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Clarke v Regina

Clarke v Regina

Case [2009] NSWCCA 13 13 February 2009

Criminal Liability

Sentencing

Breach of Trust

Aggravated & Exemplary Damages

Victim Impact Statement

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Clarke v Regina [2009] NSWCCA 13

HEARING DATE(S): 5/2/09

JUDGMENT DATE:
13 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Kirby J at 3

DECISION: Leave to appeal granted, but appeal dismissed.

CATCHWORDS: Criminal Law - sentence appeal - aggravated indecent assault by a non-parent - whether breach of trust - use of Victim Impact Statement to determine degree of harm - whether substantial - consideration of non-custodial alternatives.

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

CATEGORY: Principal judgment

CASES CITED: R v MAK [2005] NSWCCA 369
De Rosa v Western Australia [2006] WASCA 57; (2006) 162 A Crim R 344
R v Youkhana [2004] NSWCCA 412
R v Wickham [2004] NSWCCA 193
Siganto v The Queen (1998) 194 CLR 656
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
R v Zamagias [2002] NSWCCA 17
Regina v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Mathew Peter Clarke (Appl)
Regina (Resp/Crown)

FILE NUMBER(S): CCA 2008/1221

COUNSEL: M Licha (Appl)
J Girdham (Resp/Crown)

SOLICITORS: Toronto Legal (Appl)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1221

LOWER COURT JUDICIAL OFFICER: Coolohan DCJ

LOWER COURT DATE OF DECISION: 18/6/08

2008/1221

GROVE J
BLANCH J
KIRBY J
Friday 13 February 2009

Mathew Peter CLARKE v REGINA

Judgment

1 GROVE J: I agree with Kirby J.

2 BLANCH J: I agree with Kirby J.

3 KIRBY J: On 21 April 2008, Mathew Peter Clarke (the applicant) was arraigned before Coolohan DCJ and a jury on a charge of aggravated indecent assault (contrary to s 61M(1) Crimes Act 1900) (maximum penalty; imprisonment 7 years). The circumstance of aggravation was that the victim was a young woman less than 16 years old. Mr Clarke pleaded not guilty. On 23 April 2008, after a short trial, the jury returned a verdict of guilty. On 18 June 2008, Coolohan DCJ sentenced Mr Clarke to imprisonment with a non parole period of 12 months (18.6.2008 to 17.6.2009), the balance of the term also being 12 months (expiring 17.6.2010). Mr Clarke seeks leave to appeal against that sentence.

4 Before going to the notice of appeal, I should first describe the circumstances in which the offence was committed.

The incident.

5 The complainant was a young woman aged 14½ years. Her half sister was the partner of Mr Clarke. Mr Clarke and his partner had been together for about six years. There were three children and his partner was pregnant. The complainant and her siblings were in the habit of visiting the household and sometimes staying overnight. On 23 January 2007, the complainant and her older brother (aged 17) went to the home of Mr Clarke and their sister. The brother was with a friend. Mr Clarke, his partner’s brother and the friend began drinking. The complainant occupied…

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 Regina

Details

AGLC: Clarke v Regina [2009] NSWCCA 13
Case: [2009] NSWCCA 13
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appeal before the court was brought forth by Clarke, the defendant, against Regina, the Crown, in a matter pertaining to the severity of a sentence imposed on Clarke for an aggravated indecent assault on a minor. The case was heard in the High Court of Australia. Clarke, who was not a parent of the victim, had been found guilty of the offence and was sentenced by the lower court. The central issue that the High Court was tasked with determining was whether the sentence handed down by the lower court was appropriate in the circumstances. This involved an examination of whether the assault constituted a breach of trust, the extent of harm as reflected in the victim's impact statement, and whether the imposition of a custodial sentence was necessary when non-custodial alternatives were available.

In addressing the appeal, the court considered the gravity of the offence and the particular circumstances that surrounded it. A significant focus of the court's deliberation was the nature of the relationship between Clarke and the victim and the degree to which the assault represented a breach of trust. The court also evaluated the victim impact statement to gauge the extent of the psychological harm suffered by the victim. Furthermore, the court examined whether there were viable non-custodial alternatives that could have been considered by the sentencing court. The High Court determined that the lower court had given adequate consideration to these factors and that the sentence was commensurate with the seriousness of the offence and the harm caused to the victim.

The High Court found that the lower court's consideration of the breach of trust and the degree of harm was appropriate and that the sentence met the necessary standards for such an offence. The court upheld the sentence imposed by the lower court, concluding that it was not excessive or manifestly inadequate. The reasoning of the lower court was found to be sound, and no error was detected in the application of the law or the weighing of the relevant sentencing principles. Consequently, the appeal was dismissed, and the original sentence remained in place.

Orders