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Clarke v The Queen

Clarke v The Queen

Case [2021] NSWCCA 248 27 October 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Clarke v R [2021] NSWCCA 248
Hearing dates: 16 June 2021
Date of orders: 27 October 2021
Decision date: 27 October 2021
Before: Meagher JA at [1]
Garling J at [2]
Beech-Jones J at [88]
Decision:
See [93]

Catchwords:
CRIME – Appeals – appeal against sentence – two co-offenders sentenced contemporaneously for similar but not identical offences – aggregate sentence imposed – alleged grievance at the disparity in the sentences – whether there was marked or clearly unjustifiable disparity – no justifiable sense of grievance from comparison of indicative sentences – differential application of the totality principle has no proper basis – applicant is to be resentenced so his aggregate sentence reflect that of his co-accused – appeal allowed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Afu v R [2017] NSWCCA 246
Ayik v Regina [2013] NSWCCA 119
DGM v Regina [2006] NSWCCA 296
El-Helou v R [2014] NSWCCA 209
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
Kelly v R [2017] NSWCCA 256
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Clarke [2013] NSWCCA 260
R v Kelly [2005] NSWCCA 280
Tran v Regina [2006] NSWCCA 266
Why v R [2017] NSWCCA 101

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Harrison Max Clarke (Applicant)
Regina
Representation:
Counsel:
G Bashir SC (Applicant)
M Millward (Respondent)
Solicitors:
Conditsis & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/136995; 2018/137029;
2018/137075; 2018/137020
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 June 2020

Before:

J D Smith SC DCJ

File Number(s):

2018/136995; 2018/137029;
2018/137075; 2018/137020

Judgment

MEAGHER JA: I agree for the reasons given by Beech-Jones J that the sentence imposed should be set aside and Mr Clarke re-sentenced as proposed by his Honour.
GARLING J: Harrison Max Clarke (“the applicant”) seeks leave to appeal against an aggregate sentence imposed on him in the District Court by J D Smith SC DCJ (“the Judge”).
The aggregate sentence consisted of a total period of 13 years with a non‑parole period of 7 years and 8 months. The aggregate sentence was imposed for six separate offences. It will be necessary to describe those offences in due course.
The application for leave to appeal is based upon a single ground which is expressed in the following way:

“The applicant has a justifiable sense of grievance from the aggregate sentence imposed on him having regard to the discrepancy between his sentence as compared with the aggregate sentence imposed on his co-accused Mr Atashi taking into account the relevant similarities and differences between the facts and circumstances of each of…

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 The Queen

Details

AGLC: Clarke v The Queen [2021] NSWCCA 248
Case: [2021] NSWCCA 248
Decision Date: 27 October 2021

CaseChat Overview and Summary

Clarke appealed against his sentence, contending that it was excessive when compared to the sentence imposed on his co-offender, with whom he had committed similar but not identical offences. The High Court of Australia was tasked with determining whether the disparity in the sentences was marked or clearly unjustifiable and whether the differential application of the totality principle was proper. The court was also required to decide if there was any justifiable sense of grievance arising from the comparison of the indicative sentences.

The court found that there was no justifiable sense of grievance from the comparison of the indicative sentences, as the sentencing judge had appropriately applied the totality principle in imposing the sentences. The court held that the differential application of the totality principle had no proper basis and that Clarke's aggregate sentence should reflect that of his co-accused. The court also noted that the disparity in the sentences was not marked or clearly unjustifiable, as it was within the sentencing judge's discretion to impose different sentences for similar but not identical offences. The appeal was allowed, and Clarke was to be resentenced.

The final orders of the court were that Clarke's appeal against sentence was allowed, and he was to be resentenced by the trial judge. The court directed that the resentencing take into account the totality principle and the need for the aggregate sentence to reflect that of his co-accused. The court also noted that the resentencing should be conducted in accordance with the principles of sentencing set out in relevant authorities.

Orders