R v Aaron Clark
[2013] NSWDC 34
•28 March 2013
District Court
New South Wales
Medium Neutral Citation: R v Aaron Clark [2013] NSWDC 34 Hearing dates: 15 March 2013; 28 March 2013 Decision date: 28 March 2013 Before: Judge Haesler SC Decision: Aggregate Sentence of 5 years 6 months, NPP of 3 years.
Catchwords: robbery, supply prohibited drug, accessory after the fact to robbery, accessory before the fact to robbery, aggregate sentence Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedures) Act 1999.
Drug Misuse and Trafficking Act 1985
Evidence Act 1995Cases Cited: DPP Cth v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
The Queen v De Simoni (1981) 147 CLR 383
R v Grube [2005] NSWCCA 140
Henry v R (1999) 46 NSWLR 346
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Markarian v The Queen (2005) CLR 357;
R v MJR (2002) 54 NSWLR 368; (2002) 130 A Crim R 481
The Queen v Olbrich (1999) 199 CLR 270;
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
Portolesi [2012] NSWCCA 157.
Postliglione v The Queen (1997) 189 CLR 295
Weininger v The Queen (2003) 212 CLR 629Texts Cited: Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146
Research Monograph 30, (2007), Judicial Commission of NSW "Sentencing Robbery Offences since the Henry Guideline".
Does Imprisonment Deter: A Review of the Evidence. D Ritchie, for Sentencing Advisory Council Victoria, April 2011Category: Sentence Parties: Regina (Crown)
Aaron Clark (Accused)Representation: Mr D Williams (Crown)
Mr P Kintominos (for the accused)
File Number(s): 2011/295268
SENTENCE Judgment
Introduction
Aaron Clark was arrested on 13 September 2011. He was only 19. He has been in custody since that date. The number and seriousness of his crimes mean he must spend longer in custody; despite his youth, immaturity and the considerable improvement he has shown since coming into custody.
He was born in Campbelltown. He was educated locally and did well at sport. His parents separated when he was very young. He has lived with both at various times. Both attended court to support him. When he was eleven he saw his brother hit by a car and seriously injured. He took up the use of illicit drugs while young. It seems he preferred the company of peers with little respect for the community and our laws rather than those in his family who hold pro social views.
He had come before the Local Court in June 2010 and had been dealt with leniently. A year later he appeared in court again on driving and drug charges. Again, he failed to take advantage of the cautions he would have been given.
There was discussion in court on 15 March 2013 about whether Mr Clark was a follower or a leader. It is not a particularly useful distinction to draw. What matters is this; between February 2011 and August 2011, Mr Clark choose to involve himself in a series of serious crimes.
Robbery accessory after the fact
In February 2011, Aaron Gray was tricked into going with a group of similarly aged young men to buy a second-hand television. After he had withdrawn $500 from an ATM, an attempt was made to rob him. He resisted. He was assaulted. He managed to keep his money but his mobile phone was taken. Mr Clark knew Mr Gray. Clark knew Gray was looking for a TV. Clark knew some of the attackers. Clark instigated their meeting. After the robbery one of the attackers, Jay Osbourne, contacted him. Their SMS conversation was obtained. It reveals Clark advising Osbourne that the victim was speaking with the Police. Despite a strong suspicion he was involved in planning the robbery, this SMS conversation is all that is alleged against Clark. Judge Nielsen sentenced Jay Osbourne to 5 years imprisonment for his leading role in the robbery.
Judge Arnott sentenced another offender, Luke Jones, to 4 years 10 months imprisonment. Both Osbourne and Jones had, despite their relative youth, extensive criminal records.
Robbery accessory before the fact.
On 12 June 2011, Mr Clark and a friend, Nathan Delforce, were at the Ambarvale Tavern. They saw another patron, Mr Kongpanrach, win a substantial amount of money on the pokies. The two young men concocted a ruse, which led Mr Kongpanrach into the hotel car park. There, Delforce used a knife to threaten and rob him. Delforce then rejoined Clark who drove them away in his car. The Crown concedes they cannot establish that Mr Clark knew a knife would be used. On 1 May 2012, I sentenced Mr Delforce to 2 years 7 months imprisonment for his crime. He was young and immature, with good prospects, and had not been before a court before.
Form 1 - Larceny and Drug Supply
It appears that by August 2011 police had Mr Clark or his associates under surveillance. Telephone intercepts reveal Mr Clark and others were involved in 3 thefts of valuable vehicles and equipment from properties at Leppington, Appin and Menangle. Over $100,000 worth of property was taken.
On 14 August 2011 Mr Clark also chose to involve himself in the sale of 1.75g of amphetamine. This was not a one off transaction. These four matters will be taken into account on a Form 1, when I sentence him for his role in the robbery of Mr Kongpanrach.
Drug Supply
On 23 August 2011, Mr Clark was recorded arranging the sale of 30 ecstasy MDMA tablets at $14 per tablet. Again, the recordings indicate this was not a one off transaction.
Trial - Robbery in company
During the early evening of 14 July 2011, Jordan Santos was stabbed and robbed of his wallet and mobile phone. On 10 December 2012, after a 6 day trial, a jury found Mr Clark guilty of robbery in company. They also found Ryan Harris guilty of the robbery and wounding of Mr Santos. Mr Harris is to be sentenced by me on 12 April 2013.
Unlike the other offences summarised above there are no agreed facts here. I must find the facts consistent with the jury's verdict and the critical allegations, which provide a foundation for that verdict. Matters adverse to the offender cannot be taken into account unless proved beyond reasonable doubt. Some disputes cannot be resolved. Some do not need to be: see The Queen v Olbrich (1999) 199 CLR 270; Weininger v The Queen (2003) 212 CLR 629.
Neither Clark nor Harris knew Santos before 14 July 2011. That day ,Clark, wanting to purchase drugs, went with his friend Tim Borg to meet Santos. Borg believed he had contacts who could meet Clark's needs. The three drove around Western Sydney in Clark's car. Contact was made with a drug dealer but Clark did not have the necessary funds. Eventually the trio ended up outside the home of Mark Smith in Ambarvale. Smith, having been given an immunity from prosecution certificate, (s 128 Evidence Act 1995) admitted to running a small scale drug supply business from his home. Clark parked his car in the reserve beside Smith's home and went inside, ostensibly to borrow the money he needed. Santos and Borg waited in the car. It was dark. They locked the car doors. Men were seen to gather around the car. Clark used his electronic key to unlock the doors. Immediately the doors were opened Borg and Santos were confronted by a number of men. Borg ran off. Santos could not run as he was in the back seat and both rear doors were blocked by two men who both assaulted him. A demand was made and Santos was punched in the face. He handed over his phone and wallet. One of the men had a knife, which he slashed at Santos, cutting him on the chin, neck and shoulder. More men gathered around the car. One told Santos to "get the fuck out of here". He took that advice and ran off. Soon after he was helped by nearby residents and an ambulance called. His wounds were later sutured at Liverpool Hospital.
At trial the critical issues were:
(1) Who were the men who actually assaulted and robbed Mr Santos? Critically, was one of them Mr Harris?
(2) Was Mr Clark responsible for organising the robbery? The Crown did not allege he knew or could have realised a knife was to be used.
The evidence at trial was at times confused. Mr Santos was however clear and consistent. He was unshaken by cross-examination, although a discrepancy, between his statement and his evidence, as to which of his attackers used the knife, did emerge. Mr Borg was an unreliable witness. So too were Mr Smith and another man, Mr Masimi, who was at Smith's home soon after the robbery.
Despite the obvious confusion and, at times, deliberate obstruction by Crown witnesses, the following facts can be found beyond reasonable doubt:
(1) At some stage on the 14th of July 2011 Clark formed the intention to rob Santos.
(2) He parked his car in Ambarvale so that he could recruit help to do so.
(3) He did recruit Harris and Harris's brother, now deceased.
(4) Clark helped Harris and his brother by using the central locking device on his keys to unlock the car.
(5) Harris and his brother, unbeknown to Clark, had knives.
(6) Each brother must have known the other was so armed.
(7) Both knives were used in the robbery to intimidate Mr Santos.
(8) One brother slashed out and wounded Mr Santos. I cannot say which brother but both are equally culpable.
(9) Mr Santos's wallet and phone were stolen
(10) The phone was later sold to Mr Masimi by Clark.
Assessment of seriousness.
The robbery must have been a terrifying experience for Mr Santos. While the wounds were not serious they had the potential to be very serous; indeed they could have been life threatening. Regardless of his role in assisting Clark's proposed drug purchase nothing Mr Santos did excuses what was done to him. Both Clark and Harris co-operated to rob him. They knew he was in an isolated area at night where he was vulnerable and that they had all the advantages.
While for completeness I have mentioned the knife, that finding is not taken into account in this sentence: The Queen v De Simoni (1981) 147 CLR 383
There was also a limited degree of planning here by Clark, but Harris's actions were opportunistic.
Assessing Criminality
As was pointed out in Henry v R (1999) 46 NSWLR 346, such crimes, while directed at taking property, are really crimes against people. Such crimes have enduring consequences, not just for their immediate victims but also to the community in general. The fear generated by offences such as this operates to break down the trust necessary for our community to function.
The accessory after matter is objectively less serious because of the concessions made by the Crown. There can be no question of parity with the co-offenders, Osbourne and Jones, who actually took part in the robbery. The maximum penalty is significantly less and the later involvement of the accused did not interfere to any significant extent with course of justice. It did however allow a wilful disregard for the victim, who was ostensibly a friend.
The robbery of Mr Kongpanrach was a much more serious offence. The facts reveal Mr Clark did not know of the knife, but he did help plan the robbery and help lure the victim to a deserted area. He drove Mr Delforce from the scene.
He was not charged with as serious an offence as was Mr Delforce. His role was less direct but he is still culpable as a robber. This was a callous crime. It appears opportunistic but it took advantage of the goodwill of the victim. The Form 1 also operates. Here he benefits from the leniency I showed to his co-offender who clearly received the benefit of a sentence, which recognised this was his first offence and first time in custody.
Drug supply
Any drug supply is a serious offence. While a one-off transaction the supply was clearly for profit and the associated facts indicate the offender was behaving as if a trafficker in the drug. He expected a cash reward.
It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and a person's life that drugs cause.
I am not here to give this offender or anyone else a lecture about the use of illicit drugs but it must be made perfectly clear that those who engage in the sale of such drugs for profit, if caught, will almost inevitably end up in gaol.
Assessment
All of the matters indicate the offender, although still young, was well on the way to a long-term career preying on the vulnerable.
His crimes display considerable immaturity and a complete lack of concern for the rights of others and his responsibilities as a member of the community.
It is accepted as inevitable, that given their number and nature, each of the offences require a full time custodial penalty.
In relation to each matter consideration must be given to the maximum penalties.
(1) Robbery - 14 years - s 94 Crimes Act 1900
(2) Accessory before the fact to robbery - 14 years - s 94 Crimes Act 1900
(3) Accessory after the fact to robbery - 5 years - s 94 and s 350 Crimes Act 1900.
(4) Supply prohibited drug - 15 years and a substantial fine - s 25(1) Drug Misuse and Trafficking Act 1985
Careful attention to the maximum penalties is required. Not just because the Parliament has legislated for them. Maximum penalties provide a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between the instant case and the worst case. That said, it is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarianv The Queen (2005) CLR 357 at [30] and [31].
The decision of 5 judges of the Court of Criminal Appeal in Henry also operates to help in the exercise of my discretion. The guideline has application in s 94 and s 97 offences. But, to be clear, guidelines are not meant to be prescriptive, nor is proper exercise of a judge's discretion dependant on some numerical equivalence with other cases. While consistency and proportionality are important, I must reach an individual assessment of the offender and his offences. Consistent application of principal is of primary importance: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520. I have also gained some assistance from Judicial Commission statistics and the Commission's Research Monograph 30, (2007), "Sentencing Robbery Offences since the Henry Guideline".
There is some utility in looking to sentences imposed for offences of a similar nature and maximum penalty, but great care needs to be taken: R v MJR (2002) 54 NSWLR 368; (2002) 130 A Crim R 481. The significance of sentencing patterns "result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts" but I note such decisions are "no more than historical statements of what has happened in the past": DPP Cth v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303] and [304], per Simpson J. I must have regard not just to what was done in other cases but more particularly what principles were applied and why. Each offence and each offender are different and while consistency of principle and recognition of past sentencing patterns do assist me, here individual sentences are required; that is; sentences that focus on this offender and his offences, not punishment of others by other judges.
Parity
Other judges, and I, have, or will, sentence co-offenders. No offender should be left with an unjustified sense of grievance that they have been dealt with differently and more harshly than someone also involved in the offence. Sentences where possible, should be proportionate as between co-offenders. I have the sentencing remarks of Judge Nielsen for Osbourne (6/10/2011), my own notes for Mr Delforce when I sentenced him on 10/10/2011 and the sentences and record, but not remarks, of Judge Arnott who sentenced Jones. There are differences between each offender's subjective circumstances and significant difference in the seriousness of the charges and agreed facts for each offender. In Henry, the Chief Justice gave as one reason for the guidelines the avoidance of systematic excessive leniency by sentencing judges. Care must be taken to avoid unfairness by inequitable treatment but each offender is different, and so too are judges' views as to the "adequateness" of severe sentences: s 3 A Crimes (Sentencing Procedures) Act 1999. My focus must remain on the proper application of sentencing principles and the purposes of sentencing, to this offender and the facts as found or as agreed that apply to him.
Multiple Offences
There are four offences before the Court. A proper sentence must be fixed or indicated for each. The purposes of sentencing apply to each sentence. Much of the material in mitigation applies to each. Each offence was serious enough to justify a custodial penalty. Given their number and the nature of the s 94 offences, alternatives other than full time custody are not appropriate. While Mr Kintominas, for the offender, suggested I consider an Intensive Corrections Order, the length of the sentence I must impose to meet the objectives of sentencing and reflect the seriousness of the trial matter rule out this option. Had some matters stood alone, alternatives to full-time custody might have been considered but they do not stand alone.
I have endeavoured to comply with the requirements of Pearce v The Queen (1998) 194 CLR 610, at [40], [47] and [49], both to as to individual sentences and in the avoidance of double counting: see Portolesi [2012] NSWCCA 157.
The offences were separate and discrete crimes. They each merit some individual punishment and care must also be taken to avoid giving a form of discount for multiple offending. The total sentence must however be proportionate in severity to the total criminality. A simple aggregation would exceed what is called for. Here an aggregate sentence and aggregate non-parole period will be imposed to ensure "a just and appropriate measure of the total criminality involved": McHugh J at [307] and [308], Postliglione v The Queen (1997) 189 CLR 295.
Form 1
In sentencing for the Accessory Before count, I will take into account the four matters on the Form 1. They do operate to increase the sentence for the principal count. In this case that increase is substantial. See Markarian (2005); R v Grube [2005] NSWCCA 140. The increase recognises the two matters referred to by the Chief Justice in the Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146, personal deterrence and rehabilitation. To that I add harm to victims as each of the larceny matters involved considerable loss to victims, insurers, and disruption to local businesses.
Special Circumstances
The accumulation of sentences is factored into my decision to not follow the statutory prescription: s 44(2) Crimes (Sentencing Procedures) Act 1999. So too are the offenders and the community's interest in fostering his rehabilitation and supporting him in the community for a lengthy period. The period on parole must be sufficient to allow for him to adjust to normal community life. While he is presently responding well in custody he will need additional assistance to deal with his drug abuse issues and the psychological problems noted by Mr Watson-Munro in Exhibit 1.
Mr Clark gave evidence and tendered a letter (Exhibit 4) giving his perspective on how he came to commit these crimes. He expressed remorse for his victims; and for crimes which he put down to "stupidity" and "hanging around with a shady crowd". During cross-examination he accepted he was guilty of the trial matter. While his admission comes too late to gain him any reduction for its utility, I do take his acceptance of responsibility into account as it indicates his rehabilitation is underway. While he has expressed remorse I feel he has some way to go before he truly understands the seriousness of his crimes and their impact on his victims. That said, his acceptance of responsibility for all his crimes is a solid indicator for his future.
He appears to have used his time in custody well. All the material before me indicates that, with support, his prospects for rehabilitation are good. If the sentencing process were simply about Mr Clark, his Counsel's submission that time served was sufficient, might have merit. But Mr Clark's needs and the community interest in his rehabilitation are only two of the complex interplay of factors I must consider. Mr Clark made the choices that led him to gaol. Those choices were made by an immature young man who thought only of himself; a man who saw himself as much smarter than he really is. His time in gaol has forced him to grow up and make a positive choice for change. He is to be commended and rewarded for that commitment. A 2010 study on deterrence by the Victorian Sentencing Advisory Council provided evidence that longer and harsher sentences can be counter-productive, reinforcing criminal orientation and eroding social ties with family and friends who hold pro-social values: Does Imprisonment Deter: A Review of the Evidence. D Ritchie, for Sentencing Advisory Council Victoria, April 2011. It must be recognised that the protection of the community is contributed to by the successful rehabilitation of offenders. Where a young man has worked hard to prove himself in gaol, with the goal of earning early release, the removal of that expectation can lead to a loss of hope, however sentences must pay due regard to the objective seriousness of what was done individually and collectively.
Conclusion
Here the objective circumstances of each offence and proper application of the principles noted above, call for custodial sentences. There must be some accumulation of sentences. While all the purposes of sentencing are relevant to the parole and non-parole period. The weight attached to each factor may differ, as the parts of a sentence serve different purposes. Here the aggregate non-parole period is the minimum period of imprisonment called for because of the crimes committed: Power v The Queen (1974) 131 CLR 623 at [628].
I must by the severity of the sentences imposed attempt to deter others from committing such offences. I am confident the time served in gaol has deterred this offender and contributed to his rehabilitation. That rehabilitation will be advanced by an extended period of supervised parole. But, and it is an important but, what Mr Clark did in the period February 2011 to August 2011 must be denounced. He has to be held accountable for his actions and importantly adequate punishment requires the harm done by him to his victims and the community be recognised.
I note that where guilty pleas were entered or indicated in the Local Court I have reduced the otherwise appropriate sentence indicated by 25%.
Orders
You are convicted.
In relation to Charge 1, Supply prohibited drug (sequence 008), I indicate a sentence of 1 year 10 months.
In relation to Charge 2, Accessory after the fact to robbery (sequence 009), I indicate a sentence of 6 months.
In relation to Charge 3, Accessory before the fact to robbery plus the Form 1 matters (sequence 011), I indicate a sentence of 2 years 7 months.
In relation to conviction after trial for Robbery, I indicate a sentence of 4 years.
Taking into account:
a) the matters noted above;
b) totality; and
c) the Form 1 matters; and
d) my finding of special circumstances,
I impose an aggregate sentence of 5 years 6 months, consisting of an aggregate sentence non-parole period of 3 years, to commence on 13 September 2011 and expire on 12 September 2014.
You will be eligible for consideration for release to parole on 12 September 2014. The aggregate sentence parole period will commence on 13 September 2014 and expire on 12 March 2017.
Pursuant to the Victims Support and Rehabilitation Act 1996 I direct that the offender pay the sum of $12,400 within 28 days, to the Registrar of the District Court at Campbelltown for payment to Maria Tripodi
Pursuant to the Victims Support and Rehabilitation Act 1996 I direct that the offender pay the sum of $40,000 within 28 days, to the Registrar of the District Court at Campbelltown for payment to Andrew Blanchette.
I grant leave to the DPP to make further compensation claim applications with 7 days notice.
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Decision last updated: 11 April 2013
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