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Clinton v R

Clinton v R

Case [2009] NSWCCA 276 19 November 2009

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New South Wales
Court of Criminal Appeal

CITATION: Matthew CLINTON v R [2009] NSWCCA 276

HEARING DATE(S): 11/11/2009

JUDGMENT DATE:
19 November 2009

JUDGMENT OF: Allsop P at 1; Howie J at 2; Hislop J at 42

DECISION: Application for leave is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal against sentence - entering a dwelling house and threatening occupant with a knife - whether error in giving insufficient weight to protective custody - whether error in failing to take into account extra-curial punishment - whether some lesser sentence warranted.

LEGISLATION CITED: Crimes Act 1900 - ss 99(1), 111(2), 114(1)(d)
Crimes (Sentencing Procedure) Act 1999 - s 11

CATEGORY: Principal judgment

CASES CITED: R v Howard [2001] NSWCCA 209
R v Rose [2004] NSWCCA 326
R v Patison [2003] NSWCCA 171; 143 A Crim R 118
R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R V Sukkar [2006] NSWCCA 92
Silvano v R [2008] NSWCCA 118; 184 A Crim R 593
Whybrow v R [2008] NSWCCA 270
Sharpe v R [2006] NSWCCA 255
Alameddine v R [2006] NSWCCA 317
R v Davidson ex parte A-G (Qld) [2009] QCA 283
The Queen v De Simoni (19810 147 CLR 383
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Mack v R [2009] NSWCCA 216

PARTIES: Matthew Clinton
Regina

FILE NUMBER(S): CCA 2008/4860

COUNSEL: M Grogan - Crown
H Cox - Applicant

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/4860

LOWER COURT JUDICIAL OFFICER: King DCJ

LOWER COURT DATE OF DECISION: 26/09/2008

2008/4860

ALLSOP P
HOWIE J
HISLOP J
THURSDAY 19 NOVEMBER 2009

Matthew CLINTON v REGINA

Judgment

1 ALLSOP P: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by Judge King SC (the Judge). The applicant was before the Court for sentencing for two offences that arose out of the one criminal activity. The first was an offence contrary to s 111(2) of the Crimes Act being an aggravated entering a dwelling house with intent to steal. This is an offence carrying a maximum penalty of imprisonment for 14 years. The second offence was demanding property with menaces contrary to s 99(1) of the Crimes Act for which the maximum penalty is imprisonment for 10 years. In addition the applicant asked the Judge to take into account four matters on a Form 1 when sentencing for the s 111(2) offence. The first and third matters were offences of entering a building with intent contrary to s 114(1)(d) of the Crimes Act, the second matter was possessing cannabis and the fourth larceny.

3 The Judge sentenced the applicant on the s 111(2) offence to a term of imprisonment made up of a…

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 [2009] NSWCCA 276
Case: [2009] NSWCCA 276
Decision Date: 19 November 2009

CaseChat Overview and Summary

The appellant, Clinton, was convicted of entering a dwelling house with intent to commit an indictable offence and threatening the occupant with a knife. The Crown alleged that the appellant unlawfully entered the victim’s home and threatened them with a knife, causing significant fear and distress. Following the conviction, the appellant was sentenced to a period of imprisonment. Dissatisfied with the sentence, Clinton appealed to a higher court, arguing that the sentencing judge had erred in various respects.

The primary legal issues before the court were whether the sentencing judge had erred by giving insufficient weight to the appellant’s need for protective custody, whether the sentencing judge had failed to take into account the extra-curial punishment the appellant had already endured, and whether a lesser sentence was warranted. The appellant contended that the sentencing judge did not adequately consider the potential risks associated with placing the appellant in the general prison population, given the nature of the offence and the appellant’s personal circumstances. Additionally, the appellant submitted that the sentencing judge had not appropriately factored in the extra-curial punishment the appellant had already served, including time spent in remand and any other penalties imposed prior to the formal sentencing hearing. Finally, the appellant argued that the sentence imposed was excessive and that a lesser sentence would have been more appropriate.

In considering the appeal, the court examined the sentencing judge’s approach to the issues raised by the appellant. The court found that the sentencing judge had appropriately considered the appellant’s need for protective custody and had given it due weight. The court also determined that the sentencing judge had not erred in failing to take into account the extra-curial punishment, as it was not relevant to the calculation of the definitive sentence. Furthermore, the court held that the sentence imposed was not excessive, given the seriousness of the offence and the need to deter similar conduct in the future. Consequently, the appeal against sentence was dismissed, and the original sentence was upheld.

Orders