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: 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)
ReginaRepresentation: Counsel:
Solicitors:
G Bashir SC (Applicant)
M Millward (Respondent)
Conditsis & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/136995; 2018/137029;
2018/137075; 2018/137020Publication 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
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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.
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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”).
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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.
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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…
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- AGLC
- Clarke v The Queen [2021] NSWCCA 248
- Case
- [2021] NSWCCA 248
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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