STATE OF TASMANIA v CAMERON SCOTT CLARK ESTCOURT J
COMMENTS ON PASSING SENTENCE 10 AUGUST 2020
The defendant Cameron Scott Clark, pleaded guilty on 8 November 2018 to one count of armed robbery and also to an allied summary charge of driving whilst disqualified.
At the time of the robbery the staff member to whom I will refer as “the complainant” was employed as a casual worker at the Big Bargain Bottle Shop at Main Road, Claremont. On Monday 1 May 2017, she was working at the bottle shop and was due to complete her shift at 8.00pm.
At about 7.45pm she was working alone and there were no customers in the store. She had her back to the entrance but heard the electronic signal indicating that the sliding doors had been activated. She turned towards the door and observed the defendant who was wearing a balaclava and holding a long kitchen knife. The defendant said to the complainant “I need the money” in a firm voice and repeated it a couple of times.
I have viewed the CCTV footage of the incident. The complainant walked to the cash register close to the end of the service counter and the defendant followed her brandishing the knife but remaining, relatively passively, outside the gateway to the “behind counter” area. At the cash register the complainant pressed a panic alarm a number of times before opening the register. The defendant told her to put the money in a bag and urged her to be quick, repeatedly telling her to “hurry up”. The defendant was largely engaged looking towards the entry to the shop.
As the complainant placed all of the money from the cash register into a green plastic sales bag the defendant said to her “I’m sorry I have to do this”. After filling the bag the complainant threw it on the ground towards the sliding doors. The defendant bent down to collect it and as he did so $70 in cash fell out.
The defendant then left the store through the sliding doors and turned left with $1,565.00 in notes. He had, notwithstanding he was a disqualified driver, driven a gold Magna motor vehicle to and from the bottle shop. Upon arrival, police observed that the complainant was, understandably, visibly upset.
I read a victim impact statement from the complainant. As is all too often the case, she required some months off work and the services of a psychologist. She suffered flashbacks and nightmares and was eventually prescribed medication for anxiety and to help her sleep. She was unable to return to work at the bottle shop and has changed her employment.
The Crown has made an application pursuant to s 57D(l) of the Sentencing Act 1997 for an order that the deferred sentencing order be revoked on the ground that the defendant committed the offences of breach of a police family violence order and common assault on 25 December 2018, breach of a police family violence order and common assault on 30 December 2018 and breach of a police family violence order on 26 January 2019.
I have been asked to proceed to sentence the defendant under s 7 of the Act.
My reason for deferring sentence was in order to allow the defendant to demonstrate that he could continue to be rehabilitated or could become completely rehabilitated, and also to allow in due course, for a further assessment of his suitability for community service after the completion of his outstanding hours.
Sentencing was deferred on 8 November 2018 for a period of two years.
Immediately following sentencing, the defendant is said to have felt “significant personal pressure”, which led to strain on his relationship with his partner. This resulted into a relapse into drug use just prior to Christmas 2018 which led to the offending relied upon by the Crown for the revocation of the order.
The defendant pleaded guilty to those charges and was sentenced. He was in custody between 29 January 2019 and 26 April 2019. Since finishing that sentence he has again made genuine and considerable attempts to rehabilitate himself.
When the application to revoke the deferred sentence first came before me in substance, I varied the date of the deferred sentencing saying:
“In my view the defendant is showing all signs of making a complete recovery from his drug addiction, a longstanding illness which has plagued him since he was injected with amphetamine by his uncle when he was 19. Had he been placed on a DTO in November 2018 – for which he was deemed suitable and eligible – but in truth was ineligible because of the length of his likely sentence and an outstanding charge against him – there is no question in my mind that such an order simply would not have been cancelled because of the subject offending. Having said that of course I understand the policy underlying his ineligibility.”
Prior to the substantive hearing of this matter on 7 August 2020, I had the considerable advantage of considering the following documents;
• A report from Dr Mike Jordan dated 7 January 2020.
• Letters from Jessica Forward dated 2 October 2019, 24 January 2020, 3 February 2020, and 28 April 2020.
• Letters from Max Employment dated 28 January 2020, 17 June 2020, 24 April 2020, 31 July 2020, and 5 August 2020.
• Letters from the Salvation Army dated 20 December 2019, 15 June 2020 and 3 August 2020.
• A letter from Dr Geoff Donegan to Dr Amy Elder dated 28 July 2020 (in relation to the defendant’s son R).
• A Home Detention and Community Service Assessment Report dated 5 August 2020.
At the time sentence was deferred in November 2018, the defendant had already been making significant efforts in terms of his drug rehabilitation.
A report from Doctor Jordan (which was authored after sentence was deferred) notes significant matters relating to the defendant’s childhood, his use of illicit drugs, his mental health and his continued rehabilitation, most notably:
• The defendant comes from a large dysfunctional family unit with exposure to abuse and violence during his formative years.
• His parents separated when he was approximately 8 years old, prior to that their relationship had been tempestuous and violent.
• He was a victim of a sexual assault when he was 10 years old – reported to his mother and grandmother but no action taken.
• There were issues of violence in the home, both with his siblings and his mother.
• He was described as being brought up in “fear”.
• He experienced anxiety at school, especially when exposed to violence amongst other people.
• After school he started obtaining further qualifications but was then, as noted, was introduced to methamphetamine or amphetamine at least, at age 19 by his uncle (who injected him with the substance).
• He quickly became addicted.
• Much of his 20’s were overwhelmed by his use of illicit substances.
In November 2017, the defendant started to reduce his drug use and voluntarily completed the EQUIPS addition program. The program had a significant impact on his life.
He was not represented to the Court, at the time of the deferred sentence by his counsel Ms Flockhart, as a reformed drug user. Rather, one who had had some success in overcoming his addition, but required ongoing support.
After sentence was deferred relationship problems resulted, as I have noted, in a drug relapse just prior to Christmas 2018. This led to the offending for which he pleaded guilty to and was sentenced. He was in custody between 20 January 2019 and 26 April 2019. As a result, during that period, he lost his employment at Incat.
Since being on the deferred sentence, and since his release from custody in April 2019, the defendant has again continued to pursue private support services for assistance with drug rehabilitation.
On 21 August 2019, he commenced with the Bridge Treatment Recovery Service (‘the Bridge Program’). This was voluntary and due to a desire to want to get back to where he was in November 2018, in terms of his drug rehabilitation and in terms of his employment.
The defendant has continued to work hard since that time and has remained abstinent from illicit drugs.
The defendant completed the residential component of the Bridge Program between 21 August 2019 and 19 December 2019, and he has since been participating in the Salvation Army After Care Program.
As part of the Bridge Program he had access to one on one alcohol and drug counselling, case management support, bio psych-social group work, and peer mentoring.
He was due to complete the Family Violence Offender Intervention Program through Community Corrections in February 2020 but due to the COVID-19 pandemic the program was not available. However, he has completed an Emotional Regulation and Stress Management course through his engagement with the Bridge Program.
The defendant realised during the residential component of the Bridge Program that returning to his grandmother’s address in Risdon Vale would have been a poor choice, and he needed to look for other accommodation to further his rehabilitation. He was placed on a waitlist for public housing.
In December 2019, he approached Bethlehem House, a centre for homeless men. This was difficult for him as he had never stayed in a shelter before. He is in receipt of a Disability Support Pension from Centrelink. At that time he was receiving approximately $980 a fortnight, and was required to pay approximately $800 per fortnight to Bethlehem House. Although costly for him, it was an important decision not to return to his grandmother’s address.
After being on the waitlist for housing for approximately 2 months he secured a unit in West Hobart. He has been in that accommodation since February 2020.
He has been engaging with the Bridge Program Aftercare Program since December 2019. Immediately following his departure from the residential program he had a weekly schedule of activities. These activities included table tennis, cooking classes, mindful meditation, group therapy, relapse prevention, swimming, and bushwalking. The activities were running 5 days a week, and he was attending 3 – 4 days a week. His appointments with his psychologist were in addition to those activities. Since the COVID-19 pandemic he has not been able to attend in person activities but is still engaged.
With the exception of consuming two valium tablets, the defendant has been abstinent from all drug use, and in particular all illicit drug use, since his engagement with the Bridge Program, which has now been almost 12 months.
The compensation order foreshadowed on behalf of the Big Bargain Bottle Shop was for the sum of $1,335.00. The defendant made a lump sum payment through an early release of superannuation and has been paying regular fortnightly installments since. There is now only $143.00 remaining.
The defendant continues to engage with Max Employment. He is a long term client of that service.
Max Employment funded the defendant to obtain his motorcycle licence and indicated that having a license would guarantee him work. The COVID-19 pandemic may have made those opportunities more difficult but the defendant has continued to seek any opportunity where possible.
He commenced again at Incat on 18 March 2020. However, that employment was terminated shortly thereafter due to the pandemic.
On 11 July 2020 he commenced a trial for cray fishing. Although the trial went well, it is not something that he is likely to pursue due to what he sees as the culture of the workplace. He felt the trip effected his mental health and he now has other opportunities that he is pursuing.
His engagement with his psychologist, Jessica Forward, has been significant. This was an opportunity that he had through the Bridge Program, and something he has continued with since completing that program.
As part of that engagement he disclosed issues in relation to trauma as a child. This was the first time he had been able to disclose this trauma to a professional.
Since his engagement with his psychologist he has been diagnosed with Post-Traumatic Stress Disorder. This diagnosis was a new development in relation to his mental health. In his own words he has said that working on this aspect of his mental health has been “really really hard” but he now has “the tools to attack that.”
The material provided from his psychologist does indeed demonstrate that he has been committed to working on his mental health during the deferred sentence period and he is making significant progress in that regard. He continues to take medication on a regular basis and that is said to be assisting with making his mental health more stable.
The defendant now has a daughter who is only 3 months old. He is not in a relationship with the mother of his child, but he is visiting his daughter on a regular basis.
He is in the early days of recommencing his relationship with his former partner. They have undertaken relationship counselling and are spending more time together.
There have been some complications with the health of his 11 year old son.
Ms Flockhart, submits that rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
The defendant is assessed as suitable for further supervision, community service hours and home detention.
Ms Flockhart submits that a suspended sentence coupled with community service would take into account and place appropriate weight on the gains the defendant has made whilst subject to the deferred sentencing order including the following:
a The defendant has been abstinent from illicit drugs since 21 August 2019;
b He has been consistently engaging with his psychologist, as well as completing relationship counselling through her;
c He is regularly taking medication for his mental health;
d He completed the Bridge Program (residential component and continues to engage with the Aftercare Program);
e He has made positive choices around his accommodation and now has his own independent accommodation for the first time ever;
f He has been subject to strict bail conditions since the time of the offence (which has now been around 3 years);
g He has sought financial assistance and counselling as to his financial commitments and is effectively managing those, including I note having almost completely paid off the compensation order;
h He remains engaged with Max Employment and has good employment prospects;
i He has completed all of his outstanding community service hours.
I have considered the sentencing options in this case very carefully. I note that on 9 December 2019, Deputy Chief Magistrate Daly deferred sentence for three summary offences, (one of destroy property and one of fail to appear and one of breach of bail offences) until 9 December 2020 and indicated that if all went well during the deferred sentence period he would likely record a conviction and make no further order.
The outstanding charge of assault to which the defendant is subject, has been remitted to the magistrates court for hearing. So all augurs well for the future.
There has been no application to review Deputy Chief Magistrate Daly’s deferred sentencing order.
I accept Ms Flockhart’s submission. As I remarked on a previous occasion, it would to my mind be cruel and unjust to send the defendant to prison at this point of his recovery. This is a momentous turning point in this man’s life. He has made a huge turnaround in his life. If he fails to continue to do so he will be going to jail for a lengthy period. Cases such as this are rare outside the CMD system and call for a merciful sentencing outcome if that is at all possible. It is regrettable that he was not eligible for a DTO in November 2018. With his demonstrated determination he would most likely have graduated the program by now and not subject to potential imprisonment.
The defendant is convicted of the crime of armed robbery and the allied offence of driving whilst disqualified.
Pursuant to s 57D(l) of the Sentencing Act I accede to the Crown’s application and the deferred sentencing order made by me in respect of the defendant on 8 November 2018 for a period of two years is revoked.
The defendant is sentenced to a single sentence of 2 years and 6 month’s imprisonment, which sentence I wholly suspend on condition that he commit no offence punishable by imprisonment for a period of three years.
I also make a community correction order that contains, in addition to the statutory core conditions, a special condition that the defendant must, within the next three years, satisfactorily perform community service as directed by a probation officer or a supervisor for a period of 240 hours, the maximum.
Noting that the defendant was subject to a bail condition that he not drive a motor vehicle for a period of some 2 ½ years from 24 July 2017 until 21 January 2020, I do not impose a period of licence disqualification.
I make a compensation order in favour of the Big Bargain Bottle Shop, Main Road, Claremont in the sum of $1335, and note that the defendant has paid that sum of money to the Big Bargain Bottle Shop less $143 which remains and must be paid pursuant to my order.