Clark v The Queen - [2021] VSCA 350

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0083

SHANE CLARK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2021
DATE OF JUDGMENT:	13 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 350
JUDGMENT APPEALED FROM:	DPP v Clark [2020] VCC 1906 (Judge Mason)

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CRIMINAL LAW – Appeal – Sentence – Common assault, making threat to kill, intentionally exposing emergency worker to risk by driving, possessing a drug of dependence and related summary charge – Sentenced to 5 years and 3 months’ imprisonment with 3 years non-parole – Whether judge erred in concluding that drug use was incapable of reducing applicant’s moral culpability – Whether judge erred in finding applicant foresaw that taking methamphetamine would cause him to develop psychotic symptoms and offend in the way he did – Whether judge erred in concluding that any insight the applicant had into negative effects of methamphetamine use increased moral culpability – Respondent conceded there was insufficient evidence for judge to find applicant foresaw conduct of offending and that voluntary ingestion of methamphetamine aggravated the offending – Leave to appeal granted – Appeal allowed – Resentenced to 4 years’ imprisonment with 2 years and 3 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P D Coleridge	Kerry Clancy Solicitors
For the Respondent:	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA:

Introduction

On 9 July 2020, the applicant pleaded guilty before a judge of the County Court to common assault[1] (charge 1); making a threat to kill[2] (charge 2); the aggravated offence of intentionally exposing an emergency worker to risk by driving[3] (charges 3 and 4); possessing a drug of dependence[4] (charge 5); and one related summary charge of driving in a manner dangerous.[5]
[1]Common assault is a crime at common law. By s 320 of the Crimes Act 1958, the maximum penalty is five years’ imprisonment.
[2]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 317AD(1)(b). The maximum penalty is 20 years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment.
[5]Road Safety Act 1986, s 64(1). The maximum penalty is two years’ imprisonment.

Following a plea, on 27 November 2020 the judge sentenced the applicant to a total effective sentence of five years and three months’ imprisonment, with a non-parole period of three years, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Common assault 6 months 3 months

2 Making a threat to kill 4 months —

3 Aggravated offence of intentionally exposing an emergency worker to risk by driving 3 years 1 year

4 Aggravated offence of intentionally exposing an emergency worker to risk by driving 4 years Base

5 Possessing a drug of dependence 1 month —

Related summary charge

18 Driving in a manner dangerous 3 months —

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 Clark v The Queen

Details

AGLC: Clark v The Queen [2021] VSCA 350
Case: [2021] VSCA 350
Decision Date: 13 December 2021

CaseChat Overview and Summary

Clark appealed against his sentence for various offences including common assault, making a threat to kill, intentionally exposing an emergency worker to risk by driving, and possessing a drug of dependence. The primary issue before the court was whether the sentencing judge erred in several of his conclusions regarding the applicant's moral culpability and the role of drug use in his offending. The appeal raised three specific questions: whether the judge correctly assessed the impact of drug use on the applicant's moral culpability, whether the judge was correct in finding that the applicant foresaw that taking methamphetamine would lead to psychotic symptoms and subsequent offending, and whether the judge properly considered the effect of any insight the applicant had into the negative consequences of methamphetamine use on his moral culpability.

The court found that the sentencing judge erred in his conclusions. The respondent conceded that there was insufficient evidence to support the judge's finding that the applicant foresaw the conduct of the offending and that the voluntary ingestion of methamphetamine aggravated the offending. The appeal judge concluded that the sentencing judge had failed to properly consider the extent to which the applicant's drug use affected his moral culpability. Given these errors, the court allowed the appeal and resentenced the applicant to 4 years' imprisonment with a non-parole period of 2 years and 3 months.

The court's detailed analysis led to a resentencing that more accurately reflected the applicant's culpability and the role of drug use in his offending. The final orders of the court included a resentencing to 4 years' imprisonment with a non-parole period of 2 years and 3 months, reflecting a reduced sentence compared to the original term. This outcome recognised the errors in the original sentencing process and provided a more proportionate penalty.

Orders