Director of Public Prosecutions v Kleeman
[2021] VCC 637
•11 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| CR-20-00923 | |
| DIRECTOR OF PUBLIC PROSECUTIONS v LEIGH KLEEMAN | |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 26 October 2020 and 27 April 2021 |
| DATE OF SENTENCE: | 11 May 2021 |
| CASE MAY BE CITED AS: | DPP v Kleeman |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 637 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence — theft — attempted aggravated carjacking — handle stolen goods — possession of a drug of dependence — plea of guilty — methylamphetamine — remorse — criminal history — victim impact statement — drug addiction — deferral of sentence — rehabilitation — general deterrence — specific deterrence — denunciation — protection of the community — community correction order |
| Legislation Cited: | Sentencing Act 1991 (Vic) |
| Cases Cited: | - |
| Sentence: | Total effective sentence of 98 days’ imprisonment and community correction order of three years Section 6AAA declaration: total effective sentence of three and a half years, with a non-parole period of two and a half years |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McCarthy | Office of Public Prosecutions |
| For the Accused | Ms C Dwyer | Gallant Law |
HER HONOUR:
1Leigh Kleeman, you have pleaded guilty to two charges of theft, for which the maximum penalty is a term of imprisonment of 10 years, one charge of attempted aggravated carjacking, for which the maximum penalty is 20 years’ imprisonment, and one charge of handle stolen goods, for which the maximum penalty is 15 years’ imprisonment.
2You have also pleaded to possessing a drug of dependence, methylamphetamine. It is not alleged that your possession of this drug was related to trafficking in it, and in these circumstances the maximum penalty is one year imprisonment or 30 penalty units.
3You have also pleaded guilty to the summary offence of possessing an imitation firearm, for which the maximum penalty is two years’ imprisonment or 240 penalty units, or both.
4Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’, which is an agreed summary of the facts and circumstances of your offending.
5In brief, the circumstances of your offending are as follows.
Charge 1: Theft
6On 21 January 2020, an abandoned stolen white Toyota Camry sedan was located by police in Monbulk. CCTV footage and various items found in the car showed that you had been driving it before it was abandoned.
Charge 2: Attempted Aggravated Carjacking
7At approximately 7:00am on 1 February 2020, Maxwell Hodgson, a 68-year-old man, drove his Toyota Corolla Hatch (registration YJR 795) to the United Service Station at 6 Bell Street, Yarra Glen in Victoria. Mr Hodgson washed his car and checked the air pressure of his front tyre. He then bent down to take off a wet shoe. As he was getting back into the driver’s seat, you approached him.
8You struck him hard on the right side of the head with an imitation firearm and said, ‘Get out of the car, I want your car’. Mr Hodgson felt pain and started to bleed from his head. You pointed the imitation firearm approximately 100 mm from his face and said, ‘I want the car’. Mr Hodgson clenched both his fists, held them in front of his face and said, ‘Come on, I’ll have you now’. At this moment, you paused and walked away. Mr Hodgson then notified Victoria Police. Your DNA was located on a can of Red Bull soft drink that you had purchased at the United Service Station prior to the attempted aggravated carjacking.
9Mr Hodgson was assessed by paramedics at the scene of the offending. On 3 February 2020, Mr Hodgson attended a general practitioner and then a dentist who referred him to the Emergency Department of the Maroondah Hospital in Ringwood East for further investigation. Mr Hodgson was also referred by Dr Sara Safari to Dr Myron Hnatojko for a CT scan on 6 February 2020.
10Mr Hodgson suffered the following injuries as a result of being struck with the imitation firearm:
(a) laceration to his inner right cheek;
(b) bruising to lower gums bilaterally;
(c) headaches; and
(d) trismus and dysphagia (manifesting as difficulty swallowing and eating food, and only being able to open the mouth about 50% of the expected amount).
11Mr Hodgson was prescribed Endone, Ibuprofen and Panadol by Dr Gunn.
Charge 3: Theft
12At 7:21am on 1 February 2020, following the commission of charge 2, you attended at the Yarra Valley Mower and Tractor Centre at 21 Bell Street, Yarra Glen, which is located approximately 20 m from the scene of the attempted aggravated carjacking.
13You stole a Toro Workman all-terrain vehicle (the second car that you stole) and that was parked in the driveway of the Centre. The incident was captured on CCTV.
14The second car was located by the police in Coldstream, Victoria sometime prior to 8:30am on 1 of February 2020. The vehicle was returned to the Centre.
Search
15Police executed a search warrant at your home at 6:50am on 6 February 2020. An Osprey brand racing bike that had previously been stolen was located in the garage (charge 4, handling stolen goods). You were located hiding in a wardrobe in a bedroom and you were arrested. The black imitation firearm (a pistol) used in the commission of charge 2 and a small quantity of methylamphetamine in a snap lock bag was located in your backpack (charge 5, possess drug of dependence, and related summary offence 14, possess imitation firearm). A black baton and kitchen knife were also located in your backpack.
Interview
16You were interviewed on 6 February 2020 by police, where you primarily exercised your right to silence.
Timing of Guilty Plea
17The matter resolved on 20 July 2020, and you formally entered a plea of guilty on 28 July 2020. This is an early plea which has saved the victim, the witnesses and the community the cost and trauma of a trial. Its utilitarian value is heightened in the present context of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept your plea of guilty is indicative of remorse on your part.
Criminal History
18You have a relevant, although limited, criminal history. You have convictions for dishonesty offences and weapon possession, and a conviction for recklessly causing serious injury at the Ringwood Magistrates’ Court on 26 May 2015. You were convicted and sentenced to an 18-month community correction order which you successfully completed. This was a first for you, as you had previously breached both a community correction order and a suspended sentence.
Objective Gravity of Offending and Effect on Victim
19The offending for which you now fall to be sentenced is serious — in particular, the attempted aggravated carjacking.
20The victim of your crime, Max Hodgson, has made a detailed victim impact statement. Mr Hodgson is a veteran of the Vietnam War and was also present when Cyclone Tracy hit Darwin in 1975. He suffers from post-traumatic stress disorder, and your attack upon him has reactivated his symptoms. He needed to see both the doctor and the dentist after your assault and has had treatment on his throat. He has had to have three operations. He says he has lost confidence and says he now prefers to keep to himself. Mr Hodgson addressed some of his victim impact statement to you directly. Most graciously, he says he hopes that you go on to achieve a better life, and he hopes you understand that you have reached ‘rock bottom and the only way back to a good life is up’.
21You in turn have written letters of apology to the Court and, more importantly, to Mr Hodgson. You are, as you should be, thoroughly ashamed of what you have done. You told Mr Hodgson you hate yourself for what you have done. It seems in particular you are horrified at having attacked a veteran who served his country. I accept that you are deeply remorseful for what you have done.
22Mr Hodgson was a vulnerable victim at the age of 68. He must have been terrified when you produced the imitation firearm, which was realistic looking, and held it close to his face. You struck him to the head with the weapon and caused him to bleed. However, your offending was only of short duration; as soon as Mr Hodgson showed some resistance, you stopped and walked away. I accept the submission made by the prosecutor, Mr McCarthy, that your offending is properly characterised as mid-range seriousness for the offence of attempted aggravated carjacking.
Personal Circumstances
23I turn now to your personal circumstances. You were born on 28 July 1987. You are now 33 years old. You were born in Lilydale. You have one younger sister. You had a difficult childhood. Your mother was an alcoholic and there was some violence in the family home.
24You left high school in year 10 and worked for your father, who is in construction. You worked as a labourer for your father for around 18 months before you began a plumbing apprenticeship, with which you persisted for around four years but did not complete because you found the academic component too difficult.
25You had two motorcycle accidents: one in 2007 and again in 2008, in which you were injured, and which disrupted your apprenticeship.
26You left home at 22.
27You met your partner, Sierra Sweetman, when you were 29 years old. You have a two-year-old son together, Mason, and you have the care of Sierra’s daughter, Savannah, who is now around 13 years old. You describe your relationship with your partner and your children as loving, and you say you are ashamed of your behaviour and the problems it has caused your family.
28You started using drugs at an early age. You told Lisa Jackson, psychologist, that you started using cannabis at 13. You said you were binge drinking at 15. You said you started on amphetamines at 21, and at 25 had moved on to methamphetamines. You said you stopped taking drugs when you met Sierra at 29 but relapsed when you were around 31. You continued to use drugs until you were remanded for the offending for which you now fall to be sentenced.
29You spoke to Dr Loretta Evans, consultant clinical neuropsychologist. You told her you had used cannabis since the age of 10, and thereafter had abused a number of drugs. You said you were abusing amphetamine from the age of around 17 and crystal methamphetamine from around 23. You told her you got off ice at around 30 and relapsed at around 32. There are some discrepancies in your accounts of your drug use to Ms Jackson and Dr Evans but, nevertheless, I accept that the material substantiates that you have been a drug user from an early age and have a serious and entrenched substance abuse history.
30You were on ice when you committed these offences. You had been living drug-free but had relapsed after the birth of your son Mason in 2018. You began using methylamphetamine and secreted your supply at the family home. Ms Sweetman understandably asked you to leave upon finding your supply of drugs. In December 2019, your employer told you to leave work and get help. It was in January and February 2020 that your offending occurred. Your drug addiction explains the context of your offending but it in no way excuses it.
31You went into custody on 6 February 2020 and were granted bail on 14 May 2020. This was your first time in custody.
32You have reported that you have been diagnosed in the past with anxiety and depression, but you had not received any treatment until you were remanded in February, whereupon you were prescribed an anti-anxiety medication which you say has considerably improved your mental health.
33You were admitted to the Court Integrated Services Program (‘CISP’), which you completed successfully. Ms Dwyer, who appeared on your behalf, submitted that this was the beginning of your ongoing and committed course of rehabilitation.
34Your plea commenced before me on 20 October 2020. At this time, you had attended for counselling at Man Up, a men’s counselling service, but its services had been suspended due to the pandemic and the restrictions imposed. I granted a deferral of sentence of six months to allow you time to demonstrate to the Court your ongoing rehabilitation.
35The plea recommenced on 27 April. You gave evidence. In your evidence, you stated you have remained drug-free and have been able to manage your anxiety without resorting to drugs. You play football with friends and you and your family continue to engage with the Man Up service.
36You have been working full time at Bombinski Plumbing Services since January 2021 and its director Michael Bombinksi wrote a letter to the Court confirming this. He describes you as punctual and hardworking.
37Ms Sweetman and your mother, Jacqueline Kleeman, both wrote to the Court expressing their ongoing support for you. Ms Sweetman says the medication you are on has made a massive difference and helped you manage your anxiety and depression.
38You are attending counselling at the Family Alcohol and Drug Service at Anglicare and at the Inspiro Community Health Service, as well as Man Up. Arthur Green from Man Up wrote to the Court saying you have attended at the service every week since 15 October 2020. You have also attended counselling with Maureen Sloan, a clinical family therapist.
39Your GP, Dr Chang, wrote to the Court. He says he has been treating you for anxiety, depression, and drug use since August 2020. He says that he has administered a number of urine drug tests, which have all been negative, and these test results were tendered at your plea.
40I accept the submission made on your behalf that you have made positive changes to your life, which include importantly developing strategies to manage your anxiety and not resort to drug use. I accept that you are living a pro-social lifestyle and that you have demonstrated your rehabilitation and your reduced risk of reoffending.
41The prosecution submitted that your offending was serious but submitted that a combined sentence was open to the Court and would give proper expression to all the various sentencing principles.
42Ms Dwyer submitted that a combined sentence with no period of actual custody greater than that already served was appropriate to facilitate your rehabilitation.
43I had you assessed, and you were assessed as suitable.
44I was provided by both parties with comparator cases for the offence of attempted aggravated carjacking. I have had regard to those cases, but ultimately, I must sentence you on the facts and circumstances particular to your case.
45The sentencing principles of general deterrence, specific deterrence, denunciation, and community protection are all engaged here.
46I must take into account the effect of your crime upon your victim, and I must take into account current sentencing practices and maximum penalties. I must try to balance your personal circumstances with the circumstances of your offending. I am required to impose no longer sentence than is necessary in all of the circumstances of the case.
47Weighing up all the relevant and sometimes competing sentencing considerations as best I can, I intend to sentence you as follows.
48You are convicted on all charges.
49On charges 1–5, I sentence you to an aggregate sentence of 98 days, that is time served, and a community correction order of three years. I will explain the conditions of that later.
50On the summary charge, you are convicted and fined $500.
51Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three and a half years, with a non-parole period of two and a half years.
52Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 98 days of the sentence that I have passed upon you, and I direct that this be entered into the records of the Court.
53I make the forfeiture order sought by the prosecution.
54Pursuant to s 89(4) of the Sentencing Act 1991 (Vic), I must make a driver’s licence order in respect of charges 1, 2 and 3. I am going to impose a suspension of three months on each charge, to be served cumulatively, starting today. That means you have got a three-month licence suspension. It is a modest licence suspension, but none of the offences for which you fall to be sentenced really relate to you as a risk upon the roads. I think it is important to keep a licence to help you with your work and with your various commitments. But it is mandatory. So, you are off the road for three months. Do not go and get yourself into any more trouble by foolishly driving.
55Now, I have got to explain to you the terms of your community correction order. When I finish, you can give verbal consent to the order, and we will get the document to you which you can sign later.
56These are the mandatory conditions. It starts today, and it is for three years. It concludes in May 2024. So, that is a significant period that you will be under this order. You have got to report to Lilydale Community Correctional Services within two working days. That may be by phone call. I am not sure; you need to find out.
57Now, there are some mandatory terms. The first is that you must not commit any criminal offences that carry a term of imprisonment while you are on the order. It is not just serious offending, like aggravated carjacking or attempted aggravated carjacking. Most criminal offences in this State, at least potentially, carry a term of imprisonment. So, you are to remain offence-free.
58You are to comply with all the directions of Corrections. You are to report within two working days, although, as I said, that may be by phone at the moment. You are to let Corrections know within two days if you change your address or you change your job, and you are not allowed to leave the State of Victoria without letting them know. Essentially, you have got to obey all lawful instructions given to you by Corrections. So, they are the mandatory terms.
59I am also ordering that you perform 200 hours of unpaid community service over the three-year period. I am going to order that you undertake assessment, treatment or rehabilitation for drug abuse, alcohol abuse, and mental health. But 50 hours that you spend undergoing treatment and rehabilitation under the order can be credited for work purposes. So, you will do various rehabilitative courses, treatment, whatever is ordered, whatever the people who administer the order direct you to do, and 50 hours of that can be credited against the 300 hours of unpaid work.
60There will be supervision. So, you will be under the supervision of Corrections for three years. There will be judicial monitoring. That means you are going to come back and see me, and that is going to take place at 9:15am on 6 July 2021. So, I will monitor your compliance with the order.
61Mr Kleeman, there is only one way for you and that is forward. You cannot take a step back. If you come before the Court again, Ms Dwyer, or someone who is in her position, cannot make the submission that you are committed to your rehabilitation. Because the Court is just going to say, well yes, he is committed to his rehabilitation when he is in front of a judge. But you know, when all that passes, he offends again. So, you cannot take a step backwards. As Mr Hodgson said to you, there is only one way: up. So, you have got to comply absolutely to the letter with this community correction order.
62I have got every faith in you. I will see you again on 6 July at 9:15am. So, having explained all that, do you consent to the order, or would you like to speak to Ms Dwyer for a moment, or are you prepared to consent to the order?
63OFFENDER: I am prepared to consent to the order.
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