Director of Public Prosecutions v Clavell
[2020] VCC 1437
•14 September 2020
v
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02261
CR-19-02262
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA CLAVELL and JOEL CLAVELL |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 May 2020 and 14 August 2020. | |
DATE OF SENTENCE: | 14 September 2020 | |
CASE MAY BE CITED AS: | DPP v Clavell & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1437 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Churchill | Office of Public Prosecutions |
For Joshua Clavell For Joel Clavell | Mr M. Reardon Ms M. Walker | Victoria Legal Aid Melinda Walker |
HER HONOUR:
1 Joshua Clavell, you have pleaded guilty to an indictment containing one charge of the aggravated offence of intentionally exposing an emergency worker (Justin Christopher Tyers) to risk by driving, which carries a maximum penalty of 20 years’ imprisonment, and one charge of assault emergency worker (Justin Christopher Tyers) on duty, which carries a maximum penalty of five years’ imprisonment.
2 Joel Clavell, you have pleaded guilty to an indictment containing four charges of assault emergency worker on duty (Aaron Hardinge, Owen Matthews, Phillip Robinson and Michael Bourke), each of which carries a maximum penalty of 5 years’ imprisonment; and three charges of make threat to kill (to Justin Christopher Tyers, Steven Ireland and Phillip Ryder), each of which carries a maximum penalty of 10 years’ imprisonment.
3 The circumstances in which you came to commit those offences are set out in the Amended Summary of Prosecution Opening for Plea which was read into evidence at your hearing (Exhibit A). I have had regard to that opening in determining the appropriate sentences in your case. The prosecution also relied on submissions on Plea dated 15 May 2020 (Exhibit B), updated submissions dated 10 July 2020 (Exhibit B1), the Victim Impact Statement of Steven Ireland dated 19 May 2020 (Exhibit C), bodycam footage (Exhibit E), an updated Corrections report in relation to you, Joel Clavell, dated 31 July 2020 (Exhibit F), and a CCO fact sheet – Assessing the Risk of Reoffending (Exhibit G).
4 Joshua Clavell, in addition to making oral submissions, your counsel relied on an outline of submissions dated 18 May 2020 (Exhibit 1), a New South Wales remand summary (Exhibit 2), a letter from the Department of Justice dated 6 May 2020 (Exhibit 3), and a discharge summary from St Vincent’s Hospital (Exhibit 4).
5 In addition to making oral submissions, Joel Clavell, your counsel relied on an outline of submissions (Exhibit 5), supplementary submissions (Exhibit 6), a report from Phronesis Consulting and Training (Exhibit 7), a report from Ms Carla Ferrari (Exhibit 8), a bundle of urine screens (Exhibit 9), a statement of results from the Box Hill Institute (Exhibit 10), an email from Corrections Victoria dated 13 May 2020 (Exhibit 11), Alfred medical records (Exhibit 12), a report from the Sentencing Advisory Council, Rethinking Sentencing for Young Adult Offenders (Exhibit 13), and a supplementary psychological report by Ms Ferrari dated 8 August 2020 (Exhibit 14).
6 I have had regard to each of these documents in addition to the matters developed by each of your counsel in oral argument.
Summary of offending
Background
7 You are both brothers from a sibship of 10, originally from South Australia. At the time of committing these offences, you had a transient lifestyle and had become disconnected from your family members.
8 Prior to the date of offending, investigators from the Counterterrorism Command Security Intelligence Unit (the Unit) established that you, Joshua Clavell, was the subject of an outstanding arrest warrant, relating to a breach of a Community Correction Order. It was determined that you were both associated with an address in Albury. Investigators at the Unit sought to arrest you, Joshua Clavell, to institute proceedings in Victoria for the breach.
The charged offences
9 On 12 June 2019, Unit investigators, Detective Sergeant Phillip Robinson and Detective Senior Constable Owen Matthews, drove from Melbourne to Albury in an unmarked police vehicle, to locate you, Joshua Clavell. At about 1.40pm, they stopped at the BP Service Station at Barnawartha North. There, they observed a 2002 Holden Barina occupied by you both, and took a photo as this was an unexpected sighting. The two of you left the BP Service Station, and travelled to the camping ground at Barnawartha North. You had both been residing in a tent for a number of weeks at that camping ground. Unit investigators requested the attendance of local police to assist with the arrest of you, Joshua Clavell, in relation to the outstanding warrant. Upon their arrival, police officers Robinson and Matthews provided a briefing to them.
10 At the conclusion of the briefing, marked and unmarked police vehicles entered the Richardson Bend Camping Ground, where they located the Barina, along with you both, at a camp site in a remote location.
11 You both got into the Barina, with you, Joshua Clavell, driving the vehicle through the camp grounds, and you, Joel Clavell, seated in the front passenger seat. Police attempted to position themselves to perform a safe interception of you, as you drove the Barina through the camping grounds. Leading Senior Constable Justin Tyers, from the Rutherglen Police Station, activated the emergency red and blue lights on his unmarked police vehicle, to alert you of the police presence, and encourage you to stop on their direction. As the Barina approached the location in which Leading Senior Constable Tyers was seated in the driver’s side of the police car with the emergency lights activated, you, Joshua Clavell, drove the Barina at his vehicle. Leading Senior Constable Tyers, fearing for his safety, attempted to exit the police vehicle to avoid impact and serious injury. The Barina rammed the front of the police vehicle causing it to move approximately three feet, striking Leading Senior Constable Tyers and throwing him backwards onto nearby rocks. This is your Charge 1, Joshua Clavell, of aggravated intentional exposure of a police officer to risk by driving.
12 As a result of the impact, Leading Senior Constable Tyers experienced pain in his left shoulder up to his neck, grazing to his left hip, lower back region, and naturally, fear.
13 The impact of the collision stopped the Holden Barina, causing damage to both vehicles, air bags were deployed, and it caused significant damage to the windscreen, as you, Joel Clavell, struck your head during the collision.
14 In fear for his safety, Leading Senior Constable Tyers attempted to get up from the ground, and in doing so he observed both front doors of the Barina open rapidly, and you both exited the vehicle. You, Joshua Clavell, held a knife, and you, Joel Clavell, held a hatchet.
15 Upon Leading Senior Constable Tyers, observing you, Joel Clavell, to be armed with a black object, which he initially believed to be a firearm, he issued a police challenge for you to drop the weapon and get on the ground. Understandably, he was in fear for his safety, and he pointed his police issue firearm towards you, Joel Clavell, in an attempt to cease the threat.
16 Leading Senior Constable Tyers observed you, Joshua Clavell, move behind the police vehicle, in what appeared to be an attempt to ambush him in partnership with you, Joel Clavell.
17 You, Joshua Clavell, ran in a threatening and aggressive manner towards Leading Senior Constable Tyers, and he observed a large knife in your possession. Leading Senior Constable Tyers, in fear for his life, backed away from you, Joshua Clavell, as you rapidly approached, and he screamed at both of you to drop your weapons. You, Joshua Clavell, in possession of the knife, brandished it in a very threatening manner and rushed towards him, causing him to be in extreme fear for his life. This is the offending referrable to your Charge 2, Joshua Clavell, of assault emergency worker.
18 In fear of being stabbed and killed, Leading Senior Constable Tyers discharged his firearm three times towards you, Joshua Clavell, impacting you once in the torso and once in the upper right arm. This caused you, Joshua Clavell, to drop to the ground instantly and you lay unconscious.
19 Leading Senior Constable Tyers continued to create space between himself and you, Joel Clavell, still at this point armed with the hatchet, and other police members approached the scene in an attempt to control your actions, and continue negotiations to influence your surrender.
20 Each of the police members in attendance was in fear of their safety, and the safety of their colleagues, as a result of you, Joel Clavell, engaging in aggressive, violent and unpredictable behaviour, causing them to continue with instructions for you to disarm yourself and comply with the police request.
21 This is the offending referrable to your Charges 3, 4, 5 and 6, Joel Clavell, of assault emergency worker (victims Leading Senior Constable Aaron Hardinge, Owen Matthews, Phillip Robinson, and Michael Bourke).
22 You, Joel Clavell, positioned yourself behind the police vehicle, where you continued to threaten police members, and refused to disarm yourself. Police members attempted to negotiate with you for the purpose of resolution, and instructed you to disarm yourself and surrender to police. You continued with your aggressive behaviour including challenges and taunts for the police to shoot you. You challenged police to shoot you, declaring that you wanted to be a “martyr”, and called police members dogs and mutts and declared your intention to have them put their guns down so that you could attack them and chop their heads off.
23 A standoff between you, Joel Clavell, and police ensued, with police attempting to de-escalate the situation for the purpose of rendering aid to you, Joshua Clavell. You, Joel Clavell, continued to conduct yourself in an aggressive and violent manner while armed with the hatchet.
24 Police officer Hardinge deployed OC foam towards you, Joel Clavell, on multiple occasions, in order to subdue your behaviour and disrupt your actions and threats, and also allow members the opportunity to apply first aid to you, Joshua Clavell, as you were at this time seriously injured and bleeding from the earlier shooting. The OC foam was ineffective, as you were behind the police vehicle.
25 Eventually, police member Bourke drew his taser and pointed it towards you, Joel Clavell. He discharged the taser, but it was not effective. Having observed the bodycam footage I heard the crack of the taser.
26 You then ran at a fast rate of speed directly towards police members, still holding the hatchet. This is the offending referable to your Charges 7, 8 and 9, Joel Clavell, of making threats to kill police officers Justin Tyers, Steven Ireland and Phillip Ryder.
27 The police members were in fear, and as you approached to within five or six feet of police members Ireland and Ryder, they both discharged their police issue firearms at you, Joel Clavell, impacting you twice in the chest and once in the stomach, causing you to immediately fall to the ground. You were then placed in handcuffs, and received first aid, which continued until the arrival of paramedics who provided acute medical intervention.
28 You, Joshua Clavell, also received first aid from police and paramedics, and you were then transported to the Albury Base Hospital, where you remained in ICU, prior to extradition proceedings relating to crimes associated with this prosecution. You, Joel Clavell, were initially transported to the Albury Base Hospital, then you were air lifted to the Alfred Hospital, where you remained in ICU prior to being charged for crimes associated with this prosecution.
29 I have viewed the exhibited body camera footage which recorded the behaviour the subject of the charges.
Police interviews
30 On 12 July 2019, you, Joshua Clavell, were interviewed at the Melbourne Assessment Prison. You told police that you saw somebody trying to take photos of you inconspicuously, who was very conspicuous. You said that you did not know that the police were looking for you that day. You told them that you rammed the unmarked police car on the bridge of the camping ground, because you did not know it was a police vehicle. You accepted that the plain clothes member (Mr Tyers) pointed a gun at you, but you did not know that he was a police officer. Following ramming the vehicle, this police member was still pointing his firearm at you, however, you told police that you still did not know that the person was a police officer. You said that the knife was in the car and had a 30 centimetre blade, the hatchet was also in the car with other tools.
31 On 10 September 2019, you, Joel Clavell, were interviewed by police and told to them that you and your brother attended the service station, and then returned to the camp site. You said that you could not remember much, but as you were heading to the gym, a car pulled up on the bridge, and a man hopped out with a gun and pointed it straight at you. You hit the car on the bridge, then got out of the car and walked around to see the man pointing a gun at you. You then ducked down on the passenger side and went around the back of the car and saw your brother on the ground bleeding. Then there were police cars and police everywhere pointing guns at you. You told police that at the time you saw the man with the gun, you did not know that he was a police officer, and you claimed the police car on the bridge was unmarked and you did not recall that lights or sirens were activated.
32 You said that police came forward after that, with a taser, and another had a foam gun. You then ran forward and got shot.
33 You were told that when the collision occurred, you smashed your head into the windscreen. When you hopped out of the car you had a hatchet, which was tiny and not big. This hatchet belonged to you and was used to chop wood for fire at the camp site. You picked up the hatchet when you got out of the car because the man was pointing a gun at you, and you were going to defend yourself. You had the hatchet in your hand when you ran forward and were shot. You did not recall using the term “martyr” when talking to police on that occasion, and you did not recall threatening to chop the heads off members of the police.
Effect on the victims
34 In the course of my summary of your offending, I have noted throughout the fear of each police officer.
35 Leading Senior Constable Steven Ireland, the victim of your Charge 8 of make threat to kill, Joel Clavell, told me that because of the incident he has had symptoms of Post-traumatic Stress Disorder, acute stress, constant intrusive thoughts and memories of what happened, insomnia and irritability. Your offending has left him with nearly no ability to concentrate, even on simple tasks, which causes him anger and frustration. He now does not react well to being surprised or startled. Your offending has not only affected him, but it has placed an enormous strain on his wife and children. He has been treated by a psychiatrist who is a Post-traumatic Stress Disorder expert in relation to the lingering symptoms of anxiety and depression that you have caused him. The emotional consequences of the incident have resulted in his taking an extended period off work, and he is reconsidering his future with Victoria Police.
36 He describes the very types of reaction that we might expect from a police officer being placed in such a stressful situation.
Pleas of guilty
37 I was told that you both indicated your intention to plead guilty on the morning of the contested committal hearing, and the matter proceeded by way of straight hand-up brief without the necessity of any witnesses being cross-examined. I was told by your counsel, Joshua Clavell, that this was the first opportunity to plead guilty to the charges which have eventually proceeded before me. This is a plea of guilty by both of you at an early stage, which I take into account in mitigation of penalty.
Personal circumstances
Joshua Clavell
38 At the time of your offending you were 30 years of age and you are now thirty-one.
39 You were born in Adelaide, the third of the 10 children born to your parents. Your mother is retired from her cleaning business and lives in Mollymook in New South Wales. You father is deceased, having taken his own life during a police stand-off in 2014.
40 Your parents separated during your first year of high school, when you were aged about 12 years old. Your father had been a strict disciplinarian who had anger management problems, which were mostly taken out on your mother. He started to abuse substances, and first came to police attention in about 2001, at about the time of his separation from your mum. Several years of instability followed in your life, where your parents were temporarily reconciled and would separate again. From time to time you lived in the care of extended family. Your father’s drug habit led to a number of serious interactions with police, culminating in his death.
41 After your parents separated, you had limited contact with him, save for a period when you were aged about 17 when you lived with your father for six months. Your father’s drug use placed significant strains on your relationship with him.
42 You lived with your mother, until, when you were aged 18, your mother left South Australia unexpectedly and you did not hear from her for about eight years. You learned that she had moved interstate with four of your younger siblings.
43 In 2015, following your father’s death, you moved to Victoria to “start over”.
44 As a result of your family’s movements when you were young, you attended a number of primary and secondary schools in various suburbs in Adelaide. You struggled to concentrate at school, and you had significant learning difficulties. You were removed by your mother from mainstream education, and were home schooled, and your education ceased after you completed Year 10.
45 You have intermittently worked full time in abattoirs, metal fabrication, and concrete labouring, across South Australia, Victoria and New South Wales, interrupted by periods of unemployment.
46 You have obtained your truck driver’s licence, and have worked as a truck driver.
47 You were married for 18 months and have two children from that marriage, but you have no contact with those children, and approximately three months before this offending you married your current wife, who lives in South Africa. She is not yet on your contact list in prison, and you haven’t spoken to her for about 12 months.
48 You are of course in contact with your younger brother, Joel, as well as your brothers Daniel and Nathan, and you continue to be in contact with your mother.
49 You experienced serious physical injuries as a result of the wounds you sustained from being shot by police during this incident.
50 You underwent an emergency laparotomy in June 2019, which is an incision to the abdominal wall to gain access to the abdominal cavity. In the same month, you had 70 centimetres of your small bowel removed and you were required to have stoma inserted, which allows waste to be diverted from your body.
51 You suffered entry and exit wounds to your right arm, a right sacral fracture, and a bullet remains lodged in your buttock. I am told that the management of your stoma in custody has at times been hampered by inadequate provision of medical supplies, which creates problems with your hygiene, and in February 2020, you needed further surgery for a reversal of the stoma.
52 You admitted a criminal history of approximately 17 Magistrates’ and Local Court appearances in South Australia, New South Wales and Victoria. Your first appearance, in January 2006, some two days after your seventeenth birthday, in which a charge of aggravated robbery with offensive weapon proceeded, resulted in a suspended jail sentence along with a community service order. There have since been guilty findings for commit assault, carry offensive weapon, resist or hinder police officer in the execution of duty, property offences, and two charges of recklessly causing injury, though according to this record, at the time of offending the most onerous penalty you had received was a suspended sentence. I was told that between August 2018 and February 2019, you were remanded in the New South Wales custodial system for offences of stalking and larceny, which eventually resulted in a non-custodial sentence; it was submitted that this time spent on remand without resulting in a custodial sentence was a consideration relevant to my discretion, and I take that time into account.
53 I have been told since being remanded into custody on these matters, you have been sentenced to a term of imprisonment of six months by the Magistrates’ Court in this State in August 2019. Brendan Smith, Supervisor at Metropolitan Remand Centre, told me that you have been classified as a major offender based on your charges and you are now housed within the Exford management unit. You have access to your own run out yard at the rear of your cell which is open from approximately 9.30am until 2.00pm each day. You have access to an hour in the gym, legal library and phone calls when you request them. Currently there are no employment opportunities or educational courses available to management prisoners at MRC. There has been no change to the management unit due to the COVID-19 pandemic (Exhibit 3).
54 Your counsel submitted that your classification into solitary confinement results in your sentence being served in circumstances more onerous than other prisoners who are not so classified, and I also take this into account in mitigation of sentence, as well as the fact that a subsequent sentence has been served.
Joel Clavell
55 At the time of offending, you were aged 19, and you are now 20.
56 You were the youngest in the sibship of 10 children. You were exposed to the same violence between your parents as your brother, and they separated when you were four years of age.
57 You lived with your father, from that age until six, and then you had no further contact with him and you lived with your mother, with whom you are still close.
58 You experienced a most disruptive childhood, and you frequently relocated.
59 As mentioned, your father committed suicide during a siege with police in June of 2014, when you were aged fourteen. Your counsel tells me understandably, that this has a profound impact upon you, and I was told that his death resulted in you contacting your older siblings after many years, however since you have reverted to Islam you consider yourself not particularly close to many members of your sibling group.
60 As a result of your frequent relocations, you attended around eight primary schools and six high schools. You had difficulties at school with concentration, you were easily distracted, and you found it difficult to make friends. You achieved average grades, you were good at sports, and were suspended on a handful of occasions for being disruptive in class. You completed Year 10 in secondary school.
61 In 2018, you converted to the Islamic faith, as have a number of your brothers including your co-accused Joshua Clavell, who continues to be an influence in your learnings with regards to being a Muslim (see Exhibit 7). You recently married, after meeting your wife on-line on a Muslim marriage website.
62 You used cannabis between the ages of 15 to 18, and then ceased all usage. You used MDMA and cocaine, and methamphetamine occasionally and recreationally, but ceased all usage when you converted to Islam. I note that prior to your arrest, you reported using anabolic steroids in order to boost your physical performance (Exhibit 7).
63 You have worked several jobs including recently as a removalist, but you were unemployed at the time of your arrest.
64 You have no prior court appearances, and I take into account in mitigation of penalty that you were a person of previously good character.
65 Upon your release from custody, you will be provided via the Australian Community Support Organisation (ACSO) with up to four weeks’ crisis accommodation at Mahoney’s Motor Inn, in Reservoir (Exhibit 12). You have been referred to Launch Housing’s Atrium Place, a 12 week supported living program for youth, and you will have a gym membership funded for you. That program can also assist with education, training, and employment support, vouchers for independent living, and three months’ assertive outreach to assist in therapy for your leg.
66 During the incident which led to your arrest, you received gunshot wounds to your right shoulder, abdomen, and left leg, which severed your femoral artery. A bullet is still lodged in the centre of your back (Exhibits 8 and 9). You required urgent and extensive medical treatment at the scene and subsequently, and received a massive transfusion of blood and plasma. You have reduced mobility as a result of being shot in the leg, which will endure, and as with your brother, I take the physical injuries that you sustained as a result of your actions into account as a form of extra curial punishment.
67 You were assessed by Carla Ferrari, consultant psychologist, who provided a report to me (Exhibit 8). She noted that you reported on reflection that you have experienced episodes of depression and anxiety, though this has not been formally diagnosed. You described yourself as a very shy, anxious child, and this may have related to the family violence that you were exposed to growing up, as well as your sense of stability and security being impacted due to your frequent relocations. You have never engaged with psychologists or psychiatrists, nor had contact with a mental health service.
68 You hit your head on the windscreen during your brother’s collision with the police car. You were in a dazed and confused state during your offending, unsure of what was happening or details after this. You only remember the major events of the incident such as your brother being shot and hitting your head, not the threats you made. You have had diminished concentration ability since the incident. You told Carla Ferrari that the situation could have been handled differently and resulted in a better outcome if you were informed from the outset that the individuals were police officers – you felt the situation was handled poorly and that the police actions were extreme. It concerns me that you continue to feel this way as these are the types of patterns of thoughts that might interfere with your capacity to move past your resentment and anger towards police.
69 She conducted empirical testing upon you, and noted that you appeared to be experiencing symptoms of Post-traumatic Stress Disorder in relation to your involvement in this offending, where you were both shot by police officers. You described intrusive symptoms of flashbacks and nightmares, negative alterations to your mood and cognition, and hyperarousal symptoms, which at this point you manage by the use of avoidance strategies. As a result of your history of trauma, in her opinion, this makes you more susceptible to retriggering of those symptoms. She notes that you would benefit significantly from psychological intervention to address unresolved issues which have remained suppressed in you through your use of avoidance strategies. In her opinion, your mental health issues may be exacerbated by imprisonment, and on that basis I am prepared to allow modest mitigation of sentence in reflection of that observation.[1]
[1]R v Verdins (2007) 16 VR 269, [8].
70 She describes you as a young and vulnerable individual who has never been in a prison environment previously, nor had exposure to criminal individuals.
Objective gravity of offending
71 Your pleas involve your acceptance of awareness or suspicion that your victims were police officers – as their status and your knowledge or suspicion of their role are elements of the charged offences, I have taken care not to allow those elements to aggravate your offending separately to observing the maximum penalty for your offences.
72 Joshua Clavell, your counsel, appropriately, conceded that the offending the subject of your charge 1 (the aggravated offence of intentionally exposing an emergency worker to risk by driving) is inherently serious, as reflected in its maximum penalty of 20 years. Your conduct was serious and reprehensible, involving exposure of others including your own brother to risk of serious injury by your dangerous and deliberate use of your car. By driving your car at the car in which Mr Tyers was initially seated with emergency lights flashing, you showed your willingness for violent, confrontational, forceful action. He attempted to exit, and he was injured. Undeterred, you then armed yourself with the knife in the company of your armed younger brother and moved around, eventually running at Mr Tyers. Your animus towards him continues, and it is deeply concerning behaviour which ended when he shot you, causing you your grave injuries.
73 Counsel submitted that your offending the subject of charge 1 fell towards the lower end of gravity for offending of this type, given:
· The offending was reactive to an evolving situation and was relatively short-lived
· The offence was committed in a small hatchback traveling over undulating and boggy terrain, against a police vehicle of much larger size
· The speed at which you were traveling was unable to be determined with any accuracy, and
· The circumstance of aggravation was that the police vehicle was damaged, as opposed to the creation of a risk of death or serious injury – though I here interpolate that your act of ramming into the police vehicle caused the vehicle to strike Mr Tyers and throw him back onto nearby rocks, causing him to experience pain, grazing to his left hip, lower back region and fear.
74 I do not accept this characterisation of the offending as being towards the lower level of gravity, though I do accept that your crime was relatively short lived. Whilst the victim’s injury was perhaps at the lower end, your conduct was not.
75 Your commission of charge 2, of assault emergency worker on duty, whilst aggravated by the use of your weapon, involved the threat rather than the application of force. Your victim, Mr Tyers, was performing his duty in arresting you and he was exposed to unnecessary risk and trauma.
76 Joel Clavell, your actions involved the presence of the hatchet, they were prolonged, and were characterised by your challenges to police members to shoot you, though I also observe in your case that your assaults involve threat rather than application of force.
Moral culpability
77 Joel Clavell, whilst I have concerns about your behaviour, your continued animus towards police, the fact that you continue to attribute responsibility to the victims for your offending, and your professed desire to be a martyr (though as I have indicated in the course of oral argument, in my view the evidence falls short of permitting the drawing of inferences as to the reasons inspiring that professed desire).
78 I note and take into account in mitigation of your moral culpability for your offending the fact that your actions were precipitated by your brother’s actions and in part your conduct after appreciating his grave injuries, and the stress that this would cause. I also note your young age which is a factor to which I will return, that you reacted to a serious and stressful situation commencing with your brother’s decisions, involving a hard thump to your head on the dashboard, the trauma of seeing your brother shot by police and its linkage to your distress at losing your father at 14 following the police siege.
79 By each of your pleas, you have conceded at least your suspicion of the victims’ status as emergency workers and I do not accept later explanations that suggest you were unaware that the victims were police officers.
Prospects for rehabilitation
80 Joshua Clavell, your counsel conceded, properly in my view, that your prospects for rehabilitation are guarded.
81 In relation to you, Joel Clavell, my assessment of your prospects for rehabilitation was informed by evidence and submissions.
82 You have frankly conceded that you have some feelings of anger and resentment towards police and authorities as a result of circumstances surrounding the death of your father. You reported to the author of the Phronesis Consulting and Training Report that you are unsure whether you can trust police or authorities. This was a contributing factor in your decision to leave South Australia with your brother, and your being at the camping ground in Barnawartha North. Your distrust contributed to this incident (Exhibit 7).
83 Peta Lowe, the author, notes that you do not demonstrate a history of propensity to engage in violent behaviours. You also expressed to her your willingness to engage in psychological interventions to assist you in managing the symptoms of post traumatic stress disorder that you have experienced, including your subsequent feelings of anger and anxiety in relation to police and authority figures. You present to her as a personable and intelligent individual, who demonstrates a high capacity to learn when you are motivated and interested.
84 She observes that you display the following vulnerabilities which may relate to potential risks of radicalisation to violent extremism:
· Perceived injustice, ie your grievances towards police and authority figures as a result of your father’s death, and you and your brother being shot by police during your offending;
· Susceptibility to influence;
· Lack of sense of belonging.
85 Carla Ferrari evaluated your circumstances and initially expressed the view that you were a low risk of reoffending on the basis of factors including psychosocial circumstances, antisocial peer group, lack of supports, emotional and personal factors, attitudes towards intervention, as well as other relevant stable factors such as criminal history and gender. She had regard to your lack of prior criminal history, and that your actions were a marked deviation from your usual character. She described your psychosocial circumstances as precarious, though noted that this appeared to be due to choice and learned behaviour from your frequent relocations as a child. To her, there appeared not to be evidence of any criminal belief system, and no current alcohol or drug issues save for your use of anabolic steroids in the two months prior to the offence. Ms Ferrari revisited your prospects for rehabilitation in a supplementary report (Exhibit 14) and in oral evidence. She conceded her evaluation of level of risk of recidivism was considered on the basis that you engage in treatment to address your risk factors as outlined. If you refused or failed to do so, your risk level would increase.
86 Ms Ferrari conceded further that no risk tool was used in her initial evaluation of risk. Upon the employment of the Historical, Clinical, Risk Management tool, third edition, she opined that you presented a low to moderate risk in relation to future likelihood of violent recidivism, with your risk factors amenable to treatment and able to be mitigated through appropriate psychological intervention of your untreated post-traumatic stress disorder; a period of supervision and monitoring under Corrections; remaining abstinent from any substances which you have already demonstrated an ability to do; securing accommodation and employment to provide stability, routine, and structure. She suggested that you would also benefit from engagement with appropriate supports within the Muslim community to enhance your understanding of the theological underpinnings of your beliefs and to correct any misinterpreted ideologies that you may possess having been largely self-taught and interpreted.
87 The Office of Corrections undertook an extended pre-sentence assessment at my request, and provided a detailed outcome report (Exhibit F). In the view of the authors, using the Level of Service/Risk Needs Responsivity Tool (LS/RNR), you are a medium risk of general reoffending when compared to Victorian offending population.
88 All of the authors agree that psychological interventions, and treatment by professionals who are attuned to possible indicia of future radicalisation, will assist with rehabilitation.
89 Having listened carefully to the oral evidence given by Ms Ferrari and Ms Saliba from the Office of Corrections, I understand that reasonable minds may differ in interpreting the weight and coding given to matters including your history of consumption of drugs (most recently, anabolic steroids), your work history, and your attitude towards police and whether it has been coloured by your post traumatic stress disorder occasioned by this incident. I note also your counsel’s observation that your lack of insight as to your own contribution to the escalation of the scene is reflective of your age as well and I agree with that.
90 You have no prior criminal history, and I trust that this, your first period in custody, has been of salutary effect upon you and you would not wish to repeat it. You are still a young man. The Victorian Court of Appeal has endorsed a number of propositions relevant to the sentencing of youthful offenders. These have been applied many times in many later cases.
91 Relevantly, youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.[2] Further, it has been said that, in the case of a youthful offender, rehabilitation is far more important than general deterrence. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred, as rehabilitation benefits the community as well as the offender.
[2]Mills [1998] 4 VR 235.
92 In Azzopardi, Baltatzis and Gabriel v The Queen,[3] the Court considered that the general primacy of an offender’s youth as a sentencing consideration is underpinned by a number of considerations related to these points.
[3](2011) 35 VR 43, [34]-[40].
93 Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. In your case, you also found yourself to be in an extraordinary situation, required to react to the sudden appearance of a significant police presence, your strike to the head when your brother crashed the car, and an unfortunate and triggering similarity between your circumstances and your father’s siege with police.
94 Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.
95 Thirdly, courts sentencing Young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Each of these points is reviewed in the Sentencing Advisory Council paper, Rethinking Sentencing for young Adult Offenders which was tendered in your case (Exhibit 13).
96 These principles apply in your case. I moderate sentence on the basis of your youth, and I intend to impose sentence that emphasises and allows for your rehabilitation, whilst also paying attention to the other purposes of sentencing that I have mentioned, and also deterrence, a measure of which is needed in your case.
97 Weighing the evidence as best I can, I am prepared to infer that you have real prospects of not reoffending, should you choose to engage in, and receive support for your psychological needs which will assist to manage your risks of reoffending.
Sentencing principles
98 I take into account the purposes for which sentence must be imposed, and the need for deterrence, both general and specific. The sentences I will impose will punish you and denounce your behaviour, whilst allowing for your continued efforts at rehabilitation, especially in the case of Joel Clavell.
99 Joshua Clavell, your charge 1 is subject to the operation of ss 10A and 10AE of the Sentencing Act 1991, which provide that you must be sentenced to imprisonment with a non-parole period of at least two years.
100 Your counsel submitted that your case required a finding of substantial and compelling circumstances that are exceptional and rare and that justify my making a finding of there being a special reason that justify a departure from this rule (s 10A(2)(e)), having regard to the matters itemised at 10A(3), one of which involves my consideration whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
101 Those circumstances, it was said, were:
· That any injury that your victim suffered was at the “extreme low end of severity”;
· That you have suffered significant extra-curial punishment through your injuries;
· That you served a significant period of “dead time” in New South Wales within a year of the commission of the offence;
· Since the commission of your offence, you have served a period of imprisonment that is not declarable as pre-sentence detention, as this is the sentence for another unrelated offence.
102 It was contended that I should find that a special reason existed, and therefore s 10AE of the Sentencing Act would not apply and the only limit to my sentencing discretion would be the requirement to order a custodial term (other than a combination of imprisonment and a community correction order). I accept the prosecution characterisation that the injury suffered by Mr Tyers is better factored into my evaluation of the seriousness of your conduct rather than the existence of special reasons, and your time spent on remand in New South Wales, and subsequently, can properly be taken into account, as I have, at other junctures in the exercise of my discretion. The better argument, in my view, relates to the injuries that you have sustained as a result of the police response in their lawful action in self defence to your conduct. Having weighed the circumstances though, to which I have given significant weight in mitigation of penalty, I do not find that special reasons exist in this case, and I observe by way of comment that I would not consider the cumulative impact of the circumstances of the case to justify a departure from that sentence in any event.
103 I have had careful regard to the totality principle of sentencing, noting in your case Joshua Clavell, that you have since being remanded been sentenced to six months’ imprisonment, and in your case, Joel Clavell, that your conduct can properly be regarded as two sets of offences involving the same conduct but on each occasion causing the effect upon multiple victims.
104 I note that each of your periods on remand coincide with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus, and whilst you were both remanded prior to the current necessity to isolate incoming prisoners, you have both been deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities, and I take these circumstances into account in mitigation of sentence.
Sentencing submissions
105 The prosecution submitted that, in each of your cases, a custodial disposition was warranted. Joel Clavell, your counsel urged me to impose a sentence involving a combination of custody and a community correction order. When pressed, as I understand it, prosecution counsel ultimately conceded that such a disposition would not result in appealable error on my part. The Office of Corrections ultimately accepted your suitability for such an order, subject to some of the onerous conditions including a curfew for a fixed period, and electronic monitoring. That is the sentence that I intend to impose, subject to some of the conditions recommended by the Office of Corrections for the reasons outlined in the report and supplemented in oral evidence.
Sentence
106 Joshua Clavell, on charge 1, of the aggravated offence of intentionally exposing an emergency worker to risk by driving, you are sentenced to four years’ imprisonment; on charge 2, of assault emergency worker on duty, you are sentenced to 18 months’ imprisonment, I order that eight months of this sentence be served cumulatively upon the sentence imposed on the first charge. The total effective sentence therefore is four years and eight months, and I order that you serve three years before parole eligibility.
107 Joel Clavell, on charges 3-6, of assault emergency worker on duty, you are sentenced to an aggregate sentence of 15 months imprisonment to be followed at the conclusion of your sentence by a Community Corrections Order for a period of two years with conditions I will explain; on charges 7-9, make threat to kill, you are sentenced to an aggregate sentence of 18 months’ imprisonment to be followed at the conclusion of your sentence by a Community Corrections Order also of two years. I order that three months of this sentence be served cumulatively upon the custodial portion of the sentence on charges 3-6. This is a total effective sentence of 21 months’ imprisonment, to be followed by two concurrent community corrections orders, with the following conditions in addition to core conditions: that you participate in assessment and treatment for mental health, and programs designed to reduce reoffending, supervision, judicial monitoring, and for the first six months of the order, you observe a curfew from 10pm to 6am, and you participate in electronic monitoring (six months).
Pre-sentence detention
108 In relation to you, Joshua Clavell, 277 days’ pre-sentence detention is reckoned as served. In relation to you, Joel Clavell, 460 days’ pre-sentence detention is reckoned as served.
Ancillary orders
109 I will make the Disposal orders in the terms sought by the prosecution.
Section 6AAA declaration
110 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that Joshua Clavell, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a total effective sentence of six years’ imprisonment with a non-parole period of four years and three months, and Joel Clavell a total effective sentence of three years with a non-parole period of two years.
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