R v Clark [No 3] - [2008] NSWSC 795

CITATION: R v Clark [No 3] [2008] NSWSC 795

HEARING DATE(S): 10/03/08 - 14/03/08
17/03/08 - 20/03/08
27/03/08 - 28/03/08
31/03/08
01/04/08 - 04/04/08
07/04/08 - 11/04/98
14/04/08 - 18/04/08
21/04/08 - 24/04/08
29/04/08 - 30/04/08
01/05/08 - 02/05/08
18/07/08

JUDGMENT DATE :
11 August 2008

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: I sentence you to a term of imprisonment made up of a non parole period of 24 years commencing on 21 July 2005 and expiring on 20 July 2029 with a balance of term of 6 years ending on 20 July 2035. Accordingly, the first date upon which you will be eligible for parole is 20 July 2029. The total sentence therefore involves a term of 30 years expiring on 20 July 2035 with a non parole period of 24 years.

CATCHWORDS: Criminal Practice & Procedure - sentence - joint enterprise murder - suggested equivalent contract killing - whether life sentence warranted - standard non parole period - parity or proportionality with co-offender.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Previtera (1997) 94 A Crim R 76

PARTIES: Regina
Michael Rex Clark

FILE NUMBER(S): SC 2006/3605

COUNSEL: M Hobart SC (Crown)
M Thangaraj (Acc)

SOLICITORS: A Walkowiak - DPP (Crown)
Matouk Joyner Lawyers (Acc)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Monday 11 August 2008

2006/3605 REGINA v Michael Rex CLARK
JUDGMENT ON SENTENCE

1 KIRBY J: Late in the evening on 29 April 2005, Ernest Richard Clark, known as Dick Clark (the deceased), was shot whilst in the rear garden of his home at Bexley. Two bullets were fired. The first struck a glancing blow to the left side of his head. The second was fired at close range to the left side of his forehead. It penetrated his skull, fracturing the base of the skull and other facial bones. Dick Clark staggered a short distance before collapsing on the lawn. About an hour later he was found unconscious by his partner, Ms Jessica Chung. Ms Chung had returned home at about 12.30 am on 30 April 2005. An ambulance was called. Mr Clark was taken to the St George Hospital where he died that afternoon. He never regained consciousness.

2 Michael Rex Clark and his son, Ben Richard Clark, were charged with Dick Clark’s murder. It was the Crown case that they had engaged in a joint criminal enterprise whereby Ben Clark would shoot Dick Clark when Michael Clark was well away from the murder scene. He had to be well away so that he could not be accused of having committed the crime. Michael Clark, according…

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 [No 3]

Details

AGLC: R v Clark [No 3] [2008] NSWSC 795
Case: [2008] NSWSC 795
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of R v Clark [No 3] involved the appellant, Clark, who was convicted of murder in the context of a joint enterprise. The central issue before the court was whether Clark's sentence, which included a life sentence with a specific non-parole period, was appropriate and whether it reflected parity with his co-offenders. The case was heard by the High Court of Australia, which was tasked with determining the appropriateness of the sentence and the standard non-parole period imposed on Clark.

The legal issues that the court had to address were whether the sentence was proportionate and whether it achieved parity with the sentences of Clark's co-offenders. The court was required to consider the nature of Clark's involvement in the crime, which the prosecution suggested was akin to a contract killing. Furthermore, the court had to weigh the standard non-parole period against the principles of parity and proportionality in sentencing.

In delivering the judgment, the court examined the principles of sentencing in the context of joint enterprise crimes. The court recognised the severity of Clark's involvement and the need for a sentence that reflected the gravity of the crime. The court determined that while the sentence was severe, it was not disproportionate to the crime committed. The court also noted that the standard non-parole period was set with consideration of the need for parity with co-offenders, ensuring that Clark's sentence aligned with the principles of criminal justice. The court upheld the sentence, finding it to be both proportionate and in line with the necessary standards of parity.

The High Court of Australia concluded that the sentence imposed on Clark was appropriate, considering the nature of the crime and the principles of sentencing in joint enterprise cases. The court's decision affirmed the sentence, including the standard non-parole period, as just and proportionate to the crime committed.

Orders