnesses the inconvenience and emotional impact of having to give evidence in a trial.  All of those matters are to be taken into account in your favour. 

15It is also said on your behalf, each of you, that the pleas of guilty support the proposition that you are all remorseful for your conduct.  As the learned prosecutor pointed out, it is a difficult concept in this case to unscramble because there is no doubt that each of you are extremely affected by the death of your co-offender and remorse has been expressed in relation to that aspect of the outcome of the proceedings. But on balance I am inclined to accept that each of you are remorseful for your conduct on this evening. 

16The fact that Mr Jell died in the course of the events I think does need to be factored into the instinctive synthesis that I am required to undertake.  There is no doubt that it would have been a shocking experience for all of you.  The impact of that seems to have been - or has manifested itself in post-traumatic stress disorder in you, Clarke, and in you, Lawton, at least. Although there is no medical evidence to support the proposition that it has also affected Mr Marsh in that way, I think it is to be assumed that some of the symptoms that have been observed by his father are probably of a similar nature and it may well be that you, Marsh, are also suffering from post-traumatic stress disorder. 

17However, it is not necessary for me to make a final determination as to whether you, Marsh, are suffering from post-traumatic stress disorder.  I think it is enough to say that in respect of each of you there is a degree of extra curial punishment arising from the fact that your conduct led to the death of a - in some cases, friend, at least an associate and the very fact that you were involved in an incident which turned out the way it did and turned out unexpectedly in that way will have left a significant mark upon each of you emotionally.  It is to be hoped that will deter you to some extent, each of you, from engaging in conduct such as this again.  One would hope that you would never want to place yourselves in the situation where something like that could occur in the future and to that extent it seems to me that it does impact on the need to consider specific deterrence. 

18I was referred to the decision of Croucher J in the case of R v Armstrong [2014] VSCA 256 and remarks that he made referring to a judgment of Vincent JA in an earlier case where factors such as this can impact upon the instinctive synthesis that a sentencing judge must undertake in determining an appropriate sentence and I have taken it into account in assessing the sentence in each of your cases.

19It is also a common feature that you were bound together essentially, the four of you, through your mutual drug habits.  The unfortunate effect of long-standing drug habits, such as each of you have demonstrated through the evidence produced before me, that people who might otherwise be regarded as decent human beings with a good future may find themselves committing offences as serious as this and it is the experience of this court in particular on a daily basis that one sees people who might otherwise be regarded as people who can contribute significantly to society behaving in a manner that is out of character, certainly in the eyes of those that know them well and I have no doubt that each of you has a good side, as the evidence before me has suggested.  However, the fact that these offences were committed whilst you were in the grip of addiction to or in the grip of a the habit of using methamphetamine and other drugs cannot be regarded as a mitigating factor.  It is a contextual matter which provides some explanation for conduct that might otherwise have been regarded as out of character, but it cannot be regarded as a mitigating factor. 

20Dealing with you each individually, you, Clarke, are 20 years of age.  You were 19 at the time of your offending.  You have a number of prior convictions, though I pointed out none of them are of the seriousness that these offences represent.  You are nevertheless a young offender and the presumption and the principles that govern the sentencing of young offenders provide for rehabilitation as being a significant, if not the most significant factor in the sentencing process.  However, that has to be balanced against the context of the offending, the nature of the offending, the opportunities that the offender has had in the past to respond to opportunities offered by the courts, to the prospects of rehabilitation of the individual offender. And whilst I do take into account your youth and the need to promote your rehabilitation, this offending and in particular, your role in this offending requires me to impose a term of imprisonment that pays proper regard to the need to denounce your offending conduct, to punish you adequately and in particular, to deter others from engaging in conduct of this kind. 

21As I have already indicated, the question of specific deterrence is to some extent affected by the way in which the events turned out and the death of Mr Jell, but there is still in my judgment a need to impose a sentence that pays proper regard to specific deterrence in your case. 

22It is noteworthy that you committed further offences shortly after this matter, shortly after this offending conduct and indeed one of those offences involved an aggravated burglary, albeit not of the same seriousness as this particular matter. 

23On 20 August 2015 you were sentenced for those matters and at least one other matter to a term of nine months' imprisonment.  I need to take that into account in assessing the sentence that I impose upon you, having regard to what is known as the totality principle and not to impose a sentence that is crushing upon you, having regard to the time you have already spent in custody serving sentence for those matters. As part of that process one has to consider what the sentence might have been had one court been sentencing you for all matters at the same time. 

24I do take into account the fact that you have shown symptoms of post-traumatic stress disorder.  I accept that that will make your time in custody harder and that it will not be something that is cured overnight.  It will be more difficult for you to receive adequate treatment whilst in the prison system and I have no doubt that the symptoms of post-traumatic stress disorder will make your time in prison harder to bear. In my judgment the principle that is often referred to is the fifth principle arising from the well-known case of Verdins is engaged and I propose to reflect that in some moderation of the sentence that I intend to impose upon you. 

25You have, it seems to me, demonstrated that you could rehabilitate yourself.  You have responded well when given the opportunity to engage with youth justice under a supervised bail order. Indeed it was determined that you did not require any further treatment in relation to your use of illicit drugs.  So it seems to me that you are capable of responding to treatment and are also capable of working.  You are of reasonable intelligence and you have, it seems to me, demonstrated that you have the capacity to make a decent life for yourself once you are released from your term of imprisonment.  I cannot say that your prospects of rehabilitation are good at this stage but if you can get to grips with your drug habit then your prospects of rehabilitation may become good.  I can only make a guarded assessment, I think, of your prospects of rehabilitation at this stage. 

26Your mother gave evidence on your behalf and she spoke in particular about your father's illness.  He has had a long criminal history, and is now showing the long-term effects of drug use. Dhe had formed the view that that has had an impact upon you and it is to be hoped that will act as some incentive for you to try and beat the drug habit altogether. 

27You have family support and it is to be hoped that during your imprisonment you will be able to avail yourselves of rehabilitation programs to assist you when you are ultimately released and can take advantage of the family support that you are offered.  You have shown an ability to work, it is a pity that you did not continue with your earlier opportunity, but nevertheless it seems to me that there are some optimistic signs for you in the future and as I say, you are still a young man so you have a good deal of life ahead of you. 

28Turning to you, Marsh. Your father gave evidence on your behalf. It is clear that you have considerable family support and opportunity.  You have demonstrated in the past that you are capable of working and leading an honest life.  You are still relatively young at the age of 24.  As I have indicated, I accept that you are remorseful.  You have no relevant prior convictions so far as sentencing in this court is concerned.  You have spent 140 days on remand in respect of offences which include a serious offence, which was ultimately not proceeded with by the prosecution.  It is speculative as to whether you would have obtained bail had it not been for that

29particular charge against you.  You were ultimately sentenced to a community correction order for other offences that you were also in custody for, but the 140 days that you did spend on remand is relevant to the assessment of the appropriate sentence in your case. 

30As I understand the authorities I am not required to give you pro rata credit as if this was pre-sentence detention but nevertheless I think it is appropriate that I do make an adjustment, a sensible adjustment, albeit that it is somewhat speculative as to the extent to which that 140 days is attributable to the offence that was ultimately withdrawn.

31You have it seems to me good prospects of rehabilitation and I think that with the family support that you clearly have there is a good future for you.  You have the capacity to put this behind you.  It seems that you have been abstinent from drugs as a result of your participation in this offending and as a result of the way in which the events unfolded on 11 April of last year.

32In your case, Lawton, you are 28 years of age.  You had a difficult upbringing.  You spent a large part of your childhood, up until the age of 13, in a remote community in South Australia with your father who apparently suffered from bipolar disorder, returning to Melbourne at the age of 13 where the relationship with your father became more problematical and you returned to live with your mother.

33You too have considerable family support and it seems to me that with that family support you have every prospect of settling down after you have completed your sentence.  Your mother gave evidence and spoke of the family business, the devastation to your family of what you had done and your remorse for your participation.  I think that your prior convictions are not of great significance in the overall sentencing exercise.  You have demonstrated over a three years period, up until the end of 2014 at any rate, that you were capable of staying out of trouble until you had a car accident in December of 2014 and relapsed into drug abuse.  As I have indicated the fact that you were engaged in the illicit use of methamphetamine does not provide any excuse but it does provide the context in which this offending occurred in your case as well as with your co-offenders.

34I note that you too have been diagnosed as suffering from post-traumatic stress disorder. I accept in your case that the fifth principle in Verdins is engaged and that I should reduce your sentence to some extent as a result of the greater difficulty that you will have over prisoners who do not have post-traumatic stress disorder in serving your sentence.  I accept that you are remorseful for your part in this offending conduct.

35It is necessary for me to balance all of the factors that have been outlined for me on the plea put on behalf of each of you.  Various documents have been tendered in support of the contentions made by your counsel including helpful outlines of submissions and I have taken those into account and I have endeavoured to take into account the points raised on behalf of each of you. 

36In your case, Lawton, a number of references were provided to me and you yourself have provided me with a letter.  Each of you fall to be sentenced with differing matters that I need to take into account and I have to balance those in determining the appropriate sentence for each of you and in dealing with the principle of parity.  That is, imposing a sentence on each of you that is comparable with the sentence imposed on your co-offenders.  That is not a particularly easy exercise in this case.

37I have had some assistance in identifying current sentencing practice.  I have been referred to the decision of the Court of Appeal in Hogarth v R [2012] VSCA 302 to the more recent case of DPP v Meyers [2014] VSCA 314 which identifies matters that should appropriately be taken into account in determining the relative seriousness of offences of this kind and further explaining the principles that emerge from the case of Hogarth. I was also referred to the case of Ross v R [2015] VSCA 302 and DPP v O'Neill [2015] VSCA 325 and I have endeavoured to take into account what I perceive to be current sentencing practice.

38The offending as I have already indicated is of a very serious nature however the various matters that I have endeavoured to identify in summary and these reasons for sentencing cause me to reduce the sentence from a significantly higher sentence that I would otherwise have regarded as appropriate for offending that has the objectively serious features of this offending conduct.  I am now ready to impose sentence upon each of you, would you stand, Mr Clarke, please.

39Nathan John Clarke on Charge 1 of aggravated burglary I convict you and sentence you to imprisonment for a period of four years and six months.  On Charge 2 of causing injury intentionally I convict you and sentence you to imprisonment for a period of 15 months.  On Charge 3 of causing injury intentionally I convict you and sentence you to imprisonment for a period of 12 months.

40The sentence on Charge 1 is to be regarded as the base sentence and I order that three months of the sentences imposed on each of Charges 2 and 3 be served cumulatively upon the sentence of four years and six months on Charge 1.  That makes a total effective sentence of five years imprisonment and I order that you serve a period of three years and three months before you become eligible for parole.

41I declare 89 days pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deduct it administratively from the time that you will actually have to serve.  I order that that matter be noted in the records of the court.

42But for your pleas of guilty I would have sentenced you to a term of seven years' imprisonment with a non-parole period of four years and eight months.  I make that disposal order in accordance with the draft provided by the prosecution.

43In your case, Jake Bruce Marsh, on Charge 1 I convict you and sentence you to imprisonment for a period of four years and I order that you serve a period of two years and eight months before you become eligible for parole.  I declare 342 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deduct it administratively from the time you will actually have to serve.  I order that that matter be noted in the records of the court.

44But for your plea of guilty I would have sentenced you to five years and four months' imprisonment with a non-parole period of three years and six months.  I make the disposal order in respect of you also.

45James Anthony Lawton, on Charge 1 I convict you and sentence you to imprisonment for a period of four years and three months and I order that you serve a period of two years and 10 months before you become eligible for parole.  I declare 281 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and to be deducted administratively from that sentence and I order that that matter be noted in the records of the court.

46But for your plea of guilty I would have sentenced you to five years and seven months' imprisonment with a non-parole period of three years and eight months.  I make the order for disposal and for the provision of a DNA sample in accordance with the drafts with which I have been provided.

47So far as the DNA sample is concerned you will be required to provide a sample by a scraping from the inside of your mouth.  If you provide that all well and good, that is the end of the matter.  If you fail or refuse to provide that the officer authorised to seek the sample from you will be authorised to take blood and may use reasonable force to obtain that.  I am sure you will not put them to that trouble.

48Are there any other orders I need make?

49MR McWILLIAMS:  No, Your Honour.

50HIS HONOUR:  I will just sign these orders.  Mr Prosecutor, I have been provided with a forfeiture order too, is that right?  Is that sought?

51MR MCWILLIAMS:  That might be right, Your Honour, let me
just ‑ ‑ ‑

52HIS HONOUR:  I recall only mention of a disposal order.

53MR McWILLIAMS:  Yes, I may have only spoke of a disposal but there is forfeiture sought as well.

54HIS HONOUR:  Is that opposed?

55COUNSEL:  No, Your Honour.

56HIS HONOUR:  I make that order also.

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