Director of Public Prosecutions v Klaver

[2024] VCC 1799

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01685

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN KLAVER

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF SENTENCE:	24 October 2024
CASE MAY BE CITED AS:	DPP v Klaver
MEDIUM NEUTRAL CITATION:	[2024] VCC 1799

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING

Catchwords:          Reckless Conduct Endangering Serious Injury – Sentence following verdict – high speed chase – victim unknown to defendant – upper-mid range of offending – no Verdins – childhood deprivation – poor prospects of rehabilitation – concurrency with other offending – principle of totality – deterrence and denunciation – community protection.

Legislation Cited:         Sentencing Act 1991.

Cases Cited:DPP v Klaver [2024] VCC 423; Brown v The Queen (2020) 62 VR 491; Bugmy v R (2013) 169 CLR 571; DPP v Herrmann [2021] VSCA 160.

Sentence:  2 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms N. Jayasuriya	Victoria Legal Aid

HIS HONOUR:

Introduction

1Martin Klaver, you have been found guilty by jury of one charge of conduct endangering persons which has a maximum penalty of five years' imprisonment.

2In the early hours of 27 November 2021, Stephanie Johnson and her friend Jason Hedges were driving down Archer Street in Shepparton. You began to follow them in a black Mitsubishi 380 sedan. You continued to follow them as they turned left into Doyles Road and then right at River Road. Ms Johnson became fearful and pulled into a driveway hoping you would drive past. You did not. She pulled out of the driveway, and you drove towards her at a speed exceeding 160 kilometres an hour. She became scared and accelerated away from you, reaching a speed in excess of 160 kilometres an hour. You continued to pursue her. You rammed her car approximately three times. You were both travelling on a narrow, dark country road when your car rammed hers. This is the reckless conduct endangering serious injury which grounds Charge 1.

3Stephanie Johnson saw a traffic control vehicle and pulled over. She asked two roadworkers to call the police. You pulled up alongside her car and glowered at her for 10 to 15 seconds without saying anything. You sped off before the police arrived. You did not know her or her friend.

4You were arrested on 14 December 2021 and interviewed in relation to this incident on 15 December 2021. You represented yourself at trial and a jury unanimously found you guilty on 6 August 2024.

5At trial you asserted that Ms Johnson and Mr Hedges were not in the car at the time you pursued them on Doyles Road and River Road. You put to these witnesses that Ms Johnson’s car was being driven by a buff, olive-skinned man in his 30’s who had a 14-year-old runaway in the passenger seat. You insisted on being provided with the body worn camera footage taken by the police officer who attended the scene. That footage depicted Mr Hedges, the damage to the rear of Ms Johnson’s car and Ms Johnson looking distraught. Ms Johnson and Mr Hedges spontaneously volunteered their accounts of your attack on them to the attending police officers. These accounts were recorded on the body worn camera footage. Their accounts were utterly consistent with their evidence at trial. The footage, produced at your insistence, irreparably undermined your version. The jury deliberated for 30 minutes before finding you guilty.

6For your version to have been true, Ms Johnson needed to have lent her vehicle to the olive-skinned man who then found himself being buffeted by your car on a dark and isolated stretch of country road. Having survived your attack on him and his 14-year-old passenger, the buff olive-skinned driver was required to return the damaged car to Ms Johnson, explain to her what had happened on River Road, provide her with a reasonable description of you and dispatch her and her companion to the site of the roadworks to await the arrival of police so that she could pretend to them that she had been the one attacked. She was required to make very good time to get to the site before the police arrived given the time it would have taken the buff olive-skinned driver to escape you and complete his round trip. This scenario, which had no apparent upside for Ms Johnson, required a logic marinated in conspiracy theories, science fiction and alternative reality. You encountered a Shepparton jury tethered to the here and now. By its verdict, the jury accepted the evidence of the car’s owner and her companion. It rejected your account.

7You made a number of counter-intuitive forensic decisions during your trial. Having discussed with you the dangers of introducing the subject matter of your last trial which resulted in findings of guilt, you nonetheless introduced into evidence the fact that you had been charged and convicted of supplying drugs to a child. You alerted the jury to the fact that you were evading police in the aftermath of this offending, and you told them that you were serving a sentence. You told the jury that you would continue to pursue this case upon your release from custody. You insisted that a number of police officers who had given evidence against you at your last trial be made available for questioning at this trial. The prosecution obliged and you duly cross-examined in your past offending against a 14-year-old ward of the State. It appeared that you were anxious to relitigate that trial by manipulating this one. You were keen to assert that your motive in supplying drugs to a child was altruistic: if you did not provide her with methylamphetamine, she was likely to trade sexual favours for drugs. A number of text messages passing between the two of you were produced at your last trial and they established that you sought to trade drugs for sex with her or the performance by her of sexual acts for your gratification.

8In your closing address, you told the jury that the prosecution had approached you and had offered you a deal whereby if you pleaded guilty to a lesser alternative you would not need to spend any additional time in custody other than the sentence you are presently undergoing. You explained to the jury that you were a man of principle and that although it would have been expedient to take this offer, your scruples prevented you from accepting a version that assigned no role to the buff olive-skinned man or the 14-year-old runaway. The net effect of this submission is that you are prepared to serve additional time in custody.

9Although it was never cogently articulated, your defence appeared to be one of emergency or defence of another. You insinuated that you were concerned about the designs the buff olive-skinned man had on his 14-year-old passenger. You were concerned to ensure she came to no harm. You pursued this end by driving at over 160 kilometres an hour, ramming the car she is said to have occupied three times on a dark, narrow country road.

10You submitted to the jury that Ms Johnson was lying in her evidence, as was Mr Hedges. You argued that there was no damage to Ms Johnson’s vehicle. You told the jury that Ms Johnson was endeavouring to recoup $7,000.00 in repairs to her car by falsely claiming that you, a stranger to her, had struck the rear of her car. You told the jury that her car must have been damaged elsewhere and she was trying to make you criminally responsible for damage caused by someone else. For good measure, you traduced her by falsely claiming to the jury that she was a well-known 'meth addict.' That is not an allegation you were brave enough to confront her with when she gave evidence. She was a very impressive witness. She would have made short work of that transparently bogus assertion.

11There are no victim impact statements. I have had regard to Ms Johnson’s evidence and Mr Hedges’. I have also reviewed the shock and disbelief both registered when asked by police at the scene to recount what they had just undergone. Your offending has had an indelible impact on them. You subjected them to a terrifying ordeal.

Personal Circumstances

12Your personal circumstances were summarised in the psychological report of Ms Carla Lechner tendered at your plea.[1]

[1] Psychological Report of Ms Carla Lechner dated 9 February 2024 (‘Lechner Report’).

13You were born in Kyabram. You are the youngest of three children born to Marie and John Klaver. Your parents separated when you were 10 but maintained an on-again-off-again relationship before reconciling when you were 16. You told Ms Lechner you maintain a close relationship with your mother and sister but are not close with your father and have no contact with your brother.

14You attended Moama Primary School and described yourself as a good student. You were required to repeat Grade 1 due to undiagnosed hearing problems. Ms Lechner believes you also appear to have presented with symptoms of ADHD that have persisted into adulthood. You attended a number of technical schools before leaving at age 16 when your family moved to Shepparton.

15You reported working several labouring jobs mostly involving the cold storage of fruit. You enjoyed the frenetic industry of the fruit season compared to the boredom and indolence you experienced during the 'off-season'.

16You have had two significant romantic relationships in your life, the first with a woman named Nicole which lasted eight years and produced a daughter, Madison. Your next relationship was with a woman named Bridget, from whom you separated in 2015. You have two boys of that union, Patrick and James. You reported to Ms Lechner that both relationships ended after you discovered each of your partners was unfaithful. Your breakup with Bridget devastated you.

17Since then, you have effectively unravelled, you have been on the fringes, living rough, unemployed and abusing methylamphetamine. I am unable to determine whether you were methylamphetamine-affected whilst pursuing Ms Johnson’s car, but your conduct was very odd and unhinged.

Defence Submissions

18You were represented by Mr McLennan at your plea hearing. Mr McLennan submitted that the principle of totality ought to be given significant weight as a sentencing consideration, having regard to the date of your offending which occurs during the same period as the offending for which you have already been sentenced by Wilmoth J.[2]

[2] DPP v Klaver [2024] VCC 423 (‘Klaver’).

19Had you pleaded guilty to this charge, you would have been sentenced for it by Wilmoth J when she sentenced you after a jury had convicted you of supplying a drug of dependence to a child, grooming for sexual conduct with a child and stalking. That offending occurred throughout 2021. Wilmoth J noted that the texts you sent to your child victim were expressed in 'grossly crude and confronting language’.[3] She observed that you were constantly under the influence of methylamphetamine in this period. It might be true that totality would have operated to render the sentence for this offending substantially concurrent with the five-year, three-month sentence Wilmoth J imposed on 6 March this year.

[3] Ibid, [29].

20However, you did not plead guilty. In electing to stand your trial, you have forfeited the opportunity of substantial concurrency. I am, nonetheless, constrained by the principle of totality, I must ensure you do not receive a crushing sentence.

21That said, this is stand-alone offending. Although committed at the tail end of the spree for which Wilmoth J sentenced you earlier this year, the subject matter is very different, and you have not relied on your methylamphetamine use to explain your driving. This episode of aberrant driving is not therefore part of a course of conduct or sufficiently well linked to your earlier offending that the sentence you would have received for it, had you been sentenced in May this year, is one that would necessarily have attracted substantial concurrency.

Prosecution Submissions

22Mr Moore submitted on behalf of the Crown that a further term of imprisonment is required in all the circumstances. He submitted that there was no reason for your attack on Ms Johnson’s motor vehicle on a dark night on a lonely road.

Objective Gravity and Moral Culpability

23Mr McLennan conceded that the offending was serious and endangered both occupants of the vehicle. Mr Moore submitted that the offending was a terrifying ordeal. Ms Johnson and Mr Hedges were completely unknown to you. They were targeted in a protracted and terrifying road rage incident. Your offending is in the mid to upper mid-range.

Verdins

24Mr McLennan submitted that your diagnoses of major depressive disorder and adult ADHD enliven Limb 1 of Verdins.

25Mr McLennan relied on the report of Ms Lechner dated 9 February 2024. Ms Lechner found that you presented with symptoms of stimulant use disorder and major depressive disorder. She made a provisional diagnosis of adult ADHD. On 6 March this year, Wilmoth J wrote:

'The indications of ADHD in the provisional diagnosis noted by Ms Lechner suggest a high likelihood that impulsivity and lack of consequential thinking contributed to your offending, combined with the effects of drug use.  While you indicate a clear understanding of right and wrong behaviour, your impulsivity and lack of insight help to explain your criminality but does little to reduce your culpability.'[4]

[4] Ibid, [41].

26Ms Lechner’s report was commissioned to address the offending for which you were sentenced by Wilmoth J.[5] It does not posit any causal connection between your diagnoses and this offending.  As to the future impact of your mental health conditions, Ms Lechner notes that you are impulsive and intolerant. That is true, but these observations fall short of enlivening Limb 1 of Verdins.[6]

[5] Lechner Report (n 1) 1.

[6] Brown v The Queen (2020) 62 VR 491, 507-8 [59]-[62].

Bugmy

27It was submitted that your upbringing lowers your moral culpability in the general sense identified by the court in Bugmy.[7] Your reported exposure as a child to your father’s alcoholism was relied on and your home life was said to be dysfunctional. The prosecution submitted that as there was no evidence of actual violence against you by your father and you subsequently reconciled with him, returned to his home and lived under his roof as an adult, the deprivation required to enliven Bugmy is not present in your case. I am prepared to accept that your upbringing was marked by dysfunction enlivening Bugmy. However, the extent to which your moral culpability is lowered for this offending is modest.

[7] Bugmy v R (2013) 169 CLR 571, 594-5 [40], [43]-[44]; DPP v Herrmann [2021] VSCA 160, [36]-[38].

28You reported to Ms Lechner that there was tension in your household growing up due to your father’s persistent infidelity and drinking. You reported he would threaten to put you and your brother 'through walls' and that you feared him. You were also worried about your mother’s safety, as your father apparently had people patrol around the home to ensure she was not seeing anyone else.

29No connection was drawn between your upbringing and this offending specifically, however, I accept it has had some impact on your development, entitling you to a slight reduction of your moral culpability in the general sense.

Prospects of Rehabilitation

30It was submitted that you tried to complete two courses whilst on remand, but you failed because you contracted Covid-19 and you needed to appear in court regularly for pending matters. It was also submitted that upon your release you intend to distance yourself from previous bad influences and live with your mother. She wrote a sweet, sad letter on your behalf. I am sure she has written often to courts on your behalf. I am sure she is a fine person who has been bewildered and heartbroken by the turn your life has taken. She will do whatever she can for you upon your release. As to your claim that you intend to distance yourself from bad influences, you were alone behind the wheel of your car when you offended against Ms Johnson and Mr Hedges. Throughout 2021 you abused methylamphetamine and encouraged a vulnerable 14-year-old to abuse it with you. You are 47 years old. You are solely responsible for the appalling life decisions you make.

31That said, you have a decent history of employment, having worked for several years with fruit. You can hold down a job, you can work co-operatively with others, and you can, presumably, take direction. These are positives in assessing your potential to reform.

32However, you have a substantial criminal history peppered with persistent breaches of court orders. You are either unwilling or unable to comply with orders. You appear to rail against authority figures. You continue to nurse a paranoid, baseless grievance with the police and that was your primary motivation in contesting this charge. You vowed to the jury to continue your fight. If so, you will continue to collide with authority upon your release, you will attract more charges and you will continue to fulminate in cells and court rooms for years to come.

33Weighing the above, your prospects of rehabilitation are poor.

Sentencing Principles

34Section 5 of the Sentencing Act 1991 provides that the only purposes for which I am permitted to sentence you are:  

(a)   To punish you in a manner and to an extent that is just in all of the circumstances; 

(b)   To deter you and others from committing similar offences; 

(c)   To establish conditions through which you may be rehabilitated; 

(d)   To manifest the denunciation by the court of your offending behaviour;

(e)   To protect the community from you; or

(f)    A combination of two or more of these purposes.

35Mr McLennan submitted that the principle of totality should be given significant weight given that this offending occurred during the same period as the offending for which you are currently undergoing sentence.

36Your conduct in pursuing Ms Johnson’s car at speeds in excess of 160 kilometres an hour on a dark, narrow country road, was unhinged. Your behaviour needs to be denounced. You need to be deterred from acting like this again and others in the community need to be dissuaded from succumbing to road rage and acting on it in the way you did. The community needs to be protected from people who fail or refuse to regulate their behaviour and in doing so place the lives of productive, contributing members of the community at risk of serious injury or worse.

Sentence

37Mr Klaver please stand.

38On Charge 1, conduct endangering persons, you are convicted and sentenced to   two years' imprisonment.

39I order that 14 months of this sentence be served cumulatively on the sentences you are presently undergoing.

40Pursuant to s 14 of the Sentencing Act, I impose a new global non-parole period for all your offending of four years, five months, commencing from 6 March 2024, and I declare that you have served 817 days of presentence detention to be declared as time served.  

41You can sit down now, Mr Klaver.

42Mr Moore, are there any ancillary orders sought.

43MR MOORE:  No, Your Honour. 

44HIS HONOUR:  Very well, I thank the parties for their assistance.

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