Clarke v The Queen

Case [2021] NSWCCA 236


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Clarke v R [2021] NSWCCA 236
Hearing dates: 14 July 2021
Date of orders: 1 October 2021
Decision date: 01 October 2021
Before: Meagher JA at [1]
Walton J at [13]
Harrison J at [112]
Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – singular ground of manifest excess – multiple offences – structure of the sentencing – aggregate sentence – accumulation of sentence – principles re manifest excess ground – whether sentences produced a non-parole period which was manifestly excessive – sufficiency of adjustment to statutory ratio or special circumstances – whether the Court had removed the effect of a finding of special circumstances as a result of accumulation – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

AM v R [2020] NSWCCA 101

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

MD v R [2015] NSWCCA 37

Norouzi v R [2020] NSWCCA 237

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111;

Sefian v R [2018] NSWCCA 194

Tammer-Spence v R [2021] NSWCCA 90

Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154

Vuni v R [2006] NSWCCA 171

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Yildiz v R [2020] NSWCCA 69

Category:Principal judgment
Parties: Harrison John Clarke (Applicant)
Regina (Respondent)
Representation:

Counsel:
K Averre (Applicant)
C Dodds (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/112050; 2019/167750
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
12 May 2020
Before:
Ingram SC DCJ
File Number(s):
2019/112050; 2019/167750

Judgment

  1. MEAGHER JA: On 12 May 2020 the sentencing judge (Ingram SC DCJ) sentenced Mr Clarke to an aggregate sentence of 5 years with a non-parole period of 3 years and 6 months, commencing on 10 November 2019. That sentence was imposed for the commission of two offences of robbery while armed with an offensive weapon, contrary to Crimes Act 1900 (NSW), s 97(1), and one offence of doing an act with intent to pervert the course of justice, contrary to Crimes Act, s 319. The last offence was dealt…

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AGLC
Clarke v The Queen [2021] NSWCCA 236
Case
[2021] NSWCCA 236
Decision Date

CaseChat Overview and Summary

The case of Clarke v The Queen involved the appellant, Clarke, appealing against his sentence for multiple offences. The trial judge had sentenced Clarke to an aggregate term of imprisonment, which included a non-parole period that Clarke considered manifestly excessive. Clarke's appeal was heard by the court, which needed to determine whether the sentences imposed were excessively disproportionate to the crimes committed. The central issue was whether the aggregate sentence, including the non-parole period, was so disproportionate as to be manifestly excessive and whether the trial judge had properly considered the statutory ratio and any special circumstances.

The court examined the principles regarding manifest excess in sentencing and whether the trial judge had sufficiently adjusted the statutory ratio or considered special circumstances. The court also assessed whether the accumulation of sentences resulted in a non-parole period that was manifestly excessive. In this regard, the court needed to ensure that the trial judge had not inadvertently removed the effect of any special circumstances by accumulating sentences. The court found that the trial judge had appropriately structured the sentencing process, taking into account the statutory ratio and any special circumstances, and had not imposed a manifestly excessive non-parole period. The court dismissed the appeal, finding that the aggregate sentence was proportionate to the crimes committed.

The court's decision underscored the importance of carefully considering the statutory ratio and special circumstances in sentencing. The court held that the trial judge had not erred in structuring the sentencing to include an aggregate sentence and a non-parole period that was proportionate to the crimes. The appeal was dismissed, and the original sentence stood as appropriate and lawful.

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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