Clinch v The Queen - [1999] WASCA 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: CLINCH -v- R [1999] WASCA 57

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 14 MAY 1999

DELIVERED : 14 MAY 1999

PUBLISHED : 15 JUNE 1999

FILE NO/S: CCA 7 of 1999

BETWEEN: MURRAY JOSEPH CLINCH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Two counts of aggravated burglary, one count of stealing and wilfully driving a motor vehicle in a reckless manner and one count of unlawfully killing another person - Applicant 19 at time of sentencing - Many prior convictions involving stealing and driving motor vehicles - Several convictions for burglary and one for assault with intent to commit grievous bodily harm - Convictions for breach of bail conditions - Persisted in driving motor vehicles when disqualified from driving for life - Previously granted probation - Some offences committed while on parole, others committed while on parole and on bail for burglary - Sentencing Judge's decision not to grant parole upheld

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Applicant: Ms N Mikhaiel
Respondent: Mr S P Pallaras & Ms L B Black

Solicitors:

Applicant: McDonald & Sutherland
Respondent: Acting Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brown v The Queen, unreported; CCA SCt of WA; Library No 960445; 6 August 1996

Case(s) also cited:

Eades v The Queen, unreported; CCA SCt of WA; Library No 8205; 20 April 1990
Forbes v The Queen, unreported; CCA SCt of WA; Library No 7777; 7 August 1989
Grey v The Queen, unreported; CCA SCt of WA; Library No 930205; 2 April 1993
R v Hernberger (1989) 42 A Crim R 40
Swain v The Queen, unreported; CCA SCt of WA; Library No 7622; 24 April 1989
Thompson v The Queen (1992) 8 WAR 387

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Ipp J. Those reasons sufficiently set out my own reasons for joining in the dismissal of the application by the applicant for leave to appeal against the trial Judge's declining to make an order for eligibility for parole. There is nothing further which I wish to add.
IPP J: At the conclusion of argument, the Court unanimously dismissed this application for leave to appeal against sentence and indicated that it would give reasons for its decision later. I set out below the reasons why I joined in the decision of the Court.
The applicant was convicted on his own pleas of guilty to two charges of aggravated burglary, one charge of stealing and wilfully driving a motor vehicle in a reckless manner, and one count of unlawfully killing another person. He was sentenced to 12 months' imprisonment on each of the counts of aggravated burglary and 12 months' imprisonment in respect of the stealing and driving of the motor vehicle. He was sentenced to a term of 8 years' imprisonment on the count of unlawful killing.…

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

Case: [1999] WASCA 57
Decision Date: 15 JUNE 1999

CaseChat Overview and Summary

The case of Clinch v The Queen involved an individual, Clinch, who faced sentencing for multiple serious offences. Clinch was convicted of two counts of aggravated burglary, one count of stealing, one count of recklessly driving a motor vehicle, and one count of unlawfully killing another person. At the time of sentencing, Clinch was 19 years old. Clinch had a substantial history of prior convictions, including multiple instances of stealing and driving motor vehicles without a license. There were also convictions for burglary and assault with intent to cause grievous bodily harm, as well as convictions for breaching bail conditions. Notably, Clinch continued to drive motor vehicles despite being disqualified from driving for life. The court was also made aware that Clinch had previously been granted probation, during which some of the current offences were committed. Others were committed while Clinch was on parole and on bail for another burglary charge. The sentencing judge decided against granting parole, a decision which was upheld in this appeal.

The legal issues before the court encompassed the appropriate sentencing for Clinch, considering his criminal history and the nature and circumstances of the current offences. The court had to weigh the need for deterrence, rehabilitation, and protection of the community against Clinch's age and the possibility of his reform. Additionally, the court needed to determine whether the sentencing judge's decision not to grant parole was justified and whether it appropriately balanced the various considerations relevant to sentencing.

In addressing these issues, the court considered Clinch's extensive criminal history, which demonstrated a persistent pattern of offending. The court noted that Clinch had been given multiple opportunities for rehabilitation, including probation and parole, which he had failed to utilise effectively. The court further considered the severity and circumstances of the current offences, including the aggravated burglary, reckless driving, and the tragic death that resulted from the driving offence. The sentencing judge's decision not to grant parole was supported by the need for community protection and the likelihood of Clinch reoffending if released on parole. The court concluded that the sentencing judge's decision was appropriate, given the totality of the circumstances.

The court upheld the sentencing judge's decision not to grant parole and affirmed the sentence imposed on Clinch. This decision recognised the gravity of Clinch's current and past offences, his failure to reform despite previous opportunities, and the need to protect the community from further harm. The court's affirmation of the sentencing decision underscored the importance of ensuring that sentences reflect both the seriousness of the crimes and the offender's capacity for rehabilitation.

Orders