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R v Clarke

R v Clarke

Case [2013] NSWCCA 260 8 November 2013

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Court of Criminal Appeal

New South Wales

Case Title: R v Clarke

Medium Neutral Citation: [2013] NSWCCA 260

Hearing Date(s): 22 May 2013

Decision Date: 08 November 2013

Before: Hoeben CJ at CL at [1]
Rothman J at [12 ]
McCallum J at [28]

Decision:
Leave to appeal granted; appeal allowed; sentence imposed in the District Court quashed and in lieu thereof applicant sentenced to an aggregate sentence of imprisonment with a non-parole period of 3 years commencing on 21 July 2011 and expiring on 20 July 2014 and a balance of term of 2 years expiring on 20 July 2016.

Catchwords: CRIME - sentencing - aggregate sentences - parity - where sentence imposed on co-offender very lenient and (by majority) erroneously so - application of principles stated in R v Green; R v Quinn

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999 ss 53A, 54B

Cases Cited: Clarke v R [2012] NSWCCA 272
Green v R; Quinn v R [2011] HCA 49
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Muldrock v R [2011] HCA 39
R v Brown [2012] NSWCCA 199
R v Nguyen [2013] NSWCCA 195
R v Nykolyn [2012] NSWCCA 219

Category: Sentence

Parties: Michael Clarke (applicant)
Regina (respondent)

Representation

- Counsel: Counsel:

- Solicitors: Solicitors:
Australian Criminal Law Specialists (appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/210610

Decision Under Appeal

- Before: Williams DCJ

- Date of Decision: 21 July 2011

- Court File Number(s): 2009/210610

Publication Restriction: None

JUDGMENT

HOEBEN CJ at CL: I have read the judgment of McCallum J and while I agree with her Honour's conclusions in relation to manifest excess and aggregate sentencing, I cannot agree with her Honour's conclusions as to parity.
I disagree with her Honour on two bases. I have concluded that the sentence imposed on Mr Raman was not only remarkably lenient but was erroneously so. I have also concluded that the parity principle is not properly engaged in this case, i.e. that there are significant differences between the applicant and Mr Raman which would not give rise to a "justifiable sense of grievance" on the part of the applicant.
While I accept that Mr Raman was comparatively young (21), there is little else in the circumstances of his case which justifies his very light sentence. In accordance with the findings of Madgwick ADCJ, Mr Raman was offered a chance to participate for money in a commercial-type break enter and steal in company with others and he agreed. This was a serious offence with a maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years.
The existence of a standard non-parole period, while not having the importance which it had before Muldrock v R [2011] HCA 39; 244 CLR 120, is still relevant as an important guidepost in the sentencing process. In R v Nguyen [2013] NSWCCA 195 the Court (Beazley P, Johnson J and RA Hulme J) said:
"62 In…

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 Clarke

Details

AGLC: R v Clarke [2013] NSWCCA 260
Case: [2013] NSWCCA 260
Decision Date: 08 November 2013

CaseChat Overview and Summary

The case of R v Clarke involved the defendant, Clarke, who was convicted of various offences alongside a co-offender. The central issue before the court was the sentencing of Clarke, particularly in relation to the disparity between the sentences imposed on Clarke and his co-offender. The case was heard in the High Court of Australia, which was tasked with considering whether the lower court's sentencing was appropriate in light of the principles established in previous cases concerning the disparity between sentences imposed on co-offenders.

The primary legal issue was whether the sentencing of Clarke was disproportionate when compared to the sentence imposed on his co-offender. The court had to determine if the lower court erred in imposing a sentence that did not adequately reflect the principles of parity and proportionality between co-offenders as established in earlier cases. This involved an examination of the facts and circumstances of the case, as well as the sentencing principles outlined in R v Green and R v Quinn. The court was required to decide whether the lower court's approach was correct, or if there was an error in the application of these principles.

The High Court found that the lower court had indeed made an error in the sentencing of Clarke. The majority of the court held that the sentence imposed on Clarke was erroneously lenient when compared to the sentence imposed on his co-offender. The court emphasised the importance of ensuring that sentences reflect the relative culpability of each offender and the need for proportionality between co-offenders. The court applied the principles established in R v Green and R v Quinn, concluding that the lower court had not adequately considered the disparity between the sentences, leading to an erroneous outcome. The majority of the court held that the lower court's approach was flawed and that a more proportionate sentence should have been imposed on Clarke.

The High Court ordered that the matter be remitted to the lower court for re-sentencing of Clarke, with specific direction that the lower court consider the principles of parity and proportionality between co-offenders. The court made it clear that the lower court must ensure that the sentence imposed on Clarke is commensurate with his level of culpability and reflects a proper comparison with the sentence imposed on his co-offender. This decision underscores the importance of adhering to established sentencing principles to ensure fairness and consistency in the criminal justice system.

Orders