Clappison v R - [2017] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mark Anthony CLAPPISON v R [2017] NSWCCA 33
Hearing dates: 13 February 2017
Date of orders: 10 March 2017
Decision date: 10 March 2017
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Latham J at [3].
Decision:
(1) Leave to appeal granted and appeal allowed
(2) The sentences imposed on 14 August 2015 are quashed.
(3) Remit the matter to the District Court for a hearing de novo pursuant to s 12(2) of the Criminal Appeal Act 1912.
(4) The matter is listed for mention at Sydney District Court on 17 March 2017.

Catchwords: CRIMINAL LAW – appeal against sentence – historical homosexual offence – where form 1 contravenes s 33(4) Crimes (Sentencing Procedure) Act 1999 – remittal to District Court
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Category: Principal judgment
Parties: Applicant: Mark Anthony Clappison
Respondent: Regina
Representation:
Counsel:
Applicant: P Doyle
Respondent: E Balodis
Solicitors:
Applicant: G Breton
Respondent: C Hyland, NSW DPP

File Number(s): 2013/00269489
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 August 2015

Before:

McLoughlin DCJ

File Number(s):

14/00149679

Judgment

HOEBEN CJ at CL: I agree with Latham J and the orders which she proposes.
JOHNSON J: I agree with Latham J.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him by McLoughlin SC DCJ on 14 August 2015, following his pleas of guilty to a number of offences. For the reasons that appear below, the matter must be remitted to the District Court for resentencing.
The applicant was sentenced in relation to a count of homosexual intercourse with a male under 10, pursuant to s 78H of the Crimes Act 1900 which carried life imprisonment. That offence occurred in 1984 when the applicant was 19 years of age and the victim was aged nine. The offence consisted of an act of penile/anal intercourse. A further count of homosexual intercourse with a male under 10 was taken into account on a Form One at the time that his Honour sentenced the applicant on the count on indictment. That offence consisted of an act of fellatio performed upon the same victim on the same occasion.
These offences did not come to the attention of police until June 2013. The applicant was arrested on 5 September 2013, charged and admitted to bail.
The applicant was also sentenced in relation to two counts of sexual intercourse with a person aged between 14 and 16 years and one count of aggravated indecent assault on a person under the age of 16 years. Those offences were committed in May 2014, while the applicant was on bail for the historical offence. All three offences were committed on a 14-year-old boy who was, at the relevant time, living in a refuge and had been invited to…

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 Clappison v R

Details

AGLC: Mark Anthony Clappison v The Queen [2017] NSWCCA 33
Case: [2017] NSWCCA 33
Decision Date: 10 March 2017

CaseChat Overview and Summary

The case of Clappison v R involved the appellant who was appealing against his sentence for a historical homosexual offence. The matter was heard in the New South Wales Court of Criminal Appeal. The appellant argued that the form 1, which is used to record the sentence and reasons for it, contravened section 33(4) of the Crimes (Sentencing Procedure) Act 1999. This section mandates that the form must be completed and signed by the sentencing judge. The appellant contended that the form 1 in this case was not completed and signed by the sentencing judge, rendering it invalid.

The court had to determine whether the non-compliance with section 33(4) of the Crimes (Sentencing Procedure) Act 1999 warranted a remittal of the case to the District Court for re-sentencing. The court considered the purpose of section 33(4) and the importance of having a properly completed and signed form 1 to ensure transparency and accountability in the sentencing process. The court found that the non-compliance with the statutory requirement was a significant procedural error and concluded that it warranted remittal to the District Court for re-sentencing.

In light of the court's findings, the appeal was allowed, and the case was remitted to the District Court. The court ordered that the case be re-sentenced in accordance with the law, with proper completion and signing of the form 1 as required by section 33(4) of the Crimes (Sentencing Procedure) Act 1999. The court emphasised the importance of following statutory requirements to ensure the integrity of the sentencing process.

Orders