R v Clarke - [2006] VSCA 174

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 269 of 2005
No. 291 of 2005

THE QUEEN
	v.
DAVID JAMES CLARKE

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JUDGES:	NETTLE, J.A., COLDREY and BELL, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 August 2006
DATE OF JUDGMENT:	30 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 174	2^nd Revision: 3 October 2006

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CRIMINAL LAW – Sentencing – Kidnapping – Threat to kill – Intentionally cause serious injury – Armed robbery – Robbery – Multiple presentments – Whether total effective sentence of 13½ years with non-parole period of 8½ years manifestly excessive – Youth – Good prospects for rehabilitation – Genuine remorse – Applicant re-sentenced with cumulation in a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Trapnell	Ms Angela Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Doogue & O’Brien

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Bell, A.J.A.

I agree with his Honour, substantially for the reasons which he has given, that the application should be allowed and I concur in the disposition of the appeal which his Honour proposes.

COLDREY, A.J.A.:

I also agree with the disposition of this matter proposed by Bell, A.J.A. substantially for the reasons advanced by him.

BELL, A.J.A.:

The sentences under appeal

The appellant was sentenced to terms of imprisonment by judges of the County Court of Victoria on 2 September 2005 and 23 September 2005.

On 2 September 2005 the appellant was sentenced for the charges specified in presentment numbers C0303403.1 and S02357467.

The charges specified in presentment number C0303403.1 were:

·Kidnapping – one count (Count 1)
·Threat to kill – two counts (Counts 2 and 8)
·Intentionally cause serious injury – one count (Count 3)
·Intentionally cause injury – two counts (Counts 4 and 5)
·Armed robbery – one count (Count 6)
·Robbery – one count (Count 7)

The charges specified in presentment number S02357467 were:

·Armed robbery – two counts (Counts 1 and 2)

The appellant pleaded guilty to these charges.

The judge recorded convictions on each of the charges and then sentenced the appellant.

As to presentment number C0303403.1, her Honour’s sentences were as follows:

·Count 1 for kidnapping, 18 months’ imprisonment, treated as the head sentence.
·Count 2 for threatening to kill, six months’ imprisonment, of which three months was to be concurrent.
·Count 3 for intentionally cause serious injury, 18 months’ imprisonment, of which 12 months was to be concurrent.
·Count 4 for intentionally cause injury, 12 months’ imprisonment, of which six months was to be concurrent.
·Count 5 for intentionally cause injury, 12 months’ imprisonment, of which six months was to be concurrent.
·Count 6 for armed robbery, 24 months’ imprisonment, of which 15 months was to be concurrent.
·Count 7 for robbery, nine months’ imprisonment, of which six months was to be concurrent.
·Count 8 for threatening to kill, 12 months’ imprisonment, of…

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] VSCA 174
Case: [2006] VSCA 174
Decision Date: 30 August 2006

CaseChat Overview and Summary

The case of R v Clarke involved the sentencing of the appellant, Clarke, for a series of serious criminal offences including kidnapping, threats to kill, intentionally causing serious injury, armed robbery, and robbery. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court. Clarke had been sentenced to a total effective term of 13½ years with a non-parole period of 8½ years, which he argued was manifestly excessive.

The legal issues before the court were whether the original sentence was manifestly excessive and if there were grounds to reduce the sentence, considering factors such as Clarke's youth, prospects for rehabilitation, and genuine remorse. The court had to weigh these mitigating factors against the severity of the crimes committed. The primary focus was on whether the sentence could be reduced while still ensuring public safety and maintaining the deterrent effect of the criminal justice system.

In delivering its judgment, the court considered the cumulative impact of the crimes and the severity of each individual offence. It acknowledged the appellant's youth and the potential for rehabilitation but also recognised the significant harm caused to the victims. After a thorough review, the court concluded that the total effective sentence of 13½ years with a non-parole period of 8½ years was indeed excessive. The court re-sentenced Clarke to a total effective term of 10 years with a non-parole period of 6 years, taking into account the mitigating factors presented.

The final orders of the court mandated that Clarke be re-sentenced to a total effective term of 10 years with a non-parole period of 6 years, reflecting a balanced approach that recognised both the gravity of the crimes and the mitigating factors presented.

Orders