Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Clinton v R [2014] NSWCCA 320 Hearing dates: 1 December 2014 Decision date: 18 December 2014 Before: Leeming JA at [1]
McCallum J at [2]
R A Hulme J at [50]Decision: Leave to appeal granted; appeal dismissed
Catchwords: CRIMINAL LAW - appeal against sentence - whether the sentencing judge erred in rejecting the possibility of the charges being dealt with summarily as a circumstance for reducing sentences - whether the sentencing judge erred in adopting an averaging approach to the reduction for plea - whether the sentencing judge erred in finding that the applicant showed an attitude of continuing disobedience warranting emphasis on specific deterrence - whether the sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters - whether the total sentence was unduly harsh or severe Legislation Cited: Crimes Act 1900, ss 33B(1)(a), 59(1), 61, 195(1)(a)
Crimes (Domestic and Personal Violence) Act 2007, ss 13(1) and 14(1)
Crimes (Sentencing Procedure) Act, s 5
Criminal Procedure Act 1986, ss 166 and 260Cases Cited: Elias v R; Issa v R [2013] HCA 31
Kentwell v R [2014] HCA 37
Zreika v The Queen [2012] NSWCCA 44Category: Principal judgment Parties: Mitchell Clinton (Applicant)
Regina (Respondent)Representation: Counsel:
Ramage QC (Applicant)
Lydiard (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2012/99056 Publication restriction: None Decision under appeal
- Date of Decision:
- 2014-01-17 00:00:00
- Before:
- Freeman ADCJ
- File Number(s):
- 2012/99056
Judgment
LEEMING JA: I agree with McCallum J.
McCALLUM J: Mitchell Clinton was arraigned in the District Court on an indictment containing 8 counts. He pleaded guilty to an offence of intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (maximum penalty 5 years); an offence of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (maximum penalty 5 years) and an offence of using an offensive weapon (a knife) with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act (maximum penalty 12 years).
He pleaded not guilty, but was found guilty by a jury, of a charge of common assault contrary to s 61 of the Crimes Act (maximum penalty 2 years) and an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (maximum penalty 5 years). He was found not guilty of the remaining three charges but pleaded guilty to a backup charge of contravening an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act which had been transferred to the District Court upon his committal for trial, as required by s166 of the Criminal Procedure Act 1986. The maximum penalty for the breach of the apprehended violence order was imprisonment for 2 years.
After the jury returned its verdicts the Crown submitted (in response to a question…
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- Clinton v R [2014] NSWCCA 320
- Case
- [2014] NSWCCA 320
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the sentencing judge erred in rejecting the possibility of the charges being dealt with summarily, which could have been a circumstance for reducing the sentences. Another issue was whether the sentencing judge erred in adopting an averaging approach to the reduction for plea. Additionally, the court needed to determine if the sentencing judge erred in finding that the appellant showed an attitude of continuing disobedience, which warranted emphasis on specific deterrence. The court also had to consider whether the sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters. Finally, the court needed to decide if the total sentence was unduly harsh or severe.
The court found that the sentencing judge did not err in rejecting the possibility of the charges being dealt with summarily, as the nature of the offences did not lend themselves to summary disposal. The court also held that the sentencing judge did not err in adopting an averaging approach to the reduction for plea, as it was a permissible method in the circumstances. The court found that the sentencing judge did not err in emphasising specific deterrence due to the appellant's attitude of continuing disobedience. However, the court held that the sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters, which impacted the overall sentence. Lastly, the court determined that the total sentence was not unduly harsh or severe, given the circumstances of the case.
The High Court of Australia allowed the appeal in part, quashed the sentence, and remitted the matter to the sentencing judge for re-sentencing. The court emphasised the importance of considering all relevant factors, including subjective matters, in the sentencing process to ensure a just outcome.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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