R v Clarke - [2006] QCA 356

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2006] QCA 356

PARTIES:

R
v
CLARKE, Andrew Charles
(applicant)

FILE NO/S:

CA No 136 of 2006
DC No 1328 of 2006
DC No 1329 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2006

JUDGES:

McMurdo P, Jerrard JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – applicant pleaded guilty to indictment charging him with 10 offences of burglary and stealing, breaking and entering premises and stealing, entering premises with intent to commit an indictable offence – applicant also pleaded guilty to possession of house breaking implements with a circumstance of aggravation, possession of house breaking implements, unlawful use of a motor vehicle and dangerous operation of motor vehicle – lengthy criminal history of dishonesty offences – sentenced to four and a half years imprisonment – applicant has attempted to address his opiate addiction and has the support of his mother and girlfriend – whether sentence was manifestly excessive in all the circumstances – whether sentence could be re-structured to provide some supervision upon release

COUNSEL:

The applicant appeared on his own behalf
C W Heaton for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Jerrard JA.

JERRARD JA: On 10 May 2006 Mr Clarke pleaded guilty in the District Court to an indictment charging him with 10 counts alleging offences of burglary and stealing, breaking and entering premises and stealing, entering premises with intent to commit an indictable offence. He also pleaded guilty to possession of house breaking implements with a circumstance of aggravation, to possession of house breaking implements, to unlawful use of a motor vehicle, and to the dangerous operation of a motor vehicle. He likewise pleaded guilty to three summary offences, of which the most significant was a charge of possession of house breaking implements. All the offences to which he pleaded guilty were committed between 5 October 2004 and 17 April 2005. He was sentenced to four and a half years imprisonment, and seeks leave to appeal, alleging that the sentence is manifestly excessive.

Mr Clarke has a quite lengthy criminal history. His first conviction for dishonesty was on 13 June 1990, for breaking and entering with intent. He was placed on probation. He had previously been convicted on 19 October 1988 for offences relating to dangerous drugs, and he has had other similar convictions over the ensuing 18 years.

He…

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 [2006] QCA 356
Case: [2006] QCA 356
Decision Date: 15 September 2006

CaseChat Overview and Summary

In the case of R v Clarke, the applicant appealed against his sentence after pleading guilty to multiple offences including burglary, theft, possession of house-breaking implements, and dangerous operation of a motor vehicle. The sentencing court imposed a four and a half year imprisonment term, which the applicant considered manifestly excessive. The applicant argued that the sentence should be restructured to provide some supervision upon his release, given his efforts to address his opiate addiction and the support he had from his family.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether it could be restructured to provide some supervision upon release. The court considered the principles of sentencing, the nature of the offences, the applicant's criminal history, and his personal circumstances. The applicant's lengthy history of dishonesty offences was a significant factor, as was the dangerous nature of his criminal conduct. The court also took into account the applicant's efforts to address his addiction and the support he had from his family.

The court found that the sentence was not manifestly excessive in all the circumstances. It considered the totality of the applicant's offending, his criminal history, and the need for deterrence and denunciation. The court concluded that the sentence imposed was appropriate and there were no grounds to restructure the sentence to provide supervision upon release. The court emphasised the importance of ensuring that the punishment reflects the seriousness of the crime and the need to protect the community. The application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Clarke [2006] QCA 356
PARTIES:	R v CLARKE, Andrew Charles (applicant)
FILE NO/S:	CA No 136 of 2006 DC No 1328 of 2006 DC No 1329 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2006
JUDGES:	McMurdo P, Jerrard JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – applicant pleaded guilty to indictment charging him with 10 offences of burglary and stealing, breaking and entering premises and stealing, entering premises with intent to commit an indictable offence – applicant also pleaded guilty to possession of house breaking implements with a circumstance of aggravation, possession of house breaking implements, unlawful use of a motor vehicle and dangerous operation of motor vehicle – lengthy criminal history of dishonesty offences – sentenced to four and a half years imprisonment – applicant has attempted to address his opiate addiction and has the support of his mother and girlfriend – whether sentence was manifestly excessive in all the circumstances – whether sentence could be re-structured to provide some supervision upon release
COUNSEL:	The applicant appeared on his own behalf C W Heaton for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent