R v Clarke - [2024] NSWDC 251

District Court

New South Wales

Medium Neutral Citation: R v Clarke [2024] NSWDC 251
Hearing dates: 13-27 November 2023, 9 May 2024
Date of orders: 9 May 2024
Decision date: 09 May 2024
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Convicted and sentenced to an aggregate term of imprisonment of 11 years with a NPP of 7 years (25/11/23-24/11/30).
I find special circumstances.
The indicative sentences are:
Count 1 Incite child under 10 to commit indecent act – 10 months
Count 2 Sexual intercourse under 10 – 7 years 6 months with NPP 4 years 9 months.
Statutory alternative to Count 3 Sexual intercourse 10-14 – 5 years with NPP 3 years 2 months.
Statutory alternative to Count 4 Sexual intercourse 14-16 – 4 years 3 months.
Count 5 Aggravated sexual intercourse 14-16 – 5 years with NPP 3 years 2 months.
Count 6 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.
Count 7 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.
Count 8 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.
Count 10 Assault child with intent to commit aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.
Count 11 Aggravated sexual intercourse 14-16 – 4 years 8 months with NPP 2 years 11 months.

Catchwords:
Crimes – Sentence – Act of indecency towards child under 10 – Aggravated sexual intercourse with child under 10 – Sexual intercourse with child 10-14 – Aggravated sexual intercourse with child 14-16 – Aggravated assault child with intent to have sexual intercourse

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Gavel [2014] NSWCCA 56

Category: Sentence
Parties: NSW DPP – Crown
Brett Darrell Clarke - Offender
Representation: Ms J Krippner for Crown
Mr S Doupe for Offender

File Number(s): 21/251521
Publication restriction: Statutory non-publication of the identity of the complainant

REMARKS ON SENTENCE

The offender Mr Brett Clarke stood trial before a jury over eleven days between 13 and 27 November 2023. On that latter date, the jury returned guilty verdicts on the following offences for which the offender must now be sentenced.
Count 1 which is an offence under s 61O (2) of the Crimes Act 1900 of committing an act of indecency towards a child under ten years namely, seven years. The maximum penalty for that is seven years imprisonment.
Secondly, count 2 which is an offence of sexual intercourse with a child under the age of ten years, namely, seven years in circumstances of aggravation, that being an offence under s 66A (2), the maximum penalty for which is life imprisonment and which attracts a standard non-parole period of fifteen years.
Thirdly, the statutory alternative to count 3 which is an offence of sexual intercourse with a child above the age of ten but under fourteen years, the maximum penalty for which under s 66C (1) is…

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 [2024] NSWDC 251
Case: [2024] NSWDC 251
Decision Date: 09 May 2024

CaseChat Overview and Summary

In the case of R v Clarke, the defendant was convicted on multiple counts of sexual offences involving children under the age of 16. The trial took place in a higher court where the defendant faced a range of charges including indecency, sexual intercourse with children under various age brackets, and aggravated sexual acts. The court was tasked with determining the appropriate sentences for these offences and deciding whether any special circumstances applied to warrant a deviation from standard sentencing guidelines.

The legal issues before the court involved interpreting the severity of the crimes, the impact of the offences on the victims, and the appropriate application of statutory sentencing provisions. The court had to consider both the statutory maximum and minimum sentences available for each offence, as well as the need to provide a sentence that reflected the gravity of the crimes and the necessity to protect the community. Additionally, the court needed to assess if special circumstances existed that would justify a departure from the indicative sentencing ranges.

After a thorough review of the evidence and the applicable sentencing laws, the court found that special circumstances were present due to the repetitive nature of the offences and the significant harm caused to the victims. The court determined that while the indicative sentences provided a starting point, the totality of the offences and their impact warranted a longer aggregate sentence. Consequently, the court sentenced the defendant to an aggregate term of imprisonment of 11 years, with a non-parole period of 7 years. This sentence reflects the serious nature of the crimes and aims to ensure public safety and provide some measure of retribution and deterrence.

The final orders included the conviction on all counts, the imposition of an 11-year prison term, and the specification of a non-parole period of 7 years, effective from 25 November 2023 until 24 November 2030. The court also noted that special circumstances were present, leading to the imposition of a sentence exceeding the indicative ranges for several counts.

Orders

Orders of the court

Convicted and sentenced to an aggregate term of imprisonment of 11 years with a NPP of 7 years (25/11/23-24/11/30).

I find special circumstances.

The indicative sentences are:

Count 1 Incite child under 10 to commit indecent act – 10 months

Count 2 Sexual intercourse under 10 – 7 years 6 months with NPP 4 years 9 months.

Statutory alternative to Count 3 Sexual intercourse 10-14 – 5 years with NPP 3 years 2 months.

Statutory alternative to Count 4 Sexual intercourse 14-16 – 4 years 3 months.

Count 5 Aggravated sexual intercourse 14-16 – 5 years with NPP 3 years 2 months.

Count 6 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 7 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 8 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 10 Assault child with intent to commit aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 11 Aggravated sexual intercourse 14-16 – 4 years 8 months with NPP 2 years 11 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Clarke [2024] NSWDC 251
Hearing dates:	13-27 November 2023, 9 May 2024
Date of orders:	9 May 2024
Decision date:	09 May 2024
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Convicted and sentenced to an aggregate term of imprisonment of 11 years with a NPP of 7 years (25/11/23-24/11/30). I find special circumstances. The indicative sentences are: Count 1 Incite child under 10 to commit indecent act – 10 months Count 2 Sexual intercourse under 10 – 7 years 6 months with NPP 4 years 9 months. Statutory alternative to Count 3 Sexual intercourse 10-14 – 5 years with NPP 3 years 2 months. Statutory alternative to Count 4 Sexual intercourse 14-16 – 4 years 3 months. Count 5 Aggravated sexual intercourse 14-16 – 5 years with NPP 3 years 2 months. Count 6 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months. Count 7 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months. Count 8 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months. Count 10 Assault child with intent to commit aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months. Count 11 Aggravated sexual intercourse 14-16 – 4 years 8 months with NPP 2 years 11 months.
Catchwords:	Crimes – Sentence – Act of indecency towards child under 10 – Aggravated sexual intercourse with child under 10 – Sexual intercourse with child 10-14 – Aggravated sexual intercourse with child 14-16 – Aggravated assault child with intent to have sexual intercourse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Gavel [2014] NSWCCA 56
Category:	Sentence
Parties:	NSW DPP – Crown Brett Darrell Clarke - Offender
Representation:	Ms J Krippner for Crown Mr S Doupe for Offender
File Number(s):	21/251521
Publication restriction:	Statutory non-publication of the identity of the complainant