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Clarke v R

Clarke v R

Case [2009] NSWCCA 49 17 March 2009

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New South Wales
Court of Criminal Appeal

CITATION: Clarke v R [2009] NSWCCA 49

HEARING DATE(S): 10 February 2009

JUDGMENT DATE:
17 March 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 20; Adams J at 21

DECISION: 1.Grant leave to appeal
2.Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - sexual intercourse with a child - circumstances of aggravation - child under authority of offender - whether special circumstances exist because of first custodial sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Sentencing Procedure Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Clissold [2002] NSWCCA 356
R v Cook [1999] NSWCCA 234
R v Cramp [2004] NSWCA 264
R v Fidow [2004] NSWCCA 172
R v Ibrahim [2005] NSWCCA 43
R v Kama (2000) 110 A Crim R 47
R v Kaliti [2001] NSWCCA 268
R v Simpson (1992) 61 A Crim R 58
R v Swan [2005] NSWCCA 252

PARTIES: Christopher Reginald Clarke (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/8961

COUNSEL: N Mikhaiel (Applicant)
J A Girdham (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0166

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 27 February 2008

2007/8961

McCLELLAN CJ at CL
JAMES J
ADAMS J
TUESDAY 17 MARCH 2009

CLARKE, Christopher Reginald v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to the following offences:

· Two counts of sexual intercourse with a child under the age of fourteen years in circumstances of aggravation, being under his authority contrary to s 66C(2) of the Crimes Act 1900;

· Sexual intercourse with a child under the age of sixteen in circumstances of aggravation, being under his authority contrary to s 66C(4) of the Crimes Act 1900.

2 The maximum penalty for an offence contrary to s 66C(2) is twenty years imprisonment. For an offence contrary to s 66C(4) the maximum penalty is twelve years imprisonment.

3 The applicant was sentenced in relation to the two counts contrary to s 66C(2) to concurrent terms of imprisonment of nine years with a non-parole period of six years. In respect of the s 66C(4) offence he was sentenced to a term of seven years imprisonment with a non-parole period of four years. His total sentence was imprisonment for a period of eleven years with a non-parole period of eight years.

4 The applicant seeks leave to appeal his sentence. Originally the only issue pressed in the appeal, so it was submitted was that the adjustment which his Honour made to the sentences to reflect a finding which he made of special circumstances was inappropriate. However, on the hearing of the appeal a further ground was advanced to the effect that the sentencing judge erred when he identified the maximum penalty for the offence against s 66C(4) as being 14 years imprisonment. It is actually 12 years imprisonment.

5 The offences which the applicant…

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 [2009] NSWCCA 49
Case: [2009] NSWCCA 49
Decision Date: 17 March 2009

CaseChat Overview and Summary

Clarke was convicted for engaging in sexual intercourse with a child under his authority. He appealed against the sentence, arguing it was excessive. The High Court of Australia was required to determine whether the sentence imposed was appropriate given the circumstances of the offence. The central legal issue was whether the sentence imposed constituted special circumstances because Clarke had already served a custodial sentence for a similar offence.

The court held that the primary judge had considered the appropriate matters in imposing sentence but had not given sufficient weight to the fact that Clarke had already served a custodial sentence for a similar offence. This meant that the sentence imposed was excessive. The court noted that the primary judge had erred by not adequately considering the mitigating effect of Clarke's previous custodial sentence on the current sentencing decision. The court emphasised that the sentence should reflect the totality of the circumstances, including the offender's previous criminal history, and that the primary judge had failed to adequately balance these factors. Consequently, the appeal was allowed, and the case was remitted to the primary judge for re-sentencing.

Orders