Clarke (a pseudonym) v The Queen

Case [2022] VSCA 89


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0146

KEITH CLARKE (a pseudonym)[1] Appellant
v
THE QUEEN Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

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JUDGES: PRIEST and WALKER JJA
WHERE HELD: Melbourne
DATE OF HEARING: 2 May 2022 
DATE OF JUDGMENT: 13 May 2022 
MEDIUM NEUTRAL CITATION: [2022] VSCA 89
JUDGMENT APPEALED FROM: DPP v Clarke (a pseudonym) [2021] VCC 1404 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – Rape – Appellant sentenced to eight years’ imprisonment with five years non-parole – Whether manifestly excessive ­– Previous good character – Good prospects of rehabilitation – Significant aggravating features absent – Appeal allowed – Resentenced to three years’ imprisonment with 18 months non-parole.

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APPEARANCES: Counsel Solicitors
For the Appellant: Mr O P Holdenson QC with Mr J O’Connor Roger O’Halloran & Co
For the Respondent: Mr C Boyce QC Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
WALKER JA:

Introduction

  1. On 5 August 2021, a jury empanelled in the County Court found the appellant guilty of one charge of rape.[2]  Following a plea, on 22 September 2021 the trial judge sentenced him to a total effective sentence of eight years’ imprisonment with a non-parole period of five years. 

    [2]Crimes Act 1958, s 38(1). By virtue of s 38(2) the maximum penalty is 25 years’ imprisonment, and by virtue of s 38(3) the standard sentence as 10 years’ imprisonment.

  1. The appellant was subsequently granted leave ‘on the papers’ to appeal against the sentence on a single ground, by which he contends that ‘[t]he sentence imposed and the non-parole period are manifestly excessive’.[3] 

    [3]DPP v Clarke (a pseudonym) (Unreported, Court of Appeal, Priest JA, 25 March 2022).

  1. Having now had the benefit of full argument, we would allow the appeal; set aside the sentence imposed by the County Court; and substitute a sentence of three years’ imprisonment, with a non-parole period of 18 months.  Our reasons follow.

The appellant’s offending

  1. The appellant and the complainant, ‘CRB’, married on 10 October 2014.  At the time of the offending, which occurred on an occasion between 14 and 18 February 2018, the appellant and CRB were separated, but continuing to live under the same roof.  Also resident in the home were CRB’s two children from a previous marriage; a child of the appellant and CRB; and a friend of the appellant’s, ‘GF’, who had been a boarder since early January 2018.

  1. In her sentencing remarks, the judge described the appellant’s offending as follows:

[GF] was preparing to have an interview with MatchWorks employment placement services and the complainant, who is a hairdresser, offered to cut his hair and trim his beard in anticipation of the interview.

Whilst [GF] was sitting in a chair in the ensuite bathroom and the complainant was standing in front of him, leaning slightly forward to trim his beard, you entered the ensuite and stood behind the complainant.  It was summertime, and…

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Clarke (a pseudonym) v The Queen [2022] VSCA 89
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[2022] VSCA 89
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CaseChat Overview and Summary

Clarke, also referred to by a pseudonym, challenged his sentence for rape against the Crown. The case was heard in the High Court of Australia. Clarke had been found guilty of raping a woman and was sentenced to eight years in prison with a non-parole period of five years. Clarke appealed the sentence, arguing it was manifestly excessive given his previous good character and prospects for rehabilitation, and the absence of significant aggravating factors.

The court was required to decide whether the original sentence was manifestly excessive and whether the sentencing judge had properly considered Clarke's good character and prospects for rehabilitation. The appeal hinged on whether the trial judge had given sufficient weight to these mitigating factors in the sentencing process.

The High Court found that the original sentence was indeed manifestly excessive. The court noted that the sentencing judge had not adequately taken into account Clarke's good character and his prospects for rehabilitation, which are significant mitigating factors. The absence of significant aggravating factors further supported the appeal. As a result, the court allowed the appeal, reduced the sentence to three years' imprisonment with an 18-month non-parole period, and ordered a re-sentencing.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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