Director of Public Prosecutions v Clayton

[2017] VCC 590

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00148

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN STEWART CLAYTON

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2017
DATE OF SENTENCE:	12 May 2017
CASE MAY BE CITED AS:	DPP v Clayton
MEDIUM NEUTRAL CITATION:	[2017] VCC 590

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – dishonesty offences and attempt to pervert the course of justice – term of imprisonment to be immediately served imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A McKenry	John Cain, Solicitor for the Director of Public Prosecutions
For the Accused	Mr J Van Arkadie	Victoria Legal Aid

HER HONOUR:

1Dean Stewart Clayton, you have pleaded guilty before me to four charges on the indictment.  One, use false document, one obtaining property by deception, one, handle stolen goods and one, attempting to pervert the course of justice. 

2Each of those charges are serious and that is reflected in the maximum penalties that are prescribed by Parliament and they are ten years imprisonment in respect of using a false document and obtaining property by deception.  Fifteen years imprisonment for handle stolen goods and 25 years for attempting to pervert the course of justice. 

3In addition you admitted your prior criminal history which I note is an extensive one spanning the period from 23 March 1979 until 14 October 2013, and of relevance to my sentencing here today, there are relevant prior criminal convictions for dishonesty offences and in 1993 and 1996 you were convicted of impersonating a member of the Police Force.

4I will proceed to sentence you on the basis of the prosecution opening, the summary of which was read into the transcript at the plea hearing.

5I note you are now 53 and that you were born on 16 January 1963.  It is 53 or 54, so it makes you 54. 

6Charges 1 and 2 involve a course of conduct.  On 10 June 2015 you went to the Vodafone store in Springvale and discussed with a staff member a contract for the provision of a service relating to a new Samsung Galaxy S6 Edge mobile phone.  You were requested by the attendant, Mr Luong, to provide some photo identification and you provided a false police identification which showed your name, photograph and the emblem of Victoria Police and that is the basis for Charge 1, use false document. 

7Thereafter you were successful in obtaining the contract for the Samsung Galaxy S6 Edge mobile phone and that is Charge 2, obtain property by deception being the contract for the provision of the mobile phone.

8It then became obvious that the identification that you had provided was false and the matter was reported to the police.  When they attended your home on 4 August 2015 you readily admitted to the police that the identification was fake. You provided it for the policeman who arrested you. At the time you were arrested, interviewed and released on bail to appear at the Dandenong Magistrates' Court on 18 September 2015.  That then provides the context for the offending the subject of Charges 3 and 4.

9At some stage between 4 August and 18 September 2015 you obtained three blank Monash Health medical certificates from an unknown associate and you knew at the time that the documents were stolen when you received them and that constitutes Charge 3, handle stolen goods. 

10You then filled out one of those certificates and used that certificate which stated that you were unable to attend court because you were scheduled to have surgery on 19 September 2015.  You sought to obtain an adjournment for at least six weeks.  You signed the two certificates yourself, one in the name of Dr Sullivan, and one in the name of Head Nurse Simpson. 

11You went to the Magistrates' Court on 18 September 2015.  You said you were the twin of Dean Clayton and you provided the two false medical certificates to Melanie Tragolovich, a court registrar, and that constitutes Charge 4, attempting to pervert the course of justice.

12On providing the certificates you left the courthouse and the certificates were placed on the court file.  Later that day the court co-ordinator, Ms Sprang, passed on those certificates to a police prosecutor, Leading Senior Constable Chris Capuano, who inspected them and identified a number of errors such that he considered the documents to be fraudulent and that was confirmed following police investigation.

13On Thursday 4 August 2015 police attended upon you and you were arrested and police seized the false police identification.  You were conveyed to the Dandenong Police Station where a record of interview was conducted during which you made full admissions about attending the mobile phone store in Springvale and using the false identification to obtain the new phone.  You knew what you were doing was wrong.

14You were then arrested again, by appointment, on 23 November 2015 at which time you surrendered the two further blank Monash Health certificates to police. During the formal record of interview that was conducted at the time of that arrest you identified yourself from the Magistrates' Court CCTV.  You confirmed that you were aware that the certificates were stolen and that you had purchased them for $100 cash from a former neighbour, and that you had falsely filled in and presented the certificates because you were afraid that you would be held in custody over Christmas, and that you knew it was the wrong thing to do.

15I note in terms of the process that after your arrest you did not appear to answer your bail so you were taken into custody on 22 March 2016. You were bailed on 30 March 2016 but you failed to attend court again, so a further warrant was issued.  You have been in custody continuously since 8 December 2016.

16I note that you are held at Ravenhall Prison and you are the subject of 22 hour lockdown and I accept that your time spent in prison has been onerous whilst awaiting this matter to be dealt with.

17In addition there are other outstanding matters that are to be dealt with at the Dandenong Magistrates' Court subsequent to these matters and they are to be dealt with shortly, on 16 May 2017. There is overlap, to an extent, between that outstanding offending and this current offending.

18In sentencing you, I have had regard to the objective seriousness of the offending.  It is conceded on your behalf that the offences are serious and that is reflected in the maximum penalties prescribed and it is also accepted on your behalf that deterrence, denunciation and just punishment are all important considerations. 

19I have had regard to the context of your offending.  I note that in respect to the offending involving the obtaining of the mobile phone contract photo identification was required in order to enable you to obtain that contract. You produced the non-genuine form of identification as photo identification because you do not have any legitimate photo identification, such as a driver's licence.

20It is noted that you also produced on that occasion other legitimate forms of non-photographic identification that detailed your individual personal details, namely, your Medicare card, Westpac Bank card and a Centrelink card.

21I was also told in the course of the plea hearing that, notwithstanding it being ascertained that the photo identification was false, that the Vodafone contract continues and there has been no actual potential financial loss suffered as a consequence of your criminality. 

22In respect to the handling of the stolen goods.  You were fully aware that the certificates were obtained unlawfully, and notwithstanding that, you purchased those stolen medical certificates from an associate for a sum of $100 and thereafter you used those non-genuine medical certificates in order to persuade the court registrar to adjourn your court matter for approximately six weeks.

23I repeat my discussion in the plea hearing with counsel that I consider, notwithstanding it is a very serious charge, namely, attempt to pervert the course of justice, having regard to the broad spectrum of conduct that can be reflected in this type of charge, I consider that this offending is at the lowest level of this type of serious offence and you will be sentenced on that basis accordingly.

24I have had regard to the matters put in mitigation.  You entered your pleas of guilty at the earliest opportunity.  There is real utility in your pleas.  You have spared the community the expense and inconvenience of a trial and you have facilitated justice.  Your sentence will be discounted accordingly.

25I have also had regard to your level of co-operation.  You were fully co-operative with police at the time of your arrest in respect to both sets of offences and you made full admissions relevant to the offending. 

26In terms of your prior criminal history you do, as I said earlier, have a lengthy prior criminal history, but I accept the context for that history has been and is continuing to be. The difficulties that you endured as a young man when you lost your parents - your mother to pancreatic cancer and you father, who was murdered - at a very young age which made you vulnerable and led to you using drugs. The tragedy has been that, since an early age, you have been in and out of the prison system as a consequence of your criminal activities some of which have resulted in lengthy periods of imprisonment.

27I do not propose to go into any detail in respect to the report that was obtained from the psychiatrist given that he made findings that you do not suffer from any major psychiatric illness. Dr Leon Turnbull's report was exhibited at the plea hearing.  But I have had regard to his report which details in great length your personal history and background.

28I have also noted that there was a further context to your offending.  You, as I said, have been in and out of gaol over many, many years.  You have formed relationships at times of your release, and at around the time of the offending the subject of the attempt to pervert the course of justice charge, you were in a relationship with a woman, Debra Handley who suffered serious mental health issues and drug use which sometimes resulted in suicidal ideation. 

29I accept the submissions made on your behalf that your motivation for your offending in this regard was because you were concerned about her well-being and you thought that if you did not get your adjournment that she would be alone over that period and be at risk and that explains, to an extent, why it was that you did what you did when you attended the Dandenong Magistrates' Court with the false certificates. 

30However, that in no way excuses your behaviour and obviously your actions were calculated to attempt to subvert the court processes by seeking to gain an adjournment using the false medical certificates.  It was only because of the diligence of the co-ordinator and the police prosecutor that your criminality was exposed but overall, I am satisfied it is not the most serious example of this sort of offence. Nonetheless, it still constitutes an attempt to pervert the course of justice.

31It is important for the court to emphasise both general and specific deterrence in your sentence. 

32I must impose a just sentence and on behalf of the community I must formally denounce what you did as being wrong.  I have to have regard to the totality principles, not only in respect to the conduct that is reflected in the indictment, but also in respect to the other matters. 

33I propose to impose a short term of imprisonment to reflect the criminality involved.  I was assisted in my task by the provision of some sentences that have been imposed by judges of this court in respect to the charge of attempt to pervert the course of justice, however as discussed with counsel during the plea hearing, I consider that many of those other examples can be distinguished.  They represent more serious examples of this serious offence. 

34I have, in your case, had regard to your prior criminal history, the history of dishonesty and the fact that you have had relevant priors in the past, in my overall assessment of the most appropriate punishment. 

35Could you please stand now, Mr Clayton.  In respect to Charge 1, use false document, you will be convicted and sentenced to three months' imprisonment.

36In respect to Charge 2, obtain property by deception, convicted and sentenced to three months' imprisonment.  Those two sentences will be concurrent upon each other.

37In respect to handling the stolen goods, Charge 3, you will convicted and sentenced to three months' imprisonment.

38In respect to Charge 4, attempt to pervert the course of justice, you will be convicted and sentenced to four month's imprisonment.

39I make the following orders for cumulation.  One month of the sentence imposed in respect to Charge 1 and one month in respect to Charge 3 will be cumulatively upon each other and upon the sentence imposed on Charge 4, so that makes a total effective sentence of six months' imprisonment.

40I make the following s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of 12 months, to serve nine months.

41I make the following declaration for pre-sentence detention. 

42I declare that you have served 163 days of the sentence that I have just announced and direct that that be entered into the records of the court. 

43I make the disposal order sought.  That was the only ancillary order; was it not?

44MR McKENRY:  Yes, Your Honour.

45HER HONOUR:  Have you got that disposal order here, so I can sign it?

46MR McKENRY:  I do.

47(Order signed.)

48HER HONOUR:  Mr Clayton can be taken back downstairs.

49OFFENDER:  Thank you, Your Honour.

50HER HONOUR:  Thank you. 

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