R v Clarke [2025] VSC 794

1 On the morning of 24 December 2022, a Ford Territory was found burnt-out at the intersection of Loch Garry Road and Burgess Road in Bunbartha, a hamlet just to the north of Shepparton. Slumped in an awkward position in the driver's seat were the remains of Charlie Gander, who had been burned beyond recognition. Only DNA comparison could identify him. Perhaps mercifully, medical evidence showed that he was deceased at the time of the fire. He was only 19.

2 Six days later, on 30 December 2022, Kylie Stott, Dimitri D'Elio and Danny Clarke were all arrested and charged with kidnapping Mr Gander,[1] murdering him,[2] and arson[3] of the Territory he had been driving. They have remained in custody ever since.

3 Earlier this year, the three accused were tried before a jury on those charges. In cut-throat defences, Mr D'Elio gave evidence mostly exculpating himself and implicating Mr Clarke and Ms Stott, whereas Mr Clarke gave evidence mostly exculpating himself (and Ms Stott, in part) and implicating Mr D'Elio (and Ms Stott, in part). On 15 July, the jury found Mr D'Elio guilty of kidnapping, murder and arson; Ms Stott not guilty of murder and arson, but guilty of kidnapping and manslaughter; and Mr Clarke not guilty of murder, manslaughter and arson, but guilty of kidnapping.

4 At a plea hearing last week, I heard compelling victim impact statements from Mr Gander's loved ones, submissions on the sentencing facts I should find, pleas in mitigation on behalf of each accused, and responses to each plea by the Crown.

5 It is now my task to make the necessary factual findings and sentence each accused on these offences. I must also sentence Mr Clarke upon his plea of guilty to an unrelated arson of a car, also committed in the early hours of Christmas eve 2022.

6 However, today, I shall be sentencing only Mr Clarke. I shall sentence Ms Stott and Mr D'Elio on 9 February next year. The reasons I am taking this unusual course are twofold. First, I am not in a position to sentence Ms Stott and Mr D'Elio at the moment, because I require more time to determine some factual disputes, to settle on their particular sentences, and to draft my reasons therefor, whereas I am in a position to sentence Mr Clarke now. Second, given the total effective sentence and non-parole period I intend to impose on Mr Clarke, he will be eligible to apply for parole immediately. Thus, every day I delay sentencing him is a day that he might be released on parole.[4]

7 I turn then to a summary of Mr Clarke's offending, commencing with some background matters.

8 In late-December 2022, Danny Clarke, then aged 38, was living at his home at 16 Sunbury Road in Shepparton, with his partner Rebecca Triffett. This address had been the home of Mr Clarke's mother until she died six months earlier. Also staying at this address in a spare room in the days before the offending were Mr Clarke's friend Kylie Stott, aged 37, and her friend Dimitri D'Elio, aged 24.

Ms Stott, Mr D'Elio and Mr Gander arrive at Mr Clarke's home in the early hours

9 At about 1:44 a.m. on 24 December 2022, Ms Stott and Mr D'Elio arrived at Mr Clarke's home with Mr Gander. They came in two cars: Mr D'Elio's Holden Caprice and a Ford Territory Mr Gander had borrowed from a friend.

10 Late the night before, Mr Gander had driven from Benalla to Shepparton to buy "ice" (or methamphetamine) from Ms Stott. Mr D'Elio and Ms Stott met Mr Gander at his cabin at a holiday park in Shepparton. While the Crown case on the plea hearing for Ms Stott and Mr D'Elio is that they had kidnapped Mr Gander from his cabin, I will not determine that issue until I come to sentence those two accused.

11 What I can say now is that I am not satisfied that Mr Clarke was aware of, or party to, any such kidnapping when the other three were at his house over the next five or so hours from 1:44 a.m. On the contrary, Mr Clarke's evidence, which I accept, was that, when the three arrived at his home, Ms Stott asked him if Mr Gander, whom he did not know, could "hang" for a bit. He told her that was fine, but asked that they not be noisy (because Ms Triffett was sleeping). Mr Clarke also said, and I accept, that there was no animosity or other indication of anything untoward between Ms Stott, Mr D'Elio and Mr Gander when they were at his house before he left for about an hour at 5:18 a.m.

12 However, as I shall explain shortly, later in the morning, at some point after 6:21 a.m., when he returned to his home from burning a Hyundai motor car at Community Street in Shepparton, Mr Clarke became a party to the kidnapping of Mr Gander that had commenced in his absence.

13 But, first, I turn to the arson of the Hyundai, which came about in these circumstances.

14 At some time before 5:18 a.m., Mr Clarke asked Ms Stott if he could borrow Mr Gander's Territory. He told everyone there that he would go to his cousin to see if he could "score" for Mr Gander. But the truth - which he did not reveal to the others - was that his intention was to go to Jason Garvey's place in Community Street to burn his car. He wanted to take Mr Gander's car because it was from out of town and, he thought, it would not be traced back to him.

15 And so it was that, at 5:18 a.m., Mr Clarke left his home in the Territory and headed towards Mr Garvey's home in Community Street. He arrived at nearby Apex Court at 5:39 a.m. He put on a mask to cover his neck tattoos, and he wore a hoodie. He walked to the Hyundai parked in the carport attached to the home at 35 Community Street and lit a fire in the front passenger footwell of the car. He used methylated spirits and a lighter he had brought from his home.

16 The sound of a bang woke a neighbour, who heard another loud bang and the sound of metal scraping. She saw flames at the address from her security cameras.

17 The Hyundai was significantly damaged by the fire. Most of its identifying badges had been consumed, and its bonnet was unable to be opened. The car appeared to have been in good condition prior to the fire. The interior was neat, with few personal possessions (although lighter materials may have been completely consumed). The back seat and back foot wells were all empty, as was the boot. All of the paint had been burnt from the exterior panels, except for the front bumper fascia. The fittings (such as mirrors and trim) had been consumed. In the passenger compartment, almost everything which could be burned had been burnt. The headlining, dashboard, console, trim, seats, and carpet were all burned and/or melted beyond recognition. The dashboard and console had melted and burnt, forming pools of melted plastic in the front foot wells.

18 The fire also caused some damage to the carport structure and the adjoining house. The windows beneath the carport had been broken by heat, and the fire had scorched the ceiling of the kitchen. There was some light sooting in the kitchen and the lounge room, which were the rooms closest to the carport. The carport roof immediately above the Hyundai was severely heat affected.

19 In his evidence at trial on the other charges, Mr Clarke explained that, about five days earlier, his partner Ms Triffett had been threatened by Mr Garvey, to whom she owed $100. He heard through others that Mr Garvey had also threatened to "come and shoot [their] house up". He did not know Mr Garvey personally and had never spoken to him. However, he had been told that Mr Garvey stored guns in his Hyundai. Mr Clarke's plan was to go and "torch" the inside of the car, thereby burning the guns, to prevent his own house being shot at. He knew the property was unoccupied at the time because "the neighbours across the road ... were keeping an eye on it for [him]". He did not want to light a "big fire," but just enough to destroy the guns.

20 At this point, I should add that I accept Mr Clarke's evidence as to both the foregoing and the following matters.

Mr Clarke's movements after arson, including attending ATM

21 After he lit the fire, Mr Clarke left in the Territory. He drove to the fire station to make sure that a fire engine would leave in the direction of the car fire. He saw a fire engine leave the station.

22 At 5:42 a.m., Mr Clarke rang Mr D'Elio in a call lasting for 16 seconds. At 5:43 a.m., he drove the Territory towards the Shepparton Plaza. At 6:10 a.m., Mr D'Elio's phone made a 24‑second call to Mr Clarke. In his evidence, while he was unsure of the time, Mr Clarke said that, during a phone call, Mr D'Elio told him that Mr Gander wanted $70 withdrawn from his bank account. Mr D'Elio explained that Mr Gander's card was in the console of the Territory, and he gave him the PIN number.

23 At 6:15 a.m., Mr Clarke arrived at the Shepparton Plaza, and parked the Territory. He walked to the ATM of the National Australia Bank, where he inserted Mr Gander's card. He withdrew $60 from Mr Gander's account (after unsuccessfully attempting to withdraw $70). He took the money, and got back into the Territory. He delayed leaving because he could see a police car nearby and he was disqualified from driving at the time. After the police moved, he drove back to his home address at Sunbury Road.

Events after Mr Clarke's return home from arson of Hyundai

24 I turn now to the next series of events, including Mr Clarke's part in the kidnapping of Mr Gander.

25 Mr Clarke arrived home at about 6:21 a.m. While there, Ms Stott told him that there had been a fight between Mr D'Elio and Mr Gander in the back yard. She also said Mr D'Elio had put Mr Gander in the boot of his Caprice.

26 Mr Clarke was concerned that this had been happening at his home, including that Mr Gander was in the boot of a car. He told them that they had to take Mr Gander away from there. He told Ms Stott she had to figure it out. Ms Stott asked if he would help them by driving the Territory. Mr Clarke agreed, and suggested a location to which they could take Mr Gander.

27 And so at 6:59 a.m., Mr Clarke left his home in the Territory. Ms Stott drove Mr D'Elio in the Caprice, with Mr Gander in the boot, until their convoy arrived at an abandoned house along Wanganui Road in Shepparton North.

28 Once there, Mr D'Elio and Ms Stott took Mr Gander out of the boot and put him in the carport area of the house, where they threw him to the ground. His hands and feet had been bound with duct tape, which Mr Clarke did not know until then. To him, Mr Gander appeared a bit groggy, as if affected by alcohol or drugs.

29 Mr D'Elio or Ms Stott, or both, said that Brandon May or his father was coming to deal with Mr Gander. Mr Clarke had not realised until that point that Mr Gander was the person who was supposed to have lagged on Tyson May. (While Mr Clarke did not know Tyson May or Mr Gander, he had heard about this incident.) He assumed that plans had been made in this regard while Mr D'Elio and Ms Stott were travelling to the abandoned house in the Caprice.

30 At some point while there, albeit it is not clear when, Mr Clarke saw Mr D'Elio "getting into" Mr Gander, and Ms Stott was telling him to "pull up". Mr Clarke did not feel good about that. He told them he wanted to go, and walked away. He then returned to tell them again he wanted to go, at which point, Mr Gander got loose and went to get Ms Stott from behind, so Mr Clarke threw him to the ground. He then yelled at the other two, saying that this needs to stop.

31 During most of the two hours they were at the abandoned house, Mr Clarke sat in the rear seat of the Caprice, where he smoked ice and played with his phone. He thought they were just going to drop Mr Gander off at that location, and then leave. He was annoyed that the others had not done as agreed and instead had been waiting for someone else to come out there. He just wanted to get home to Ms Triffett, who did not know he had left the house.

32 Mr Clarke understood that, eventually, Ms Stott and Mr D'Elio got sick of waiting, and he believed they put Mr Gander in the Territory. Mr Clarke was still sitting in the back seat of the Caprice at this time. Then, all of a sudden, the Territory came flying out of the shed area and started to leave the property. Mr Clarke could see only Mr D'Elio in that vehicle. Ms Stott came running to Mr Clarke, saying that Mr D'Elio had had "a hissy fit" and just started taking off. She said they needed to follow him. So, with Ms Stott driving and Mr Clarke still in the back seat, they followed in the Caprice. This was at about 9:12 a.m.

33 Soon afterwards, on the Shepparton-Nathalia Road, Mr D'Elio stopped the Territory, so Ms Stott stopped the Caprice too. Mr D'Elio and Ms Stott both got out and were yelling at each other. Mr D'Elio went to the boot of the Caprice, but Mr Clarke could not see what he took out (if anything). Mr D'Elio then drove off in the Territory. Ms Stott came back to the Caprice. As she too drove away, she told Mr Clarke that Mr D'Elio said that Mr Gander got loose and started hitting him in the back of the head, so he had to restrain him again. Ms Stott said Mr D'Elio was not making sense. They followed the Territory, although it was out of sight at times.

34 Mr Clarke next saw Mr D'Elio when they neared the intersection of Loch Garry Road and Burgess Road. Mr D'Elio was running down the road towards them, waving his hands. The Territory was already on fire. They stopped, and Mr D'Elio got into the front passenger seat of the Caprice. Ms Stott asked what was going on and where Mr Gander was. Mr D'Elio said not to worry about that, and that they needed to go. Ms Stott went to ring triple-zero for the fire brigade, but Mr D'Elio told her not to. Neither Mr Clarke nor Ms Stott knew where Mr Gander was at that moment, but Mr Clarke assumed he was in the Territory.

35 Both Mr Clarke and Ms Stott were "freaking" at what had happened. Ms Stott said she would ring the police and make out Mr Gander had tried to rape her. Mr D'Elio said, "No, you're not," and they kept driving.

36 They stopped at Nathalia. Ms Stott went to the supermarket, and Mr D'Elio followed her, while Mr Clarke waited in the back seat of the Caprice. Then, after Ms Stott went to the bakery, they drove back to Shepparton. Mr Clarke was dropped off at his home, and Ms Stott and Mr D'Elio left. Mr Clarke did not tell Ms Triffett what had happened.

37 When arrested six days later, Mr Clarke lied to police, saying that he did not know anything about the incident or who Mr Gander was.

Metes and bounds of Mr Clarke's offence of kidnapping

38 For the purposes of today, I shall stop the summary there.

39 At this point, however, I shall indicate that I am satisfied that, apart from his throwing Mr Gander to the ground to protect Ms Stott, Mr Clarke's involvement in the kidnapping commenced just before they left his home and ceased soon after they arrived at the abandoned house. I am satisfied that he was not otherwise a party to any kidnapping when he was at the abandoned house. I am also satisfied that he had no part in any plan to dispose of Mr Gander at any stage, including when both cars left that address.

40 As for the Crown's submission that Mr Clarke acted harmoniously with Ms Stott and/or Mr D'Elio from the moment they drove away from the burning Territory until they were arrested six days later, I do not consider that to be an aggravating factor of Mr Clarke's offence of kidnapping. It must be remembered that, by the jury's verdicts, Mr Clarke was not guilty of murder, manslaughter or arson, yet he was living with others who had committed those offences. While he did not, at that time, do the right thing by going to the authorities to explain what had occurred, which denies him a mitigating factor he otherwise would have had, he is not to be punished for his inaction in this regard.

41 I turn now to the victim impact statements from Mr Gander's family, which were compelling. Naturally, the focus of those statements is the terrible effect that Mr Gander's death has had on them. However, since Mr Clarke is not guilty of either murder, manslaughter or arson of the Territory (or the associated burning of Mr Gander's body), I am not to take into account the impact of those offences on Mr Gander's loved ones. Instead, in sentencing Mr Clarke, I must attempt to confine the victim impact I take into account to that which I can infer flows from his part in the kidnapping. I have sought to do that.

42 When I come to sentence Ms Stott and Mr D'Elio, I shall have more to say about the profoundly adverse impact on Mr Gander's family of the offending by those two accused.

43 I turn next to the gravity of arson and kidnapping generally and in Mr Clarke's particular case, including his moral culpability for those offences.

44 Arson carries a maximum penalty of 15 years' imprisonment.[5]

45 Like most offences, the gravity of arson can vary significantly from case to case.

46 As for this particular offence, Mr Gibson, who appeared with Ms Moran and Ms Sargent for the Crown, emphasised the following factors as informing its gravity.

47 First, the arson took place in the early hours of the morning, in a populated, built-up area, where nearby residents were sleeping in their homes. The offence carried with it a very real risk of causing further harm or damage to life and property.

48 Second, the car which was set alight was in a carport attached to the premises, and the fire caused damage not only to the car but also to the carport and the building.

49 Third, the motivation to engage in the offending was based on rumour involving Mr Clarke's partner, and, as it turned out, the fire was lit in a car that was not even owned by the intended victim. (The charge, as pleaded, stated that the owner was unknown.)

50 Fourth, the offending involved some pre-planning. This was illustrated by Mr Clarke's evidence that he had a neighbour keeping tabs on the property, telling him when it was unoccupied; by his use of another's car so that he would not be linked to the offending; by his use of a disguise; and by his taking items from his home required to light the fire.

51 Overall, submitted Mr Gibson, this is a fairly serious example of arson. He also submitted that the sentence for this offence requires a degree of cumulation on the sentence for the kidnapping, as the two offences were quite separate in time and circumstance.

52 Mr Terry, who appeared with Ms Skvortsova for Mr Clarke, submitted that this was a mid-level example of arson. He pointed to the following matters to make good that submission.

53 First, while setting fire to a car in a built-up area gives rise to some risk, no person was in fact placed at immediate risk of harm.

54 Second, in this regard, Mr Terry emphasised that Mr Clarke ensured that Mr Garvey's adjoining home was unoccupied at the time.

55 Third, Mr Clarke had provided his phone number to associates to be passed on to Mr Garvey in order to resolve the dispute, but he received no contact from Mr Garvey.

56 Fourth, he went to the fire station to see that the fire brigade attended the fire. He saw a fire engine leave the station.

58 In my opinion, when the foregoing matters are weighed in the balance, this was a serious instance of arson, but it was less serious than many instances of the offence seen in practice. While Mr Clarke should not have taken the law into his own hands by unlawful means, I accept that he genuinely believed that Mr Garvey had threatened his partner, that he would shoot up their house, and that the car contained guns. Thus, his moral culpability is not as great as it would have been absent these beliefs.

59 Next, I turn to kidnapping (at common law), which carries a maximum penalty of 25 years' imprisonment.[6]

60 Like most offences, the gravity of kidnapping can vary significantly from case to case. The worst instances of kidnapping are very grave offences which can attract correspondingly heavy sentences.

61 Mr Gibson submitted that Mr Clarke's offence of kidnapping had some serious features, including the following.

62 First, when he was driven by Mr D'Elio from Sunbury Road in the boot of his Caprice, and when he was thrown into the carport at the abandoned house at Wanganui Road, Mr Gander would have been terrified.

63 Second, Mr Clarke materially assisted in the taking of Mr Gander to the abandoned house, because it was he who suggested that Mr Gander be taken to that address, and he led the way there in the Territory.

64 Third, Mr Gibson submitted that Mr Clarke showed a callous disregard for Mr Gander, who was only 19, by doing nothing to help him either at his home in Sunbury or at Wanganui Road. But that is not wholly accurate, because I accept Mr Clarke's evidence that, when at the abandoned house, he at least told the other two that this had to stop.

65 Mr Terry, on the other hand, emphasised the following factors.

66 First, Mr Clarke panicked when told by Ms Stott that Mr D'Elio and Mr Gander had had a fight and that Mr Gander was now in the boot of the Caprice. He did not want his partner Ms Triffett (who was asleep in her bedroom) to be exposed to this situation, and he wanted to get Mr Gander and his car away from his house. The plan at that stage, as far as Mr Clarke was aware, was that Mr Gander and his car would be left at the abandoned house on Wanganui Road, and that he, Ms Stott and Mr D'Elio would return to Sunbury Road.

67 Second, it was only after they arrived at the abandoned house that Mr Clarke was told that they were waiting for the family of Mr May to arrive.

68 Third, apart from throwing Mr Gander to the ground when he ran at Ms Stott, Mr Clarke was no longer part of any kidnapping of Mr Gander for the two hours they were at that address. Instead, most of that time, he was just sitting in the back of the Caprice smoking ice and playing with his phone.

69 In my opinion, while Mr Clarke's particular offence of kidnapping was a serious offence, it was much less serious than the kidnapping committed by his co-accused. Unlike them, he had no sinister motive to kidnap Mr Gander. Instead, he just wanted Mr Gander and his car removed from his premises. Further, his involvement was for a much shorter duration than that of his co-accused, which preceded and succeeded his by substantial margins. In addition, his offence was spontaneous and borne of panic, whereas theirs were planned. Finally, apart from throwing Mr Gander down when he ran at Ms Stott, and his implicit agreement to his being in the boot of the Caprice against his will when driven by Mr D'Elio to Wanganui Road, no part of Mr Clarke's involvement in the kidnapping involved any personal violence by him or any complicity by him in actual violence perpetrated by Mr D'Elio.

70 Next, I turn to Mr Clarke's personal circumstances, commencing with some of his background details.

71 He was born in Shepparton in March 1984, and grew up in that town. He is now 41, and was 38 at the time of the offences.

72 He has one sibling, a sister, Melissa, who is three years younger. She works in healthcare, is married, and has children.

73 At the age of seven, Mr Clarke was a victim of sexual abuse by a friend of his biological father. He disclosed the abuse to his parents. His father did not believe him. His mother "tried to shrug it off", and he was then reluctant to disclose the abuse to anyone else. The only other person he told was his former wife, XY.

74 Mr Clarke's parents separated when he was at primary school. He and his sister remained living with their mother at Sunbury Road. They had only intermittent contact with their biological father. Around his early teens, Mr Clarke went to stay with his biological father, but that only lasted a brief period before he returned to live with his mother.

75 His mother had chronic health conditions throughout Mr Clarke's childhood, affecting both her physical and mental health. There were some periods of involvement in the family by the authorities, when he and his sister were removed from their mother's care for periods of time, separated, and placed into respite care. Mr Clarke and his sister had a very close bond, and (on her observation) he found those periods of separation from her difficult. His sister reports that their mother struggled with depression and substance abuse (alcohol and cannabis) throughout their childhood, as well as with other chronic physical conditions.

76 Mr Clarke went to Wilmot Road Primary School in Shepparton, and then secondary school at Shepparton South Technical School, which became Maguire College. He was usually behind in both primary and secondary schooling. He did not complete Year 9, and left school to pursue a butcher's apprenticeship. He "got into cars" as a result of his biological father's interest in that pursuit. After his butcher's apprenticeship, he worked in car detailing, at one stage setting up his own business from home doing this work.

77 He had the same romantic partner from the age of 16 until his mid-20s. They met shortly after he left school in Year 9.

78 His sister left the childhood home to start her own family unit. Mr Clarke had a strong bond with his niece and nephew, and he frequently spent time with them. There were times he would move in with his sister when in between romantic relationships.

79 In his 20s, Mr Clarke met his next significant partner, XY. They married, and had two children together (a boy in 2014, and a girl in 2015).

80 XY suffered from a chronic health condition which necessitated significant assistance with the care of their children. Following the birth of their daughter, Mr Clarke left work to assist XY with the daily care of the children. Both of the children had special needs, with autism and ADHD diagnoses. On his sister's account, he was a hands-on parent who assisted not only with the children's daily needs, but also attended all kinder, schooling and extra-curricular appointments, as well as assisting with the care of XY's health needs. His day-to-day responsibilities included getting the children up, dressed, and fed, and taking them to day care and necessary specialist appointments (for example, speech therapy).

81 Thereafter, he worked on an off for himself doing truck and car detailing.

82 From the mid-2010s, Mr Clarke suffered from serious back pain. In 2016, he underwent spinal fusion surgery at the Alfred Hospital, which necessitated a lengthy period of physical recovery and pain management with medication. He had metal plates put into his lower back and hips as a result of the surgery.

83 In 2017, he was the victim of an assault and an attempted stabbing, which occurred in front of his children. He developed PTSD-type symptoms and was referred for treatment to a psychologist. He saw the psychologist a number of times in 2018 under a mental health care plan, and was diagnosed with PTSD.

84 He also sustained an injury to his collar bone in a motor vehicle incident which occurred in his 20s. Other physical complaints have been an inguinal hernia in 2021 and a longstanding knee injury.

85 His general practitioner's records indicate a diagnosis of depression in 2015 and 2016; that he was prescribed fluoxetine in 2015, 2016 and 2018 for a "major depressive disorder"; and that he was prescribed diazepam in 2016, temazepam in 2018, and Cymbalta in 2018, 2020 and 2022.

86 Mr Clarke's sister became the carer for a baby ("AB") who was removed from his parents' care. AB was his sister's nephew by marriage. He came to reside with Mr Clarke's sister's family when aged only a few months old, and was thereafter raised full‑time in that family unit. Mr Clarke spent time with his sister's family regularly, and he formed a strong bond with AB.

87 Sadly, in early-2021, AB fell ill and passed away. His death had a profound effect on the entire family unit, including Mr Clarke. AB's biological father (who was a heavy drug user) travelled up to Shepparton shortly after his son's death. Mr Clarke spent time with him in the aftermath. It was in that context that Mr Clarke's illicit drug use escalated.

88 From that point on, his marriage to XY also broke down irreparably and the two separated by the end of 2021. Mr Clarke moved out of the marital home without a fixed address, and with only intermittent contact with his children and extended family. There were a number of intervention orders put in place between Mr Clarke and XY.

89 Mr Clarke had always had a close relationship with his mother. As a result of liver cirrhosis complications, she suffered a cardiac arrest in late-June 2022 at 16 Sunbury Road. Mr Clarke's sister alerted him to their mother's parlous state. He arrived at the family home to witness paramedics working on his mother for a period of time. When she could not be revived, Mr Clarke stayed at her home with her body for some time until arrangements were made for a funeral home.

90 He was significantly affected by this experience and his mother's death. His mental health declined to a point where he was unable properly to function day‑to‑day. He remained living at 16 Sunbury Road with his mother's things. He experienced significant sleeping difficulties as a result of recurring nightmares of the paramedics working to revive his mother.

91 His girlfriend Ms Triffett moved into 16 Sunbury Road around that time to assist in caring for Mr Clarke. He initially had a protracted period off work and relapsed further into drug use. Ms Triffett's evidence in the trial was that, to her observation, Mr Clarke suffered significantly over his mother's death.

92 Unfortunately, his contact with his sister Melissa and her family also broke down following Ms Triffett moving into 16 Sunbury Road.

93 In the lead-up to Christmas 2022, Mr Clarke was significantly affected by an argument he and his ex-wife XY had over whether he would get to see his children at Christmas. He was already significantly affected by the prospect of facing his first Christmas without his mother. He experienced a significant deterioration of his mental health, and attempted to overdose on either 24 or 25 December 2022.

94 In relation to his history of substance use, Mr Clarke started drinking heavily when he was a teenager, but had a period of self-imposed abstinence after the birth of his children. He was drinking heavily around Christmas 2022.

95 As for drug use, he commenced with amphetamines ("speed") when he was younger, but eventually progressed to methamphetamine, with some periods of abstinence. He reports that his use of ice escalated after AB's death, then got better, and then escalated again after his mother died in mid‑2022. He used ice to "block out" his depressive symptoms and back pain.

96 Mr Clarke has been in custody since his arrest on 30 December 2022. He has spent most of his time on remand at Port Phillip Prison, before being transferred to Western Plains Prison on 12 September 2025. In that time, apart from seeing his legal representatives, his only other contact has been with his sister.

97 He has withdrawn from illicit drugs, maintained abstinence, and has put on weight.

98 He maintained a job as a laundry billet for over one‑and‑a‑half years in Port Phillip Prison.

99 He also completed a number of programmes and obtained various qualifications, including in cleaning, and in building and construction.

100 He is on monthly buprenorphine injections, and also takes Avanza, the prescription for which is monitored by the in-custody psychiatric nurse.

101 He continues to experience pain in his back, which "seizes up" from time to time. In particular, given he has metal plates in his lower back and hips post-surgery, exposure to the cold causes his back to seize up and he experiences debilitating pain as a result. He has similar difficulties with his knee.

102 Towards the end of his trial (after he gave evidence), he was put into restrictive custody (known as "the slot"). His solicitor's enquiries made with the Sentence Management Unit indicate that this was done out of protective concerns for Mr Clarke. It is his understanding that he was placed into restrictive custody as a result of his decision to give evidence in the trial (albeit in his own defence). During that period, he was allowed only one "run-out" of his cell a day, for an hour, on his own. His depressive and anxiety symptoms worsened as a result. He lived in a state of uncertainty as to when the period of restrictive custody would end. He did not have access to mainstream programmes. He was unable to continue with his usual job (as a laundry billet). As a consequence of losing that job, he did not have funds to make phone calls to his sister. He remained in restrictive custody for about three months.

103 Soon afterwards, he was moved to the Western Plains Prison. Because of the move, his scheduled medical appointments were interrupted, as was his previous medication regime (Avanza, daily). This was rectified in October 2025. At Western Plains Prison, he works in the kitchen from 9:00 a.m. to 3:00 p.m. each weekday as part of the SNAP Frozen Programme. He also works as a cleaning billet doing laundry, washing toilets, and mopping floors.

104 His intention, upon his release from prison, is to make use of the qualifications he has obtained in custody over the last three years, and to pursue work in the construction industry. Having completed the requisite foundational units as part of a Certificate II in Building and Construction (Pre‑apprenticeship) and a Certificate III in Civil Construction, he plans to complete any further requisite qualifications in the community.

106 Mr Clarke's criminal history commences in the period 2007 to 2009. His offences from this period are all driving or public nuisance offences, except for an unlawful assault in 2009. In particular, in 2007, he was fined for driving offences. In 2008, he was fined for using profane language in public. Also in 2008, he received a three-month prison sentence for driving offences, with one month to serve immediately and the other two months suspended. In 2009, he received an intensive corrections order for two months for driving offences and unlawful assault.

107 There is then a gap of over a decade until 2021. The 2021 offences all relate to breaching a family violence intervention order ("FVIO") in place between him and his ex-wife, XY, following the breakdown of their relationship, as well as breaching a bail condition. The breaches of the FVIO relate to his contacting or messaging XY during the period of the order, not to any physical acts of violence. He was placed on a community correction order ("CCO") for 12 months.

108 The subsequent convictions making up the seven-month prison sentence imposed in January 2024 include sentences for driving offences, breaching the CCO imposed in 2021, and breaches of an FVIO in favour of his subsequent partner (again, these were breaches by contact, not by physical acts of violence). Mr Terry submitted that, but for the fact that he was on remand on the murder and related charges, he might have been placed on a CCO for these offences.

109 Next, I turn to the mitigating factors urged by Mr Terry, commencing with his plea of guilty to arson. Mr Clarke was never interviewed on that charge, but indicated well prior to the trial that he would plead guilty to it. That is why the arson charge was not on the indictment on which he was tried before the jury. In the course of his evidence, Mr Clarke also admitted that he committed that offence and the circumstances surrounding it.

Admissions in evidence to facts supporting kidnapping

110 Second, while Mr Clarke pleaded not guilty to kidnapping and in evidence effectively denied that he intended to kidnap Mr Gander, his own evidence of his actions made out the factual basis for the charge of kidnapping against him. The fact that he threw Mr Gander to the ground to protect Ms Stott would never have been known but for Mr Clarke's admission in evidence.

111 Third, notwithstanding his motive for committing the offence, I am prepared to infer that Mr Clarke's plea of guilty to arson of the Hyundai is borne of some remorse for that offending.

112 As for the kidnapping, despite his plea of not guilty and his effective denial of the requisite intention, I am satisfied that there is also some remorse in him for that offence. In particular, I consider that his admissions to the actions forming the basis of that charge, and the manner in which he described the events he was involved in and witnessed, including his telling the others that this had to stop, connoted not only a degree of acceptance of responsibility for his role in that offence but also a significant degree of empathy for Mr Gander.

113 Fourth, I accept that Mr Clarke's conditions in custody have been substantially more onerous than usual in two respects.

114 For the reasons I gave earlier when outlining his personal circumstances, I accept that the three months he spent in restrictive custody until September 2025 were very harsh.

115 Further, for the two-and-a-half weeks spent in pre-trial hearings in Shepparton, Mr Clarke and his co-accused were housed in police cells overnight during the week. At these times, the lights in their cells were kept on all night, and police roused them from their sleep (if they could sleep at all) almost every hour on the hour. On occasions, other persons arrested at night would be put in Mr Clarke's cell. All of this, it was said, was done pursuant to a Victoria Police policy directed at the welfare of those in custody. Whatever the reason, these were inhumane and unnecessary conditions that made Mr Clarke's time in custody at Shepparton unduly onerous. The conditions were such that, because Victoria Police would not yield in the application of their policy, I ruled that a fair trial could not be conducted in Shepparton and that the trial must be moved to Melbourne instead.[7]

Hardship of having murder and arson charges hanging over head until verdicts

116 The fifth factor in mitigation is that, up until the jury's verdicts on 15 July 2025 - so, for over two‑and‑a‑half years after his arrest - Mr Clarke had the strain and indignity of widespread reporting of allegations that he murdered Mr Gander and that he callously destroyed his body (and the Territory) by fire in an attempt to cover up his involvement in that murder. Yet he has been vindicated by his acquittal of those charges. I accept that this has been a form of extra-curial punishment that has weighed heavily on Mr Clarke, and all the more so when he lives in a small regional city.

117 The sixth factor in mitigation concerns Mr Clarke's character.

118 While he has the prior and subsequent convictions mentioned earlier, they are modest in the scheme of things, and are dwarfed in gravity by the seriousness of the offences for which he now stands for sentence.

119 Further, notwithstanding that criminal history, the current offences, and an early life of disadvantage, I accept that Mr Clarke is essentially a decent man. This is demonstrated by the fact that he was heavily involved in caring for his former wife and assisting her in the raising of their children, and that he sought to provide for them by working in gainful employment whenever he could. Further, despite Mr Clarke's part in the kidnapping, his underlying decency is shown by his admonition of his co-accused, once at the abandoned house, to stop what they were doing.

120 The seventh factor in mitigation is that I am satisfied that Mr Clarke has good prospects of rehabilitation. Not excellent, not poor, not just reasonable, but good. I am persuaded to that assessment by a number of factors. They include his plea of guilty to arson, his admissions in evidence to arson and the behaviour giving rise to kidnapping, his remorse, his limited criminal history, his positive character traits, his solid work history, and his attempts to better his chances of employment upon release from prison.

Loss of opportunity for partial concurrency with seven-month sentence

121 The eighth and final factor in mitigation concerns the fact that Mr Clarke has lost seven months of pre-sentence detention on the arson and kidnapping by service of his sentence of seven months' imprisonment from January 2024. I accept that, had the offences for which he received that sentence been dealt with after or at the same time as sentencing on the arson and kidnapping, there would have been a substantial degree of concurrency between that seven-month sentence and the total effective sentence and non-parole period I am about to impose. Thus, I must take this fact into account in a broad way when considering totality in sentencing him today.

122 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general and specific deterrence, denunciation, just punishment, protection of the community, and rehabilitation.

General deterrence, denunciation, and just punishment

123 In my view, general deterrence, denunciation and just punishment are important sentencing purposes for both offences in this case. Anyone who intentionally damages another's car by fire, even if there is (as here) some moral justification for doing so, must understand that, usually, just punishment will be meted out by way of a substantial prison sentence upon conviction. Such conduct must also be denounced by the Court.

124 Similarly, to be a party to another person being transported in the boot of a car against his will after being assaulted is a nasty thing to do, even where the offending, as here, is instigated by others and the motive is not to harm the person but to get him and his vehicle away from the offender's premises. Again, while Mr Clarke's offence of kidnapping was a good deal less serious than the instances of the offence committed by his co-offenders, general deterrence, denunciation and just punishment are still important sentencing purposes that conduce to a substantial prison sentence.

Specific deterrence and protection of the community

125 While the nature of Mr Clarke's offences, together with his prior and subsequent convictions, combine to make specific deterrence and community protection of some weight, I think that that weight is reduced to some extent by his plea of guilty to arson, his admissions in evidence supporting both arson and kidnapping, his remorse, his positive character traits, his good prospects of rehabilitation, the particular hardships he has experienced in custody, and the extra-curial punishment he has already endured. I consider it unlikely that Mr Clarke would involve himself in offending of these kinds again.

126 Rehabilitation remains an important purpose in sentencing Mr Clarke, for at least two reasons. First, because I am satisfied that his prospects of reform are good, rehabilitation is a sentencing purpose that must be afforded significant weight in the sentencing calculus. Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Mr Clarke will be released sooner or later. It is therefore in the community's interests that his prospects of rehabilitation be maximised, so that, when he is released, his risk of reoffending is as low as it reasonably can be, and his chances of successful reintegration into society are good.

127 Next, I note that all aspects of the sentences I shall pass are intended to conform with the principle of parsimony, as they must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

128 Next, I note that, in considering the appropriate sentences, I have considered current sentencing practices for these offences, as far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but, where known, they are nevertheless important in the sentencing synthesis.

129 In order to gauge current sentencing practices for these offences, I have had regard to sentencing statistics.

130 Statistics kept by the Sentencing Advisory Council ("SAC") for the period from 2018-‍19 to 2022-‍23 show that 138 people were sentenced in the higher courts for a principal offence of arson. Most of those people (about 86 percent) received a term of imprisonment. The shortest term was one month, and the longest was eight years. The median term was two‑and‑a‑half years; the mean (or average) term was two years and four months; and the most common term was less than one year.[8] For the period from July 2019 to June 2024, of the 207 charges of arson dealt with in the higher courts, the most common sentence was imprisonment (178 charges or 86 percent); the median term was one‑and‑a‑half years; and about 78 percent of those terms were of less than three years.[9]

131 Statistics kept by the SAC for the period from July 2019 to June 2024 show that 64 charges of kidnapping (at common law) were dealt with in the higher courts. The most common sentence was imprisonment (59 charges or 92 percent); the shortest term was less than a month; the longest was seven years; the median was two‑and‑a‑half years; and nearly 68 percent were under three years.[10]

132 These statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether there were significant prior convictions or not, and so on. Nevertheless, they do give some guidance.

133 Sometimes, case comparisons may also assist in gauging current sentencing practices. Where a range of similar cases is available, they can give some useful guidance as to current sentencing practices.

134 With that in mind, helpfully, Mr Terry and Ms Skvortsova provided a list of comparative cases in their written submissions,[11] and Mr Gibson referred to two cases in his oral submissions.[12]

135 However, while some cases had a similar feature here or there, none of those cases was meaningfully similar to the present. And while other sentences can be helpful in assessing current sentencing practices, they are not precedents to be applied or distinguished.

136 Nevertheless, recognising the limitations of the foregoing sentencing statistics and the case comparisons offered, I am satisfied that the sentences I am about to impose are consistent with what I understand to be current sentencing practices for the two offences.

137 Next, I turn to counsel's ultimate submissions, commencing with Mr Terry. He submitted that, in all the circumstances, the total effective sentence should approximate the period Mr Clarke has spent in custody, and that he has already exceeded the appropriate non-parole period.

138 Mr Gibson submitted that, given the need for some cumulation between the individual sentences, Mr Clarke had not done enough time yet as a total effective sentence. However, it was unclear to me whether that submission precluded or embraced the notion that he might have done enough time in custody as a non‑parole period.

141 Balancing all matters as best I can, Danny Clarke is convicted and sentenced as follows:

a) for the kidnapping of Charlie Gander, three years' imprisonment; and

b) for the arson of the Hyundai, two years' imprisonment.

142 I direct that one year of the sentence on the arson be served cumulatively upon the sentence for kidnapping, making a total effective prison sentence of four years.

143 I fix a non-parole period of two years and four months.

144 Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 868 days of pre-sentence detention be reckoned as served under this sentence.

145 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for his plea of guilty to arson of the Hyundai, I would have sentenced Mr Clarke to three years' imprisonment for that offence.

146 While I have had regard to totality generally in arriving at those individual sentences, the order for cumulation, the resulting total effective sentence, and the non‑parole period, I have had regard as well to the fact that Mr Clarke has lost the opportunity for partial concurrency with the seven-month sentence he served from January 2024. When that seven‑month sentence is added to the mix, it is now as if, since his arrest on 30 December 2022, Mr Clarke has been serving a combined total effective sentence of four years and seven months' imprisonment with a combined non‑parole period of two years and 11 months, and as if that continuous period of nearly three years had been declared as pre-sentence detention.

147 Either way, the effect of the sentence I have just imposed is that Mr Clarke is entitled to apply for parole immediately. In fact, he has already exceeded that date by a couple of weeks or so.[13]

148 In those circumstances, while it is a matter for the Adult Parole Board whether, and when, to grant parole, fairness dictates that I urge the Board to hear Mr Clarke's application for parole as soon as possible. And I do.

I certify that this and the 28 preceding pages are a true copy of the reasons for sentence of the Honourable Justice Croucher of the Supreme Court of Victoria delivered on 15 December 2025.

[3] Pursuant to ss 197(1) and (6) of the Crimes Act 1958 (Vic).

[4] I should add that, in February, when I sentence Ms Stott and Mr D'Elio, I intend to incorporate in my reasons for sentencing those two accused aspects of the following reasons for sentencing Mr Clarke.

[5] See s 197(7) of the Crimes Act 1958 (Vic).

[6] See s 320 of the Crimes Act 1958 (Vic).

[7] See R v Stott & Ors (Ruling 7) [2025] VSC 793 (27 May 2025).

[8] Sentencing Advisory Council, Sentencing Snapshot 287: Arson - Sentencing trends in the higher courts of Victoria 2018-19 to 2022-23.

[9] Sentencing Advisory Council, SACStats, Arson (destroy or damage property by fire), Higher courts, 1 July 2019 to 30 June 2024.

[10] Sentencing Advisory Council, SACStats, Kidnapping (common law), Higher courts, 1 July 2019 to 30 June 2024.

[11] On arson, Mr Terry and Ms Skvortsova referred to Hach v The Queen [2018] VSCA 196; DPP v El Kinouni [2019] VCC 431 (9 mths); DPP v Secombe [2016] VCC 1158 (8 mths); DPP v Carter [2019] VCC 2243 (307 days + CCO); DPP v Perez [2021] VCC 756 (15 mths + CCO; 12 mths + CCO); and DPP v Payne [2017] VCC 347 (512 days). On kidnapping, they referred to DPP v Morley-Corrin [2016] VCC 1559 (2 yrs 8 mths); DPP v Odisho [2021] VCC 325 (2 yrs 2 mths; NB: kidnapping under s 63A, Crimes Act 1958 (Vic), not at common law); DPP v Collison & Garratt [2021] VCC 2189 (2 yrs for C; 12 mths for G as part of aggregate sentence); DPP v Lukic [2016] VCC 359 (16 mths x 2); and DPP v Ghadami & Samimi [2019] VCC 1146 (12 mths).

[12] On kidnapping, Mr Gibson referred to DPP v Thorn [2023] VSC 702 (11 yrs); and DPP v Bottom & Smith [2023] VSC 717 (7 yrs & 7½ yrs for false imprisonment).

[13] In fact, putting aside any emergency management days he may have accrued, his parole eligibility date should be around 29 or 30 November 2025.