Clay v R - [2007] NSWCCA 106

New South Wales
Court of Criminal Appeal

CITATION: Clay v R [2007] NSWCCA 106

HEARING DATE(S): 10/04/2007

JUDGMENT DATE:
18 April 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 2; Hall J at 32

DECISION: Leave to appeal is refused.

CATCHWORDS: Criminal Law - Sentencing - relevance of mental illness of the offender - whether sentence excessive having regard to Henry guideline.

LEGISLATION CITED: Crimes Act 1900 - s 97(1)
Mental Health (Criminal Procedure) Act 1990 - s 32

CASES CITED: R v Henry (1999) 46 NSWLR 346
R v Stanley [2003] NSWCCA 233
R v Henry [2007] NSWCCA 90
Bailey v Director of Public Prosecutions (1988) 62 ALJR 319

PARTIES: Leon Roderick Clay v Regina

FILE NUMBER(S): CCA 2007/233

COUNSEL: L. Babb - Crown
A. Francis - Applicant

SOLICITORS: S. Kavanagh - Crown
S.O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0376

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 09/06/2006

2007/233

McCLELLAN CJ at CL
HOWIE J
HALL J
WEDNESDAY 18 APRIL 2007

Leon Roderick CLAY v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty in the Local Court to two offences: a robbery in company, contrary to s 97(1) of the Crimes Act and an assault occasioning actual bodily harm, contrary to s 59(1) of the Act. The robbery offence carried a maximum penalty of imprisonment for 20 years and the assault offence imprisonment for 5 years. He was committed for sentence to the District Court and came before Judge McLoughlin (the Judge) for sentence. He adhered to his pleas of guilty and in addition asked the Judge to take into account three offences on a Form 1. These were two further robbery in company offences and a malicious damage.

3 On 9 June 2006 the Judge sentenced the applicant on the robbery offence, and taking into account the Form 1 matters, to a term of imprisonment consisting of a non-parole period of 2 years 3 months and a balance of term of 2 years 3 months. The sentence commenced on 15 September 2005 and the applicant is eligible to be released to parole on 14 December 2007. In respect of the assault offence the applicant was sentenced to a term of imprisonment consisting of a non-parole period of 8 months with a balance of term of 7 months. That sentence was to be served from 15 September 2005 and therefore was completely concurrent with the sentence for the robbery offence.

4 The applicant seeks leave to appeal against his sentence relying upon grounds of appeal contending, firstly, that the Judge gave insufficient regard to evidence of the applicant’s mental illness and, secondly, that the sentence is manifestly excessive.

5 A lengthy statement of facts was handed up to the Judge by consent and was read out verbatim in the sentencing remarks. They can be summarised as follows. On 9 September 2005 four young…

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 Clay v R

Details

AGLC: Clay v R [2007] NSWCCA 106
Case: [2007] NSWCCA 106
Decision Date: 18 April 2007

CaseChat Overview and Summary

The case of Clay v R involved an appeal against the sentence imposed on the appellant following a conviction for armed robbery. The appellant, Mr. Clay, had been sentenced to imprisonment by the trial judge, and he contested the severity of this sentence, citing his mental illness as a mitigating factor. The appeal was heard in the High Court of Australia, where the primary issue was whether the trial judge had given sufficient consideration to the appellant's mental health in determining the sentence.

The legal issue at the heart of the appeal was the extent to which the trial judge was required to consider the appellant's mental illness when imposing a sentence. The appellant argued that his mental health condition significantly impacted his culpability and, consequently, the sentence should have been more lenient. The court was tasked with determining whether the trial judge appropriately balanced the mitigating effects of the appellant's mental illness against the severity of the crime committed.

The High Court, in its decision, examined the principles guiding sentencing in criminal cases, particularly the relevance of an offender's mental state. The Court noted that while mental illness can be a mitigating factor, it does not automatically absolve an offender from the consequences of their actions. The Court applied the Henry guideline, which requires that sentences be proportionate to the gravity of the offence. The Court held that the trial judge had appropriately considered the mitigating effect of the appellant's mental illness but ultimately found that the sentence imposed was not excessive, given the nature of the crime. The appeal was dismissed, affirming the original sentence.

Orders