Clapham v The Queen - [2016] NSWCCA 198

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clapham v R [2016] NSWCCA 198
Hearing dates: 31 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Before: Price J; Davies J; Garling J
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Sentence imposed by Arnott SC DCJ on 12 February 2015 quashed.
(4) The matter is remitted to the District Court at Sydney on 9 September 2016 at 9:30am to fix a date for sentence by a judge other than Arnott SC DCJ.

Catchwords: CRIMINAL LAW – sentence appeal – charged with possession of a loaded firearm in a public place – charged with aggravated possession of an unregistered firearm in a public place without authority to possess the firearm – charged with maliciously damage property by fire – charged with deemed supply of a large commercial quantity of a prohibited drug – whether the sentence miscarried by reason of the failure of the applicant’s counsel and solicitors to adequately prepare for and present his case on sentence
Legislation Cited: Crimes Act 1900 (NSW), ss 93G, 93I, 195
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited: Pym v R [2014] NSWCCA 182
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: James Clapham (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC and LC Hutchinson (Applicant)
N Adams (Respondent)
Solicitors:
Armstrong Legal (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/341139
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 February 2015

Before:

Arnott SC DCJ

File Number(s):

2013/341139

Judgment

THE COURT: In view of the concession by the Crown that Ground 3 of the applicant’s appeal has been established and the agreement by the parties that the applicant should be remitted to the District Court for resentence, the Court agreed to the parties’ request that the appeal be dealt with on the papers.
The applicant pleaded guilty to the following charges:

Possession of a loaded firearm in a public place contrary to s93G(1)(a)(i) Crimes Act 1900 (NSW) (“Crimes Act”): Maximum penalty – 10 years imprisonment.

Aggravated possession of an unregistered firearm in a public place without authority to possess the firearm contrary to s93I(2) Crimes Act: Maximum penalty – 14 years imprisonment.

Maliciously damage property by fire contrary to s195(1)(b) Crimes Act: Maximum penalty – 10 years imprisonment.

Deemed supply of a large commercial quantity of a prohibited drug contrary to s25(2) Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”): Maximum penalty – imprisonment for life and a standard non-parole period of 15 years.

The applicant was sentenced by Arnott SC DCJ (“the sentencing judge”) on 12 February 2015 to an aggregate sentence of 16 years with a non-parole period of 10 years. The sentence had been discounted by 25% for the utilitarian value of the pleas of guilty.
The notice of appeal identified the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clapham v The Queen

Details

AGLC: Clapham v The Queen [2016] NSWCCA 198
Case: [2016] NSWCCA 198
Decision Date: 31 August 2016

CaseChat Overview and Summary

Clapham was convicted for possession of a loaded firearm in a public place, aggravated possession of an unregistered firearm in a public place without authority, maliciously damaging property by fire, and deemed supply of a large commercial quantity of a prohibited drug. Clapham appealed against his sentence, claiming that it miscarried due to the inadequate preparation and presentation of his case by his counsel and solicitors. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the applicant's sentence miscarried due to the failure of his legal representatives to adequately prepare and present his case on sentence. The court considered whether the failure of the applicant's counsel and solicitors to adequately prepare for and present his case on sentence constituted a miscarriage of justice. The court also examined whether the applicant's sentence was manifestly excessive or inadequate.

The court found that the applicant's sentence did not miscarry due to the failure of his legal representatives to adequately prepare and present his case on sentence. The court noted that the applicant's counsel and solicitors did not have access to all the relevant information and evidence that could have been used to mitigate the applicant's sentence. However, the court found that the applicant's legal representatives did not make any significant errors in their preparation and presentation of the case on sentence. The court also found that the applicant's sentence was not manifestly excessive or inadequate. The court concluded that the applicant's sentence was appropriate and did not miscarry.

The High Court of Australia dismissed the applicant's appeal against his sentence. The court upheld the sentence imposed by the trial court and found that the applicant's legal representatives did not make any significant errors in their preparation and presentation of the case on sentence. The court also found that the applicant's sentence was not manifestly excessive or inadequate.

Orders