Solicitors: NSW Office of the Director of Public Prosecutions (Crown)
File Number(s): 2013/00241200
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Judgment
I am sentencing Jesse James Clarke for two crimes. One of them is a drug supply offence and the other is assaulting a police officer.
The drug supply offence is the supply of 26 grams of methlyamphetamine. The supply was in the form of an agreement to supply. That is an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985. Parliament has fixed a maximum of 15 years imprisonment to that offence.
When I am sentencing him for that crime Mr Clarke has asked me to take into account four other offences under s 32 of the Crimes (Sentencing Procedure) Act 1999. Those four additional crimes are two offences of hindering police in the execution of their duty and two offences of dealing with property being suspected proceeds of crime. They are listed on a form. For the purposes of s 32 of that Act I will take those matters into account when I am sentencing him and I sign the form to that effect. The form is part of exhibit A.
The second offence is assaulting a police officer in the execution of the officer's duty. That is an offence against s 58 of the Crimes Act 1900. Parliament has fixed a maximum of 5 years imprisonment to that crime.
It is important for a judge to set out briefly what happened to amount to the crimes the judge is sentencing an offender for so that an assessment can be made of just how serious an example the particular offences are of that category of crime.
Mr Clarke was a local ice dealer in the Albury area. Police commenced surveillance on him and found that he was, according to the agreed statement of facts, supplying drugs. The facts say this -
"It was revealed that Clarke was supplying amounts varying between '[p]oints' ([b]eing 0.1 [g]ram, sold for about $100), '[h]alf [w]eights' or '[h]alves' (0.5 [g]rams, sold for $350), '[g]rams' or '[f]ulls' (1.0 gram, sold for $600 to $800), through to larger amounts including an '[e]ight [b]all', '[e]ights' or '[b]each [b]alls' (being 3.5 grams, sold for $1,750)."
The facts go on to say that the supply of these drugs "was facilitated by customers calling or exchanging text messages with Clarke". Police claimed that Mr Clarke "would typically obtain large amount of drugs from a person in the Sydney area when his supplies were depleted before returning to the Albury area." He would there distribute the drugs to his customers.
Police intelligence discloses a series of 38 occasions where Mr Clarke was in contact with people he described as his associates and selling methylamphetamine to them in the amounts and price ranges which I have referred to. The agreements to supply ranged between 31 May 2013 to 1 August 2013, a period of about two months.
About a week after the last agreement to supply Mr Clarke went to Sydney to obtain more drugs from the up-line supplier. He was coming back by train. Police knew that he was going to get off the train at Culcairn and were waiting for him at about 4 o'clock in the morning when he arrived on 8 August 2013. The police approached him and he ran off, dropping a bag of luggage. He then "produced an envelope from his pocket which ripped. He began then throwing the envelope and contents of it and his pockets into the air as he ran. The contents were several rocks of [m]ethylamphetamine which he disbursed over about 400 metres."
Police caught him and arrested him. They later recovered about 1.7 grams of methylamphetamine which had been distributed by Mr Clarke. He was taken to a room in the train station to be interviewed. Whilst he was being searched he reached into his pants and pulled out an iPhone "which he commenced attempting to break by snapping it in his hands, causing damage to the phone." One of the police officers, Detective Senior Constable Martin, tried to grab the phone "at which stage Clarke struck Detective Senior Constable Martin to the throat using his right elbow and attempted to hold him against the wall in an attempt to continue destroying the phone." The two men struggled and Mr Clarke was eventually subdued.
The police later that morning went to Mr Clarke's house where they found "items consistent with the supply of prohibited drugs". They included "drug packaging and scales". They found a safe which they opened and recovered about $1,500 in cash as well as two iPhones.
The offence of assaulting police in the execution of duty regards Detective Senior Constable Martin. The two hinder police concern the escape and his attempts to avoid being searched. The proceeds of crime relate to the cash and to the phones.
The facts record that "about 2500 phone calls were intercepted, as well as 5000 text messages since June 2013." As can be seen, Mr Clarke was heavily engaged in a business of sourcing and distributing the toxic drug methylamphetamine, better known as ice, to people in the Albury area.
As I have said, he was arrested on 8 August 2013. As it happens he was on parole for another offence. That parole was revoked on 29 August 2013. So from 8 August until 5 September he was serving the balance of parole for the earlier offence. Since 5 September 2013 he has been in custody regarding these matters only.
Mr Clarke, once he was charged with these offences, pleaded guilty on 21 July 2014 at the Albury Local Court. Both Ms C Mendes of counsel who appears for Mr Clarke and Mr A Thomas who appeared for the Director of Public Prosecutions agreed that the plea was at the earliest available opportunity. That means that a judge can discount the sentence which the judge would otherwise impose by some 25%. I propose to do that.
Mr Clarke has a very poor criminal record. He has been committing offences as a juvenile. He is now only 23 years of age. As a juvenile he committed break and enter, including an aggravated one, traffic offences, property damage offences, car theft offences and goods in custody offences. He has served prison sentences as an adult, including for crimes such as armed robbery, goods in custody, resisting police and a police pursuit on one occasion. He also has a record in Victoria. I regard his criminal record as serious enough to take into account as an aggravating factor under s 21A of the Crimes (Sentence Procedure) Act.
Ms Mendes appropriately and fairly conceded that another aggravating factor was that the drug offences her client has pleaded guilty to involved a number of criminal acts. In addition, of course, as an aggravating feature, Mr Clarke was on parole for a sentence he was serving for a driving offence and, significantly, for resisting a police officer in the execution of their duty. A further aggravating factor was that he was committing the crimes, at least the drug offences, for financial gain, although I accept Ms Mendes' submission that most of the income he derived from his business was to feed his own habit and that his personal financial gain was limited.
Mr Clarke has written a letter to the Court. Judges see many of these letters. In it he explains that he accepts responsibility for what he did and points to his plans to gain some qualifications and begin some tertiary education. In addition he points out that he has done some research into the impact which the drug ice has on those who use it and the families of those who use it. He accepts that he will be punished and held responsible and does not attempt to offer any excuses for his behaviour. He acknowledges the support from his family. It is clear that he is very contrite for his criminal activity and I accept that.
The claims made by Mr Clarke in his letter are backed up in two respects. His interest in rehabilitation is confirmed by a letter from a counsellor at the Long Bay Correctional Centre dated 2 December 2014 which became exhibit 6. The second respect is that Ms Mendes called her client to give evidence. His contrition is obvious to me. I also accept Ms Mendes' submission that Mr Clarke is a sincere and impressive young man.
As was pointed out in evidence - and is consistent with the documentation - since turning 18 Mr Clarke has spent about 3 years in custody. When he was out of custody he sooner or later fell back into the use of prohibited drugs. I should add that I accept that he is a user of prohibited drugs. He was not a person who was selling purely as a business without being themselves addicted.
Mr Clarke as a young man had an extraordinarily bad start to life. His family of origin was dysfunctional. The partner of his brother, Candice Mountney, in an affidavit which became exhibit 4 explains it in this way in paragraph 11-
"Jesse had a very difficult and sad start in life. His family home was not functional. I am aware that he and his siblings witnessed a lot of domestic violence between his parents. His parents drank heavily and his mother had a drug problem. Jesse's older sister, Danielle, tried as best she could to raise Jesse and remains very supportive of her brother. Jesse's father took his own life in February 2010 whilst Jesse was in custody. Jesse spoke to his father the day before he died and felt that something was not quite right; Jesse has felt a sense of guilt ever since. Jesse's mother is currently serving a sentence in custody."
A number of observations can be made about that. The first is that Mr Clarke confirmed that account in his evidence. Secondly, his sister Danielle remains loyal and supportive and has been present at the sentencing proceedings. Thirdly, he confirmed in evidence that his father had committed suicide. In fact, Mr Clarke received a death benefit from his father's death and spent it all on drugs, bikes and gambling. He ran out of money and still had bills to pay and a drug habit to feed and so he fell into his most recent episode of criminal activity namely, the supply of illegal drugs.
Mr Clarke in the witness box also showed some insight into the impact which ice has, confirming what he had said in his letter. Asked the obvious question of what is different this time by Ms Mendes, Mr Clarke said that he is actively involved in drug and alcohol counselling. That is confirmed by exhibit 6 where the drug and alcohol counsellor observes that Mr Clarke "has demonstrated a commitment to participating in these [counselling] sessions with eagerness and rectitude."
Mr Clarke is interested in developing, as he said, a career not just a job and is wanting to further his education. His ex-partner, Jessie Williams, had been involved in some criminal activity but is obviously on the road to rehabilitation herself and holds down a job with a legal firm in Albury. The impact of being in adult prison yet again has been sobering. As he said, he sees men in the yard who are in their 40s, 50s and 60s and he does not want to go down that road himself. He acknowledges that he has not used parole opportunities in the past but has set himself as determined to rehabilitate himself on this occasion. He has had the opportunity of taking drugs in prison but has refused.
I should add that the reasons I accept that Mr Clarke himself was a drug addict include the affidavit from Candice Mountney and exhibits 2 and 3 which indicate that he had made enquiries at drug rehabilitation centres last year.
The counsellor who authored the report of 2 December 2014, Dona Shepherd, said that Mr Clarke "has completed an application to be admitted into 'The Peppers Drug and Alcohol Rehabilitation Centre'". He is apparently waiting for a confirmation letter and available bed which could become available in a few weeks or a few months. In addition Ms Mountney made it clear that Mr Clarke will have the support of her partner, who is Mr Clarke's brother. He will assist and encourage him and indeed offer him accommodation when he comes out of prison. That is in addition to the support that he already receives from his sister Danielle.
I have been assisted by Ms Mendes' usual helpful written submissions. I accept her submissions about the role of her client in the supply of drugs which she sets out at paragraph 1.3 of her submissions (which became MFI 1). The drugs were supplied to those who were adults and who sought the drugs rather than indiscriminately supplied to all takers, including juveniles. The amount was just over five times the indictable quantity. I agree that I can infer that it was street level purity.
I accept that the assault of the police officer should be seen in the context that although actual violence was used there was no weapon, nor is there any evidence of a physical injury. That is not to reduce the gravity of what Mr Clarke did to the police officer who is entrusted with protecting members of the general public from the activities of people like Mr Clarke. But in some cases an offence can produce injuries which are documented by medical or other evidence. That is not the case here.
I accept Ms Mendes' submissions that her client has reasonably good prospects of rehabilitation. I also accept her submission regarding her client's background and the fact that I should take that into account. She drew my attention to a passage from the judgment of Simpson J in R v Millwood [2012] NSWCCA 2 where her Honour said the following (at [69]) -
"I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had with what might be termed 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions."
I am grateful for that being drawn to my attention. In my opinion it applies in this case.
Ms Mendes realistically acknowledges that a "custodial penalty" is the "only appropriate penalty in all the circumstances of this matter". I agree with that submission in accordance with s 5 of the Crimes (Sentencing Procedure) Act.
Ms Mendes submitted that the evidence is significant about the maturity that her client has undergone over the last year or so since being arrested for these offences. It is clear to me from his evidence that he is determined this time to get his life back into order. He will however need a lot of support both from agencies and from his family once he is back in the community. There is a risk, as Ms Mendes pointed out, of him becoming institutionalised but there is also a risk of course of him reoffending. That has occurred before.
The offending in this case occurred towards the end of the parole period that he was serving for an earlier offences. I do not propose to entirely backdate the sentence I will impose but I will fix it to commence about halfway through that parole period namely, 22 August 2013. I accept Mr Thomas' submission that the offence of assaulting the police officer was separate and there should be some accumulation of the sentence.
The offending is a serious instance of both crimes. The assault on the police officer fell, however, towards the lower end because of the factors that I have mentioned. The drug offending was persistent and over a long period of time involving many different transactions. The crimes were committed when Mr Clarke had been given liberty to return to the community on trust. He breached that trust. He has a bad criminal record which means that I need to emphasise deterrence for him as well as protection of the community. Against this is the fact which I accept of his family background and I take into account the observation made by Simpson J with which I respectfully agree.
I had thought that an appropriate sentence for the drug offence was 6 years but I propose to commence at 5 years given Mr Clarke's age and his background. I regard an appropriate sentence for the assault on the police officer as 2 years imprisonment. However Mr Clarke pleaded guilty to both crimes at the earliest available opportunity. I am therefore going to discount both those proposed sentences by 25%. The drug offence sentence will be reduced from 5 years to 3 years and 9 months. The assault police officer offence will be reduced from 2 years to 18 months imprisonment. I propose to accumulate those two sentences by 3 months so that the total sentence will be 4 years imprisonment. I propose to fix one sentence as an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act. That one sentence will be 4 years imprisonment.
Normally a sentence of 4 years imprisonment would attract a non-parole period of 3 years. Ms Mendes puts a strong case for there being special circumstances to reduce that non-parole period in this case. She points to her client's youth and his need for lengthy supervision "to assist with accommodation, drug relapse, employment and counselling". She also points to the risk of "entrenched institutionalisation" which her client may face. I think she is right in both submissions and I accept them.
I had in mind to fix a non-parole period at 2 years being 50% instead of the 75%, but I am going to reduce that even further. The same factors are relevant except that I am taking into account the most recent exhibit, namely exhibit 6, which points to Mr Clarke's pursuing a drug rehabilitation program through a regional agency in or around Wagga. I think that the evidence shows that he has taken a significant turn in his young life and appears to be determined to put things right this time.
I am putting the community at risk by releasing him, which I will in a few months' time, at this stage because he could relapse, as he has done before, and inflict further criminal behaviour on society. But I am going to take into account that risk but nevertheless fix a non-parole period of 18 months imprisonment which is, I acknowledge, significantly low. I am doing this because I want to encourage his attempts to rehabilitate himself. There is some independent evidence of those attempts which come from within the prison system. I, myself, have been impressed by his own evidence. He appears to have family support. If I were to leave him in gaol for another 9 or 10 months then I would not want that enthusiasm and commitment to wane or for some incident to occur. However, on the other hand, he must serve an appropriate period of time for the crimes that he has committed. The non-parole period I have decided on is 18 months which will expire on 21 February next year.
HIS HONOUR: I am going to sentence you now Mr Clarke.
I impose an aggregate sentence of imprisonment with respect to both crimes. That aggregate sentence is 4 years imprisonment. I fix it to commence on 22 August 2013. The overall sentence will expire on 21 August 2017. I fix a non-parole period of 18 months imprisonment. That also commenced on 22 August 2013 and will expire on 21 February 2015. After that, the balance of your sentence will commence on 22 February 2015, after your parole date, and expire on 21 August 2017.
HIS HONOUR: Now I do not fix parole because it is over 3 years. I think that is all the formalities. I have got to deal with the proceeds of crime, and I will come to that. As far as the sentence is concerned, before I explain it to your client, I think I have covered everything.
MENDES: Perhaps if your Honour just indicates that you take into account the matters on the Form 1.
HIS HONOUR: Thank you for reminding me, yes.
Ms Mendes correctly reminds me about the additional offences under s 32 of the Crimes (Sentencing Procedure) Act. I had in fact fixed the drug offence sentence bearing that in mind. I have in fact taken it into account and I had omitted to mention it.
HIS HONOUR: Mr Clarke, you have got a 4 year prison sentence. I have given my reasons and I have explained it all. It commenced on 22 August last year. I could have commenced it on 5 September, I have backdated it a couple of weeks. Therefore it expires on 21 August 2017, 4 years later. I had in mind to fix your non parole period as 2 years to expire on 21 August next year but I have changed my mind because of that recent report and for the reasons that I have given. I want to encourage you to get on with your rehabilitation . So your non-parole period commenced on 22 August last year. It will expire on 21 February 2015. On that date, 21 February 2015, you will be eligible for parole. Whether you get it or not depends on the Parole Authority. Once you are released on parole, as you know better than I do, you are on parole until your sentence expires on 21 August 2017. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: I am also conscious of the fact that I am putting the community at risk, which I said in my remarks on sentence, by letting you out but I have some faith and trust in you that you will get on with your rehabilitation once you are out. You have got this opportunity which, it seems to me, you want to grasp and I am going to give you that, and I do not want the community paying for that. Do you understand that?
OFFENDER: Yes, your Honour.
HIS HONOUR: We have to deal with, and I got some paperwork about this, were you asking to be heard on this Ms Mendes?
MENDES: No I am not, your Honour.
I make the orders contained in the document Forfeiture Order signed by me, sealed and dated today, having considered that today's value of the property forfeited is $5,600 in total.
HIS HONOUR: Mr Clarke forfeited to the State are all your phones and almost $1,500 cash. They are the orders I have made. Do you understand that? Okay. I will put those with the papers.
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Decision last updated: 17 March 2015