R v Clarke

[2011] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2011] QCA 138

PARTIES:

R
v
CLARKE, Callan Troy
(applicant)

FILE NO/S:

CA No 267 of 2010
DC No 129 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2011

JUDGES:

Fraser and Chesterman JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application for leave to appeal is granted.1.    

The appeal is allowed. 2.    

Substitute a sentence of three years for the sentence of four years imposed at first instance.3.    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of two counts of robbery whilst armed with an offensive instrument – where the applicant appeals against his sentence on the grounds that the learned sentencing judge failed to properly make allowance for the totality principle when imposing sentences – whether the sentences imposed are manifestly excessive

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied
R v Matthewson [2001] QCA 4, considered
R v McDonald [2001] QCA 238, considered
R v Murray [2008] QCA 340, considered

COUNSEL:

K Prskalo for the applicant
R W Griffith for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1]      FRASER JA: I agree with the reasons for judgment of Cullinane J and the orders proposed by his Honour.

[2]      CHESTERMAN JA: I agree with Cullinane J.

[3]      CULLINANE J: The applicant seeks leave to appeal against sentences imposed in the District Court at Townsville on 8 October 2010 for two counts of robbery whilst armed with an offensive instrument.

[4]      The applicant who was born on 16 May 1975 was sentenced to imprisonment for four years on each count.

[5]      The offences were committed on 19 July 2001.

[6]      In each of the two counts a video store was involved.  The applicant went to the premises armed with what some of the witnesses described as a machete and wearing a black balaclava.  In one case a little over $100 was stolen from the premises whilst in the other some $12,000 representing the takings for four nights was taken from the business.

[7]      Although in December 2008 the applicant had volunteered to the police his responsibility for one of these offences, he went to trial in respect of both of them.  The learned sentencing judge described him as engaging the jury with ‘a fanciful tale that you had dreamt up after your confession’.

[8]      The applicant has what the learned sentencing judge described as an appalling record. 

[9]      He has been before the courts in Western Australia, the Northern Territory,…