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
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
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…
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.
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Details
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.