Clarke v The Queen - [2011] VSCA 385

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0345

WAYNE GREGORY CLARKE

THE QUEEN

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JUDGES:	BUCHANAN JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2011
DATE OF JUDGMENT:	24 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 385
JUDGMENT APPEALED FROM:	County Court of Victoria at Melbourne, Judge Rizkalla, 31 August 2010

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CRIMINAL LAW – Sentence – Pleaded guilty to causing serious injury recklessly, rape, indecent assault and causing injury recklessly – Sentence of 5 years 9 months imprisonment with minimum term of 3 years – Trial judge erroneously sentenced applicant as a serious sexual offender - Part 2A of the Sentencing Act 1991 – Applicant in poor health - Re-sentenced to 5 years 3 months imprisonment with minimum term of 2 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Andrew George Solicitors
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with T Forrest AJA.

T FORREST AJA:

The appellant pleaded guilty in the County Court to one count of causing serious injury recklessly, one count of rape, one count of indecent assault and one count of causing injury recklessly.

His plea was heard on 11 August 2010 and he was sentenced on 31 August 2010 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1

Causing Serious Injury Recklessly

15 years [s 17 Crimes Act 1958 (Vic)]

2 years’ imprisonment

1 year

2

Rape

25 years [s 38(1) Crimes Act 1958 (Vic)]

4 years’ imprisonment

Base

3

Indecent Assault

10 years [s 39(1) Crimes Act 1958 (Vic)]

18 months’ imprisonment

9 months cumulative

4

Causing Injury Recklessly

5 years [s 18 Crimes Act 1958 (Vic)]

9 months’ imprisonment

Concurrent

Total Effective Sentence:

5 years 9 months’ imprisonment

Non-Parole Period:

3 years

Pre-sentence Detention Declared:

63 days

6AAA Statement:

7 years 3 months’ imprisonment with a non-parole period of 5 years

Other orders:

Serious Sexual Offender pursuant to s 6B(2b) Sentencing Act 1991 (Vic)

Forensic Sample Order pursuant to s 464ZF(2) Crimes Act 1958 (Vic)

On 27 May 2011, Redlich JA granted leave to appeal against sentence. A

ground upon which leave to appeal was granted was:
That the learned sentencing judge erred in sentencing the appellant as a serious sexual offender on count 3.

Mr McArdle QC for the respondent accepts that this error has occurred and that the sentencing discretion is re-opened. It is unnecessary to analyse this error beyond stating that the conditions necessary for the application of Part 2A of the Sentencing Act1991 did not exist. Thus, when he came to be sentenced, the applicant was erroneously sentenced on count 3 as a serious sexual offender.

The effect of this error was that on count 3 her Honour was obliged to regard the protection of the community as the principal purpose of that sentence (s 6D). Other potential effects of this error relate to cumulation (s 6E) and the…

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 [2011] VSCA 385
Case: [2011] VSCA 385
Decision Date: 24 November 2011

CaseChat Overview and Summary

The case of Clarke v The Queen involved the sentencing of the applicant, who had pleaded guilty to various serious offences including causing serious injury recklessly, rape, indecent assault, and causing injury recklessly. The applicant was initially sentenced by the trial judge to 5 years and 9 months imprisonment with a minimum term of 3 years. However, the applicant appealed the sentence on the grounds that the trial judge had mistakenly classified him as a serious sexual offender under Part 2A of the Sentencing Act 1991. Additionally, the applicant's poor health was considered during the appeal.

The primary legal issue before the court was whether the trial judge had correctly applied the law in sentencing the applicant, particularly in relation to the classification as a serious sexual offender. The court also had to consider the impact of the applicant's health on the appropriate sentence. The appeal hinged on whether the initial sentence was excessive given the error in classification and the applicant's health conditions.

The court found that the trial judge had indeed erred in classifying the applicant as a serious sexual offender, which influenced the length of the sentence. The court also noted the applicant's poor health as a mitigating factor. Taking these into account, the court decided to re-sentence the applicant. The new sentence was set at 5 years and 3 months imprisonment with a minimum term of 2 years and 6 months. The court emphasised the need for an appropriate balance between punishment and the individual circumstances of the offender.

The final orders of the court were that the original sentence be quashed and replaced with the new sentence of 5 years and 3 months imprisonment with a minimum term of 2 years and 6 months. The court's decision highlighted the importance of correctly applying sentencing laws and considering the health of the offender when determining an appropriate sentence.

Orders