Director of Public Prosecutions v Clayton (a pseudonym)
[2023] VCC 548
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTION |
| v |
| ROBERT CLAYTON (A PSEUDONYM) |
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JUDGE: | His Honour Judge Chettle | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July - 2 August 2022, 23 January 2023 – 31 January 2023 and 15 March 2023. | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Clayton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 548 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – common assault, rape, contravene conduct condition of bail, possess prohibited weapon without approval, possess cartridge ammunition without a licence, make threat to kill, recklessly cause injury, possess cannabis, possess drug of dependence.
Legislation Cited: s6AAA Sentencing Act
Cases Cited:
Sentence:Imprisonment Total Effective sentence 10 years 6 years and 6 months non-parole period. Forfeiture and disposal orders. Aggregate fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hayward Ms U. Ramachandran | Ms L. Watson, Office of Public Prosecutions |
| For the Accused | Ms S. Joosten Mr T. Battersby | Ms K. McFarlane, McFarlane Criminal Lawyers |
HIS HONOUR:
1
Robert Andrew Clayton[1], you have been convicted by a jury of two charges of common assault and one charge of rape on indictment K12867206.2B. At a subsequent trial on indictment K12867206.2D you were convicted by a jury of three charges of common assault, two charges of made a threat to kill,
one charge of causing injury recklessly. You then pleaded guilty to two charges of possession of a drug of dependence on indictment K12867206.2E and finally you pleaded guilty to three related summary offences of contravening bail conditions, possess prohibited weapon and possess cartridge ammunition.
[1] A pseudonym.
2 Turning to the facts of your offending. You had been in a relationship with Danielle Cookson[2] since late 2017. You lived in premises owned by your mother in regional Victoria[3] and Ms Cookson spent most of her time living with you at that address. Your relationship deteriorated over time and Ms Cookson gave evidence of violence and controlling behaviour that pervaded that relationship. Both you and Ms Cookson regularly abused methamphetamine.
[2] A pseudonym
[3] A pseudonym
3 In about June or July of 2019 in the winter, there was a day when you argued with Ms Cookson about money owed to an associate. Ms Cookson ended up going to a pokies venue[4]. She played the machines and smoked cigarettes. On an occasion when she was outside the venue she asked another patron, an Aboriginal man, for a light for her cigarette. You were walking past the venue on the other side of the road and apparently saw Ms Cookson talking to the man outside the venue.
[4] A pseudonym
4 A short time later Ms Cookson returned to your residence. She walked in the front door into the lounge when you suddenly grabbed her and violently pushed her back against the wall so that her head banged against the wall. You were yelling, 'Are you setting me up'. She protested and you were swearing and saying, 'Fucking bullshit, I saw you talking to Abos'. You pushed her to the floor, put your arms around her neck and choked her. She couldn't breathe.
5 Somehow, she was moved to a bed in the lounge room, you ripped off her jeans and her underwear, the underwear tore into her flesh on her upper thigh cutting her and leaving a scar. You then unzipped your pants and said, 'I'm gonna give you what you want again'. You forcefully penetrated her vagina with your penis. She was crying and you told her to shut up and said, 'You like it'. Ms Cookson was mumbling stop and she was not consenting to your penetration of her.
6 Your pushing her head into the lounge room wall is the basis of Charge 1, common assault. Your choking her with your arm is the basis of Charge 2, common assault. And your penetration of Ms Cookson with your penis is the basis of Charge 4, rape. You were acquitted on Charge 3, common assault by the jury.
7 After you raped Ms Cookson, you realised that you had cut her when tearing off her clothes and apologised to her and said that you would buy her new underwear. Ms Cookson put her jeans back on, lay on the bed and went to sleep.
8 In mid-2019 Ms Cookson fell pregnant to you. You both became aware of her pregnancy on the day of a friend's 21st birthday in September 2019. You both used methamphetamine that day and then attended the birthday party. After a while you both returned to your property and consumed further methamphetamine before returning to the party and eventually coming back to your home about 2 am the next day.
9
The following morning you went out together to KFC for lunch and eventually you both found yourself home in your property. You became animated and hostile about the apparent loss of $70 or $75. You believed
Ms Cookson had taken that money. You became enraged, you ripped apart
Ms Cookson’s handbag, were screaming, trashing the lounge room, and pouring alcohol over Ms Cookson.
10
You punched her to the face with a fist and threw her to the floor. You smashed a marble chopping board near her head and said, 'I'm gonna kill you, where's the fucking money'. You grabbed her by the hair and slammed her head into the ground and spat in her face. The couch was flipped over her body but her head and legs were exposed. You stomped on her neck with your foot telling her that you will kill her if she didn't stop screaming. You attempted to put her in a choke hold to silence her screams. You tried to choke her but couldn't do so because she blocked you. You took a sharp implement of some kind and cut the side of her left knee leaving a scar depicted in the photographs
Exhibit D. Ms Cookson was unable to remember how your assault upon her ended.
11
Your punch to her face is the basis of Charge 1, common assault. The threat to kill her when the chopping board was smashed is the basis of Charge 2.
Your pressing her neck with your foot founds Charge 3, common assault and the related threat to kill founds Charge 5. Your attempt to choke Ms Cookson is the basis of Charge 4, common assault, and your cutting Ms Cookson’s knee with a sharp object is the basis of Charge 7, causing injury recklessly. That charge was an alternative charge to Charge 6 upon which you were acquitted by the jury.
12 In November 2019 Ms Cookson made a statement to the police about allegations of rape and physical assault by you. Police arrested you at your home on 5 November. When police attended on that day Ms Cookson was present at your home. Her presence breached a bail condition imposed on you on 1 November 2019. She had gone to your home after attending a party across the road from your place.
13 When your house was searched police located a set of knuckle dusters, a small quantity of cannabis and a small amount of methylamphetamine. Subsequently, Ms Cookson located items in her packed belongings that did not belong to her and handed to the police four shotgun cartridges and three loose bullets. These facts are the basis of the indictment K12867206.2E and the related summary offences to which you pleaded guilty.
14
Your victim has completed a victim impact statement, Exhibit B on your plea. She is physically and mentally and emotionally damaged by your offending. She requires therapy, suffers night terrors, anxiety and panic attacks. The protracted court proceedings have exacerbated her stress level. She states,
'I will never forgive Robert[5], but I do forgive myself and I know I never deserved what I went through'. I take the victim impact statement into account in sentencing you.
[5] A pseudonym
15
You have admitted a prior criminal record between September 2002 and
May 2018, you amassed 69 offences from 15 court appearances. In April 2003 you were sentences to 12 months imprisonment to be served by way of an intensive corrections order for the offences of false imprisonment, intentionally causing injury and recklessly causing injury.
16 In December 2003 you were fined $3000 for possessing a controlled weapon. In February 2004 you were sentenced to two months imprisonment suspended, for offences of reckless conduct endangering serious injury, using an unregistered firearm, carrying and use of loaded firearm in a town and other charges. You breached the intensive corrections order imposed in 2003 and was sentenced to 57 weeks imprisonment. In 2010 you were imprisoned for assault with a weapon causing injury recklessly and other offences.
17
Most significantly, on 19 December 2012 you were sentenced to four years and six months imprisonment with a non-parole period of three years in the
County Court at Melbourne for offences of aggravated burglary, intentionally causing serious injury, intentionally damaging property and using a controlled weapon. That offending involved you acting extremely violently in a rage. The sentencing judge said, 'Your criminal record shows a long and persistent pattern of offending for violence and use of weapons. This raises specific deterrence as a matter to receive consideration in this sentence. You need to understand that violent activity by you only results in the loss of liberty for you'. His Honour concluded his sentencing remarks by saying you, 'You are nearly 30. You are going to have to turn your life around or you're going to spend a hell of a lot of time in gaol. It's up to you'.
18 It is apparent that you have failed to heed the advice given by His Honour. You fall to be sentences as a serious violent offender in respect of the each of the threat to kill charges. I need to protect the community from you and can impose a disproportionate sentence to achieve that result, I am not going to do so. I can adequately protect the community with the sentencing options otherwise available to the court. I do, however, direct that it be recorded in the records of the court that you have been sentenced as a serious violent offender on Charges 2 and 5 on indictment K12867206.2D.
19 Insofar as your conviction for rape on indictment K12867206.2B is concerned, you fall to be sentenced pursuant to the standard sentencing regime. The standard sentence proclaimed by parliament is 10 years imprisonment. I must have regard to the standard sentences as one of the factors relevant to sentencing you. The standard sentence is the appropriate sentence for the middle of the range seriousness offences, taking only the objective factors into account and the objective factors affecting the relative seriousness of that offence.
20 A standard sentence is to be viewed as a legislative guidepost in the same manner as the maximum penalty for that offence. In determining current sentencing practices, the court can only have regard to sentences imposed subject to the standard sentencing scheme. The prosecution helpfully provided three examples of such sentences, two of those, however, related to pleas of guilty and the one trial sentence saw the Court of Appeal impose individual rape sentences of eight years and six months imprisonment.
21 Turning to your personal circumstances you are now 40 years of age being born on 20 January 1983. Your history is set out in the submissions of your counsel, Exhibit 1, and the psychological assessment of Sandra Cockarillo, Exhibit 2.
22 You grew up in the Frankston area, raised by your mother after your parents separated when you were an infant. You have an older brother and an older half-brother and sisters. Your mother re-partnered when you were 3 and you reported with frequent family violence in that relationship. You left school at Year 9 level. At age of 16 you left home. You stayed with different friends, experiencing periods of homelessness.
23 You rented your home in regional Victoria from your mother 15 years ago. You have not worked for over 20 years relying on Centrelink payments.
24 You have had two relationships, the first for 10 years from 2003, produced three children now 18, 16 and 15. They live with your mother in Tasmania, although you maintain phone contact with them.
25 Your second relationship was of course with Ms Cookson for some two years. You have a daughter from that relationship, but you have no contact with her.
26 Your life has been plagued by drug abuse, you drank alcohol from age 11, chromed as a teenager and regularly used cannabis. You have abused heroin and amphetamines for 25 years and you had a daily methamphetamine habit for over 10 years.
27
Your childhood experiences of violence and long-term drug use have been instrumental in your depression and anxiety conditions. Psychologist,
Sandra Cockarillo, reports that you suffer from generalised anxiety disorder and persistent depressive disorder. Those conditions have made and will continue to make your time in custody more onerous for you and I take that into account in sentencing you. I also accept that your conditions may be adversely impacted by your continued incarceration. I also accept your counsel's submission that given your offending involved offences against the one victim over a period of a few months, principles of totality have application in your case.
28 There has been some delay, predominantly caused by the COVID pandemic in finalising your cases. That delay has caused your stress and anxiety. You faced three trials as a result of a ruling of this court and the resultant delay and the stress it has caused you are matters which I take into account in sentencing you.
29 Finally, I accept that COVID-19 has made your time on remand and is likely to make your future incarceration more onerous. There are reduced visits, loss of programs, lockdowns and quarantine periods that all make your imprisonment more onerous and mitigate the sentence to be imposed in your case.
30 That said, your offending was extremely violent. You brutalised and raped the person you claimed to love. You viciously attacked and threatened her when she was pregnant. Your moral culpability in my view is high. Principals of general deterrence and denunciation are significant facts in your case. You also need to be specifically deterred from repeated offending in the future.
31 Given your significant criminal history and the repeated violent nature of your offending, I regard your prospects for rehabilitation as grim. You have absolutely no remorse for your violent offending. On all charges you are convicted. On indictment 12867206.2B Charge 1, common assault, you are sentenced to six months imprisonment. Charge 2, common assault, you are sentenced to six months imprisonment. On Charge 4, rape, you are sentenced to eight years and six months imprisonment. I order that three months of each of the sentences on Charges 1 and 2 be served cumulatively on Charge 4, the base sentence on that indictment. That is an effective term of imprisonment of nine years on that indictment.
32
On indictment 12867206.2D on Charge 1, common assault, you are sentenced to six months imprisonment. Charge 2, threat to kill, you are sentenced to
nine months imprisonment. On Charge 3, common assault, you are sentenced to nine months imprisonment. On Charge 4, common assault, you are sentenced to three months imprisonment. On Charge 5, threat to kill, you are sentenced to 12 months imprisonment and on Charge 7, recklessly causing injury, you are sentenced to nine months imprisonment. I order that
three months of each of the sentences imposed on Charges 2, 3 and 7 be served cumulatively on the sentence imposed on Charge 5, the base sentence on that indictment. That is an effective term of imprisonment of one year and nine months on that indictment.
33 On indictment 12867206.2E Charge 1 and Charge 2, the two charges one of possess cannabis and one of possess methamphetamine you are fined an aggregate sum of $500 on both charges. On the related summary offences of contravening bail conditions, possession of a prohibited weapon and possessing cartridge ammunition, I impose an aggregate term of imprisonment of one month. I indicate that pursuant to s6AAA but for your pleas of guilty on those matters, I would have imposed a sentence of two months imprisonment.
34 I direct that 12 months of the sentence imposed on indictment 12867206.2D be served cumulatively on the sentence imposed on indictment 12867206.2B. That is an effective total term of imprisonment of 10 years and I order that you serve six years and six months of that sentence before being eligible for parole.
35 HIS HONOUR: What's the current PSD?
36 MS JOOSTEN: Your Honour it's 1247 days not including today's date.
37 HIS HONOUR: I declare that 1247 days of the sentence that I have just imposed, not including today, has already been served by way of pre-sentence detention. I make the ancillary orders sought by the prosecution.
38 HIS HONOUR: Anything else?
39 MS JOOSTEN: Nothing Your Honour.
40 MR HAYWARD: Nothing from me.
41 HIS HONOUR: All right, terminate the link please.
42 MR HAYWARD: As Your Honour pleases.
43 HIS HONOUR: All right I'll adjourn until next Wednesday.
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