Director of Public Prosecutions v Clifton
[2017] VCC 888
•29 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01146
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS CLIFTON |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2017 | |
DATE OF SENTENCE: | 29 June 2017 | |
CASE MAY BE CITED AS: | DPP v Clifton | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 888 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – common assault – trafficking in a drug of dependence – commercial quantity – prohibited person – possess firearm – possess silencer
Legislation Cited: Firearms Act 1996; Sentencing Act 1991
Sentence:5 year’s imprisonment with a non-parole period of 2 years and 6 months; Section 6AAA declaration: 7 years and 6 months imprisonment with a non-parole period of 5 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr N Barker | Valos Black |
HIS HONOUR:
1 Marcus Clifton, on 19 June 2017, you pleaded guilty to an indictment containing four charges, being common assault, trafficking in a drug of dependence in not less than a commercial quantity, prohibited person possess firearm and prohibited person possess a silencer. The maximum penalties for these offences are: 5 years’ imprisonment; 25 years’ imprisonment; 10 years’ imprisonment and 8 years’ imprisonment respectively.
2 In addition, you pleaded guilty to three related summary offences, Charges 8, 9 and 10 possessing a prohibited weapon without exemption, being a taser, an extendable baton and OC spray respectively.
3 You admitted your criminal record.
4 Tendered as Exhibit A on the plea was the amended summary of prosecution opening which was read aloud in Court. On 28 November 2015, you were at your home in Portland with your then partner of some 18 months, Ms Werry. You were drinking together and had consumed about half a bottle of whiskey between you. You burnt Ms Werry on the arm with a cigarette. Ms Werry told to stop, but you continued to burn her on the arms and shoulders using a cigarette. You then punched Ms Werry and pinned down on a couch and placed your hands around her throat and squeezed; Charge 1, common assault.
5 Ms Werry did not seek medical attention. However, on 1 December, she attended at the Portland Police Station and made a statement concerning your conduct. On 2 December 2015, police executed a warrant at your address in Portland. Police located 292 grams of 3,4‑methylenedioxy-n-methylamphetamine (MDMA). The MDMA was located in various zip lock deal bags in a sunglasses case, in coca cola cans in the refrigerator, in a PVC pipe, secreted in a flash light that was in a metal box behind a couch and also in a metal tin contained within a hollowed-out book. A commercial quantity of MDMA is 100 grams; Charge 2.
6 During the course of the search, police located and seized an unregistered .22 calibre semi-automatic rifle with a silencer and 87 rounds of ammunition. You did not hold a firearms licence and you were a prohibited person pursuant to s.3(c) of the Firearms Act 1996, as you were subject of a Family Violence Intervention Order, Charges 3 and 4.
7 Police also located a taser, an extendable baton and a canister of OC spray which found the related summary offences, Charges 8, 9 and 10, respectively. The maximum penalty for possessing a prohibited weapon is 2 years’ imprisonment.
8 You were arrested and interviewed under caution and maintained to police that the injuries suffered by the complainant were as a result of consensual kinky sex. In respect to the drug matters, you generally answered “no comment” to questions asked of you. In respect to the firearm, you attributed ownership of that to your partner, Ms Werry. But thereafter generally answered “no comment” to questions put to you by investigators in respect to the weapons found at your house.
9 From the outset, in his plea, Mr Barker of Counsel who appeared on your behalf, acknowledged the only sentence open to the Court was a term of imprisonment. However, he submitted that it should be a sentence that would allow your prompt eligibility for parole.
10 You are forty-eight years of age. You were raised in the Warrandyte area and finished your education at Parkwood High School in Ringwood North, halfway through Year 12. You immediately gained employment with the Westpac Bank. You have one sibling, a sister who is three years younger than you and your mother is still alive. Both were present in Court to support you on your plea.
11 Your father who was self-employed as a taxi truck driver died unexpectedly during surgery in 1987, when you were aged eighteen. After your father’s death, things became very difficult for the family and you took on the role of the man of the house. However, whilst working at Westpac in early 1988, you had a serious motor car accident that left you unable to work for a year. You re-entered the workforce in 1990 and commenced your own business as a painter. I was informed that this business was a successful one. In the same year you met your partner, Abby, and you began living with her in 2000. There are three children born of that relationship; two boys aged fourteen and seven and a girl aged eleven years.
12 At the time of the birth of your eldest son in 2003, your mother suffered a stroke and was unable to work. You used your savings to buy out your mother’s equity in her house and she lived with you, your partner and your family thereafter.
13 In 2010, you suffered a serious back injury from a fall from your roof. You had limited income insurance of $2,200 per month and eventually you incurred credit card debts in the sum of $95,000.
14 Tendered as Exhibit 3 was a report from Dr Peter Hill dated 14 December 2016 together with a radiological report concerning an MRI scan of your lumbar spine. In summary, you suffer from spondylolisthesis and nerve root compression of the lumbar spine, causing chronic severe low back pain. You have narrowing of the L5/S1 disc space that is moderately severe and compresses both exiting L5 nerves. The disc at the L2/3 level is desiccated with a minor disc bulge that indents the thecal sac. Until the time of your arrest, when you went into custody, you were prescribed OxyContin and Endone for your pain.
15 In 2012, unexpectedly and unannounced, your partner, Abby, left you and protracted family law proceedings left you with little or nothing arising out of the financial settlement, other than a debt of $100,000 in legal fees.
16 I was told that you no longer know where your children are.
17 In short, it was put to me that by 2014 your life had spiralled out of control. To your mind, you had lost everything, being the ability to work, your partner and children and any wealth that you had accumulated through your hard work as a painting contractor. You met the complainant, Ms Werry on-line through Tinder and initially lived in Warrandyte before moving to Portland where you were ultimately arrested. It was put on your behalf that your relationship with Ms Werry was totally dysfunctional and based in part on drug abuse.
18 It was put on your behalf that at the time of your arrest, you were abusing heroin, methylamphetamine, MDMA and cannabis as well as abusing OxyContin and Endone that were prescribed to you for pain relief.
19 The charges brought against you in respect to the drugs and firearm and weapons offences are based on the day that the warrant was executed at your home in Portland. To my mind, what the police found on 2 December 2015 is but a snapshot of your drug trafficking activities. It is self-evident, however, that you can only be punished for the charge on the indictment which is limited to one day.
20 As at the date of your plea, you had spent 565 days in pre‑sentence detention. You were arrested and remanded in custody on 2 December 2015. Your matter resolved at committal mention on 18 May 2016 without evidence being called. Your plea was initially listed before his Honour Judge Smallwood sitting at Warrnambool but your pleas were vacated by his Honour. A bail application made by you was refused on 16 December 2016 and the matter resolved for a second time on 15 February 2017. You were arraigned on 23 February 2017 before his Honour Judge Mullaly and your plea was listed in Melbourne for 19 June 2017.
21 Your time in custody has been long and not easy for you. You were subject to the 23 hour day lock down regime imposed on prisoners after the prison riots in 2016. This was particularly onerous for you because you were not permitted, whilst in custody, the opioids OxyContin and Endone that had been prescribed to you whilst you were at liberty. Your only method of pain relief is to keep moving and so maintain flexibility in your back that relieves your pain to some extent, this was almost impossible for you to achieve during the 23 hour lock down regime.
22 Whilst in prison, you have become drug-free. (See Exhibit 4) You work in the library six hours per day and you have been admitted to the Metropolitan Remand Centre school program. (See Exhibit 7) This program enables prisoners to interact with school students to explain to those students the circumstances which brought about each prisoner’s incarceration. In part, the program is designed to provide the students with cautionary tales in the hope that these stories will dissuade them from antisocial or criminal conduct. Additionally, you have undertaken courses whilst in prison. (See Exhibit 5)
23 Tendered as Exhibit 3 was the report of Carla Lechner, psychologist, dated 6 June 2017. Ms Lechner opines that you suffer from a Major Depressive Disorder. Whilst in prison you have availed yourself of the services of Forensicare’s Mobile Mental Health Service and undertook 12 sessions of psychological intervention between 17 May 2016 and 30 August 2016, having been referred to them for depression and chronic pain. According to the contents of the report dated February 2016 (Exhibit 6), you were discharged from the service on 22 September 2016 by mutual agreement.
24 You have the support of your mother and sister and you will live with them upon your release from prison. In addition, you have the support of a number of friends who provided references for you. (See Exhibit 8) Two of the authors of these references were present in Court to support you on your plea.
25 Mr Barker, on your behalf, submitted that whilst in custody you have done all you can to demonstrate that you are attempting to rehabilitate yourself. Further, he submitted that the conduct which founds the charges on the indictment is out of character for you bearing in mind your personal and work history. He submitted that as a result of personal injury which brought about financial pressure on you and your partner, and your partner leaving you unexpectedly your life spiralled out of control. He further submitted that because of your incarceration you have become drug-free, have managed your back injury without any medication, save for Panadeine, and have participated in educational courses, that you work within the prison and that you are endeavouring to educate students not to follow your example. Further, you have support of family and friends. It was submitted, therefore, that your prospects for rehabilitation are good. I accept this submission.
26 I regard each of the offences to which have pleaded guilty as serious examples of their kind. Tendered as Exhibit C on the plea was the Victim Impact Statement of Ms Werry. She was plainly adversely affected by your assault on her. I say no more in respect to the contents of that statement.
27 Trafficking in a drug of dependence in not less than a commercial quantity is a crime punishable by 25 years’ imprisonment. There are few more serious crimes on the criminal calendar. You had in your possession for sale nearly three times the commercial quantity for the drug MDMA. As well, you possessed an unregistered semi-automatic rifle and silencer when you were a person prohibited from possessing any firearm. Crimes of these kinds call for the application of the sentencing principle of general deterrence. Drugs of dependence are the scourge of our modern society. Violence on women by men must not be tolerated in our society. Unregistered firearms represent an ongoing threat to our community.
28 Apart from a prior conviction for violence in 1995, some 26 years ago, you are a man without criminal conviction. You have worked hard all your life. A combination of factors caused you to adopt a lifestyle that you ordinarily would not have. You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you from that plea; namely, its utilitarian benefit and that it is some evidence of remorse. I accept that you are remorseful for your offending.
29 Would you please stand, please.
30 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
31 On Charge 1, I sentence you to 12 months’ imprisonment.
32 On Charge 2, I sentence you to 4 years’ imprisonment.
33 On Charge 3, I sentence you to 12 months’ imprisonment.
34 On Charge 4, I sentence you to 8 months’ imprisonment.
35 In respect to the related summary offences, I sentence you to an aggregate sentence of 3 months’ imprisonment.
36 I order that 2 months of the sentence imposed on Charge 1 on the indictment, together 4 months of the sentence imposed on Charge 4 on the indictment, together with 6 months of the sentence imposed on Charge 3 on the indictment, be served cumulatively upon one another and on the sentence imposed on Charge 2 on the indictment.
37 This results in a total effective sentence of 5 year’s imprisonment and I fix a period of 2 years and 6 months’ imprisonment to be served by you before you will become eligible for parole.
38 I declare that you have spent 575 days by way of pre‑sentence detention.
39 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of 7 years and 6 months’ imprisonment with a non-parole period of 5 years’ imprisonment. You may be seated.
40 You have copies of the ancillary orders there, do you?
41 MS BLACKIE: Yes, Your Honour, I do. I can hand those up, Your Honour.
42 HIS HONOUR: Thank you. I've signed those forfeiture orders. There are three copies of each order, I hand them down. Thank you very much. Are there any other matters that we need to deal with?
43 MR BARKER: No, Your Honour.
44 MS BLACKIE: No, Your Honour.
45 HIS HONOUR: Thank you very much. I'd like to thank counsel for their assistance in this matter. You may remove the prisoner.
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