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Clinton v R

Clinton v R

Case [2018] NSWCCA 66 13 April 2018

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clinton v R [2018] NSWCCA 66
Hearing dates: 23 March 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Schmidt J at [3]
Decision:
(1)   The application for extension of time to appeal is granted.

(2)   Leave to appeal granted.
(3)   Appeal dismissed.
Catchwords: CRIMINAL LAW – sentence appeal – extension of time to appeal sentence – fraud – dishonestly obtain financial advantage by deception – whether the offences were aggravated on the basis that each offence was committed for financial gain: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) –
whether the offences were aggravated on the basis that each offence constituted a series of acts: s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) – grounds of appeal established – whether lesser sentence was warranted in law – not warranted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 178BA(1) (repealed), 192E(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Dimian v R [2016] NSWCCA 223
Hamze v R [2006] NSWCCA 36
Jah v R [2006] NSWCCA 250
Johnston v R [2017] NSWCCA 53
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28
Potts v R [2017] NSWCCA 10
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Finnie [1999] NSWCCA 329
R v Finnie [2002] NSWCCA 533
R v Finnie (No 2) [2004] NSWCCA 150
Finnie v R [2007] NSWCCA 38
R v Jarrold [2010] NSWCCA 69
R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
Regina v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
Category: Principal judgment
Parties: Thomas James Clinton (Applicant)
Regina (Crown)
Representation:
Counsel:
P Lange (Applicant)
T Smith (Crown)
Solicitors:
Hardinlaw (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/8157
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

4 March 2016

Before:

Lakatos SC DCJ

File Number(s):

2013/8157

Judgment

HOEBEN CJ AT CL: I agree with Schmidt J and the orders she proposes.
JOHNSON J: I agree with the reasons of Schmidt J and her Honour’s proposed orders.
SCHMIDT J: In December 2014 Mr Clinton pleaded guilty to nine offences committed during a joint criminal enterprise which he pursued with his co-offender, Graeme Fowler, between 2008 and 2014, by repetitive and regular offending involving the sophisticated and planned acquisition of credit cards, personal loans and mortgage funds.
Mr Clinton’s case on appeal was that his role was…

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 Clinton v R

Details

AGLC: Clinton v The Queen [2018] NSWCCA 66
Case: [2018] NSWCCA 66
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of Clinton v R involved the appellant, Clinton, appealing against his sentence for fraud-related offences. Clinton was convicted for dishonestly obtaining a financial advantage by deception. He sought an extension of time to appeal his sentence and challenged the severity of his sentence on various grounds. The case was heard by the New South Wales Court of Criminal Appeal.

The central legal issues the court had to decide were whether Clinton's fraud offences were appropriately classified as aggravated offences under section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Specifically, the court needed to determine whether the offences were aggravated because they were committed for financial gain or because they constituted a series of acts. Additionally, the court assessed whether the grounds for appeal were valid and whether a lesser sentence was warranted.

The court found that the offences were indeed aggravated under section 21A(2)(m) as they were committed for financial gain and constituted a series of acts. The court rejected Clinton's argument that the grounds for appeal were not established. The appeal against the sentence was dismissed as the court determined that a lesser sentence was not warranted in law. The appellant's appeal was ultimately unsuccessful.

The final orders of the court were to dismiss Clinton's appeal against his sentence. The court upheld the original sentencing decision and found no basis for reducing the sentence.

Orders