Clinton v R - [2014] NSWCCA 320

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 260
Cases Cited: Elias v R; Issa v R [2013] HCA 31
Kentwell v R [2014] HCA 37
Zreika v The Queen [2012] NSWCCA 44
Category: 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…

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 R [2014] NSWCCA 320
Case: [2014] NSWCCA 320
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the case of Clinton v R, the appellant sought to appeal the sentence imposed by the sentencing judge. The appellant was convicted of multiple charges and the appeal focused on the sentencing process and the resulting sentence. The appeal was heard in the High Court of Australia, which had appellate jurisdiction over the matter.

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