District Court New South Wales Medium Neutral Citation: R v Clarke [2022] NSWDC 503 Hearing dates: 11 October 2022 Date of orders: 11 October 2022 Decision date: 11 October 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [59] Catchwords: SENTENCING – aggravated break and enter – steal motor vehicle – vehicle a classic car – lengthy criminal history – previous convictions for like offences – planning and sophistication in the offence – Bugmy principles enlivened – some contrition and remorse – risk of institutionalisation Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327 Bugmy v The Queen (2013) 249 CLR 571 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Filippou v The Queen (2015) 256 CLR 47 McKillop v R [2010] NSWCCA 126 Nicholls v R [2020] NSWCCA 66 Thach v R [2018] NSWCCA 252 Category: Sentence Parties: Rex (Crown) Luke Martin Clarke (Offender) Representation: Counsel: Mr A Metcalfe (Offender) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) Blomfield Legal (Offender) File Number(s): 2021/00251028 Publication restriction: Nil Ex tempore JUDGMENT Introduction 1. On 22 June 2022, the offender, Luke Martin Clarke, was arraigned on an indictment with a single count to which he pleaded guilty. The indictment reads as follows: "on or about 30 April 2021, in Leeton in the State of New South Wales, did break and enter the garage of [the complainant] situated at [the address], Leeton, and then in the said garage, did commit a serious indictable offence, namely, steal motor vehicle, in circumstances of aggravation, namely, being in company with [Bradley James Dehommel]." 1. The offence is contrary to section 112(2) of the Crimes Act 1900. The maximum penalty is 20 years' imprisonment with a standard non-parole period of 5 years' imprisonment. The maximum penalty and standard non-parole period are important guideposts in the assessment of sentence. A sentencing judge should steer by, but not aim for them. Plea of guilty 1. The matter was committed to the District Court for trial and was subsequently listed in the Albury/Griffith trial super callover. The offender pleaded guilty on 22 June 2022. The offender is entitled to a discount of 10% for his plea in accordance with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999. The Facts 1. There is a statement of agreed facts. For brevity in this judgment, I have summarised those facts as follows: 2. The complainant has a free-standing shed on his property in Leeton, NSW. The shed is accessible through an electronically controlled gate and has a roller door and side door. He stored his 1977 Holden Torana SLR with Historic registration plates in the shed along with other vehicles and items. 3. He locked the house and shed before he left with his wife on 27 April 2021. He asked a friend, George Nardi, to drive past to check on the house when he was in Leeton which he did once a day. 4. On 30 April 2021, one of the complainant's neighbours noticed the side gate of the complainant's fence to be off its rails, the roller door to the shed open and the side door of the shed seemed to have been forced open. He contacted Nardi and told him the Torana had been stolen. Nardi contacted the police. 5. On 29 April 2021, Luke Clarke and Bradley Dehommel were at the Shell Service Station in Leeton. They used the self-service U-Haul terminal to rent a car carrying trailer using the driver's licence of Tori Fisher, Mr Clarke's partner. They paid for 3 days' rental using Ms Fisher's debit card. They left the service station with the trailer attached at about 9:40pm. 6. Access was gained to the complainant's shed and items moved around so that the Torana could be removed from the shed. CCTV camera recorded their vehicle with the Torana on the car carrying trailer in Leeton then in Temora with a red Mazda Hatchback, registered to Ms Fisher, following, and then later in Yass at a service station. 7. Several people contacted police after the theft of the Torana was reported, describing a white utility pulling a car carrying trailer with the Torana. One citizen noticed that the vehicle was secured by a ratchet strap over the boot which was unusual for transporting classic cars as this will lead to damage. 8. The Torana was last seen on the trailer at the M7 interchange near Liverpool. Dehommel's mobile phone location data revealed that his phone connected to towers as he travelled from Leeton through Ardlethan, Temora, all the way to the Liverpool South Tower on 30 April 2021. The phone remained in the Greater Sydney area until 3 May 2021 when it connected to towers back to Leeton at 9:13am. 9. Dehommel's phone was seized and the contents downloaded. Police found several photographs of the Torana. Documentation has been tendered which values the Torana between $80,000 and $85,000. 10. I have been informed by Mr Hanshaw who appears for the Crown that a vehicle has been found at Taree with the compliance plate cut out. It is necessary for acid etching to take place to retrieve the engine block number. The police are 99% certain they have recovered the car. Parity 1. The facts disclose that the co-offender, Bradley Dehommel, was attune to all aspects of the planning and organisation of the offence. However, he was not present when the garage was broken into. With this, I consider that Mr Clarke had a more substantial role in the commission of the offence than Mr Dehommel. Criminal history 1. The offender has a lengthy and unimpressive criminal history. It includes convictions for offences of violence and dishonestly offences. He has previously been sentenced to substantial terms of imprisonment for very serious criminal conduct. 2. In relation to the present offence, Mr Clarke has a history of like offences. Tendered as a part of the Crown bundle are a set of agreed facts for H 69287252, which was an attempt in 2018 for the same charge that brings Mr Clarke before the Court today. In that matter, the victim was the owner/operator of a mechanical workshop. The vehicle was a Toyota Corolla 'street legal show car' which the owner spent over $70,000 on. The offender attempted to break into the locked garage of the workshop using an angle grinder with the intention of stealing the car. He could not break into the garage and was not able to steal the car. This offending is almost identical to the present offence for which he appears before me. For the previous offence, Mr Clarke was sentenced in 2019 at Penrith District Court to a term of imprisonment of 2 years and 4 months with a non-parole period of 1 year and 2 months. He received a 25% discount for his early plea of guilty in this matter. 3. His criminal history for like offending clearly disentitles Mr Clarke to any leniency. Objective seriousness 1. There is a guideline judgment in relation to the sentencing for break enter offences in Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327. The guideline judgment indicates the relevant sentencing considerations for a s 112 offence, without establishing a starting point or developing a sentencing range. 2. The factors that are to be considered are outlined in Ponfield at 337. The Court specified that if more than one such factor is present, there is a cumulative effect upon the seriousness. 3. In this instance, the offence was accompanied by damage to the property. The complainant's neighbour observed the side gate of the complainant's fence to be off its rails and the side door to the shed had been forced open. I take this damage into account, but I do not consider this degree of damage to be so substantial to enliven the consideration in Ponfield. 4. The offender clearly has a record for like offences. I have referred to the agreed facts and Mr Clarke's sentence for the attempt in 2018. It was precisely the same offence with the same circumstances of aggravation with similar facts, namely, breaking into a garage to steal a premium and unique car. This type of offending is not uncharacteristic for Mr Clarke. Additionally, the previous offence for which Mr Clarke was sentenced in 2019 at Penrith District Court is clearly less serious than the present offence. In this case, the car was actually removed. 5. Mr Metcalfe, counsel for the offender, submits that there is a limited degree of planning and lack of overall sophistication in the commission of the offence. On any reading of the facts, this submission cannot be founded. The offending clearly required a substantial level of planning, organisation and execution. The complainant was on holidays. Although he had asked friends to drive by his house and they did so daily, the offender knew that the theft of the car would not have been detected as promptly. The offender and his co-offender conducted surveillance of the vehicle by taking photographs of the vehicle while it was parked on the street in Leeton on 1 April 2021. He hired the trailer used to transport the Torana on 29 April 2021 using his partner's driver's licence, also using her bank card to purchase fuel and food. He took the car and drove it to Sydney before returning to Leeton on 3 May 2021. 6. Further, the trailer was hired the evening of 29 April 2021 and the offender took the car in the early hours of the morning on 30 April 2021 as recorded by the CCTV which captured the white holden utility with the car carrying trailer attached travelling through Leeton in the direction of the complainant's house between 4:24am and 4:37am, then CCTV in Temora showing the Torana on the trailer at 6:56am. At all times on 29 April 2021 and 30 May 2021, he had the opportunity to reflect on the decision to commit the offence. 7. I do not consider that this offence was one of impulse. The theft of the vehicle was carefully planned. It was not the situation where the stealing of the car was an afterthought after fortuitously locating the key while burgling the house as described by Hamill J in Nicholls v R [2020] NSWCCA 66 at [23]. 8. The final relevant consideration in Ponfield is the value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. 9. The motor vehicle stolen was a classic Holden Torana SLR. There is evidence before me as to the value of the car with a letter of Joe Severino, owner and manager of Gasoline Garage in Leeton. He has had direct experience with the car. He says: "The vehicle was in exceptional condition and had been rebuilt authentically which typically adds a significant amount to the cost and is often only appreciated by enthusiasts. In my opinion [the complainant's] car carried a value between $80,000 and $85,000." 1. He goes on to explain that the muscle car market has experienced an unusual spike in value, that these vehicles are difficult to source and that in today's market, he could have achieved more than a 20% premium in the sale price. 2. I can only make a finding of fact adverse to an offender on sentence if I am satisfied beyond reasonable doubt of that fact: Filippou v The Queen (2015) 256 CLR 47 at 69-71. I am bound to sentence Mr Clarke on the basis that the value of the car is $80,000. However, I have taken into account the contents of the letter of Mr Severino. He was personally familiar with the car. It was a premium, authentic car that was in exceptional condition. There has been a spike in the market and these cars have become difficult to source. 3. The offence of steal a motor vehicle, the serious indictable offence particularised in the charge of aggravated break and enter, is a serious offence which carries a maximum penalty of 10 years' imprisonment when dealt with on indictment. This is relevant to my assessment of the objective seriousness of the offence. This offence is a serious example of aggravated break and enter. I consider this to be slightly below the mid-range of objective seriousness. Comparative cases 1. I am assisted in determining the appropriate sentence by a review of select comparative cases. 2. McKillop v R [2010] NSWCCA 126 involved a professional burglar where over $1.9 million was stolen. The relevant counts where a comparison can be drawn to this offence are counts 9, 10 and 11. For each of the counts, the appellant broke into the homes while the occupants were present, took the keys and stole their cars. Each of the cars were located. The sentencing judge imposed a head sentence of 6 years with a non-parole period of 4 years for each count. An appeal against the severity of the sentences was dismissed. 3. Nicholls v R [2020] NSWCCA 66 involved two charges, one contrary to s 112(2), and one charge of steal motor vehicle contrary to s 154F Crimes Act 1900. The appellant broke into the home of the victim and took the victim's wallet. He took the victim's car keys and drove a Toyota Camry away from the premises. The car was recovered approximately a week later. The appellant was an Aboriginal man with mental health issues. An appeal against the severity of sentence was allowed, and the appellant was resentenced for the two offences separately. The total effective sentence was 3 years and 10 months with a non-parole period of 2 years and 9 months. I consider that the present offending to be objectively more serious than that in Nicholls, taking into account the planning involved and the value of the car. Subjective circumstances 1. I am assisted in determining the relevant subjective circumstances of the offender by the report of Mr Peter Watt, psychologist, dated 25 August 2022. I have also had the benefit of reviewing the sentencing assessment report prepared for Mr Clarke dated 9 August 2022. 2. The offender is a 36-year-old man. He grew up in the Campbelltown area of Sydney before moving to the Central Coast with his older sister and her partner. His parents separated due to domestic violence by his father whom the offender described as an alcoholic and a drug addict. He witnessed his mother being "bashed" from a young age. 3. The offender commenced drinking from around 12 years of age. He tried acid when he was 13 and experimented with marijuana, heroin, speed, ecstasy and cocaine as a teenager. The offender explained both to Mr Watt and the author of the sentencing assessment report that he was heavily intoxicated with alcohol on the night of the offence. In the period before, he had been drinking alcohol excessively. Self-induced intoxication is not a matter that can be taken into account in mitigation on sentence. However, I do consider this as a part of the offender's subjective mix. I note that he reported to Mr Watt that he has not consumed illicit substances or alcohol while on remand, a period of more than 15 months. 4. The offender reported that his uncle was the national captain of the Hells Angels OMCG and that his father was also involved in that club. The offender himself was also a part of an OMCG from 2010 – 2016. His involvement with the OMCG resulted in numerous incidents that the offender was involved in or witnessed including being held and knife point, being shot at and involved in affrays, all of which the offender reports were expected out of loyalty to the club. 5. He attended school to year 10. He would often truant and was placed in special education classes due to learning and behavioural difficulties. He reported that he has previously been diagnosed with ADHD. There is no objective evidence before me concerning same, Mr Watt did not engage in any formal testing. When he was 10-12 years old, his older brothers would take him on "crime sprees" in Sydney where he was expected to steal things and be a look out for them. He left school after being sentenced to detention in a juvenile correctional facility. 6. The offender reported that while in custody as a juvenile, he was sexually abused by a male worker at Frank Baxter Juvenile Justice Centre on and off for a few years. He described that he attempted to hang himself in his cell when the worker came in. The offender was "roughed up", stripped and then grabbed on his genitals. After this, he said the same worker would come into his cell and sexually abuse him. A letter has been tendered indicating that he has instructed solicitors in relation to a civil claim for the abuse he experienced. When he was 18, he was transferred to Reiby where he was touched up and forced to have sex with a female officer in her forties. 7. It is clear that the background the offender described to Mr Watt enlivens the sentencing principles enunciated in Bugmy v The Queen (2013) 249 CLR 571 and the offender's moral culpability is reduced. 8. The offender moved to Leeton for a fresh start. He lived there with his partner and her two children. The offender and his partner also have a child together. The offender has two other children from a previous relationship. Before he was taken into custody for the present offence, he worked for his brother in concreting and was also self-employed with a party hire business which he ran with his partner. 9. Mr Watt opined that the offender meets the diagnostic criteria for Major Depressive Disorder which he currently suffers. At the time of the offence, Mr Watt opined that Mr Clarke was experiencing a Major Depressive Episode and Unspecified Disruptive, Impulse-Control and Conduct Disorder. There is nothing to suggest that the mental health condition of the offender materially contributed to the commission of the offence such that the sentencing principles in DPP (Cth) v De La Rosa [2010] NSWCCA 194 are enlivened. 10. Mr Clarke told the author of the report that at the time of the offence, he was undergoing extreme financial strain. His business was experiencing significant difficulties as a result of the COVID-19 pandemic. He said that he wasn't able to pay anything, explaining that he was selling off assets from his business to pay rent and feed his family. He said that the stress from this led to him reverting back to his criminal way of life. 11. To both Mr Watt and the author of the sentencing assessment report, he said that it was an 'impulsive' decision to be involved in the offence. He explained that the influence of alcohol and his financial circumstances, along with his recent learning that his son had been sexually abused by his maternal uncle triggered his criminal past. In my assessment of the objective seriousness of the offence, I analysed the aspects of the facts when I considered the planning and organisation of the offence. There were multiple aspects to this offence. There were multiple aspects to this offence: hiring the trailer, breaking into the garage, stealing the car, and then transporting the car to Sydney. Given the planning involved, this offence cannot be characterised as an impulsive decision. 12. Further, the offender reported to Mr Watt that he participated in the offence without regard for his own family or the victims. This is in contradiction to what he told the author of the sentencing assessment report, that he resorted to this offence as a result of financial strain and a need to support his family. Prospects of rehabilitation 1. The offender has been assessed as having a medium risk of reoffending according to the Level of Service Inventory. He expressed a willingness to engage in any interventions suggested, requesting assistance from the author of the report for referrals for a mental health assessment and possible treatment of post-traumatic stress disorder, depression and anxiety. 2. Mr Watt recommends that the offender obtain a Mental Health Plan from his general practitioner, continued abstinence from alcohol and counselling for a period of 12 – 18 months. Mr Watt is prepared to support Mr Clarke once he is released. 3. The offender has previously had opportunities with supervision from Community Corrections. This is described as a positive experience for Mr Clarke. On previous occasions, he engaged with intervention as required. 4. Mr Clarke has the continued support of his partner whom he intends to live with when he is released from custody. The Crown submits that his partner will not assist the offender in terms of his rehabilitation, given that she may have been criminally involved in the commission of the present offence, including the preparation and follow-up. 5. Overall, considering his extensive criminal history, I cannot be satisfied on the balance that he is unlikely to reoffend. I am guarded in making any positive finding in relation to his prospects of rehabilitation. Contrition/remorse 1. The offender told Mr Watt that he regretted his involvement, and he did not want to associate with others involved in the offence. He expressed to the author of the sentencing assessment report that he felt sorry for the victim, and how it is unfair that the victim lost his car because the offender stole from him. He recognised the sentimental value that the car might have had for the complainant, describing it as his "baby". 2. The offender has demonstrated some contrition and remorse but has not disclosed who the car was sold to or its whereabouts. To do so would be a sign of genuine contrition and remorse. His words without action are somewhat hollow. COVID-19 1. The impact and restrictions of COVID-19 in the prison environment are multi-faceted. Both appellate and courts of first instance in NSW have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including: 1. The suspension of social and family visits 2. Restrictions to movement and subsequent isolation of inmates 3. Negative impacts on well-being including stress and anxiety 4. The greater risk of infection and serious harm to inmates. 1. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including that work opportunities during the pandemic, when available at all, are limited. Special circumstances 1. I have reviewed the criminal and custodial histories for Mr Clarke. He is a 36-year-old man who has spent over 10 years, more than half of his adult life, in custody for extremely serious criminal offences and offences that are not dissimilar to the present offence. He also has served periods in custody as a juvenile. He described that he has "criminal DNA" to the author of the sentencing assessment report. There is a very real risk of institutionalisation. 2. Community Corrections has prepared a supervision plan for Mr Clarke. Mr Watt has recommended treatment that would be beneficial for Mr Clarke's rehabilitation, expressing that he will support Mr Clarke once released. I need not be satisfied that successful rehabilitation be likely before I find special circumstances, only that it is a possibility that would be assisted by a longer period of supervision on parole: Thach v R [2018] NSWCCA 252 at [45]. I am so satisfied, and I find special circumstances. Sentence 1. Mr Metcalfe concedes that the threshold outlined in section 5 of the Crimes (Sentencing Procedure) Act 1999 is crossed, and no penalty other than one by way of full-time imprisonment is appropriate in the circumstances. 2. The sentence that I ultimately impose must not only adequately punish Mr Clarke for his offending behaviour but must also send a message to others in the community that might have inclination or impulses to commit similar offences that they will be met with condign punishment should they choose to offend. 3. The offender was not on conditional liberty at the time he committed this offence. However, on 14 April 2022, the offender was sentenced at the Griffith Local Court for an offence of affray to a term of imprisonment of 6 months, expiring on 1 March 2022. Mr Metcalfe submits that the start date for this offence could be backdated beyond the expiry of the fixed term for the affray, submitting that 1 December 2021 would be an appropriate commencement date. I accept that submission. 4. The offender will be convicted and sentenced to a term of imprisonment of 3 years 6 months, commencing on 1 December 2021 and expiring on 31 May 2025. But for the 10% discount, the term would have been for 3 years and 11 months with rounding down. I set a non-parole period of 2 years and 4 months. The non-parole period is 66.6% of the head sentence in accordance with my finding of special circumstances. The offender will be eligible for parole on 31 March 2024. ********** Amendments 25 October 2022 - De-identification of the complainant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022