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Clarke v R

Clarke v R

Case [2015] NSWCCA 232 28 August 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clarke v R [2015] NSWCCA 232
Hearing dates: 5 June 2015
Date of orders: 28 August 2015
Decision date: 28 August 2015
Before: Basten JA at [1];
Garling J at [39];
Hamill J at [124]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL – appeal – sentence – offence of cultivating prohibited plant in large commercial quantity – guilty plea – disputed question of fact as to whether all items located were “plants” – whether sentencing judge erred in finding as to number of “plants” – proper scope of appeal against sentence - whether finding of fact open to sentencing judge – whether sentencing judge failed to properly take into account the applicant’s subjective circumstances – whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A, 54B
Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
Criminal Procedure Act 1986 (NSW), s 33
Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 23, 33, 36Z, 43; Sch 1
Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71
Cases Cited: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
AB v R [2014] NSWCCA 339
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aoun v R [2011] NSWCCA 284
Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
Camm v R [2009] NSWCCA 141
CO v R [2011] NSWCCA 148
Colville v R [2015] NSWCCA 149
Crawford v R [2013] NSWCCA 269
Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19
Filippou v The Queen [2015] HCA 29
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
House v The King (1936) 55 CLR 499
Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Kyriakou v The Queen [1988] 9 Leg Rep SL 4
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
M v The Queen (1994) 181 CLR 487
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 351
Muldrock v R [2011] HCA39; (2011) 244 CLR 240
Peters v R [2013] NSWCCA 324
The Queen v Francis-Wright [2005] VSCA 79
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Clarke [2014] NSWDC 35
R v Ion (1996) 89 A Crim R 81
R v Khouzame [2000] NSWCCA 505
R v Kurtic (1996) 84 A Crim R 57
R v Kyriakou (1987) 29 A Crim R 50
R v Ly [2010] NSWDC 229
R v Merritt [2004] NSWCCA 19; 59 NSWLR 557
R v O’Donoghue (1988) 34 A Crim R 397
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
SBF v R [2009] NSWCCA 231; 198 A Crim R 219
Singer v Berghouse (1994) 181 CLR 201
Turnbull…

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 v R

Details

AGLC: Clarke v R [2015] NSWCCA 232
Case: [2015] NSWCCA 232
Decision Date: 28 August 2015

CaseChat Overview and Summary

In the case of Clarke v R, the respondent, Clarke, appealed against his sentence for cultivating a prohibited plant in a large commercial quantity. The appeal centred on the disputed question of fact as to whether all items located by the police were indeed "plants" under the relevant legislation. The appeal was heard in the High Court of Australia, which had to determine whether the sentencing judge erred in finding as to the number of "plants," whether the sentencing judge had the proper scope to make the finding of fact, and whether the sentencing judge failed to properly take into account the applicant's subjective circumstances.

The legal issues that the court was required to decide included whether the sentencing judge had the proper scope to make a finding of fact that was not contested at trial, whether the finding of fact was open to the sentencing judge, and whether the sentence imposed was manifestly excessive. The court had to consider the nature of the sentencing process and the extent to which a sentencing judge could make findings of fact that were not contested at trial. The court also had to consider whether the sentence imposed was manifestly excessive, having regard to the applicant's subjective circumstances.

The court held that the sentencing judge did not err in making a finding of fact as to the number of "plants." The court found that the sentencing judge had the proper scope to make the finding of fact, as it was not contested at trial. The court held that the sentencing judge did not fail to properly take into account the applicant's subjective circumstances, as the sentence imposed was not manifestly excessive. The court found that the sentence imposed was appropriate, having regard to the seriousness of the offence and the need to deter others from engaging in similar conduct.

The final orders of the court were that the appeal be dismissed and that the sentence imposed by the sentencing judge be upheld. The court held that the sentence imposed was not manifestly excessive and that the sentencing judge had properly taken into account the applicant's subjective circumstances. The court also held that the sentencing judge had the proper scope to make the finding of fact as to the number of "plants."

Orders