| 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… | |||
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- AGLC
- Clarke (a pseudonym) v The King [2023] VSCA 103
- Case
- [2023] VSCA 103
- Decision Date
CaseChat Overview and Summary
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.
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