R v CLARKE - [2004] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLARKE
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
17 June 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
Appeal against sentence of imprisonment - the appellant pleaded guilty to one count of serious criminal trespass in a place of residence and one count of larceny - a sentence of two years and 11 months with a non-parole period of 23 months was imposed - whether the head sentence and non-parole period were manifestly excessive - whether the learned Judge erred by sentencing the appellant on an aggravating element which was not an element of the charge - whether the learned Judge failed to give any, or adequate, weight to the aboriginality of the appellant - the occupants of the premises were an elderly couple - personal circumstances of the appellant discussed - prior offending history - relevance of aboriginality in the sentencing process discussed - appeal allowed - new sentence of imprisonment for two years and three months with a non-parole period of 17 months imposed.
Criminal Law (Sentencing) Act 1988 s 10(1)(ea), s 10(2), referred to.
Neal v The Queen (1982) 149 CLR 305; The Queen v McInerney (1986) 42 SASR 111, applied.
R v Delphin (2001) 79 SASR 429; The Queen v Halse (1984-1985) 38 SASR 594; The Queen v De Simoni (1980-1981) 147 CLR 383; Wanganeen v Smith (1977) 73 LSJS 139; R v Fernando (1992) 76 ACrimR 58; R v Smith [2003] SASC 263, considered.

R v CLARKE
[2004] SASC 181
Court of Criminal Appeal: Mullighan, Nyland and Anderson JJ

THE COURT: The appellant pleaded guilty in the District Court to one count of serious criminal trespass in a place of residence and one count of larceny. One sentence of imprisonment for two years and 11 months with a non-parole period of 23 months was imposed. He appeals against the sentence on the grounds that both the head sentence and the non-parole period are manifestly excessive and that the learned Judge erred by sentencing the appellant on an aggravating element which is not an element of the charge.
The circumstances of the offences are that at about 11.45 pm on 6 November 2002 the appellant broke into a house occupied by an elderly married couple at Port Pirie. They were both in their late seventies. He broke glass in the back door of their house and undid the barrel bolt on the door. He turned on lights and ransacked two nearby rooms. The occupants of the house were asleep in the front bedroom. The lady noticed that the lights were on and went to the hall. She saw the appellant in the lounge room…

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 [2004] SASC 181
Case: [2004] SASC 181
Decision Date: 17 June 2004

CaseChat Overview and Summary

The appeal in R v Clarke involved the appellant, who had pleaded guilty to serious criminal trespass in a residential place and larceny. The sentence imposed was two years and eleven months imprisonment with a non-parole period of 23 months. The appellant contested the severity of the sentence, arguing it was manifestly excessive and that the learned Judge had erred by considering an aggravating element not part of the charges. Additionally, the appellant claimed the Judge did not adequately consider the appellant’s aboriginality in the sentencing process.

The central legal issues revolved around the excessiveness of the sentence, the propriety of the aggravating element used, and the weight given to the appellant’s aboriginality. The court examined whether the head sentence and the non-parole period were too harsh and if the Judge had correctly balanced the aggravating factors and the appellant's aboriginality. The relevance of aboriginality in the sentencing process and its impact on the final sentence was critically assessed.

The court found that the original sentence was indeed excessive and that the Judge had misapplied aggravating factors not part of the charges. The court also noted that the Judge had failed to adequately consider the appellant's aboriginality, which is a critical factor in sentencing Aboriginal offenders. Consequently, the appeal was allowed, and a new sentence of two years and three months imprisonment with a non-parole period of 17 months was imposed, reflecting a more balanced approach considering all relevant factors.

No further orders were made beyond the resentencing as detailed above. The court emphasised the importance of considering all relevant mitigating and aggravating factors, including the appellant's aboriginality, in the sentencing process.

Orders