Clark v The Queen - [2013] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0267

CHASE CLARK
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing
DATE OF JUDGMENT:	26 April 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 98
JUDGMENT APPEALED FROM:	DPP v Clark (Unreported, County Court of Victoria, Judge Campton, 6 September 2012)

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CRIMINAL LAW – Sentence – Election to have application for leave to appeal against sentence determined by Court of Appeal – One charge of burglary, one charge of theft and one charge of criminal damage – Pleas of guilty – Sentenced to total effective sentence of imprisonment for two years and three months – Non-parole period of 12 months – Totality – Whether sentencing judge erred in assessment of seriousness of offending – Whether sentence manifestly excessive – Leave to appeal refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
No appearances

HARPER JA:

Introduction

In the dark of the very early hours of Saturday 28 August 2010, two males forced their way into the office of a used car dealer, damaging the lock on the office door as they did so. The police subsequently found, on the premises, a cigarette butt which was forensically examined for traces of DNA. Because he is a young man with, nevertheless, a considerable criminal history, the police already had a sample of the applicant’s DNA. That on the cigarette butt was shown to match the DNA of the applicant.

The office of the premises broken into held, among other things, car keys, an electric drill and a safe. The intruders forced the safe open with the drill. They took nothing from it, doubtless because there was nothing to take. But they did leave a sample of blood. When forensically analysed, it too revealed DNA which matched that of the applicant.

After the results of the DNA tests were made known to the applicant he pleaded guilty to one charge of burglary, one of theft and one of criminal damage. In all three cases, the maximum penalty is imprisonment for ten years. The applicant was sentenced on 6 September 2012 to 12 months’ imprisonment on the charge of burglary, 18 months on the charge of theft and nine months on the charge of criminal damage. The sentence on the second charge was the base sentence, to which the sentencing judge added by way of cumulation six months of the sentence on the first charge and three months of the sentence on the third. The total effective sentence was therefore imprisonment for two years and three months. Her Honour directed that the applicant serve 12 months before becoming eligible for parole.

The applicant seeks leave to appeal against this sentence. There are three proposed grounds. They are, first, that the sentencing judge erred in her application of the principle of totality; secondly, that her Honour erred in the assessment of the comparative seriousness of the applicant’s offending; and, finally, that the sentence…

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 [2013] VSCA 98
Case: [2013] VSCA 98
Decision Date: 26 April 2013

CaseChat Overview and Summary

The case of Clark v The Queen involved the appellant, Clark, who was convicted on one charge of burglary, one charge of theft, and one charge of criminal damage. Clark pleaded guilty to all charges and was sentenced to a total effective term of imprisonment for two years and three months, with a non-parole period of 12 months. The appellant sought leave to appeal against the sentence, arguing that the sentencing judge had erred in the assessment of the seriousness of the offending and that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentencing judge had erred in the assessment of the seriousness of the offending and whether the sentence was manifestly excessive. The court was required to consider the totality of the circumstances, including the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing.

In determining the appeal, the court considered the principles of sentencing and the totality of the circumstances. The court noted that the sentencing judge had considered all relevant factors and had exercised their discretion in a manner consistent with the law. The court found that the sentence was not manifestly excessive and that the sentencing judge had not erred in their assessment of the seriousness of the offending. Consequently, the court refused the appellant leave to appeal, finding that there was no point of principle of general application that warranted the court's intervention.

The final orders of the court were that the appellant's application for leave to appeal against sentence was refused, and the original sentence of two years and three months imprisonment, with a non-parole period of 12 months, was upheld.

Orders