Director of Public Prosecutions v Clayton

[2019] VCC 1638

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-01047

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN CLAYTON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	9 October 2019
DATE OF SENTENCE:	9 October 2019
CASE MAY BE CITED AS:	DPP v Clayton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1638

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords: Plea of guilty to one charge of causing injury recklessly – delay –remorse - offender has cognitive deficits – drug and alcohol abuse at the time – drug use ceased and alcohol consumption controlled – likely to have stable accommodation and return to previous occupation -    good prospects for rehabilitation.

Fine $1000  with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	OPP
For the Accused	Ms S. Wallace	Stary Law

HER HONOUR: 

1Darren Phillip Clayton, you have pleaded guilty to one charge of causing injury recklessly.  This occurred between 1 and 7 February 2006, when you were living at the premises of your brother and his family.  The complainant was your niece, Kelly, who was then aged about nine years old.  You were then aged about 26.

2One day, Kelly had wet her bed and took the mattress outside to dry. 
You asked her if she needed some help and she said no, but you approached her and kicked her at her buttock.  She put her hand out to protect herself and your foot connected with her left hand, breaking two fingers.  She was taken to hospital for treatment without telling anyone how this had happened.

3There was a long delay before a complaint was made, and you were interviewed by the police in January 2017 in relation to this and other matters which went to trial in June this year and resulted in an acquittal.  You had always intended to plead guilty to this charge and, indeed, I understand that that plea was entered at the time of the trial but was adjourned to be heard at a later date.

4The complainant who is now 23 provided a victim impact statement in which she stated that her hand still hurts in various situations, including cold weather, and she fears this will worsen as she grows older.

5You were born in 1980 and you are now 39.  You have a criminal history dating back to your teenage years and for similar offending when you were 20, you were placed on a Community Based Order, as you also were after that for some other offending.  It appears that you were successful in completing those orders.

6It seems likely that at least some of your past offending may have been linked to excessive drinking of alcohol but there are likely to have been other factors associated with the cognitive deficits that you have.  A neuropsychologist,
Ms Anna McLaren examined you recently and she is of the opinion that these deficits probably affect your ability to judge social situations and to understand risk in those situations.  She thinks you might rush into things without thinking about the consequences of your actions.

7However it has been a long time since you were convicted of an offence – that was in 2004 and you were placed on a Community Based Order. Since then, you have at times been able to reduce your alcohol consumption and you have been able to do so recently after the stress of the recent trial was over.

8Because you have pleaded guilty to this charge at an early stage, you are entitled to a discount on your sentence and I take that into account.  There has been no need for a trial for this charge and that has assisted the progress of the case.

9You have said you never intended to hurt your niece and you still feel as if it was your fault and you feel guilty and responsible.  You have said that you were using drugs and alcohol at the time but drugs are a thing of the past for you now and you understand that you are better off without alcohol.  The fact that you are remorseful is very important because it indicates that you are less likely to offend again.

10The offending occurred about 13 years ago and so the delay is considerable.  That is also a matter to be taken into account mainly because in this case you have not offended during that long period.

11The maximum penalty for this offence is five years' imprisonment.  Depending on the circumstances, it can be a serious offence and of course in this case, the complainant still has ongoing pain from time to time.  However, in the circumstances of this case, it is not an offence which needs to be punished in a serious way by imprisonment or anything similar.

12You have a recent history of stable work and accommodation in a region of Adelaide, where you plan to return soon.  You are able to return to your former work there, I understand, which you had to leave only to come to Bendigo for the court cases.  You intend to arrange through a general practitioner for a mental health plan for psychological assistance with persistent mood symptoms, something which Ms McLaren recommended in her report.

13Both counsel have submitted that a fine is a suitable disposition and given the positive indications for your rehabilitation, I am satisfied that a fine is an appropriate sentence.  It is adequate to satisfy the requirements for deterring others from behaving in this way and yourself.  You have said that you would not do it again for fear of hurting someone.

14Therefore, for the reasons I have just explained, you are convicted and fined $1,000.  I will allow a stay of time for you to pay it and I will speak to Ms Wallace about that in a moment.  If you had pleaded not guilty, I would have sentenced you to a fine of $1,500.

15Are there any other matters that need to be raised?

16MS WALLACE:  No, Your Honour.

17HER HONOUR:  Mr Hayward?

18MR HAYWARD:  No, Your Honour.

19HER HONOUR:  No.  As to a stay, Ms Wallace.

20MS WALLACE:  Your Honour, I will confirm, I believe six months will be suitable, but if I could just confirm with him.

21HER HONOUR:  Yes, certainly.

22MS WALLACE:  Yes, Your Honour, six months would be appropriate, thank you.

23HER HONOUR:  Yes, a stay of six months, that will be noted on the record.

24MS WALLACE:  Thank you, Your Honour.

25HER HONOUR:  Thank you.

26MS WALLACE:  Your Honour, I will have my instructors e-lodge those documents formally, so that they are on the record.

27HER HONOUR:  Thank you very much.

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