R v Clarke

[2022] NSWDC 503

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Clarke [2022] NSWDC 503

Hearing dates:

11 October 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [59]

Catchwords:

SENTENCING – aggravated break and enter – steal motor vehicle – vehicle a classic car – lengthy criminal history – previous convictions for like offences – planning and sophistication in the offence – Bugmy principles enlivened – some contrition and remorse – risk of institutionalisation

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327

Bugmy v The Queen (2013) 249 CLR 571

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Filippou v The Queen (2015) 256 CLR 47

McKillop v R [2010] NSWCCA 126

Nicholls v R [2020] NSWCCA 66

Thach v R [2018] NSWCCA 252

Category:

Sentence

Parties:

Rex (Crown)
Luke Martin Clarke (Offender)

Representation:

Counsel:
Mr A Metcalfe (Offender)

Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)
Blomfield Legal (Offender)

File Number(s):

2021/00251028

Publication restriction:

Nil

Ex tempore JUDGMENT

Introduction

1. On 22 June 2022, the offender, Luke Martin Clarke, was arraigned on an indictment with a single count to which he pleaded guilty. The indictment reads as follows:

“on or about 30 April 2021, in Leeton in the State of New South Wales, did break and enter the garage of [the complainant] situated at [the address], Leeton, and then in the said garage, did commit a serious indictable offence, namely, steal motor vehicle, in circumstances of aggravation, namely, being in company with [Bradley James Dehommel].”

2. The offence is contrary to section 112(2) of the Crimes Act 1900. The maximum penalty is 20 years’ imprisonment with a standard non-parole period of 5 years’ imprisonment. The maximum penalty and standard non-parole period are important guideposts in the assessment of sentence. A sentencing judge should steer by, but not aim for them.

Plea of guilty

3. The matter was committed to the District Court for trial and was subsequently listed in the Albury/Griffith trial super callover. The offender pleaded guilty on 22 June 2022. The offender is entitled to a discount of 10% for his plea in accordance with s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

4. There is a statement of agreed facts. For brevity in this judgment, I have summarised those facts as follows:

5. The complainant has a free-standing shed on his property in Leeton, NSW. The shed is accessible through an electronically controlled gate and has a roller door and side door. He stored his 1977 Holden Torana SLR with Historic registration plates in the shed along with other vehicles and items.

6. He locked the house and shed before he left with his wife on 27 April 2021. He asked a friend, George Nardi, to drive past to check on the house when he was in Leeton which he did once a day.

7. On 30 April…