Director of Public Prosecutions v Clifton (a pseudonym)
[2019] VCC 1555
•23 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FLYNN CLIFTON (A PSEUDONYM) |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 August 2019 |
| DATE OF SENTENCE: | 23 September 2019 |
| CASE MAY BE CITED AS: | DPP v Clifton (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1555 |
REASONS FOR SENTENCE
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Catchwords: Criminal law - sentencing- aggravated home invasion - theft - – Koori Court – aboriginal offender – participation in sentencing conversation - youth - mandatory minimum - special reasons youth and psychosocial immaturity and substantial and compelling reasons - previous good character- genuine remorse- rehabilitation - application of principles in DPP v Akoka - application of principles in R v Morgan [2010] VSCA - time
served and Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Mr D. De Witt | Greg Thomas Barristers and Solicitors |
HIS HONOUR:
1Flynn Clifton[1], you have pleaded guilty before me to a single charge of aggravated home invasion and two charges of theft. The maximum penalty for aggravated home invasion is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment.
[1] This is a pseudonym name.
2The facts of the matter are set out in the Agreed Summary of Prosecution Opening, which is Exhibit A on your plea and forms part of these reasons for sentence.
3At the time of the offending you were 18 years of age and you have no prior or subsequent criminal history.
4On 10 June at approximately 5.15 am you and your three co-offenders entered your victims' house through a front door, believed to be unlocked. At the time the victims were all asleep. Husband and wife, K and S, and their daughter, five-year-old M, were sleeping in the master bedroom. K's mother, 67-year-old SS, was asleep in the rear bedroom. SS awoke to be confronted by three of your group in the dark. She saw three offenders, one of whom was holding a machete and another holding a stick or baton. All three were wearing hoods covering their heads and she observed them smashing pictures off the walls in the hallway. SS did not speak English and did not understand the demands that were being made.
5Your group then rushed the master bedroom, banging on the wall and demanding keys to the car. S kept saying, 'Take everything and leave', whilst hiding her daughter under a blanket. You took the car keys to the victims' Holden Commodore and subsequently stole the car. Approximately half an hour later you stole petrol for the car at a Caltex service station.
6Subsequent inspection of the victims' house showed that your group had broken pictures off the wall, put a hole in the hallway and ripped the alarm system off the wall. Police also found slash marks in the bedhead. Photographs of the damage were tendered on the plea (Exhibit B).
Interview and Arrest
7On 18 June 2018 you attended a pre-arranged interview at the Geelong police station. You made full admissions. You stated:
·'I was with the boys who kicked down the door. We were running in. It was me who ran into the room first and passed the keys'.
·You said, 'We just counted three and we just ran in’.
·'It was like we walked up to the house and I don't think none of us really had a clue what we were going to do, just do it, so it just happened’.
·'I don't know why I did it. It was all stupid really'.
8It is conceded that you were not carrying a weapon during the incident, nor did you utter any threatening words. You were aware of the use of the machete. Indeed you told Community Corrections that the machete was yours.
Victim Impact
9There were no victim impact statements relied upon, although there can be no doubt that each of the victims has been severely impacted by your offending. Armed and hooded young men bursting into a home at night with malevolent intent is one of the most frightening experiences that one contemplates as a member of our community. This family was defenceless and feared not only for themselves but for their young child as well.
Objective Circumstances of Offence
10The offence of aggravated home invasion carries a maximum penalty of 25 years, which reflects the objective seriousness of the offence. The salient aspects of the offending in your case include the facts that:
·You were in company with three other men;
·The offending took place in the pre-dawn early hours of the morning;
·Disguises were worn and the machete used was a particularly frightening weapon;
·There were persons present, an innocent family including an elderly mother and young child, and you were at least reckless as to their presence prior to entry.
11It is a serious example of the crime of aggravated home invasion with intent to steal, although as your counsel pointed out no one was injured fortunately and the duration of the entry was not particularly long, although such things are relative.
12General deterrence, denunciation and the protection of the community are very important sentencing factors in a case such as this and I have given them appropriate weight in the sentence I will impose.
Personal Circumstances
13You are 19 years of age. You were 18 at the time of your offending.
14You grew up in Geelong. Your parents separated when you were an infant. You lived with your mother. Your mother re-partnered and had two further sons, 10 and 12 years younger than you. You are close with them. You have a half-sister who is younger still.
15When you were aged 15 to 16 your girlfriend fell pregnant and terminated the pregnancy. This caused you considerable distress. Around this time your mother commenced a relationship with a new partner. You and your siblings suffered at the hands of this man, who was a violent drug abuser.
16This relationship was ended by your mother after she discovered that her partner had duct-taped your younger brother, then aged 4, to a chair and also held a knife to your throat. Thereafter your family had to flee to escape the violence of this man as police sought to serve him with an IVO. You relocated to Queensland with your mother and siblings, essentially to support them. This was a particularly disruptive event for you as you were some way into a satisfying and gainful career undertaking a mechanics apprenticeship with Mercedes-Benz in Melbourne.
17It is worth digressing at this point to touch upon your school and working history. You completed your schooling at the conclusion of Year 8. You left school to commence a pre-apprenticeship at Gordon TAFE, which was a six-month course which you completed, and then commenced the apprenticeship with Mercedes-Benz in Melbourne. You were then 16. I was provided with reference material attesting to your work ethic, your commitment to getting up at 4.30 am and travelling to Melbourne from Geelong for work every weekday and your skill, proficiency and dedication in the trade. One such reference was from Vlade Najdovski, AMS Technical Manager at Mercedes-Benz, Melbourne.
18It is not every 16-year-old who would attract such praise and demonstrate such commitment and hard work at that age. You enjoyed the work very much, but you left it due to your commitment to your family and the need to leave the jurisdiction for reasons of safety.
19In Queensland you found it impossible to obtain like employment. You struggled to find suitable work and this depressed you. You elected to return to Victoria and reside with your father, which proved disastrous. You had not had a consistent relationship with your father. As so often happens you saw the prospect of being under some guidance from your father as a positive factor. It turned out not to be the case. You told the court how he introduced you to methylamphetamine at an outlaw bikie venue when you were 16. You had smoked cannabis since you were 12, but your descent into ice addiction destroyed your many positive attributes. You are resentful, understandably, toward your father for the betrayal of trust. I was told and I accept that you were overcome with feelings of hopelessness and helplessness at this time.
20You lived with your father until you turned 18. You undertook casual work in Victoria, house painting, scaffolding; however, you were unable to maintain permanent work due to your escalating drug habit.
21Drug use and addiction was central to your offending. You were using the drug prior to the offence. Your consequential thinking was no doubt affected and your inhibitions no doubt reduced. Unlike many others in your circumstances it cannot be said that you had experience of acting in a criminal way whilst under the influence of illicit substances. You have no criminal history other than the matter before me.
22The best that can be said about the offending on your behalf was that it was impulsive, disorganised and not carefully planned. This of course is no comfort to your terrified victims, who will carry the psychological scars resulting from your actions into the future.
23It is to your credit that you made full admissions as to your participation in the crimes.
Plea of Guilty
24You entered a plea at the earliest opportunity. It has been apparent to me throughout the proceedings and on the basis of the materials tendered that your plea reflects your genuine remorse and acceptance of wrongdoing and the need for punishment, as well as having a utilitarian benefit.
Post-Offence Response
25I am told and accept that you have been free from the drug ice since the commission of the offence. This is very significant.
26You spent two months in custody upon your arrest. Gaol was very difficult for you given your antecedents and your age. You were the youngest in your unit. It was fortunate for you, however, that other Aboriginal men in your unit urged you to seek bail and engage with your heritage in a more meaningful way than you had previously.
27It has been to your great benefit but also instrumental to the steps you have made toward rehabilitation that you have embraced the opportunity to become a young leader in your community. You have discovered purpose, spirituality and pride in your culture and yourself. You have an increased sense of identity.
28Upon receiving bail you went to Bunjilwarra. I received letters from Kylie Weiss, Intake coordinator at Bunjilwarra Koori Youth Alcohol and Drug Healing Service; a letter from Peter Dawson, clinical lead from Bunjilwarra; and a DVD reference from Auntie Helen from Bunjilwarra which was most impressive. I also heard from Uncle Pat Farrant from Bunjilwarra, who spoke of you in very positive terms.
29You had two stints in Bunjilwarra, which is a residential program. You have now spent a total of 200 days at Bunjilwarra.
30Auntie Helen stated that you 'stand out' amongst the young men in that program. You are considered to have exceptional character, otherwise than as demonstrated by this offending. You have the attributes of a future leader.
31Bunjilwarra is a purpose-built 12-bed residential rehabilitation and healing service based in Hastings for Aboriginal young people, male and female, aged 16 to 25 years. Admission is voluntary and the formal program is three months in length. You entered the program under your bail conditions on 17 August 2018 and commenced a residential alcohol and drug recovery program.
32Kylie Weiss writes in October 2018:
Mr Clifton is currently undertaking our structured program that includes the Headspace GP clinic; individual CBT sessions; individual drug and alcohol counselling sessions; NA meetings; psychoeducational groups; individual case management support; regular gym sessions; Landcare; life skills education; the Friday cultural program; didgeridoo meditation and healing; didgeridoo-making workshops; men's business and women's business; and Koori art.
Overall I have found Mr Clifton to be a pleasant, polite and engaging young aboriginal man who has a history of exposure to family violence, experiences of past trauma and alcohol and other drug dependence. Mr Clifton demonstrates a commitment to positive lifestyle changes in order to improve his life for himself and his family.
33Mr Dawson wrote in October 2018 that you had responded well to guidance and support from staff and that you became a respected member of the Bunjilwarra community. He wrote that you had completed the first two stages of the Bunjilwarra program and at that time were participating in the third and final 'Taking a lead' stage, which asks young people to take on additional responsibilities within the program such as supporting new residents. You demonstrated skills in this area and increased insight into your own personal challenges.
34On 9 August 2019 Mr Dawson wrote another letter that was provided to me. Mr Dawson confirmed that you entered the program on bail conditions in 2018 and stayed for over three months between 17 August and 28 November 2018. Mr Dawson states that you contacted Bunjilwarra on 8 January 2019 requesting to be readmitted. You were reintegrated into the program on 29 April 2019 after a short stay at the YSAS Geelong residential detox program. Mr Dawson spoke highly of you and your prospects of rehabilitation.
35During your first residency in Bunjilwarra you secured a casual job with Parks Victoria as an archaeologist. This involved looking for Aboriginal artefacts. Prior to leaving Bunjilwarra you secured full-time employment at Tyrepower in Torquay and you commenced there immediately upon returning to the community. You worked there full-time for four to five months before resigning to return to Bunjilwarra. During this time you set aside money from your wages for the purposes of repaying the damage that was done to the victims' home. During this period you also volunteered each Sunday at Sovereign Hill with your grandmother.
36Since returning to Bunjilwarra you have been offered an ongoing role with Uncle Lyle at 'Living Culture'. This involves travelling with Uncle Lyle to do welcome to country ceremonies, smoking ceremonies, didgeridoo meditation and workshops in Aboriginal culture.
37Whilst on bail outside of Bunjilwarra you have been on very strict bail conditions including a condition that you reside with your mother and a curfew that you remain at that residence between 7 pm and 7 am unless accompanied by your mother. I consider that your participation in the residential program at Bunjilwarra on two separate intakes has been transformative for you. There are signs that your rehabilitation will continue.
38You are a Yorta Yorta and Wurundjeri man. Whilst you have always engaged with and been proud of your culture and heritage, your exposure to the influences at Bunjilwarra has had a profound effect upon you. You are now immensely proud of your culture and you have learnt and discovered much more about your culture and identity. This has given you not only greater understanding of your community and your place in it, but it has given you a strong sense of purpose. This is a very powerful thing for a young man.
39It is clear to me that you have a strong desire to engage further in a deep and spiritual way with Aboriginal culture and your heritage. It is clear you wish to become a leader and a teacher within your culture. The rehabilitative effect of your embracement of your culture was obvious to me during the sentencing conversation. Your future prospects are stronger in light of it. Your connection and sense of identity also reflects the significance of your participation in the sentencing conversation.
Sentencing Conversation
40I consider your meaningful engagement in the sentencing conversation as a mitigating factor. You were challenged by your elders. Your willingness to face the 'shaming' that is an integral part of the process and preparedness to be accountable for your offending was apparent to me. It is acknowledged that participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing. That is particularly so where, as in your case, the participant has sought to reconcile with his Aboriginal heritage and to connect with the enduring mores and values embedded in it.
41I was also able to gain a far more nuanced and multi-layered sense of your remorse, your previous character, your prospects of rehabilitation and in particular the way you are viewed by those who know you: your loved ones, friends and their parents, and support workers you have engaged with. You read out a letter of apology that you had written for the victims. That apology was delivered in a heartfelt and sincere way. I am satisfied that it was genuinely so.
42Your mother and grandmother spoke during the conversation. Their words were important in my assessment of the circumstances of your life, the circumstances that led to your offending, your sound work ethic, your strong prospects of rehabilitation and your remorse. Importantly I was able to see at close range your emotional response to their words.
43I also heard from Moi Ling, whose two-and-a-half page letter dated 22 July 2019 was provided to me. Her display of emotion during the conversation supported in a very powerful way the sentiments expressed in her letter. I was left with a strong sense of your previous character and how the helplessness you felt that led you to drug use and abuse, and the offending that followed, was a pitfall in your life that can be set right.
44My observations of you during the sentencing conversation, and the words spoken by you and others, have supported my findings that your offending was out of character, that you have very good prospects of rehabilitation and that you are profoundly remorseful for your conduct and the impact upon your victims.
Remorse
45Further to your admissions and your response to the charges, and your demeanour during the sentencing conversation, I have received a number of testimonials that speak highly of you and support my finding of genuine remorse.
46Aside from those I have already mentioned, the letters from Piper Franki[2], Annabelle Wawn[3], your grandmother Georgia Woods[4], your uncle Brett Woods[5], Hannah Cranswick[6], Elli Woods[7], your uncle Zac Clifton[8], Tahlia Clifton Woods[9], Ruby Roth[10], Rebecca Rosevear[11] and Blake Wawn[12] all provide insights into your life and character that complemented other material and support my findings that:
(i) You are appropriately remorseful, contrite and ashamed;
(ii) Your offending was out of character;
(iii) You have the support and skills to lead a productive life and to put your offending behind you.
[2] This is a pseudonym name.
[3] This is a pseudonym name.
[4] This is a pseudonym name.
[5] This is a pseudonym name.
[6] This is a pseudonym name.
[7] This is a pseudonym name.
[8] This is a pseudonym name.
[9] This is a pseudonym name.
[10] This is a pseudonym name.
[11] This is a pseudonym name.
[12] This is a pseudonym name.
Youth
47You were 18 at the time of the offending. You are now 19. You have no prior criminal history. You have demonstrated significant steps toward rehabilitation whilst on bail. Notwithstanding your positive attributes and the various protective factors present in your case, I heard evidence from Dr Barth and received a report authored by him setting out your vulnerabilities and challenges (Exhibit 1). Youthful considerations such as psychosocial immaturity and vulnerability to negative peer influences are relevant sentencing factors in your case. In Dr Barth's opinion further adult custody will be detrimental to your mental health and prospects of rehabilitation.
48Whilst the effect of youth is moderated where serious offences such as aggravated home invasion are concerned, there are a constellation of factors in your case - your age at the time of the offence, your lack of criminal history and strong work ethic, which suggests the offending was wildly out of character, and the steps you have made toward rehabilitation whilst on bail - that allow for the factor of youth to be given significant mitigatory effect.
Mandatory minimum non-parole period
49I accept the evidence of Dr Barth insofar as it goes toward a finding that your psychosocial immaturity was a factor in diminishing your ability to regulate your behaviour. I am not satisfied that this factor meets the test for what amounts to a 'special reason' within section 10A(2)(b).
50I am satisfied that special reasons exist that take you outside the operation of section 10A of the Act due to the substantial and compelling circumstances that justify doing so. These circumstances include:
(i) Your age;
(ii) The extent to which I do find your psychosocial immaturity diminished your ability to regulate your behaviour;
(iii) Your pleas;
(iv) Your profound remorse;
(v) Your previous good character;
(vi) Your strong prospects of rehabilitation;
(vii) The residential programs you have completed in two periods at Bunjilwarra and the time you have spent at Bunjilwarra. You have spent 200 days at Bunjilwarra. You were bailed to attend there. I have taken this period into account in my instinctive synthesis of relevant factors in the way described in DPP v Akoka;
(viii) Your discovery of and commitment to your culture and the positive effect this appears to have on your life at present;
(ix) And, importantly, the fact that the Prosecution conceded special reasons.
51Each of these circumstances, and others referred to already, have led me to the view that your case is an appropriate case for the exercise of mercy. I consider that some leniency at this stage of your life will lead to reform, thus the application of some mercy can justify the imposition of a sentence that may bear a little less heavily upon you than if you were to receive your 'just desserts' for your offending.
Parity
52Your co-accused Benjamin Harris[13] and Andrew Jose[14] are yet to be sentenced. Another co-accused, Hugo Tout[15], has been dealt with in the Children's Court but for theft (of motor vehicle) and unlicensed driving only.
[13] This is a pseudonym name.
[14] This is a pseudonym name.
[15] This is a pseudonym name.
53I had you assessed for a Community Corrections Order. The Prosecution conceded that in your case, because of the particular mitigatory factors available to you, a combined custody and community corrections order was within range.
54You have 60 days pre-sentence detention available to you. Whilst there is force in the submission from the prosecutor that the period is insufficient as part of a combined sentence, I have come to the view that in your case all of the relevant sentencing considerations can be met by the imposition of a significant community corrections order in addition to 60 days' imprisonment. I have arrived at that view by taking into account the important factors of general deterrence and denunciation.
55In all of your circumstances, particularly the length of time you have already spent in residential rehabilitation pursuant to bail, your youth, your lack of criminal history, the rehabilitation you have undertaken whilst on strict bail, and your prospects of further rehabilitation, leniency is appropriate to avoid the chance you could be knocked off the rehabilitative path by being further incarcerated.
Sentence
56Those who commit the offence of aggravated home invasion must expect condign punishment for their crime. General deterrence and specific deterrence are important components of the sentence I impose. So too is the community's denunciation of the crimes you have committed and the protection of the community. But I also accept that you are at a critical stage of your journey, hence the merciful sentence I will now impose. You can stand up, Mr Clifton.
57I am imposing an aggregate sentence as the offences formed part of a series of offences.
58On Charge 1, aggravated home invasion, and Charges 2 and 3, theft, you are sentenced to 60 days' imprisonment in combination with a three-year Community Corrections Order.
59You must perform 300 hours of unpaid community work pursuant to that order. Other conditions of the order are that you be subject to supervision, that you submit to drug treatment and rehabilitation programs and that you be assessed for mental health treatment and programs. Up to 75 hours of participation in treatment programs can be credited against your unpaid community work requirement.
60I have not included a specific condition that you must reside at Wulgunggo Ngalu, although I understand that you will reside there and complete at least the three-month program. It has also been recommended by Corrections that you complete as many of the hours of unpaid community work as you can whilst there. It was noted by Corrections that completing unpaid community work in the community may be detrimental to your rehabilitation; however, given the need to impose a sentence that appropriately reflects general deterrence and denunciation, I found it necessary to impose 300 hours of unpaid community work over the course of the order.
61I will also impose a condition of judicial monitoring at 12-monthly intervals, the first being on or about 23 September 2020.
62Pursuant to s.18 of the Sentencing Act I declare that you have served 60 days as pre‑sentence detention.
63I declare pursuant to s.6AAA that but for your pleas I would have imposed a total effective sentence of three years' imprisonment with a non-parole period of 18 months.
64Pursuant to section 89 (4) Sentencing Act 1991 I order your drivers licence be cancelled and disqualified for 18 months from 12 August 2019.
65I make the order for compensation in the sum of $5,000 and note that that was consented to and you have already taken steps to meet that order, as I understand it.
66I make the disposal order sought.
67I make the order pursuant to s.464ZF for the taking of a scraping from your mouth for a forensic sample based on the seriousness of the circumstances of the offending and the fact that the order is by consent and that the order is also in the public interest. I must tell you, Mr Clifton, that if you do not comply with the taking of the forensic sample then reasonable force can be used to enable the forensic procedure to be conducted.
68I am now going to have the Community Corrections Order printed off for your signature. I take it you consent to the order. Yes. You will have a moment just to look at that and I will let Mr De Witt look at it with you just to make sure you understand and then I will say a few more words to you once we have done that.
69I have signed that order. Mr Clifton, before it can take effect you need to sign it. Do you want to step down there with him, Mr De Witt.
70MR DE WITT: Thank you, Your Honour.
71HIS HONOUR: Thank you. You will get a copy of that, Mr Clifton, and I did not make it a condition of the order that you reside at Willunga Ngalu, although I know that is where you are going. I have got no doubt you will complete at least the three-month program and that is going to be - I am quite sure you will embrace it in the same way that you have Bunjilwarra and it particularly, being a men's program and it being all the - not just young Aboriginal men but other Aboriginal men up there that you can engage with, it will be to your great benefit and I am sure you will embrace it in the same way and get as much or even more out of it.
72You have got all the attributes to really make a future for yourself, in particular I was impressed with you apprenticeship, getting up and going up there and doing all that. The other aspect that I was very impressed with was your sense of purpose and identity you found, and no doubt you will pursue that. So those two things together will see you right into the future because, you know, being able to work hard and get something out of work and also having that sense of purpose are going to be great things for you.
73If you breach this order - it is not an easy order. I mean three years, if you breach it you will be back before me to be sentenced. And as it would have been very clear to you from my sentencing remarks, this is a merciful sentence. You know what gaol is like and I am quite sure you do not want to go back there. So you have got a lot of help around you, a lot of support, a lot of love. Use it all.
74Anything else?
75MR DE WITT: No, Your Honour.
76HIS HONOUR: All right, all the best.
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