Clarke (a pseudonym) v The King - [2023] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0131

JAMES CLARKE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of the offending, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	NIALL and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2023
DATE OF JUDGMENT:	8 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Clarke] (County Court of Victoria, Judge Rozen, 16 August 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Whether sentencing judge failed to assess properly (or at all) the objective gravity of intentionally damage property charge – Whether sentencing judge failed to moderate moral culpability on basis of the applicant’s deprived background and episode of sexual abuse – Whether individual sentences imposed, orders for cumulation made, and total effective sentence manifestly excessive – Leave to appeal refused.

Bugmy v The Queen (2013) 249 CLR 571; DPP v Derby [2007] VSCA 92 referred to.

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Counsel
Applicant:		Mr DJ Carolan
Respondent:		Ms RL Harper
Solicitors
Applicant:	Ajak & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
HARGRAVE JA:

On 1 August 2022, the applicant was convicted by plea of guilty and was sentenced on 16 August 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M12053660
1	Assault (contrary to the common law)	5 years imprisonment (s 320 of the Crimes Act 1958)	18 months imprisonment	4 months
2	Use carriage service to menace (contrary to s 474.17 of the Criminal Code Act 1995)	3 years imprisonment	10 months imprisonment	(4 months)[2]
3	Intentionally damage property (contrary to s 197 of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	6 months
4	Make threat to kill (contrary to s 20 of the Crimes Act 1958)	10 years imprisonment	16 months imprisonment	8 months
5	Make threat to inflict serious injury (contrary to s 21 of the Crimes Act 1958)	5 years imprisonment	12 months imprisonment	3 months
6	Intentionally damage property (contrary to s 197 of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	5 months
7	Make threat to kill (contrary to s 20 of the Crimes Act 1958)	10 years imprisonment	26 months imprisonment	Head Sentence
8	Attempted arson (contrary to s 321M, s 197(1) and s 197(6) of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	6 months
Related Summary Offences
21	Trespass (contrary to s 9(1)(e) of the Summary Offences Act 1966)	25 penalty units or 6 months imprisonment	2 months imprisonment
Total Effective Sentence:		For the Federal offences, 10 months imprisonment, to commence from the date of sentence. For the State offences, 4 years and 10 months imprisonment, to commence 6 months prior to the completion of the total effective sentence on the Federal offence. Total effective sentence overall is…

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 Clarke (a pseudonym) v The King

Details

AGLC: Clarke (a pseudonym) v The King [2023] VSCA 103
Case: [2023] VSCA 103
Decision Date: 8 May 2023

CaseChat Overview and Summary

The case of Clarke (a pseudonym) v The King involved the applicant appealing against his sentence. The dispute centred on whether the sentencing judge had properly assessed the objective gravity of the charge of intentionally damaging property, whether the moral culpability was moderated due to the applicant’s deprived background and episode of sexual abuse, and whether the individual sentences imposed, along with the orders for cumulation and the total effective sentence, were manifestly excessive. The application for leave to appeal was lodged with the Court of Appeal, which had to determine the merits of the applicant's claims.

The central legal issues before the Court of Appeal were whether the sentencing judge had appropriately evaluated the objective gravity of the property damage charge and whether the moral culpability was adequately moderated by considering the applicant's background and history of sexual abuse. Additionally, the court needed to decide if the individual sentences, the orders for cumulation, and the total effective sentence were manifestly excessive, thus warranting an appeal.

In examining the applicant’s arguments, the Court of Appeal found that the sentencing judge had indeed assessed the objective gravity of the charge and had considered the mitigating factors of the applicant’s background and history of sexual abuse. The court was satisfied that the judge had appropriately balanced these factors in determining the sentence. Moreover, the Court of Appeal concluded that the individual sentences, orders for cumulation, and the total effective sentence were not manifestly excessive. Consequently, the Court of Appeal refused the applicant leave to appeal against his sentence.

The Court of Appeal’s decision was based on the comprehensive evaluation of the sentencing judge’s assessment and the proportionality of the sentence to the offence committed. The court’s ruling upheld the original sentence, reflecting the appropriate judicial consideration of all relevant factors.

Orders