R v Clarke - [2001] NSWSC 703

CITATION: R v Clarke [2001] NSWSC 703

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 70088/00

HEARING DATE(S): 3 July 2001, 9 July 2001, 20 July 2001

JUDGMENT DATE:
20 July 2001

PARTIES :

The Crown
Wayne Alan Clarke

JUDGMENT OF: McClellan J

COUNSEL : W Robinson QC (Crown)
C R Craigie (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Champion Legal (Offender)

LEGISLATION CITED: Crimes Act 1900, s 154A(1)(b)
Crimes (Sentencing Procedure) Act, s 23(2)

CASES CITED: Georgina Marie Hill v R 3 A Crim R 397
Thomson v Houlton [2000] NSWCCA 301 (17 August 2000)
R v Parkinson [2001] NSWCCA 244 (27 June 2001)
R v Khan NSWCCA, unreported, 8 June 1990
R v Cartwright (1989) 17 NSWLR 243

DECISION: See paras 38-41

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

McCLELLAN J

FRIDAY, 20 JULY 2001

70088/00 - REGINA v Wayne Alan CLARKE

SENTENCE

1 HIS HONOUR: The offender, Wayne Alan Clarke, has pleaded guilty to the manslaughter of Lanh Ngoc Bui. He has also pleaded guilty to one count of allowing himself to be conveyed in a motor vehicle knowing that the vehicle had been taken without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act 1900.

2 On the evening of Thursday, 3 August 2000, the offender was involved in a robbery of Ms Bui. His friend and co-accused stole a Ford sedan motor vehicle from outside an hotel and collecting the offender they had decided to plan a robbery. The plan was to snatch a bag from a person standing on the footpath and escape using the stolen motor vehicle.

3 On that evening the deceased, Ms Bui, had attended a Lidcombe Club with her boyfriend, Tri Dung Tran, where they had dinner. They left the club at approximately 9.00 pm and walked a short distance to Mr Tran's unit in Swete Street, Lidcombe. Mr Tran went inside to collect his car keys while the deceased waited outside the unit block on the driveway/footpath area.

4 At that time the co-accused driving the stolen vehicle, came into Swete Street. He stopped the vehicle approximately 50 metres from where the deceased was standing and the offender got out. He approached the deceased and grabbed her handbag. Meanwhile, the co-accused drove the vehicle alongside the offender. The offender then opened the door of the vehicle and got into the front passenger seat.

5 The deceased pursued the offender and attempted to regain her handbag. The co-accused began driving down Swete Street and the deceased ran alongside the vehicle for a short distance. The co-accused then briefly stopped the vehicle and the deceased partially entered the vehicle. The co-accused accelerated and drove the vehicle down Swete Street swerving it from side to side in an attempt to get the deceased out of the vehicle. He drove the vehicle through the roundabout at the corner of Church Street, turning left and clipping the gutter as he made the turn.

6 Ms Bui grabbed hold of the…

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 [2001] NSWSC 703
Case: [2001] NSWSC 703
Decision Date: 20 July 2001

CaseChat Overview and Summary

The case of R v Clarke, heard by the Supreme Court of New South Wales, involved the defendant, Wayne Alan Clarke, who pleaded guilty to the manslaughter of Lanh Ngoc Bui and to the offence of being conveyed in a motor vehicle knowing it had been taken without the consent of the owner. The legal issues before the court were to determine the appropriate sentence for Clarke, taking into consideration the mitigating factors of his early plea, cooperation with authorities, and genuine remorse, as well as the severity of the crimes committed.

McClellan J considered the objective elements of the criminality involved, including the inherent danger of using a motor vehicle in a robbery and the tragic loss of life that resulted from Clarke's actions. The court also considered the subjective circumstances of Clarke, including his troubled background, drug abuse, and criminal history. Furthermore, the court took into account the assistance Clarke provided to the police and his willingness to give evidence against his co-accused. The judge accepted Clarke's evidence of genuine remorse and his intention to give truthful evidence at the trial of his co-accused.

Ultimately, the court determined that a sentence of five years full-time imprisonment for manslaughter, with a non-parole period of three and a half years, was appropriate. The court also imposed a concurrent sentence of six months for the offence of being conveyed in a motor vehicle. The sentence was discounted due to Clarke's cooperation with authorities and his early plea. The court emphasised that if Clarke failed to give satisfactory evidence at the trial of his co-accused, the Crown could appeal, and the Court of Criminal Appeal would reconsider the sentence.

Orders