Beech-Jones CJ at CL at [1] McNaughton J at [2] R A Hulme AJ at [97]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords:
CRIME – appeal – sentence appeal – whether the sentencing judge erred in determining that each offence fell within mid-range of objective seriousness – whether the sentence was manifestly excessive – sexual offending against very young children – finding of mid-range of objective seriousness was open to the sentencing judge – sentence imposed not unreasonable or plainly unjust – grounds of appeal dismissed.
[This headnote is not to be read as part of the judgment]
Between…
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.
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Details
AGLC
Clarke v R [2023] NSWCCA 170
Case
[2023] NSWCCA 170
Decision Date
CaseChat Overview and Summary
The appellant, Clarke, appealed against his sentence for multiple sexual offences against very young children, arguing that the sentencing judge erred in determining the objective seriousness of the offences and that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.
The legal issues before the court were whether the sentencing judge erred in determining that each offence fell within the mid-range of objective seriousness and whether the sentence was manifestly excessive. The court had to consider the appropriate range of sentence for the offences committed and whether the sentence imposed was reasonable and just.
The court found that the sentencing judge's determination of the objective seriousness of the offences was open and that the sentence imposed was not unreasonable or plainly unjust. The court held that the sentencing judge had correctly considered the nature and circumstances of the offences, the degree of culpability, and the need for deterrence and rehabilitation in imposing the sentence. The court also noted that the sentence reflected the gravity of the offences and the need to protect the community. The appeal was dismissed, and the sentence upheld.