Nathan Clyne v The Queen

[2017] VSCA 350

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0184

NATHAN CLYNE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	OSBORN, WHELAN and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2017
DATE OF JUDGMENT:	17 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 350
JUDGMENT APPEALED FROM:	DPP v Clyne (Unreported, County Court of Victoria, Judge Allen, 17 February 2016)

ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 313(2) OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Leave to Appeal – Sentence – Election to renew application – Rape – Recklessly cause injury – Whether sentence of five years and six months’ imprisonment with a non-parole period of three years and six months manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Self-represented
For the Respondent	Mr C B Boyce	John Cain, Solicitor for Public Prosecutions

OSBORN JA:

1. Following pleas of guilty to two charges of rape and one charge of recklessly causing injury, the applicant was sentenced on 17 February 2016 to be imprisoned for five years and six months with a non-parole period of three years and six months as set out in the following table:

Charge	Offence	Sentence		Cumulation
1	Rape	4 years and 3 months		Base
2	Rape	4 years		12 months
3	Recklessly causing injury	1 year		3 months
Total effective sentence			5 years and 6 months’ imprisonment
Non-parole period			3 years and 6 months’ imprisonment
Pre-sentence detention			1 day
Section 6AAA statement			6 years and 6 months’ imprisonment with non-parole period of 4 years and 6 months
Other orders			Registrable offender under the Sex Offender Registration Act 2004 (charges 1 and 2) for 15 years

1. The applicant sought leave to appeal against sentence on the sole ground of manifest excess. 

1. On 20 February 2017, Priest JA refused leave to appeal. 

1. The applicant has now elected to renew his application for leave to appeal before a division of this Court comprised by at least two judges of appeal. 

1. He has appeared for himself before this Court expressing deep remorse for the offending and recognising that it constituted a dreadful mistake on his part. 

1. The circumstances of the offending are set out in the reasons of Priest JA.  It is sufficient for present purposes to say that the rapes were vicious and violent.  The act of recklessly cause injury added to the victim’s trauma. 

1. The task of this Court is not to sentence the applicant afresh but to determine whether it is reasonably arguable that the sentence imposed in the first instance was infected by error.  I would refuse leave to appeal for the reasons stated by Priest JA.  In so doing, I would emphasise my endorsement of his Honour’s observations as to those matters which taken together demonstrate the seriousness of the offending.[1] 

   [1]Clyne v The Queen (Unreported, Victorian Court of Appeal, Justice Priest, 20 February 2017) [23].

1. When due regard is had to the gravity of the offending, then notwithstanding the applicant’s pleas of guilty (which were late), his lack of prior convictions and his good work record, neither the total effective sentence imposed nor its individual components can sensibly be characterised as manifestly excessive. 

1. When all the relevant factors are taken into account, including the maximum penalty applicable to the offences and current sentencing practice, it cannot be said that the sentences imposed were ‘unreasonable or plainly unjust’.[2] 

   [2]House v The King (1936) 55 CLR 499, 505.

1. Leave to appeal should be refused. 

WHELAN JA:

1. I also agree that leave to appeal should be refused. 

ASHLEY JA:

1. I agree with the reasons of the presiding judge and would also refuse leave to appeal. 

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