Director of Public Prosecutions v Clarke (a pseudonym)

[2017] VCC 1894

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD CLARKE (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2017
CASE MAY BE CITED AS:	DPP v Clarke (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1894

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 D. Cordy
For the Accused	Mr P. Smallwood

HIS HONOUR:

1Jarrod Clarke[1], you pleaded guilty to two charges of being persistently in contravention of a family violence safety notice by engaging in conduct on at least three occasions, that would constitute an offence against s.37 of the Family Violence Protection Act 2008, where you knew each act constituted such a contravention.

[1] This is a pseudonym name.

2Charge 1 alleged 26 such instances of conduct between 4 April and 2 May 2016, and Charge 4 alleged four such instances between 5 June and 17 August 2016.  These instances were contact by telephone or by way of text message or sending letters and the use of a third-party to deliver letter, picture and cards to the protected person.  And on three occasions on the same day of 2 May 2016 at three separate times, attending at the home address of the protected person and either requesting entry or entering the property or the actual house.  You then also pleaded guilty to intentional causing damage to property and once charge of intentionally causing injury to the protected person.

3An extensive and detailed summary was tendered at your plea and I will append it to the sentence and will be retained on the court file.

4You were the victim’s former partner and father of your two children.  On 4 April 2016 a Magistrates' Court granted an interim intervention order on behalf of the victim against you.  It was served upon you that day and then was listed for a mention hearing on 2 May 2016.

5On that very day and throughout April and into early May you contravened the order in the manner I have described above.  On 2 May at 1.30 am you entered the protected persons address, you tapped on her bedroom window while she slept, you shone a light through a window and you called out a number of times.  You wanted to be let in and to talk to the victim.

6You told her you would be in court; you will be in court to hear what she had to say and to think about what she would say as you would be there to hear.  She felt scared and intimidated.  You left but returned at 5.45 pm that day.  You removed clothes from the clothes line in the backyard.  The victim having put her two sons to bed, they being aged four years and 22 months old at the time.  She showered and then went to the laundry where she found you between the laundry and the kitchen.  You refused to leave, you went into your son's bedroom, you became increasingly angry and aggressive, as well as alternatively remorseful and apologetic.

7The victim called the police and reported you in the house, she did so from her bedroom where she had barricaded herself.  She left that room and when she attempted to return there you kicked the door open, causing a hole to the door.  You entered the room, pushed her to the floor, kicked her thigh, you threw a backpack at her; hit her face, you took her phone and then returned it to her.  All the while she kept asking you to stop and to leave.  You yelled to her that she had ruined your life and, "If I can't have my kids, I'll make sure you can't".  You made threat to her and she was fearful of being hurt.

8You then forced the door open, you threw her onto the bed, you put your arms and hands across her throat telling her to say that she loved you.  She tried to push you off, she thought you were going to kill her.  When she was released she got up and said, "I told you I can't be with you anymore".  You then threw a plastic bottle at her, hitting her face and forehead.

9She again rang 000.  You then punched her to the face.  You picked up her antidepressant medication and swallowed seven tablets.  You ran frantically through the house, you took her by the face holding her against the wall or in a bear hug threatening to kill yourself.  When the police finally arrived you fled through the laundry.  As a result of your assault the victim suffered bruising to her left upper thigh, her right eye and sore right cheek.

10On Friday 6 November the police found you at your address and you were arrested.  You were holding photographs of the victim and the children at the time.  On that day you were interviewed by police and remanded in custody.  Between that day and 17 August you again endeavoured to contact the protected person.  In one of the letters you sent in August you apologised for your behaviour, saying, "That was not Matty, that was the drugs".  You apologised for doing the wrong thing and using drugs, and prioritising their use over your family life.

11In the interview, though you minimised your behaviour during your attendance at the victim's house and said she was the crazy one, you acknowledged wrongdoing and being in breach of the order.  Ultimately, intentionally causing damage carries a ten year maximum, as does intentionally cause injury.  Persistent contravention of orders carries five year maximum.

12The effect of domestic violence is profound and long-lasting.  The community has come to appreciate the trauma and damage it causes, its unfortunate prevalence in the community is clear, and it looks to the court to impose just punishment in protection of victims, of children and in order to deter others - generally men - who are like minded to not only contravene protective court orders but who do so persistently, as well as engage in violent and aggressive behaviour.  Those who are so minded must expect stern punishment.  Those who are protected persons must and receive protection from the court.

13The protected person here provided the court with a victim impact statement.  It contains the account of the trauma suffered by her, of domestic violence, which this court sees regularly.  This involves post-traumatic stress disorder, antidepressant medication being prescribed, the need for ongoing psychological treatment and management of symptoms like anxiety and panic attacks, lack of rest and sleep, a feeling of overwhelming lack of trust, security, hyper vigilant vulnerability and fear.  She had to relocate herself for protective reasons and generally the impact has been significant.  I take her statement and the impact upon her into account.

14In your case your remand was your first time in custody and the resolution of this matter is properly assisted by this time that you have spent in reclusion.  By the time you come for sentence today you have spent a considerable period of time on remand.  So I use it as a reference point.  Not because it is convenient but because in my view, in all the circumstances; both of the offending and of your own, the imposition of a term of imprisonment, followed by a community corrections order to properly deal with the matter and the issues alive is appropriate.

15I take your plea into account.  Though, it was not offered at the earliest opportunity, ultimately, you pleaded guilty.  A committal was run in which the protected person was vigorously cross-examined.  However, ultimately a trial was avoid by your plea and that carries, as was acknowledged by the prosecution, a significant utilitarian value.  This came about probably as a result of what has been acknowledged to be the salutary effect of imprisonment upon you.

16The first notable matter before returning to your personal background, circumstances, is the fact that you have a prior criminal history which beings in 2003 with a series of serious driving offences.  In October of that year you were placed on a community based order for 12 months for dishonesty and driving offences, as well as attempting to forcibly aid the evasion by a prisoner and assaulting police.

17Another community based order was imposed for 18 months on 1 December 2003, again, for dishonesty and driving offences.  Between 2009 and 2016 you have six court appearances for assault, threatening words, dishonesty offences, possession of drugs.  Clearly, none of these matters had an impact on you.

18Your time on remand has been the opportunity that you needed to achieve a number of things, which do all go well for your rehabilitation.  You have recognised that the use of drugs has blighted your life and in order to reclaim yourself you must abstain from their use.

19You have undertaken various courses, including anger management and mood management, though it is likely more work is required.  You have returned negative urine screens, you have reflected on your behaviour and now accept the wrongfulness of your conduct.  As well as acknowledging that though you wish to have proper and meaningful contact with your sons.  The relationship to the victim is finished and you need to maintain your distance, as well as your abstinence, in order to have the sort of civil contact to achieve some relationships with your children.

20You have attended at the salvation army positive lifestyle program.  You attended on alcoholics and narcotics anonymous.  You have obtained billet work whilst in custody and importantly you are looking forward positively to new goals and aims in your life that are pro-social and law abiding.  You have recognised that your moral culpability and conduct was unacceptable and have accepted responsibility.

21Your background may be summarised as involving profound levels of dysfunction, physical abuse, neglect and poverty in your development years, followed by a lack of achievement and a propensity for periods of depression and suicidal thinking, and a tendency to enter into dysfunctional relationships marked by hyper-control, fear of abandonment and co-dependency.  But primarily, predisposed to substance abuse.

22Your mental health decline from 2012 with treatment in the past, including psychiatric treatment, not without sustained benefit.  You eventually graduated from cannabis to other drugs like ice and GHB by the time of your incarceration.  At the times involving offending of a physical nature you were under the influence of drugs, which contributed to your aggression and delusional thinking, with acute emotional dysregulation.

23This matter is directly assisted by the very helpful report of Associate Professor Carole dated 24 September 2017.  Professor Carole, a most experienced forensic psychiatrist, beginning with your mental state at the time of your assessment, as well as your psychiatric and personal history, lays out that history.  His opinion is that imprisonment has been beneficial for your mental health.

24In that time certain things have been achieved.  You have effectively learned to read and write, which is a major achievement.  You engaged in vocational programs, for which I was shown certification.  You have availed yourself of the scant psychotherapeutic opportunities offered and you appear to have benefited from them.  You know can recognise the profoundly negative impact of substances on your mental health and that importantly, reunion with your son's mother - I repeat - is unlikely.

25You are currently, however, free of psychotic symptoms and displaying any symptoms or features indicative of mental illness or personality disorder.  He assessed you has having good prospects of rehabilitation, given your excellent progress, subject to your capacity and resolve, to stay away from drugs.  This has been facilitated by the closed artificial environment of the prison.  So it is important for you to understand and for the court to provide for a period of supervision in the community, supported by formal structures and a mental health plan.

26Professor Carole does not believe psychotic medication is indicated in your case.  Importantly, he opines that the benefit of incarceration has now plateaued, in terms of your recovery.

27The sentence, of course, must do more - as I have already indicated - than assist in your rehabilitation.  The risk of re-offending is highly correlated with the risk of relapse into drug use.  You appear to exhibit genuine remorse and if this is so the disposition of the court, which encompasses a period of prison already served and a period under supervision by correctional services will hopefully give you a structured framework to continue to rehabilitate.

28In this context I obtained a comprehensive report from Community Services dated 16 November 2017, authored by Ms Reeding from the Bendigo Community Correctional services.  It firstly noted you were able to complete two previous court orders and found you suitable for a community based disposition.  Though you were found to be of medium risk of re-offending, using the criterion of the tools utilised for that assessment, the author noted you have opportunities to return to employment and intended working.  You have accommodation to which you can go with your father in Wallan.  And you have expressed shame and regret.

29The various conditions which can apply to your order are designed to assist you in relation to your ongoing mental health, offender behaviour programs, drug and alcohol abuse treatment and rehabilitation assessment.  All of these are designed to increase insight into your offending behaviour and assist in a change of direction in your life.

30I will order that you will do some hours of community work and I will order that all the hours of satisfactory treatment and rehabilitation can be credited to unpaid community work.

31The Seymour correctional services will administer the order.  I intend that the period of imprisonment imposed be read as having been effectively served by your remand period already served, though that period is greater than the sentence imposed in combination with a community corrections order.

32You can stand, please.

33On Charge 2, the criminal damage charge, you are convicted and sentenced to six months' imprisonment.  On Charge 3, the intentionally cause injury, you are convicted and sentenced to 12 months' imprisonment.  I order that those period be concurrent, making a term of 12 months.

34I not you have served 585 days by way of pre-sentence detention, excluding today.  That number will be noted in the courts records.  It means, in effect, you can be released forthwith.

35Upon your release and in relation to Charges 1 and 4 you are convicted and sentenced to a two year community corrections order to begin upon your release.  You will be under the supervision of Community Corrections.  You will undergo assessment and treatment for drug, alcohol and in relation to your mental health.  You will be under the supervision of the services, you will participate in offending behaviour programs as directed by the service and you will perform 150 hours of unpaid community work.

36I repeat that under s.48CA of the Sentencing Act I order that all hours satisfactorily undertaken for treatment and rehabilitation be counted as hours of unpaid community work.  I have signed the forfeiture, Mr Cordy.

37MR CORDY:  As Your Honour pleases.

38MR SMALLWOOD:  As the court pleases.

39HIS HONOUR:  I will hand them down.  Seymour.  Mr Clarke, the community corrections order that I've order will probably require you to do a large number of things.  The order that I've made means, effectively, that if you're released today you are then under the obligation of the order and you should report within two days, I think it is, to the Seymour offices.  I'm sure Mr Smallwood will explain these details to you.

40MR SMALLWOOD:  Yes, Your Honour.

41HIS HONOUR:  But it is important, fundamental, that you understand that the obligations ‑ ‑ ‑

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  ‑ ‑ ‑ that the order provides are there primarily so that you can have a structure within which to work in the next couple of years.  If you have work, if you have accommodation, if you're able to drive than you should - or get yourself to appointments.  The most important thing is that you learn to communicate with the correctional office, that'll be your case worker.

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  If during the course of that 24 month period you either commit further offences or you breach this order, you'll come back before me and I have the power to re-sentence you on those contraventions of the family violence orders; do you understand?

46OFFENDER:  Yes, Your Honour.

47HIS HONOUR:  Hopefully the time in custody's made a difference to you, it sounds like it has.  You need to get on with your life and you've got an opportunity to do so now.  If you don't do so, you're just going to come back to court over and over again.

48OFFENDER:  Yep.

49HIS HONOUR:  Yes.  Mr Cordy, while that happens, I was asked by a fellow judge to inform you that that image that you received is called the Madagascar and is available from England.

50MR CORDY:  I was looking for a green hat, Your Honour.

51HIS HONOUR:  I don't know what that is, it's fez or something?  But the figure is called the Madagascar.

52MR CORDY:  Thank you, Your Honour.

53HIS HONOUR:  All right, has he signed the orders?

54MR SMALLWOOD:  Yes, he has, Your Honour.

55(Community-based order signed and acknowledged.)

56HIS HONOUR:  Get him a copy.

57OFFENDER:  Thank you, Your Honour.

58HIS HONOUR:  All right, well I have another matter to follow.  Are you in that matter, Mr Cordy?  Matter of Kelly?

59MR CORDY:  No, I'm not, Your Honour, no.

60HIS HONOUR:  Thank you.  Thank you both.

61MR SMALLWOOD:  As the court pleases.

62HIS HONOUR:  I'll simply stand down for the moment.

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