R v Clark - [2007] VSCA 254

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 351 of 2006

R
	v.
ADAM STEPHEN CLARK

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JUDGES:	VINCENT and NEAVE JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 October 2007
DATE OF JUDGMENT:	19 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 254

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CRIMINAL LAW – Sentencing – Appellant broke into fellow boarder’s room with a baseball bat before punching, kicking and stealing wallet from him – Remorse and guilty plea, but extensive criminal history – Sentenced to 3 years 6 months for intentionally causing serious injury, 3 years for aggravated burglary and 6 months for theft – Whether judge erred in ordering 6 months cumulation of aggravated burglary sentence and total cumulation of theft sentence on sentence for intentionally causing serious injury – Orders for cumulation appropriate and total effective sentence of 4 years 6 months not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L Carter	Hale & Wakeling

VINCENT JA:

I agree that, for the reasons advanced by Neave JA, the appeal against sentence should be dismissed.

NEAVE JA

At a committal mention in the Magistrates’ Court, the appellant, Adam Stephen Clark, pleaded guilty to one count of aggravated burglary (count 1), one count of intentionally causing serious injury (count 2) and one count of theft of a wallet (count 3). After hearing a plea in mitigation, a judge of the County Court sentenced him to the following periods of imprisonment:
Count 1 — three years
Count 2 — three years and six months
Count 3 — six months
The learned sentencing judge ordered that six months of the sentence on count 1, and the whole of the sentence on count 3, should be served cumulatively on the sentence on count 2 and on each other, resulting in a total effective sentence of four years and six months. His Honour imposed a non-parole period of three years. The appellant was granted leave by this Court to appeal against the sentences imposed on him. This is the hearing of that appeal.

Background

The offences were committed in the following circumstances. The appellant, his co-accused, and the victim of these offences, Stephen Paul Holt, lived in boarding house in Punt Road, Richmond. The appellant and his co-accused, who has not yet been tried for his alleged involvement in the attack, had known the victim, for about 4 months. The victim was aged 27 at the time of the attack.

Earlier that day, Mr Holt had borrowed another boarder’s ATM card. The appellant and his co-accused questioned him about its whereabouts and were told

that he had returned it to the owner. Apparently they were not satisfied with Mr Holt’s answer and the appellant repeatedly punched him in the head. The victim offered no resistance, but fled to his room and locked the door.

The appellant and his co-accused followed the victim to his room, where…

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 R v Clark

Details

AGLC: R v Clark [2007] VSCA 254
Case: [2007] VSCA 254
Decision Date: 19 November 2007

CaseChat Overview and Summary

The case of R v Clark involved the appellant who had broken into the room of a fellow boarder, armed with a baseball bat. The appellant proceeded to assault the victim, punching and kicking him, and subsequently stole his wallet. Despite the appellant's remorse and guilty plea, his extensive criminal history was a significant factor in the court's consideration. The appellant was sentenced to three years and six months for intentionally causing serious injury, three years for aggravated burglary, and six months for theft. The appellant contested the manner in which these sentences were to be cumulated, specifically arguing against the cumulation of six months of the aggravated burglary sentence and the total cumulation of the theft sentence on the sentence for intentionally causing serious injury.

The legal issues before the court were whether the judge erred in ordering the specified cumulation of sentences, and if the total effective sentence was manifestly excessive. The court had to examine the principles of sentencing in light of the appellant's criminal history and the nature of the offences committed. The court also had to balance the need for punishment and deterrence with the appellant's expressions of remorse and his guilty plea.

The court found that the orders for cumulation were appropriate and that the total effective sentence of four years and six months was not manifestly excessive. The court reasoned that the judge had considered all relevant factors, including the appellant's criminal history and the seriousness of the offences. The court held that the judge's decision to cumulate the sentences in the manner he did was within the permissible range of sentencing options. The appeal was therefore dismissed, affirming the sentence handed down by the trial judge.

Orders